Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 1023

Energy Effects 

This final rule has been analyzed 

under Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. It has been 

determined that this rule does not 

constitute a significant energy action as 

defined in the Executive order. 

Civil Justice Reform 

This final rule has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. The Department has not 

identified any State or local laws or 

regulations that are in conflict with or 

that would impede full implementation 

of this rule. 

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 

Department has assessed the effects of 

this final rule on State, local, and Tribal 

governments and on the private sector. 

This rule does 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.

Federalism 

The Department has considered this 

final rule under the requirements of 

Executive Order 13132, Federalism. The 

Department has made an assessment 

that this rule conforms with the 

federalism principles set out in this 

Executive order; would not impose any 

significant 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, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, the 

Department concludes that this rule 

does not have federalism implications. 

Consultation and Coordination with 

Indian Tribal Governments 

This final rule does not have Tribal 

implications as defined by Executive 

Order 13175, Consultation and 

Coordination with Indian Tribal 

Governments, and, therefore, advance 

consultation with Tribes is not required. 

Controlling Paperwork Burdens on the 

Public 

This final rule does not contain any 

record keeping or reporting 

requirements or other information 

collection requirements as defined in 5 

CFR part 1320 and, therefore, imposes 

no paperwork burden on the public. 

Accordingly, the review provisions of 

the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501, et seq.) and 

implementing regulations at 5 CFR part 

1320 do not apply. 

Government Paperwork Elimination Act 

Compliance 

The Department is committed to 

compliance with the Government 

Paperwork Elimination Act (44 U.S.C. 

3504), which requires Government 

agencies to provide the public the 

option of submitting information or 

transacting business electronically to 

the maximum extent possible.

List of Subjects in 36 CFR 219

Administrative practice and 

procedure, Environmental impact 

statements, Indians, Intergovernmental 

relations, Forest and forest products, 

National forests, Natural resources, 

Reporting and recordkeeping 

requirements, Science and technology.

■ Therefore, for the reasons set forth in 

the preamble, amend chapter II of title 36 

of the Code of Federal Regulations as 

follows:

PART 219—PLANNING

Subpart A—[Removed and Reserved]

■ 1. In part 219, remove and reserve 

subpart A.

Dated: December 22, 2004. 

Mark Rey, 

Under Secretary, Natural Resources and 

Environment.

[FR Doc. 05–20 Filed 1–4–05; 8:45 am] 

BILLING CODE 3410–11–P

DEPARTMENT OF AGRICULTURE

Forest Service 

36 CFR Part 219

RIN 0596–AB86

National Forest System Land 

Management Planning

AGENCY: Forest Service, USDA.

ACTION: Final rule.

SUMMARY: This final rule describes the 

National Forest System land 

management planning framework; 

establishes requirements for 

sustainability of social, economic, and 

ecological systems and developing, 

amending, revising, and monitoring 

land management plans; and clarifies 

that land management plans under this 

final rule, absent extraordinary 

circumstances, are strategic in nature 

and are one stage in an adaptive cycle 

of planning for management of National 

Forest System lands. The intended 

effects of the final rule are to streamline 

and improve the planning process by 

making plans more adaptable to changes 

in social, economic, and environmental 

conditions; to strengthen the role of 

science in planning; to strengthen 

collaborative relationships with the 

public and other governmental entities; 

and to reaffirm the principle of 

sustainable management consistent with 

the Multiple-Use Sustained-Yield Act 

and other authorities. 

Elsewhere in this part of today’s 

Federal Register, the Department of 

Agriculture is simultaneously 

publishing another final rule to remove 

the planning regulations adopted on 

November 9, 2000.

DATES: Effective Date: This rule is 

effective January 5, 2005.

ADDRESSES: The following information 

is posted on the World Wide Web/

Internet at http://www.fs.fed.us/emc/

nfma/: (1) This final rule; (2) 

supplemental responses to substantive 

public comments and a description of 

the changes, if any, made in response to 

those comments and the reasons for 

those changes to the 2002 proposed 

rule; (3) the Civil Rights Impact 

Analysis for this final rule; (4) the costbenefit analysis for this final rule; (5) 

the business model cost study done to 

estimate predicted costs to implement 

the 2000 planning rule and the 2002 

proposed rule, and (6) the notice of 

proposed National Environmental 

Policy Act implementing procedures; 

request for comment. This information 

may also be obtained upon written 

request from the Director, Ecosystem 

Management Coordination Staff, Forest 

Service, USDA, Mail Stop 1104, 1400 

Independence Avenue, SW., 

Washington, DC 20250–1104.

FOR FURTHER INFORMATION CONTACT:

Dave Barone, Acting Assistant Director 

for Planning; Ecosystem Management 

Coordination Staff (202) 205–1019, or 

Regis Terney, Planning Specialist, 

Ecosystem Management Coordination 

Staff (202) 205–1552.

SUPPLEMENTARY INFORMATION:

Table of Contents 

1. Forest Service Directives 

2. Events Since Publication of the 2002 

Proposed Rule 

3. Overview of the Final 2004 Rule

• Major themes and areas of public 

comment in the final rule. 

• The strategic nature of land management 

plans. 

• Role of science in planning. 

• Public involvement. 

• Sustainability.

1024 Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 

• Environmental management systems and 

adaptive management. 

• National Environmental Policy Act and 

National Forest Management Act 

planning. 

• Summary. 

4. Department Response to Comments on the 

2002 Proposed Rule 

• General Issues. 

• Issues in Response to a Specific Section.

Section 219.1—Purpose and applicability 

Section 219.2—Levels of planning and 

planning authority 

Section 219.3—Nature of land management 

planning 

Section 219.4—National Environmental 

Policy Act compliance 

Section 219.5—Environmental management 

systems 

Section 219.6—Evaluations and monitoring 

Section 219.7—Developing, amending, or 

revising a plan 

Section 219.8—Application of a new plan, 

plan amendment, or plan revision 

Section 219.9—Public participation, 

collaboration, and notification 

Section 219.10—Sustainability

Section 219.11—Role of science in planning 

Section 219.12—Suitable uses and provisions 

required by NFMA 

Section 219.13—Objections to plans, plan 

amendments, or plan revisions 

Section 219.14—Effective dates and 

transition 

Section 219.15—Severability 

Section 219.16—Definitions

5. Regulatory Certifications

• Regulatory Impact. 

• Environmental Impacts. 

• Energy Effects. 

• Controlling Paperwork Burdens on the 

Public. 

• Federalism. 

• Civil Rights Impact Analysis. 

• Consultation with Indian Tribal 

Governments. 

• No Takings Implications. 

• Civil Justice Reform.-1

• Unfunded Mandates.

1. Forest Service Directives 

The Forest Service is developing 

planning directives to set forth the legal 

authorities, objectives, policy, 

responsibilities, direction, and overall 

guidance needed by Forest Service line 

officers, agency employees, and others 

to use this planning rule. A request for 

public comment on the Forest Service 

directives will be published in the 

Federal Register as soon as possible 

after adoption of this final rule. 

2. Events Since Publication of the 2002 

Proposed Rule 

The 2002 proposed rule was released 

for public review and comment in 

Volume 67 of the Federal Register, page 

72770, December 6, 2002. Between 

February 18–20, 2003, during the 

comment period, scientists, experts in 

public land management issues, 

resource professionals, Tribal officials, 

State officials, local government 

officials, and the public participated in 

a diversity options workshop. In 

addition, the public comment period on 

the 2002 proposed rule was extended 

from March 6, 2003 to April 7, 2003 (68 

FR 10420, Mar. 5, 2003). The agency 

received about 195,000 comments, of 

which approximately 7,000 were 

original letters. All of the substantive 

comments on the 2002 proposed rule 

were carefully considered and led to a 

number of changes in this final rule. 

Also, interim final rules extending the 

transition from the 1982 planning rule 

to the 2000 planning rule were 

published in 2001 (66 FR 27552, May 

17, 2001) and 2002 (67 FR 35431, May 

20, 2002), the latter rule allowing Forest 

Service managers to elect to continue 

preparing plan amendments and 

revisions under the 1982 planning rule 

until a new final rule is adopted. 

Finally, an interim rule was published 

in 2003 (68 FR 53294, Sept. 10, 2003) 

extending the date by which sitespecific project decisions must conform 

with provisions of the 2000 planning 

rule until replaced with a new rule. To 

date, Forest Service officials have 

elected to use the 1982 planning rule for 

all plan development, amendments, and 

revisions. 

3. Overview of the Final 2004 Rule 

This final rule embodies a paradigm 

shift in land management planning 

based, in part, on the Forest Service’s 25 

years of experience developing plans 

under the 1982 planning rule. Having 

assessed the current system’s flaws and 

benefits during this extended period, 

the Forest Service believes it is time to 

think differently about National Forest 

System (NFS) planning and 

management. Thus, based on the 

agency’s expertise and experience, the 

Forest Service created this final rule to 

enable a better way to protect the 

environment and to facilitate working 

with the public. The final rule 

prioritizes agency resources to 

monitoring and, when necessary, 

provides a process to change plans to 

ensure that clean air, clean water, and 

abundant wildlife are available for 

future generations. This final rule 

allows the Forest Service to rapidly 

respond to changing conditions like 

hazardous fuels, new science, and many 

other dynamics that affect NFS 

management. Protection and 

management of the NFS should be based 

on sound science, which is fundamental 

to this final rule. 

This final rule assures the public an 

effective voice in the entire planning 

process from beginning to end. Finally, 

because this final rule provides for more 

efficient planning, more resources will 

be shifted to the public’s expressed 

priorities, that is, improved 

conservation of the forests and 

grasslands and better responses to the 

real threats the forests and grasslands 

face, such as critical wildfire danger and 

invasive species which degrade 

ecological systems. 

To achieve these important goals, 

plans under this final rule will be more 

strategic and less prescriptive in nature 

than under the 1982 planning rule. 

Emphasizing the strategic nature of 

plans under this rule is the most 

effective means of guiding NFS 

management in light of changing 

conditions, science and technology. 

Specifically, plans under this final rule 

will not contain final decisions that 

approve projects or activities except 

under extraordinary circumstances. 

Rather, as described further below, 

plans under this final rule will contain 

five components, which set forth broad 

policies to help guide future decisions 

on the ground: The plan components are 

desired conditions, objectives, 

guidelines, suitability of areas, and 

special areas. 

Major Themes and Areas of Public 

Comment in the Final Rule 

The major themes of the final rule 

discussed in this preamble reflect the 

public comments received on the 2002 

proposed rule. This final rule sets forth 

the process for NFS land management 

planning, including the requirements 

for complying with the National Forest 

Management Act (NFMA) of 1976 (16 

U.S.C. 1600 et seq.) during 

development, amendment, and revision 

of land management plans (plans) for 

NFS units, including the national 

forests, grasslands, prairie, or other 

comparable administrative units. The 

Forest Service has prepared and revised 

plans more than 150 times since 

enactment of NFMA and expects to 

complete more than 100 additional 

plans and revisions during the next 

decade. The Forest Service has also 

been amending plans during the last 25 

years. Based on the experience gained 

and public comments on the 2002 

proposed rule, the U.S. Department of 

Agriculture (Department) has concluded 

that this final rule should be based on 

the following principles and practical 

considerations: 

• Plans should be strategic in nature.

The purpose of plans should be to 

establish goals for forests, grasslands, 

and prairies and set forth the guidance 

to follow in pursuit of those goals. Such 

goals can be expressed by describing: 

desired conditions, objectives, 

guidelines, suitability or areas, and 

Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 1025

special areas. Typically, a plan does not 

include final decisions approving 

projects or activities. 

• Plans must be adaptive and based 

on current information and science.

During the 15-year life expectancy of 

a plan, information, science, and 

unforeseen circumstances evolve. It 

must be possible to adjust plans and the 

plan-monitoring program and to react to 

new information and science swiftly 

and efficiently. An environmental 

management system (EMS) approach 

will enhance adaptive planning and 

should be part of the land management 

framework. 

• Land management planning must 

involve the public.

Plans are prepared for public lands. 

Public participation and collaboration 

needs to be welcomed and encouraged 

as a part of planning. To the extent 

possible, Responsible Officials need to 

work collaboratively with the public to 

help balance conflicting needs, to 

evaluate management under the plans, 

and to consider the need to adjust plans. 

• Plans must guide sustainable 

management of NFS lands.

The Multiple-Use Sustained-Yield Act 

(MUSYA) of 1960 (16 U.S.C. 528–531) 

requires that NFS lands be managed to 

provide a continuous flow of goods and 

services to the nation. To meet this 

requirement, plans must focus on 

providing a sustainable framework—

based on social, economic, and 

ecological systems—that guides on-theground management of projects and 

activities, which provide these goods 

and services. 

• Planning must comply with all 

applicable laws, regulations, and 

policies.

Planning must comply with all 

applicable laws, regulations, and 

policies, although all these requirements 

do not need to be restated in a plan. For 

example, the Clean Water Act includes 

requirements for nonpoint source 

management programs, to be 

administered by the States. The States 

or the Forest Service then develops Best 

Management Practices (BMPs) for use in 

design of projects or activities on NFS 

lands. BMPs are designed to meet State 

water quality standards and are 

intended to result in prevention of 

adverse consequences. Specific BMPs 

do not have to be repeated in the plan 

to be in effect and applicable to National 

Forest System projects and activities. 

The Strategic Nature of Land 

Management Plans 

Land management plans are strategic 

in nature. A plan establishes a long-term 

management framework for NFS units. 

Within that framework, specific projects 

and activities will be proposed, 

approved, and implemented depending 

on specific conditions and 

circumstances at the time of 

implementation. The U.S. Supreme 

Court described the nature of NFS plans 

in Ohio Forestry Ass’n v. Sierra Club,

(523 U.S. 726, 737 (1998)) explaining 

that plans are ‘‘tools for agency planning 

and management.’’ The Court 

recognized that the provisions of such 

plans ‘‘do not command anyone to do 

anything or to refrain from doing 

anything; they do not grant, withhold, 

or modify any formal legal license, 

power, or authority; they do not subject 

anyone to any civil or criminal liability; 

they create no legal rights or 

obligations’’ (523 U.S. 733 (1998)). 

The Supreme Court also recently 

recognized the similar nature of land 

management plans for public lands 

under the jurisdiction of the Bureau of 

Land Management (BLM) in Norton v. 

Southern Utah Wilderness Alliance, 124 

S.Ct. 2373 (2004). The Supreme Court 

again observed that ‘‘land use plans are 

a preliminary step in the overall process 

of managing public lands—‘designed to 

guide and control future management 

actions and the development of 

subsequent, more detailed and limited 

scope plans for resources and uses.’ ’’ In 

addition, ‘‘a land use plan is not 

ordinarily the medium for affirmative 

decisions that implement the agency’s 

‘project[ion]s.’ ’’ Like a NFS land 

management plan, a BLM plan 

typically‘‘ ‘is not a final implementation 

decision on actions which require 

further specific plans, process steps, or 

decisions under specific provisions of 

law and regulations.’ ’’ ‘‘The BLM’s 

* * * land use plans are normally not 

used to make site-specific 

implementation decisions.’’ The 

Supreme Court acknowledged that plans 

are ‘‘tools by which ‘present and future 

use is projected’ [and] * * * generally 

a statement of priorities,’’ 124 S.Ct. 2373 

(2004).

Under the Final Rule, plans will 

continue to be strategic in nature, as 

described by the Supreme Court in Ohio 

Forestry and SUWA. As described 

below, the five components of a plan 

under the Final Rule do not authorize 

project and activity decisions, but rather 

characterize general future conditions 

and guidance for such decisions. Only 

in extraordinary circumstances will 

project and activity decisions be 

implemented at the time of a plan 

development, revision, or amendment. 

• Planning documentation.

The final rule requires a Plan 

Document or Set of Documents to 

contain all information relevant to the 

planning and EMS processes. A Plan 

Document or Set of Documents 

includes: (1) Evaluation reports that, 

among other things, document the 

public involvement process in planning; 

(2) the plan, including applicable maps; 

(3) the plan approval document; (4) 

National Environmental Policy Act of 

1969 (NEPA) documents; (5) the 

monitoring program for the plan area; 

(6) documents relating to the 

environmental management system 

(EMS) established for the unit; and (7) 

documentation of how science was 

taken into account in the planning 

process. 

• Plan components.

The 2002 proposed rule used the term 

‘‘management direction’’ to describe the 

parts of a plan. This final rule uses the 

term ‘‘plan components’’ to describe the 

elements of the plan pursuant to the 

final rule. How plans are characterized 

and plan components operate has 

evolved over the years. This evolution 

has occurred through an ongoing 

evaluation of the role plans play, how 

plans guide projects, how plans by 

themselves do or do not have impacts 

on the ground, how current plans enable 

or restrict decisions to respond to 

changing circumstances and science, 

and how more active and structured 

monitoring provides better information 

to amend or revise plans as needed. 

Proposals for action to accomplish plan 

goals and desired conditions, with 

effects that can be meaningfully 

evaluated and which may be significant, 

generally are made at the project and 

activity stage. 

Through this evaluation, the agency 

has concluded that plans are more 

effective if they include more detailed 

descriptions of desired conditions, 

rather than long lists of prohibitive 

standards or guidelines or absolute 

suitability determinations developed in 

an attempt to anticipate and address 

every possible future project or activity 

and the potential effects they could 

cause. Under this final rule, plans have 

five principal components 

(§ 219.7(a)(2)): desired conditions, 

objectives, guidelines, suitability of 

areas, and special areas. 

• Desired Conditions.

Desired conditions are the social, 

economic, and ecological attributes 

toward which management of the land 

and resources of the plan area is to be 

directed. Desired conditions are longterm in nature and aspirational, but are 

neither commitments nor final decisions 

approving projects and activities. 

Desired conditions may be achievable 

only over a period longer than the 15 

years covered by the plan.

The increased attention to fire regimes 

provides an example of the role of 

1026 Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 

‘‘desired conditions.’’ The Forest 

Service is challenged with unnatural 

fuel levels throughout the NFS. Much of 

the western United States is currently in 

a severe drought cycle, and fuel 

reduction is needed. To facilitate 

moving toward a healthier and more 

natural condition on the land, a plan 

could contain, for example, desired 

conditions that include a description of 

desired fuel loading, along with a 

description of desired tree species, 

structure, distribution, and density 

closer to what would have occurred 

under natural fire regimes. 

The agency, working with the public, 

also may seek to achieve or maintain 

desired conditions for attributes, such as 

quietness, or a sense of remoteness, or 

attributes of our cultural heritage. 

Desired conditions also have a key role 

to play for wildlife habitat management. 

During plan development, it is difficult 

to envision all the site-specific factors 

that can influence wildlife. For 

example, in the past plans might have 

included standards precluding 

vegetation treatment during certain 

months or for a buffer for activities near 

the nest sites of birds sensitive to 

disturbance during nesting. However, 

topography, vegetation density, or other 

factors may render such prohibitions 

inadequate or unduly restrictive in 

specific situations. A thorough desired 

condition description of what a species 

needs is often more useful than a long 

list of prohibitions. Thorough desired 

condition descriptions are more useful 

because they provide a better starting 

point for project or activity design, 

when the site-specific conditions are 

better understood and when species 

conservation measures can be most 

meaningfully evaluated and effectively 

applied. Again, a description of what 

the agency, working with the public, 

wants to achieve is key. 

• Objectives.

Objectives are concise projections of 

intended outcomes of projects and 

activities to contribute to maintenance 

or achievement of desired conditions. 

Objectives are measurable and timespecific and, like desired conditions, are 

aspirational, but are neither 

commitments nor final decisions 

approving projects and activities. 

Application of objectives is the same as 

applied under the 1982 planning rule. 

• Guidelines.

Guidelines provide information and 

guidance for the design of projects and 

activities to help achieve objectives and 

desired conditions. Guidelines are not 

commitments or final decisions 

approving projects and activities. 

Guidelines should provide the 

recommended technical and scientific 

specifications to be used in the design 

of projects and activities to contribute to 

the achievement of desired conditions 

and objectives. They are the guidance 

that a project or activity would normally 

apply unless there is a reason for 

deviation. If deviation from plan 

guidelines is appropriate in specific 

circumstances, the rationale for 

deviation should be based on project or 

activity analysis and explained fully in 

the project decision document. 

However, deviation does not require an 

amendment to the plan. 

In the National Forest Management 

Act (NFMA) of 1976 (16 U.S.C. 1600 et 

seq.), the terms ‘‘standards’’ and 

‘‘guidelines’’ are both used, with no 

apparent distinction between them with 

respect to their force and effect. In the 

1982 planning rule and the first round 

of plans, the two terms were usually 

written together as ‘‘standards and 

guidelines.’’ Some plan revisions have 

designed mandatory provisions as 

‘‘standards’’ and general direction with 

latitude for implementation as 

‘‘guidelines.’’ The 2000 planning rule 

did not use the term ‘‘guidelines.’’ In the 

2000 planning rule, a provision that is 

labeled as a standard could be either 

mandatory or discretionary depending 

upon its wording and the scope of its 

requirements. 

The 2002 proposed rule, consistent 

with the approach in the 2000 planning 

rule, continued to use only the term 

‘‘standards’’ and did not use the term 

‘‘guidelines.’’ However, in line with and 

to clarify the strategic nature of plans, 

this final rule instead adopts the term 

‘‘guidelines’’ and has removed the term 

‘‘standards’’ as a plan component. The 

Department decided to employ the term 

‘‘guideline’’ to reflect a more flexible 

menu of choices consistent with the 

nature of plans set forth in this rule. 

In this final rule, guidelines are 

described as ‘‘information and guidance 

for project and activity 

decisionmaking.’’ Guidelines will not 

contain final decisions approving 

activities and uses. A Responsible 

Official has the discretion to act within 

the range of guidelines, as well as the 

latitude to depart from guidelines when 

circumstances warrant it. In the latter 

case, the Responsible Official should 

document the rationale for taking such 

exception to guidelines. 

• Suitability of areas.

Suitability of areas is the 

identification of the general suitability 

of an area in an NFS unit for a variety 

of uses. Areas may be identified as 

generally suitable for uses that are 

compatible with desired conditions and 

objectives for that area. The 

identification of an area as generally 

suitable for a use or uses is neither a 

commitment nor a decision approving 

activities and uses. The suitability of an 

area for a specific use or activity is 

authorized through project and activity 

decisionmaking.

Suitable use identification has 

evolved over time. Suitable use 

identification has often been 

characterized in plans prepared under 

the 1982 planning rule as permanent 

restrictions on uses or permanent 

determinations that certain uses would 

be suitable in particular areas of the unit 

over the life of the plan. However, even 

under the 1982 planning rule, these 

identifications were never truly 

permanent, unless they were statutory 

designations by Congress. It became 

apparent early in implementation of the 

1982 planning rule that plan suitability 

identifications, like environmental 

analysis itself, always necessitated sitespecific reviews when projects or 

activities were proposed. 

For example, on lands identified as 

generally suitable for timber production, 

site-specific analysis of a proposal could 

identify a portion of that area as having 

poor soil or unstable slopes. The project 

design would then exclude such 

portions of the project area from timber 

harvest. Thus, the final determination of 

suitability was never made until the 

project or activity analysis and decision 

process was completed. This final rule 

better characterizes the nature and 

purpose of suitability identification. 

An illustration of the effect of 

suitability identifications in the final 

rule may be helpful. Under this final 

rule, a plan may identify certain 

portions of an NFS unit as suitable for 

some uses. For example, some areas of 

an NFS unit may be suitable for 

transportation development or 

motorized use. Identification of an area 

in a plan as suitable for transportation 

development or motorized use does not 

mean that construction of a road is 

immediately approved or is even 

inevitable. Rather, the identification 

merely provides guidance for where 

road construction may be considered 

suitable. Proposed projects for 

construction of a road or roads would be 

approved after appropriate projectspecific National Environmental Policy 

Act (NEPA) analysis and public 

involvement. 

This final rule, as discussed next in 

this preamble, also includes specific 

provisions for identification of lands 

generally suitable for timber harvest and 

identification of lands not suitable for 

timber production as required by 

NFMA. However, under this final rule, 

other generally suitable uses may be 

identified in a variety of ways. A land 

Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 1027

management plan may identify all uses 

that are generally suitable for a 

particular area, may identify the major 

or most prominent generally suitable 

uses, and/or may identify criteria to be 

used to determine whether a use is 

compatible with the desired condition 

of the area. 

• Special areas.

Special areas are areas within the NFS 

designated for their unique or special 

characteristics. These areas include 

wilderness, wild and scenic river 

corridors, and research natural areas. 

Some of these areas are statutorily 

designated. Other areas may be 

designated through plan development, 

amendment, revision, or through a 

separate administrative process with an 

appropriate NEPA process. 

• Monitoring.

The monitoring program is a central 

element of adaptive management 

planning in this final rule because 

monitoring is the key to discovering 

how to make project specific decisions 

consistent with objectives and to 

discovering what ultimately may need 

to be changed in a plan. Experience has 

shown that while some monitoring 

programs and specific monitoring 

techniques have been adequate to assess 

need for changes in plans of national 

forests, grasslands, prairie, or other 

comparable administrative units over 

time, some have not. New uses, such as 

mountain biking, were not 

contemplated 25 years ago. Noxious 

weeds can infest a previously pristine 

landscape. New methods of measuring 

water quality or wildlife habitat can be 

developed. Therefore, a unit’s 

monitoring program must be readily 

adaptable too. Most plans revised under 

the 1982 planning rule, in fact, have 

removed most monitoring operational 

details from the plans themselves to 

allow for quicker changes to monitoring 

when needed. 

The final rule allows the plan’s 

monitoring program to be changed with 

administrative corrections, instead of 

amendments, to more quickly reflect the 

best available science and account for 

unanticipated changes in conditions. 

Changes in monitoring programs will be 

reported annually, and the Responsible 

Official has flexibility to involve the 

public in a variety of ways to develop 

program changes. 

• Streamlining the planning rule and 

use of the Forest Service Directive 

System.

Part of the strategic and adaptive 

nature of planning is to make the 

planning rule itself more strategic and 

adaptive. Therefore, procedural and 

technical details are being moved to the 

Forest Service Directive System (Forest 

Service directives). Forest Service 

directives are the primary basis for the 

Forest Service’s internal management of 

all its programs and the primary source 

of administrative direction to Forest 

Service employees. The Forest Service 

Manual (FSM) contains legal 

authorities, objectives, policies, 

responsibilities, instructions, and 

guidance needed on a continuing basis 

by Forest Service line officers and 

primary staff to plan and execute 

programs and activities. The Forest 

Service Handbook (FSH) is the principal 

source of specialized guidance and 

instruction for carrying out the policies, 

objectives, and responsibilities 

contained in the FSM. 

The public will have an opportunity 

to comment on both the FSM and FSH 

provisions to implement this final rule. 

The FSH and FSM provisions will be 

issued as soon as possible after release 

of this final rule. Thereafter, the agency 

will provide the public an opportunity 

to comment on future changes to the 

adopted provisions where there is 

substantial public interest or 

controversy concerning the future 

changes. 

Role of Science in Planning 

The 2002 proposed rule would have 

required that Forest Service decisions be 

consistent with the best available 

science. The final rule requires that the 

Responsible Official take into account 

the best available science (§ 219.11). The 

actual process for taking into account 

science in planning has not changed 

from the 2002 proposed rule. Under the 

final rule, science, while only one 

aspect of decisionmaking, is a 

significant source of information for the 

Responsible Official. When making 

decisions, the Responsible Official also 

considers public input, competing use 

demands, budget projections, and many 

other factors as well as science. 

The final rule, like the 2002 proposed 

rule, states that the Responsible Official 

may use independent peer reviews, 

science advisory boards, or other 

appropriate review methods to evaluate 

the application of science used in the 

planning process. Specific procedures 

for conducting science reviews will be 

provided in the Forest Service 

directives. 

The Responsible Official must take 

into account the best available science, 

and document in the plan that science 

was considered, correctly interpreted, 

appropriately applied, and evaluate and 

disclose incomplete or unavailable 

information, scientific uncertainty, and 

risk. This evaluation and disclosure of 

uncertainty and risk provide a 

crosscheck for appropriate 

interpretation of science and helps 

clarify the limitations of the information 

base for the plan.

Public Involvement 

The final rule is similar to the 2002 

proposed rule regarding public 

involvement requirements, but the final 

rule more clearly expresses the 

Department’s emphasis on public 

involvement and collaboration. The 

final rule clarifies requirements 

regarding public involvement in the 

2002 proposed rule by consolidating 

these requirements contained in several 

sections of the 2002 proposed rule into 

§ 219.9, which requires consultation 

with interested individuals and 

organizations, State and local 

governments, Federal agencies, and 

federally recognized Indian Tribes. 

The Department expects that, 

compared with prior planning rules, 

this final rule will allow more members 

of the public to be more effectively 

engaged because development of a plan, 

plan amendment, or plan revision will 

be simpler, more transparent, and faster. 

The public will have the opportunity to 

be engaged collaboratively in the 

development, amendment, or revision of 

a plan, in monitoring and in the unit’s 

environmental management system 

(EMS). In addition, the public will have 

an opportunity to comment on a plan, 

plan amendment, or plan revision, and 

to object prior to approval if concerns 

remain. 

The final rule requires opportunities 

for public involvement in the unit’s 

land management planning process 

(§ 219.9) and in monitoring 

(§ 219.6(b)(3)). In response to public 

comments on the 2002 proposed rule, 

the final rule eliminates the prohibition 

on the use of duplicative materials, such 

as form letters, when filing an objection 

to a plan, thus removing a perceived 

barrier to wider public participation 

(§ 219.13). 

One of the more important changes in 

public involvement is how the Forest 

Service will work with the public to 

collaboratively develop, amend, or 

revise a plan. The Forest Service has 

found that the traditional way of 

developing plan alternatives under the 

1982 planning rule was not very useful. 

The traditional approach of developing 

and choosing among discrete 

alternatives that were carried 

throughout the entire planning process 

often proved divisive, because it often 

maintained adversarial positions, rather 

than helping people seek common 

ground. 

To overcome this tendency, the final 

rule allows an iterative approach to 

planning. The Department recognizes 

1028 Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 

that people have many different ideas 

about how NFS lands should be 

managed. Furthermore, a plan could 

potentially include a variety of different 

desired conditions, objectives, 

identification of potential suitable uses, 

guidelines, and special area 

designations. The Department also 

recognizes that the public should be 

involved in determining what plan 

components should be. Therefore, the 

final rule provides for participation and 

collaboration with the public at all 

stages of plan development, plan 

amendment, or plan revision. 

The Responsible Official and the 

public will review the various options 

to respond to the need to change the 

plan, and together they will 

successively narrow potential options 

until a proposed plan is developed. 

However, the final rule also recognizes 

that it is not always possible or 

desirable to present only one proposed 

plan for public comment and, therefore, 

options to the proposed plan can be 

provided for public comment when 

appropriate. 

The process for plan development 

will be transparent to the public. Key 

steps in development of the proposed 

plan will be documented in the Plan 

Document or Set of Documents, which 

will be available to the public. While 

the final rule requires the Responsible 

Official to collaborate with the public 

and that a record of that collaboration be 

kept, it does not require in-depth social, 

economic, or ecological analysis of 

every potential option for a plan. Indepth analysis, documented in an 

evaluation report, is required only for 

the proposed plan and the options that 

remain after public collaboration. 

The plan approved by the Responsible 

Official will be a result of public 

participation and collaboration that will 

have included consideration of a variety 

of different ways to manage a national 

forest, grassland, prairie, or other 

comparable administrative unit. 

Although the Responsible Official will 

continue to have the responsibility and 

the authority to make the final decision, 

the proposed plans that the Forest 

Service will present for public comment 

will be plans jointly and collaboratively 

developed with the public. The 

Department hopes this approach to plan 

development will serve to encourage 

people to work together to understand 

each other and find common solutions 

to the important and critical planning 

issues the agency faces. In summary, the 

final rule emphasizes collaboration and 

provides for effective public 

involvement. 

Sustainability 

This final rule retains the concept of 

the interdependent social, economic, 

and ecological elements of sustainability 

(§ 219.10) in the 2002 proposed rule. 

However, the final rule does not include 

many of the specific analytical 

processes and requirements set out in 

the 2002 proposed rule. Appropriate 

processes will be included in the Forest 

Service directives. The Department 

believes it is more appropriate to put 

specific procedural analytical 

requirements in the Forest Service 

directives rather than in the rule itself 

so that the analytical procedures can be 

changed more rapidly if new and better 

techniques emerge. As for other portions 

of the Forest Service directives, public 

notice and comment is required where 

there is substantial public interest or 

controversy. 

As did the 2000 planning rule and the 

2002 proposed rule, the final rule makes 

sustainability the overall goal for NFS 

planning. Managing NFS lands for 

sustainability of their renewable 

resources meets the MUSYA mandate 

that the Secretary develop and 

administer the renewable surface 

resources of the National Forests for 

multiple use and sustained yield (16 

U.S.C. 529). Managing for sustainability 

will provide for management of the 

various renewable resources without 

impairment of the productivity of the 

land, as required by the MUSYA. 

Sustaining the productivity of the land 

and its renewable resources means 

meeting present needs without 

compromising the ability of those lands 

and resources to meet the needs of 

future generations. The final rule is 

similar to the 2002 proposed rule for 

social and economic sustainability 

requirements. However, as stated, there 

are changes from the 2002 proposed rule 

for ecological sustainability. 

NFMA requires guidelines for land 

management plans which provide for 

diversity of plant and animal 

communities (16 U.S.C. 1604 (g)(3)(B)) 

based on the suitability and capability 

of the land area to meet overall 

multiple-use objectives. Almost 30 years 

after passage of the NFMA, the concepts 

of biological diversity at different spatial 

and temporal scales, including genetic 

diversity, species diversity, structural 

diversity, and functional diversity have 

been substantially refined and 

developed. Today, the agency has a vast 

array of methods available to provide for 

diversity. The complexity of biological 

diversity often results in a 

corresponding complicated array of 

concepts, measures, and values from 

several scientific disciplines.

The Department developed the final 

rule based on the following concepts 

related to diversity. First, maintenance 

of the diversity of plant and animal 

communities starts with an ecosystem 

approach. In an ecosystem approach, 

the plan will provide a framework for 

maintaining and restoring ecosystem 

conditions necessary to conserve most 

species. 

Second, where the Responsible 

Official determines that the ecosystem 

approach does not provide an adequate 

framework for maintaining and restoring 

conditions to support specific federally 

listed threatened or endangered species, 

species-of-concern, and species-ofinterest, then the plan must include 

additional provisions for these species. 

This final rule defines species-ofconcern as those species for which the 

Responsible Official determine that 

continued existence is a concern and 

listing under the Endangered Species 

Act (ESA) may become necessary. This 

final rule defines species-of-interest as 

those species for which the Responsible 

Official determines that management 

actions may be necessary or desirable to 

achieve ecological or other multiple-use 

objectives. Forest Service directives will 

identify lists of species developed by an 

objective and scientifically credible 

third party, such as the U.S. Fish and 

Wildlife Service or NatureServe (http://

www.natureserve.org/). 

Third, agency managers should 

concentrate their efforts on contributing 

to the persistence of species where 

Forest Service management activities 

may affect species rather than on 

species management where the cause of 

species decline is outside the limits of 

agency authority or the capability of the 

plan area. 

Fourth, the presence of all native and 

desired non-native species in a plan 

area is important. However, the 

Responsible Official should have the 

flexibility to determine the degree of 

conservation to be provided for the 

species that are not in danger of ESA 

listing, to better balance the various 

multiple uses, including the oftencompeting needs of different species 

themselves. 

Fifth, the planning framework should 

provide measures for accounting for 

progress toward ecosystem and species 

diversity goals. The final rule and the 

Forest Service directives provide a 

framework within which efforts to 

maintain and restore species will be 

monitored. Progress toward desired 

conditions and objectives will be 

monitored and the results made 

available to the public. The adaptive 

monitoring and feedback process will 

help maintain and improve diversity. 

Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 1029

The 2002 proposed rule included two 

different approaches to the NFMA 

diversity requirement labeled ‘‘Option 

1’’ and ‘‘Option 2’’ and asked for 

comments on both options. The agency 

also hosted a workshop to provide an 

opportunity for public discussion of 

these options and for identification of 

other ideas on how to best meet the 

statutory diversity requirement. An 

extremely wide range of opinions was 

expressed, both in public comments and 

during the workshop. The Department 

found these comments useful in 

developing a scientifically credible and 

realistic approach for this final rule and 

the Forest Service directives to meet 

legal requirements and the agency’s 

stewardship responsibilities. 

The final rule incorporates features of 

both Options 1 and 2. In common with 

both options, the final rule approaches 

diversity at two levels of ecological 

organization: the ecosystem level and 

the species level. This concept has 

considerable support among scientists, 

has already been tested by a number of 

NFS administrative units developing or 

revising plans under the 1982 planning 

rule, and was included in the planning 

rule adopted in 2000. 

The final rule is less detailed than 

either Options 1 or 2 with respect to 

specific ecosystem analysis 

requirements. After reviewing public 

comments, and after consideration of 

the Forest Service’s experience with 

planning over the past 25 years, the 

Department concluded that such detail 

regarding analysis is more properly 

included in the Forest Service 

directives. These directives can be more 

extensive and can be more easily 

changed as the agency learns how to 

improve its analytic processes and as 

new scientific concepts and new 

technological capabilities become 

available. 

In common with Options 1 and 2, the 

final rule focuses on ecosystem diversity 

as the primary means of providing for 

the diversity of plant and animal 

communities. The final rule differs from 

Option 2 in not explicitly requiring 

analysis of ecosystem diversity at 

multiple temporal and spatial scales, 

analysis of disturbance regimes, or 

analysis of the landscape context. 

Guidance on appropriate analysis will 

be included in the Forest Service 

directives. The agency will seek public 

comment on this guidance. 

Another point in common between 

this final rule and Options 1 and 2 is the 

concept that the more effective the 

ecosystem management guidance is in 

sustaining species habitat, the less need 

there is for analysis and planning at the 

species level of ecological organization. 

Option 1, Option 2, and this final rule 

all recognize that some additional 

analysis and additional plan provisions 

may be needed for some species. 

However, the final rule differs from 

Option 1 in that it does not include a 

requirement to provide for viable 

populations of plant and animal species. 

Such a requirement had previously been 

included in both the 1982 planning rule 

and the 2000 planning rule.

The species viability requirement was 

not adopted for several reasons. First, 

the experience of the Forest Service 

under the 1982 planning rule has been 

that ensuring species viability is not 

always possible. For example, viability 

of some species on NFS lands may not 

be achievable because of speciesspecific distribution patterns (such as a 

species on the extreme and fluctuating 

edge of its natural range), or when the 

reasons for species decline are due to 

factors outside the control of the agency 

(such as habitat alteration in South 

America causing decline of some 

Neotropical birds), or when the land 

lacks the capability to support species 

(such as a drought affecting fish habitat). 

Second, the number of recognized 

species present on the units of the NFS 

is very large. It is clearly impractical to 

analyze all species, and previous 

attempts to analyze the full suite of 

species via groups, surrogates, and 

representatives have had mixed success 

in practice. 

Third, focus on the viability 

requirement has often diverted attention 

and resources away from an ecosystem 

approach to land management that, in 

the Department’s view, is the most 

efficient and effective way to manage for 

the broadest range of species with the 

limited resources available for the task. 

Requirements for species population 

monitoring are not included in this final 

rule. Population data are difficult to 

obtain and evaluate because there are so 

many factors outside the control of the 

Forest Service that affect populations. 

The Department believes that it is best 

to focus the agency’s monitoring 

program on habitat on NFS land where 

the agency can adjust management to 

meet the needs of certain species. 

Desired conditions are often a focus of 

the monitoring program. The agency 

will identify species-of-concern and 

species-of-interest (§ 219.16). Where 

ecological conditions for these species 

are identified as desired conditions, the 

habitat could be monitored to assist in 

avoiding future listing of these species. 

However, the final rule does not 

preclude population monitoring. Plans 

may include population monitoring as 

appropriate. 

In summary, in compliance with 

NFMA, the ecological sustainability 

provisions in the final rule provide the 

foundation for the plan to provide for 

diversity of plant and animal 

communities. The final rule provides a 

complementary ecosystem and species 

diversity approach for ecological 

sustainability. The final rule at 

§ 219.7(a)(2) establishes requirements 

for developing plan components to 

guide projects and activities. All parts of 

the land management framework, 

including plan components, monitoring, 

and plan adjustment, are designed to 

work together to contribute to 

sustainability. 

Environmental Management Systems 

and Adaptive Management 

• Adaptive management and land 

management planning.

Plans must adapt to ever-changing 

conditions. Agency policy may change, 

new laws may be enacted, or court 

decisions can change interpretation of 

existing laws. Fires, invasive species, or 

outbreaks of insects or disease can 

substantially change environmental 

conditions. Changes in market 

conditions or public values may shift 

the demand for specific goods and 

services. Scientific findings can change 

our understanding of the environment 

and of the effects of specific 

management activities. Better 

monitoring techniques or ways to 

achieve objectives may be found. Land 

management plans must reflect the fact 

that change and uncertainty are 

inevitable. Consequently, plans must 

allow for quick response to these everchanging conditions. 

The National Association of 

Professional Forestry Schools and 

Colleges and others commented on the 

2002 proposed rule regarding the 

importance, from the scientific 

perspective, of using adaptive 

management when dealing with 

complex ecosystems. In 1999, the 

Committee of Scientists developed 

recommendations that strongly 

encouraged the use of adaptive 

management. The Committee of 

Scientists recommended setting a high 

priority on developing ongoing analyses 

that are based on monitoring to 

continually adjust or change land 

management planning decisions. In 

response to these comments and 

recommendations for a greater emphasis 

on and commitment to adaptive 

management, the Department has 

chosen to include environmental 

management systems (EMS) in the land 

management framework. 

The adaptive management approach 

includes land management plans along 

1030 Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 

with comprehensive evaluations, an 

environmental management system, 

monitoring, evaluation, and research. 

Adaptive management requires careful 

coordination of the work performed 

through these programs. It does not 

require equal emphases among these 

various programs, but rather requires 

organizational learning, an active 

pursuit of best available scientific 

information, evaluation and disclosure 

of uncertainties and risks about 

scientific information, and a response to 

change. 

A land management plan starts the 

adaptive management cycle. Managers 

then pursue ways to achieve desired 

conditions and objectives described in 

the plan. The comprehensive evaluation 

may describe the risks and uncertainties 

associated with implementing the plan. 

Managers prioritize risks and develop 

strategies to control them. 

Monitoring and evaluations check for 

status and change across the 

administrative unit. Monitoring results 

may show that the desired conditions 

are not being achieved through projects. 

This may trigger future project changes 

to reach desired conditions. 

Alternatively, monitoring results may 

lead to conclusions that the land 

management plan should be changed 

through a plan amendment.

Research is an important part of 

adaptive management. Through 

experimentation, researchers investigate 

cause and effect relationships of 

management practices on the 

environment. Experiments test 

hypotheses and researchers develop 

reliable knowledge about effects of 

management practices. The new 

information may be used to amend 

plans, change project level work, or 

update an environmental management 

system. 

• Land management plans, adaptive 

management, and environmental 

management systems.

This final rule requires each national 

forest, grassland, prairie, or other 

comparable administrative unit to 

develop and implement an EMS based 

on the international consensus standard 

published by the International 

Organization for Standardization as 

‘‘ISO 14001: Environmental 

Management Systems—Specification 

With Guidance For Use’’ (ISO 14001). 

Each unit’s EMS should be designed 

and implemented to more efficiently 

meet legal obligations, including 

supporting the creation of effective land 

management plans, ensuring public 

participation in the process, and 

providing a framework for adaptive 

management. 

The administrative units’ EMS will be 

a systematic approach to identify and 

manage environmental conditions and 

obligations to achieve improved 

performance and environmental 

protection. Each unit’s EMS will 

identify and prioritize environmental 

conditions; set objectives in light of 

Congressional, agency, and public goals; 

document procedures and practices to 

achieve those objectives; and monitor 

and measure environmental conditions 

to track performance and verify that 

objectives are being met. Agency 

management personnel will regularly 

review performance, and information 

about environmental conditions will be 

regularly updated to continually 

improve land management and 

environmental performance. 

By systematically collecting and 

updating information about 

environmental conditions and practices 

(for example, through monitoring, 

measurement, research, and public 

input), the units’ EMS will provide a 

foundation for effective adaptive 

management, plan amendments, or even 

changing specific project or work 

practices. The agency expects that, 

whenever possible, EMS and land 

management plan documentation will 

be coordinated and integrated to avoid 

unnecessary duplication. 

The units’ EMS will more efficiently 

meet legal obligations, will improve 

public participation in the land 

management planning process, and 

enhance the agency’s ability to identify 

and respond to public input. Creating a 

transparent and consistent framework 

that describes how units are managed 

will improve the public’s ability to 

effectively participate in land 

management. The units’ EMS will not 

replace any legal obligations that the 

agency has under NFMA, MUSYA, 

NEPA, or any other statute, nor will the 

EMS diminish the public’s ability to 

participate in the land management 

process or its rights under any law. To 

the contrary, EMS will significantly 

improve the public’s ability to 

effectively participate in the process. 

The agency chose ISO 14001 as the 

EMS model for several reasons. First, it 

is the most commonly used EMS model 

in the United States and around the 

world. This will make it easier to 

implement and understand (internally 

and externally) because there is a 

significant knowledge base about ISO 

14001. Second, the National Technology 

and Advancement Act of 1995 (NTAA) 

(Pub. L. 104–113) requires that Federal 

agencies use or adopt applicable 

national or international consensus 

standards wherever possible, in lieu of 

creating proprietary or unique 

standards. The NTAA’s policy of 

encouraging Federal agencies to adopt 

tested and well-accepted standards, 

rather than reinventing-the-wheel, 

clearly applies to this situation where 

there is a ready-made international and 

national EMS consensus standard 

(through the American National 

Standards Institute) that has already 

been successfully implemented in the 

field for almost a decade. Third, it has 

been a long-standing policy that Federal 

agencies implement EMS to improve 

environmental performance (Executive 

Order 13148 issued April 21, 2000 (E.O. 

13148), titled ‘‘Greening the 

Government Through Leadership in 

Environmental Management’’ and an 

April 1, 2002, Memorandum from the 

Chair of the Council on Environmental 

Quality and the Director of the Office of 

Management and Budget to the heads of 

all Federal agencies). Federal agencies 

that have been implementing EMS in 

response to the E.O. 13148 have 

typically been using ISO 14001 as their 

model. 

The implementation of ISO 14001 in 

NFS administrative units will have to 

reflect the legal and public obligations 

of the agency, as well as the 

environmental conditions and issues 

relevant to land management, such as 

sustainability and long-term issues, 

including cumulative effects. For 

example, while ISO 14001 requires 

implementing organizations to identify 

their ‘‘environmental aspects,’’

administrative units implementing their 

EMS under this rule will include the 

concept of environmental conditions in 

land management planning in this step. 

Another example reflecting the legal 

and public obligations of the agency is 

that the units’ EMS must include the 

public participation requirements of this 

rule, which are much stronger than the 

public communication provisions of 

ISO 14001. Therefore, the agency will 

interpret and implement ISO 14001 in a 

manner consistent with the agency’s 

legal obligations, its duty to the public, 

and the unique circumstances of land 

management.

National Environmental Policy Act and 

National Forest Management Act 

Planning 

The application of NEPA to the 

planning process as identified in this 

final rule is the next iterative step in an 

evolution that began with the 

promulgation of the 1979 planning rule, 

revised in 1982. In developing the 

NEPA provisions of this final rule, the 

Department took into account the nature 

of the five plan components under this 

final rule, experience the agency has 

gained over the past 25 years from 

Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 1031

developing, amending, and revising 

land management plans; the 

requirements of NEPA and NFMA, the 

Council on Environmental Quality 

(CEQ) regulations, and the comments by 

the Supreme Court in Ohio Forestry 

Ass’n v. Sierra Club and Norton v. 

Southern Utah Wilderness Alliance

regarding the nature of plans 

themselves. 

The 1979 planning rule required an 

environmental impact statement (EIS) 

for development of plans, significant 

amendments, and revisions. This 

requirement continued in the revised 

rule adopted in 1982. At the time, the 

Forest Service believed that the NEPA 

document prepared for a plan would 

suffice for making most project-level 

decisions. However, the agency came to 

understand that this approach to 

complying with NEPA was impractical, 

inefficient, and sometimes inaccurate. 

Over the course of implementing NFMA 

during the past 25 years, the agency has 

learned that environmental effects of 

projects and activities cannot be 

meaningfully evaluated without 

knowledge of the specific timing and 

location of the projects and activities. 

At the time of plan approval, the 

Forest Service does not have detailed 

information about what projects and 

activities will be proposed over the 15-

year life of a plan, how many projects 

will be approved, where they will be 

located, or how they will be designed. 

At the point of plan approval, the Forest 

Service can only speculate about the 

projects that may be proposed and 

budgeted and the natural events, such as 

fire, flood, insects, and disease that may 

occur that will make uncontemplated 

projects necessary or force changes in 

the projects and the effects of projects 

that were contemplated. Indeed, the 

Forest Service has learned that over the 

15-year life of a plan it can only expect 

the unexpected. 

In the course of completing NEPA 

analysis on the first generation of NFMA 

plans, the Forest Service also became 

more aware of the difficulties of scale 

created by the size of the national 

forests and grasslands. The National 

Forest System includes 192 million 

acres, and individual planning units, 

such as the Tongass National Forest, 

may be as large as 17 million acres. 

These vast landscapes contain an 

enormous variety of different 

ecosystems, which will respond 

differently to the same management 

practices. As the Committee of 

Scientists said on page 26 of the 

Committee of Scientists Report:

Because of the wide variation in sitespecific practices and local environmental 

conditions (e.g., vegetation type, topography, 

geology, and soils) across a given national 

forest or rangeland, the direct and indirect 

effects of management practices may not 

always be well understood or easily 

predicted. (Committee of Scientists Report, 

March 15, 1999, U.S. Department of 

Agriculture, Washington, DC 193 p.)

The result is that it is usually 

infeasible to do environmental analysis 

for a national forest as a whole that is 

sufficiently site-specific to allow 

projects to be carried out without 

further detailed NEPA analysis after the 

plan has been approved. 

The agency has found itself preparing 

much more extensive NEPA 

documentation for projects than it had 

anticipated when it adopted the 1979 

and 1982 planning rules. Moreover, the 

extensive changes to conditions in the 

plan area that occurred during the 15-

year life of each plan made it 

increasingly impractical to tier projectlevel NEPA documentation to the plan 

EIS. The requirements of the 1979 and 

1982 planning rules created an 

inefficient and ineffective system for 

complying with NEPA. 

The 2000 planning rule furthered the 

existing presumption of requiring an EIS 

for plan development or revision, 

notwithstanding concerns raised by the 

Committee of Scientists. Secretary 

Glickman named the Committee of 

Scientists (COS) on December 11, 1997. 

The charter for the COS stated that the 

Committee’s purpose was to provide 

scientific and technical advice to the 

Secretary of Agriculture and the Chief of 

the Forest Service on improvements that 

can be made in the National Forest 

System Land and Resource Management 

Planning Process. 

The Committee of Scientists said, on 

page 117 of the Committee of Scientists 

Report:

Perhaps the most difficult problem is that 

the current EA/EIS process assumes a onetime decision. The very essence of smalllandscape planning is an adaptive 

management approach, based upon 

monitoring and learning. Although smalllandscape planning can more readily do realtime cumulative effects analysis * * *, this 

kind of analysis is difficult to integrate with 

a one-time decision approach. Developing a 

decision disclosure and review process that 

is ongoing and uses monitoring information 

to adjust or change treatments and activities 

will need to be a high priority * * *. 

(Committee of Scientists Report, March 15, 

1999, U.S. Department of Agriculture, 

Washington, DC 193 p.)

In addition to concern about timely 

and accurate disclosure of 

environmental effects, the agency’s 

experience with planning has 

demonstrated the need to clarify what 

plans, in fact, actually do. Neither the 

1982 nor the 2000 planning rule clearly 

described or contrasted the differences 

between the effects of plans and the 

effects of projects and activities. This 

has been confusing to the public and 

agency employees. As discussed 

previously in the guidelines and the 

suitability discussions, plan 

components have not been applied or 

interpreted consistently throughout the 

agency and often have been 

characterized as the functional 

equivalent of final project-level 

decisions or actions, rather than 

guidance for projects and activities over 

time.

This final rule clarifies that plans will 

be strategic rather than prescriptive in 

nature absent extraordinary 

circumstances. Plans will describe the 

desired social, economic, and ecological 

conditions for a national forest, 

grassland, prairie, or other comparable 

administrative unit. Plan objectives, 

guidelines, suitable uses, and special 

area identifications will be designed to 

help achieve the desired conditions. 

While plans will identify the general 

suitability of lands for various uses, they 

typically will not approve projects or 

activities with accompanying 

environmental effects. Decisions 

approving projects or activities with 

environmental effects that can be 

meaningfully evaluated will typically be 

made subsequent to the plan. In 

essence, a plan simply is a description 

of a vision for the future that coupled, 

with evaluation, provides a starting 

point for project and activity NEPA 

analysis. Therefore, under this rule 

approval of a plan, plan amendment, or 

plan revision typically will not have 

environmental effects. 

The formulation of plans under the 

final rule as being merely strategic 

rather than prescriptive is further 

evident in the five components of plans 

under the final rule. As described above, 

none of the five components is intended 

to directly dictate on the ground 

decisions which have impacts on the 

environment. Rather, they state general 

guidance and goals to be considered in 

project and activity decisions. These 

five components thus do not have any 

significant effect on the environment. 

Notwithstanding their strategic 

nature, approval of a plan, plan 

amendment, or plan revision is a final 

action under the CEQ regulations. 

Further, such actions may have 

environmental effects in some 

extraordinary circumstances, such as 

when a plan amendment or revision 

includes final decisions approving 

projects or activities. For example, an 

amendment or revision including a 

decision approving a project to thin 

1032 Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 

certain trees to reduce fire hazards may 

have environmental affects that could be 

significant. 

NFMA requires the Secretary of 

Agriculture to determine how to comply 

with NEPA during the course of NFMA 

planning. Section 106(g)(1) of NFMA 

directs the Secretary to specify in land 

management regulations procedures to 

insure that plans are prepared in 

accordance with NEPA, including 

direction on when and for what plans 

an EIS is required (16 U.S.C. 1604(g)(1)). 

The CEQ regulations direct Federal 

agencies to adopt procedures that 

designate major decision points for the 

agency’s principal programs likely to 

have a significant effect on the human 

environment and ensuring that the 

NEPA process corresponds with them 

(40 CFR 1505.1(b)). 

Under NEPA and the CEQ regulations, 

an EIS is required for every report or 

recommendation on proposals for 

legislation and other major Federal 

actions significantly affecting the 

quality of the human environment (16 

U.S.C. 4321 et seq., 40 CFR 1502.3). 

CEQ regulations define ‘‘major Federal 

action’’ as including ‘‘actions with 

effects that may be major.’’ The 

regulations explain that ‘‘Federal 

actions’’ generally tend to fall within 

several categories. Although these 

categories include adoption of formal 

agency plans within the definition of 

‘‘federal action,’’ not all federal actions 

are major federal actions. As applied to 

the final rule, land management plans 

under this final rule, as evidenced by 

their five components, are strategic and 

aspirational in nature and generally will 

not include decisions with on-theground effects that can be meaningfully 

evaluated and that may be major. During 

plan development, amendment, or 

revision, the agency generally is not at 

the stage in National Forest planning of 

proposing actions to accomplish the 

goals in land management plans. CEQ 

regulations define ‘‘proposals’’ that can 

trigger the requirement for an EIS as 

‘‘that stage in development of an action 

when an agency subject to the Act has 

a goal and is actively preparing to make 

a decision on one or more alternative 

means of accomplishing that goal and 

the effects can be meaningfully 

evaluated (40 CFR 1508.23). Proposals 

for action to accomplish plan goals and 

desired conditions, with effects that can 

be meaningfully evaluated and which 

may be significant, generally are made 

at the project and activity stage. While 

a plan includes desired conditions, 

goals, and objectives, the Forest Service 

does not actively prepare to make a 

decision on an action aimed at 

achieving desired conditions, goals, or 

objectives until the agency proposes 

projects and activities. Thus, the 

decision to adopt, amend, or revise a 

plan, therefore, is typically not the point 

in the decisionmaking process at which 

the agency is proposing an action likely 

to have a significant effect on the human 

environment. 

The approach in this final rule is 

consistent with the nature of Forest 

Service land management plans 

acknowledged in Ohio Forestry Ass’n v. 

Sierra Club, 523 U.S. 726 (1998). As 

described above, in Ohio Forestry, the 

Supreme Court held that the timber 

management provisions of land 

management plans are tools for further 

agency planning and guide, but do not 

direct future management. When 

considering the role of land 

management plans with respect to 

timber harvesting, the Supreme Court 

explained that:

Although the Plan sets logging goals, 

selects the areas of the forest that are suited 

to timber production, and determines which 

‘‘probable methods of timber harvest’’ are 

appropriate, it does not itself authorize the 

cutting of any trees. Before the Forest Service 

can permit the logging, it must: (a) Propose 

a specific area in which logging will take 

place and the harvesting methods to be used; 

(b) ensure that the project is consistent with 

the Plan; (c) provide those affected by 

proposed logging notice and an opportunity 

to be heard; (d) conduct an environmental 

analysis pursuant to the National 

Environmental Policy Act of 1969, to 

evaluate the effects of the specific project and 

to contemplate alternatives; and (e) 

subsequently make a final decision to permit 

logging, which affected persons may 

challenge in an administrative appeals 

process and in court.

The Supreme Court repeated its 

description of plans as merely strategic 

without any immediate on the ground 

impact in the recent SUWA decision 

described above. Both cases reinforce 

the observations of the FS in reflecting 

on 25 years of completing EISs for 

plans, and buttress the approach to 

planning and NEPA compliance 

described in the final rule. 

In accordance with NFMA, NEPA, 

and the CEQ regulations, this final rule 

will ensure that Forest Service NEPA 

analysis will be timed to coincide with 

those stages in agency planning and 

decisionmaking likely to have a 

significant effect on the human 

environment. The final rule emphasizes 

the clear distinction between the mere 

adoption, revision or amendment of a 

plan and projects and activities having 

on-the-ground environmental effects. In 

this final rule, the Department is 

clarifying the nature of National Forest 

land management plans, and based on 

the nature of plans, specifying that 

plans, plan amendments, and plan 

revisions may be categorically excluded 

from NEPA documentation as provided 

in agency NEPA procedures. 

The CEQ regulations (40 CFR 1500) 

require that each agency establish 

specific criteria for and identification of 

three types of actions: (1) Those that 

normally require preparation of an 

environmental impact statement (EIS); 

(2) those that normally require the 

preparation of an environmental 

assessment (EA); and (3) those that 

normally do not require either an EA or 

EIS. Actions qualifying for this third 

type of action are defined as categorical 

exclusions because they do not 

individually or cumulatively have a 

significant impact on the human 

environment; therefore, neither an 

environmental assessment nor an 

environmental impact statement is 

required (40 CFR 1508.4). 

A categorical exclusion is not an 

exemption from the requirements of 

NEPA. Categorical exclusions are an 

essential part of NEPA that provide a 

categorical determination that certain 

actions do not result in significant 

impacts, eliminating the need for 

individual analyses and lengthier 

documentation for those actions. CEQ 

regulations at 40 CFR 1500.4(p), 1507.3 

and 1508.4 direct agencies to use 

categorical exclusions to define 

categories of actions which do not 

individually or cumulatively have a 

significant effect on the human 

environment and do not require the 

preparation of an environmental 

assessment or an environmental impact 

statement, thereby reducing excessive 

paperwork. Current Forest Service 

procedures for complying with and 

implementing NEPA are set out in 

Forest Service Handbook (FSH) 1909.15. 

Simultaneously with this rulemaking, 

the Forest Service is proposing to revise 

its NEPA procedures to provide a new 

categorical exclusion for plan 

development, amendment, and revision. 

The proposed categorical exclusion 

describes the extraordinary 

circumstances that may require 

preparation of an EIS or an EA. The 

Forest Service is seeking comment on 

the proposed categorical exclusion. 

The Forest Service presented and 

sought public comment on this 

approach to NEPA and NFMA planning 

in the 2002 proposed rule. The 2002 

proposed rule at § 219.6(b) provided 

that if the Responsible Official 

determines that a new plan, plan 

amendment, or plan revision, or a 

component thereof, would be an action 

significantly affecting the quality of the 

human environment, or authorizes an 

action that commits funding or 

Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 1033

resources that could have a significant 

effect on the quality of the human 

environment, then an EIS would be 

required. Otherwise, a new plan, plan 

amendment, or plan revision may be 

categorically excluded from 

documentation in an EA or EIS as 

provided in agency NEPA procedures. 

The categorical exclusion proposed in 

connection with this final rule clarifies 

that plan development, plan 

amendment or plan revisions in 

accordance with this final rule do not 

significantly affect the environment, and 

thus are categorically excluded from 

further NEPA analysis, unless 

extraordinary circumstances are present. 

Of course, the FS will comply with all 

applicable NEPA requirements, 

including preparation of an EA or an 

EIS where appropriate, when 

considering specific projects or making 

other project-specific decisions affecting 

the environment. 

The public identified three key 

concerns related to the proposal to 

categorically exclude plans from 

documentation. First, many people 

commented that they were unsure about 

how they would be involved in 

planning if an EIS process were not 

used. Second, they questioned how 

planning analysis would be documented 

in the absence of an EIS. Third, some 

asked how cumulative effects would be 

accounted for if a Categorical Exclusion 

(CE) were relied upon. The Department 

has fully considered the concerns raised 

by the public and believes the final rule 

addresses the concerns as follows:

• Public participation. 

This final rule provides extensive 

opportunity for public participation that 

exceeds requirements for public 

participation under NEPA and improves 

the clarity of the process for public 

notification (§ 219.9). 

• Evaluations and documentation. 

This final rule requires 

comprehensive and other evaluations in 

§ 219.6. Evaluation reports will 

document existing social, economic, 

and ecological conditions and trends; 

and will be available to the public and 

included in the Plan Document or Set of 

Documents. Evaluations are prepared 

for plan development, plan amendment, 

and plan revision (§ 219.6); use a 

systematic and interdisciplinary 

approach (§ 219.7(a)); and consider 

environmental amenities and values 

along with economic and technical 

considerations (§ 219.10). 

The Plan Document or Set of 

Documents will be supplemented with 

annual evaluation reports and with 

other information as appropriate to form 

a continually refreshed and current 

analytical base of information. Because 

of this more current information base, 

evaluations will provide a much 

stronger and more robust source of 

information for projects and activities 

than an EIS prepared under the 1982 

planning rule. 

• Cumulative effects. 

To account for cumulative effects of 

management and natural events, this 

final rule requires (§ 219.6(a)): (1) A 

comprehensive evaluation for the 

development of a new plan or plan 

revision; (2) annual plan monitoring and 

evaluation; and (3) review of the 

comprehensive evaluations at least 

every 5 years. These evaluations, as 

opposed to predictive EIS’s that grow 

increasingly stale over time, will 

provide more timely and informed 

consideration of cumulative effects. The 

Plan Document or Set of Documents 

provides for a robust information base 

for the consideration of cumulative 

effects of management in NEPA 

documents prepared for projects or 

activities. 

• The relationship between EMS and 

NEPA. 

Implementing EMS will improve the 

quality of agency NEPA analysis for 

projects and activities. In a September 

2003 report, titled ‘‘Modernizing NEPA 

Implementation,’’ the CEQ NEPA Task 

Force stated at page 54, ‘‘Federal 

agencies, having made the connection 

between EMS and adaptive 

management, would be integrating 

NEPA-related adaptive management 

actions into their developing EMSs.’’

The task force also said that NEPA and 

EMS provide ‘‘a synergy that can 

encourage a robust analysis when the 

EMS information is extensive, current, 

and available for use in the NEPA 

analy[sis].’’ The Department agrees with 

the task force’s conclusions and believes 

that requiring each unit to implement an 

EMS will improve environmental 

performance and effective land 

management in addition to enhancing 

NEPA analysis and documentation. 

Under the existing process, 

information about environmental 

conditions is collected for the purposes 

of preparing detailed NEPA analysis and 

documentation for plan development, 

plan amendment, or plan revision. 

There is no effective system for keeping 

this information current, because the 

collection and analysis of information 

often typically ceases when the NEPA 

analysis and documentation is 

completed. Therefore, the information 

collected for the environmental 

documents for 126 NFS units can grow 

stale as environmental, social, and 

economic conditions change. Further, 

the focus of the information collection 

and analysis process is on NEPA 

analysis and documentation, rather than 

for use in the ongoing management of 

the administrative unit. Therefore, the 

large volume of information and 

analysis that is so expensively created 

over a long period is often used as a 

snapshot for purposes of making a 

single decision, instead of being 

integrated into a dynamic, ongoing 

system to effectively manage units. 

This rule will improve this situation 

by requiring each administrative unit to 

implement an EMS that includes 

defined procedures for identifying 

environmental conditions, keeps that 

information current, and includes 

monitoring and measurement 

procedures for continually evaluating 

conditions in the unit. The EMS 

requirement is separate from any 

obligations to develop EISs, EAs, or CEs. 

Therefore, the obligation to keep this 

information current and make it 

available for public review is separate 

from the obligation to create any 

particular NEPA document. This 

information will be used in formulating 

the land management plans that are 

subject of this rule, managing 

administrative units on an ongoing 

basis, as well as for specific project and 

activity proposals that trigger the need 

for EISs, EAs, or CEs. Therefore, through 

the implementation of EMS, 

administrative units will be continually 

collecting and evaluating the data 

necessary to create any documents that 

may be required by NEPA. This will 

make the creation of accurate and 

relevant NEPA documents more 

efficient. More importantly, it will make 

available to administrative unit 

managers and the public a ‘‘library’’ of 

current information, analyses, and 

research that, through EMS, will be used 

to manage the administrative unit on an 

ongoing basis, and better adapt 

management practices to avoid 

unwanted environmental effects.

Summary 

This final rule represents a paradigm 

shift in planning. It emphasizes the 

strategic nature of NFMA land 

management plans and will permit more 

flexibility in implementing projects in 

response to evolving scientific doctrines 

and changing conditions on the ground, 

such as unforeseen natural disasters. It 

requires that each NFS unit develop an 

EMS that will be used to continually 

improve environmental performance 

and conditions. It requires that 

Responsible Officials take into account 

the best available scientific information. 

It requires public involvement and 

collaboration throughout the entire 

cycle of planning, plan development, 

plan amendment, plan revision, project 

1034 Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 

and activity decisionmaking, and 

monitoring of environmental 

performance. The final rule requires 

plans to focus on the social, economic, 

and ecological sustainability of the 

management of the NFS, and it has 

specific provisions for biological 

diversity at both the ecosystem and 

species level. It clarifies the nature of 

plans and explains how the planning 

process complies fully with the 

requirements of NEPA. Plans developed 

and maintained using the EMS and 

other processes required by this final 

rule will improve the performance, 

accountability, and transparency of NFS 

land management planning. 

4. Department Response to Comments 

on the 2002 Proposed Rule 

The Forest Service received 

approximately 7,000 original letters and 

195,000 total comments from a wide 

variety of respondents on the 2002 

proposed rule. Each comment received 

consideration in the development of the 

final rule. The following is a summary 

of comments and response to issues 

raised by these comments. A response to 

less substantive issues may be found in 

the supplemental response to comments 

located on the World Wide Web/

internet (see ADDRESSES). 

General Issues 

The Department received the 

following comments not specifically 

tied to a particular section of the 2002 

proposed rule. 

Comment: Compliance with NFMA. 

Some respondents thought the 2002 

proposed rule would allow more timber 

harvest and road construction than 

currently exists and therefore would 

violate the National Forest Management 

Act (NFMA) of 1976 (16 U.S.C. 1600 et 

seq.). Other respondents believed the 

timber industry, other commercial 

interests, or Forest Service employees 

unduly influenced the 2002 proposed 

rule; moreover, they perceived that the 

2002 proposed rule would degrade the 

environment. Some contended the 2002 

proposed rule was influenced by 

campaign contributions. 

Response: The final rule is not 

intended to, and will not, determine the 

choices among the multiple uses. The 

NFMA requires the Secretary of 

Agriculture to develop regulations 

under the principles of the Multiple-Use 

Sustained-Yield Act (MUSYA) of 1960 

(16 U.S.C. 528–531). Congress gave the 

Secretary broad discretion in 

interpreting how these principles are 

applied. This final rule affirms the 

overall goal of MUSYA and provides a 

framework for plans to reflect 

contemporary priorities and values. 

Pursuant to MUSYA, this final rule 

adopts social, economic, and ecological 

sustainability as the goal of National 

Forest System (NFS) management. 

Furthermore, timber production from 

NFS lands has been reduced 

dramatically since NFMA was written. 

The sale of timber has fallen from an 

annual level of 10 to 12 billion board 

feet in the 1970s and 1980s to three 

billion board feet in the early 1990s and 

below three billion board feet since 

then. Finally, the final rule does not 

promote or discourage other uses of NFS 

lands, such as outdoor recreation, range, 

wildlife and fisheries, and so forth. The 

planning process itself will determine 

the desired conditions and objectives for 

each NFS unit. 

Comment: Plan oversight and 

resource conservation. Some 

respondents commented that the 2002 

proposed rule would prevent court 

oversight of plans, eliminate restrictive 

plan requirements, inappropriately 

increase Forest Service discretion, and 

result in decreased conservation of 

resources such as wildlife. Several 

respondents wanted the 2002 planning 

rule to be stricter, attributing the 

collapse of Enron to inadequate 

regulatory oversight. Other respondents 

were concerned about the possibility of 

increased litigation and thought 

streamlined planning would shift more 

of the analysis burden to projects, thus 

slowing project completion. 

Response: The final rule establishes a 

planning process that complies with 

NFMA and provides a broad planning 

framework within which issues specific 

to a plan area can be resolved in an 

efficient and reasonable manner 

informed by the latest data and 

scientific assessments and public 

participation and collaboration. 

With respect to concerns that Forest 

Service discretion may be unchecked, 

there has always been a tension between 

providing needed detailed direction in 

the planning rule and discretion of the 

Responsible Official. However, the 

decisions of the Responsible Official are 

constrained and guided by a large body 

of law, regulation, and policy, as well as 

public participation and oversight. 

Because every issue cannot be identified 

and dealt with in advance for every 

situation, the Forest Service must rely 

on the judgment of the Responsible 

Official to make decisions based on 

laws, regulation, policy, sound science, 

public participation, and oversight. 

The Department of Agriculture 

(Department) believes that the final rule 

is fully compatible with the nature of 

forest planning as described by the U.S. 

Supreme Court in Ohio Forestry Ass’n v. 

Sierra Club 523 U.S. 726 (1998) (A 

discussion of this case is found in the 

‘‘Overview of the Final 2004 Rule’’

section of the preamble.) The 

Department expects public oversight 

and legal review of planning, as well as 

an assessment of the environmental 

impacts of specific projects under 

NEPA, to occur under the final rule in 

accordance with Ohio Forestry. As a 

general matter, and consistent with the 

Ohio Forestry Ass’n decision, a plan by 

itself is not expected to be reviewable by 

the courts at the time the plan is 

developed, revised or amended; but 

when the agency decides on a specific 

action, an aggrieved party will be able 

to challenge that action and, if 

appropriate, seek review of that part of 

the plan that is relevant to that action. 

After years of experience with 

previous planning rules, the Department 

is ready to embrace the latest thinking 

in management techniques and believes 

this final rule provides the proper 

balance of regulatory requirements and 

flexibility needed to resolve issues on 

the ground. By streamlining the 

planning process, requiring 

environmental management systems 

(EMS), and emphasizing collaboration 

and public involvement, the final rule 

will result in plans that are more up to 

date, and should have broader public 

support. Similarly, the continual 

updating of the evaluations and 

analyses associated with plans is 

expected to reduce the amount of 

analysis needed at the project level. 

These concepts of collaboration, EMS, 

evaluations, and public involvement are 

described in detail in the ‘‘Overview of 

the Final 2004 Final Rule’’ section of the 

preamble.

Comment: Consultation with a 

committee of scientists. Several 

respondents were concerned that there 

was no consultation with a committee of 

scientists in developing the 2002 

proposed rule. Several felt that an 

independent review was necessary. 

Some respondents also felt that the 2002 

proposed rule should reflect current 

scientific knowledge. 

Response: The NFMA does not 

require a committee of scientists for 

revision of the planning rule. 

Nonetheless, the Department based the 

2002 proposed rule on the major 

recommendations from the 1999 

Committee of Scientists report. 

Sustainability, public participation, 

adaptive management, monitoring and 

evaluation, the role of science, and the 

objection process, all concepts in the 

proposed and final rule, were 

recommendations of that report. The 

Department realizes that scientific 

knowledge will continue to expand. 

Therefore, the Responsible Official must 

Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 1035

take into account the best available 

science when plans are developed, 

revised, or amended (§ 219.11). 

Comment: Environmental 

conservation. Several respondents 

commented that the 2002 planning rule 

should conserve wildlife, wilderness, 

historic and cultural sites, special 

habitat, watersheds, genetic material, 

and reduce fragmentation. One person 

commented that planning should be 

done on whole ecosystems. 

Response: The final rule provides the 

processes through which Responsible 

Officials conserve and manage resources 

with regard to the issues relevant in the 

plan area. Those communities, groups, 

or persons interested in these important 

resource issues can influence plan 

components and monitoring programs 

by becoming involved in planning 

efforts throughout the process, 

including the development and 

monitoring of the plan, as well as the 

development and implementation of 

proposed projects and activities. 

The Department agrees that better 

quality planning is often accomplished 

when the appropriate scale is used. For 

species or watersheds, evaluation often 

needs to be completed at a broader scale 

than for an individual unit. The 

Department anticipates that the Forest 

Service, in its plan evaluations, will 

continue to look at issues at the 

appropriate scale. 

Comment: The 2000 planning rule 

was never adequately tested. Some 

respondents disagreed with the 2002 

proposed rule discussion of the 

difficulty of implementing the 2000 

planning rule, since the 2000 planning 

rule was never used. 

Response: The costing study, ‘‘A 

Business Evaluation of the 2000 

planning rule and the Proposed NFMA 

Planning Rules,’’ analyzed each of the 

work activities of the 2000 planning rule 

and used experienced planners and 

resource professionals to estimate how 

those work activities would be carried 

out. The Department believes that this 

analysis on the 2000 planning rule was 

adequate to determine how well that 

rule could be implemented. 

Comment: Costing study of the 2000 

Planning Rule. Several respondents said 

the report on cost and ability to 

implement the 2000 planning rule was 

not available. 

Response: The Federal Register notice 

for the 2002 proposed rule explained 

how all associated studies were 

available for review. These studies have 

been, and still are, available on the 

Forest Service’s World Wide Web/

Internet site (see ADDRESSES) and 

available from the Director, Ecosystem 

Management Coordination Staff, Forest 

Service, USDA, Mail Stop 1104, 1400 

Independence Avenue, SW., 

Washington, DC 20250–1104, as 

described in the ADDRESSES section.

Comment: Inability to complete 

revisions. Several respondents said that 

the inability of the Forest Service to 

comply with a statutorily mandated 

revision timeline was due to reasons 

other than the requirements of the 1982 

or 2000 planning rules. 

Response: The Forest Service 

experience showed that the cost and 

unnecessary complexity of the planning 

process for the 1982 planning rule were 

the major causes of plan delays; this 

experience and the costing study 

indicated that the 2000 planning rule 

would exacerbate these concerns. 

Comment: Cost study and the costbenefit analysis for 1982 planning rule. 

Some respondents said the cost study of 

the 2000 planning rule and the 2002 

proposed rule should also have 

considered the 1982 planning rule and 

that the cost-benefit analysis should 

have considered the costs of the 1982 

planning rule, which is the rule that was 

actually being implemented at the time 

of the study. 

Response: When the 2000 planning 

rule was developed, the costs to the 

Forest Service to implement it were 

unknown, while the costs associated 

with the 1982 planning rule were 

known. The cost-benefit analysis 

considered the costs of implementing 

the 1982 planning rule, the anticipated 

cost of implementing the 2000 planning 

rule, and the anticipated cost of 

implementing the 2002 proposed rule. 

The cost-benefit analysis used 

information from a business evaluation 

and costing study for the 2000 planning 

rule and the 2002 proposed rule. 

Although the 1982 planning rule was 

not included in the business evaluation, 

1982 planning rule costs were included 

in the cost-benefit analysis using 

applicable costs from the business 

evaluation and historical cost 

information. 

Comment: Biological assessment. 

Some respondents commented that the 

rule should consider the ‘‘degree to 

which the action [the rule] may 

adversely affect an endangered or 

threatened species or their habitat that 

has been determined to be critical under 

the Endangered Species Act (ESA) of 

1973.’’ They assert that a biological 

assessment of the 2002 proposed rule is 

needed to analyze its impacts on 

threatened and endangered species and 

that the agency must also consult on the 

2002 proposed rule with the agencies 

responsible for implementing the ESA. 

Response: The ESA, as amended (16 

U.S.C. 1531 et seq.), requires 

consultation for actions authorized, 

funded, or carried out by a Federal 

agency. This final rule simply 

establishes a process for planning. The 

final rule is not an action having a direct 

effect on threatened or endangered 

species. The agency’s obligations for 

conservation of threatened, endangered, 

and proposed species remains 

unchanged by this final rule; no 

consultation is required as part of the 

final rule’s development. 

Comment: Planning certification. One 

organization commented that a 

nationally recognized third party should 

certify sustainability of National Forests. 

Response: The Department believes 

that the body of laws that govern 

management of NFS lands, the Forest 

Service Strategic Plan (Strategic Plan) 

required under the Government 

Performance and Results Act, the 

planning process itself, the expertise of 

career professionals, and the 

opportunity for public participation are 

adequate to ensure sustainability. 

Recognizing the point made by the 

respondent of the value of using 

recognized standards for forest 

management, this final rule requires 

units to develop and implement an EMS 

that conforms to ISO 14001 to manage 

natural resources and further the 

adaptive management approach 

advocated by other respondents. ISO 

14001 is the internationally and 

nationally recognized standard for 

EMSs. The Forest Service understands 

that ISO 14001 is not itself a program for 

forest sustainability certification and 

does not contain specific natural 

resource provisions or requirements. 

Natural resource management 

requirements and priorities are properly 

set by Congress and open public 

participation, rather than by nongovernmental standards setting bodies 

that are not directly answerable to the 

citizens of the United States. 

ISO 14001 provides a well-accepted 

management process that will improve 

the Forest Service’s ability to identify 

and meet the natural resource goals that 

are set by Congress in the NFMA and 

MUSYA and the Forest Service’s 

commitments to sustainability, good 

science, and public involvement in a 

disciplined, systematic, and transparent 

manner. 

Comment: Benchmarks in the 1982 

planning rule were useful. Several 

respondents said that benchmarks, such 

as those required in the 1982 planning 

rule, are useful and should still be 

required. 

Response: The agency’s experience 

with the 1982 planning rule is that 

benchmarks have not been useful. In 

theory, benchmarks define the range of 

1036 Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 

production possibilities and ecosystem 

limits. In practice, however, they are 

difficult to develop due to limited data 

and uncertainty at the time plans are 

developed. However, the final rule does 

not prohibit benchmark analysis when it 

would provide meaningful information. 

Comment: Fix the 1982 planning rule. 

Several respondents thought the agency 

should consider analyzing and 

correcting the 1982 planning rule 

instead of developing an entirely new 

rule. 

Response: In many ways, the final 

rule reflects the 1982 planning rule. 

However, it makes improvements based 

on over 25 years of experience. The final 

rule includes the basic plan components 

set out in the 1982 planning rule, 

includes the provisions required by 

NFMA, and expands the public 

involvement requirements in the 1982 

planning rule by requiring additional 

public involvement opportunities and 

emphasizing collaboration. 

Comment: The final rule should be 

subject to NEPA. Some respondents 

commented that adoption of the final 

rule is itself subject to the National 

Environmental Policy Act (NEPA) of 

1969, as amended (42 U.S.C. 4321–

4346), and this rulemaking is a major 

Federal action having a significant effect 

on the human environment. Others 

questioned why previous rulemaking 

efforts were accompanied by 

environmental assessments and why 

this rulemaking was not. 

Response: The Department disagrees 

that this rulemaking is a major Federal 

action that has significant effects on the 

environment because the final rule, 

which sets out a process for developing 

plans, plan amendments, and plan 

revisions, does not have environmental 

effects. The Forest Service Handbook 

(FSH) 1909.15, section 31.12, paragraph 

2, specifically provides that procedures 

for amending or revising land 

management plans may be categorically 

excluded from NEPA documentation. 

The Forest Service produced an 

environmental assessment for the 2000 

planning rulemaking efforts, but 

asserted at the time that it was going 

beyond the requirements of the law or 

policy. In the spirit of efficiency and 

streamlining inherent in this rulemaking 

effort, it seemed inconsistent to produce 

a NEPA document that was not required 

or useful. In summary, this final rule 

does not significantly affect the quality 

of the human environment and does not 

trigger NEPA obligations. 

Comment: Integration of planning 

process requirements. One respondent 

commented that the 2002 proposed rule 

listed many requirements and was 

unclear how these requirements were to 

be integrated into a plan.

Response: The Department agrees that 

it was difficult to track the planning 

process steps in the 2002 proposed rule. 

This difficulty is one of the primary 

reasons the Department substantially 

reorganized the final rule. 

Comment: Research. One professional 

organization felt that the final rule 

should support ‘‘bold and imaginative’’

research on NFS lands. 

Response: The Department believes 

that the final rule does support research. 

The strong emphasis on monitoring, 

evaluation, and the Department’s 

recognition of the value of 

environmental management systems 

produce an adaptable process where 

scientific experimentation is 

encouraged. Topics to be researched, 

however, are properly not set out in the 

final rule. 

Comment: Forest Service directives. 

Several respondents expressed concern 

about placing management direction in 

the Forest Service Directive System 

(Forest Service directives) and said that 

the Forest Service directives have not 

been subject to rulemaking procedures 

and do not have the full force and effect 

of law. They said that NFMA requires 

direction to be in the planning rule and 

they are concerned that use of directives 

will foster distrust and a confusing 

system of malleable and unenforceable 

guidelines. 

Some respondents were concerned 

that placing direction in the Forest 

Service directives instead of in the final 

rule would reduce meaningful public 

participation. Others endorsed the idea 

of using the Forest Service directives for 

technical details rather than burden the 

final rule with these ‘‘how to’’

requirements. Some said that the Forest 

Service should retain greater flexibility 

and should be able to make decisions 

more cost effectively. Finally, some 

respondents said that they would like 

the Forest Service directives to be 

updated and published for public 

review concurrent with the planning 

rule development. 

Response: The Forest Service 

directives are the primary basis for the 

internal management and control of all 

programs and the primary source of 

administrative direction to Forest 

Service employees. The Forest Service 

Manual (FSM) contains legal 

authorities, objectives, policies, 

responsibilities, instructions, and 

guidance needed on a continuing basis 

by Forest Service line officers and 

primary staff to plan and execute 

assigned programs and activities. The 

Forest Service Handbook (FSH) is the 

principal source of specialized guidance 

and instruction for carrying out the 

direction issued in the FSM. Because 

the Forest Service directives are easier 

to change and more easily adopt the 

latest technology and science, they are 

the appropriate place for specific 

technical guidance. 

As stated in the ‘‘Forest Service 

Directives’’ section in the preamble, the 

Forest Service is developing planning 

directives to provide overall guidance 

needed to use this final rule for Forest 

Service line officers, agency employees, 

and others. The Forest Service will 

provide the public with the opportunity 

to comment on planning directives as 

soon as they are prepared through 

notice in the Federal Register. 

Comment: Other issues. Some 

respondents commented on a variety of 

important issues such as roads, 

recreation, timber harvest, taxes, 

recycling, access, travel management, 

public safety, effects on spiritual values, 

land exchanges and purchases, fire 

protection, paying for restoration, job 

creation, certain kinds of motorized use, 

and roadless areas and they wanted 

those issues addressed in the final rule. 

Response: The Department agrees that 

the issues raised are important. 

However, the final rule is intended to 

guide how plans are developed, revised, 

and amended. The final rule provides 

the overall direction for planning. The 

final rule does not provide direction 

that is properly found in the plans 

themselves, or in the subsequent 

decisions regarding projects and 

activities on a particular national forest, 

grassland, prairie, or other comparable 

administrative unit. 

Issues in Response to Specific Sections 

Following are discussions and 

responses to public comments received 

on specific sections in 36 CFR part 219 

during the Department’s comment 

period on the 2002 proposed rule, 

including discussion on the differences 

between the 2002 proposed rule and the 

final rule and why these changes were 

made. The Department reorganized the 

final rule. As a result, some sections 

have new titles and/or a new 

designation as shown in the following 

table 1. In addition, the heading for 

subpart A in the 2002 proposed rule, 

‘‘National Forest System Planning for 

Land and Resource Management Plans,’’

has been shortened and simplified in 

the final rule to ‘‘National Forest System 

Land Management Planning,’’ which is 

a term also used in the National Forest 

Management Act of 1976.

Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 1037

TABLE 1.—SECTION-BY-SECTION COMPARISON OF THE 2002 PROPOSED RULE WITH THE FINAL RULE

[2002 Proposed Rule] ...............................................................................

Proposed section number and title 

[Final Rule] 

Final section number and title 

§ 219.1 Purpose and applicability ........................................................... § 219.1 Purpose and Applicability. 

[some direction moved to §§ 219.2 and 219.3] 

§ 219.2 Nature and scope of a land and resource management plan .. [redesignated at § 219.3; planning process requirements incorporated 

in § 219.7] 

§ 219.2 Levels of planning and planning authority. 

§ 219.3 Levels of planning and planning authority ................................. [redesignated at § 219.2] 

§ 219.3 Nature of land management planning. 

§ 219.4 Decisions embodied in plans ..................................................... [incorporated in §§ 219.7 and 219.12] 

§ 219.4 National Environmental Policy Act compliance. 

§ 219.5 Indicators of need to amend or revise a plan ........................... [incorporated in § 219.6 or the Directive Systems.]

§ 219.5 Environmental management systems. 

§ 219.6 Compliance with National Environmental Policy Act ................. [redesignated at § 219.4] 

§ 219.6 Evaluations and monitoring. 

§ 219.7 Amending a plan ........................................................................ [incorporated in §§ 219.2, 219.7 and 219.9] 

§ 219.7 Developing, amending, or revising a plan. 

§ 219.8 Revising a plan .......................................................................... [incorporated in §§ 219.2, 219.7, 219.8 and 219.9] 

§ 219.8 Application of a new plan, plan amendment, or plan revision. 

§ 219.9 Developing a new plan .............................................................. [incorporated in §§ 219.2 and 219.7] 

§ 219.9 Public participation, collaboration, and notification. 

§ 219.10 Application of plan direction .................................................... [incorporated in § 219.8] 

§ 219.10 Sustainability. 

§ 219.11 Monitoring and evaluation. ...................................................... [incorporated in § 219.6] 

§ 219.11 Role of science in planning. 

[2002 Proposed Rule] ...............................................................................

Proposed section number and title 

[Final Rule] 

Final section number and title 

§ 219.12 Collaboration, cooperation, and consultation .......................... [incorporated in § 219.9] 

§ 219.12 Suitable uses and provisions required by NFMA. 

§ 219.13 Sustainability ............................................................................ [redesignated at § 219.10] 

§ 219.14 The consideration of science in planning ................................ [redesignated at § 219.11] 

§ 219.15 Special designations ................................................................ [incorporated in §§ 219.7] 

§ 219.16 Determination of lands available for timber harvest and suitable for timber production.[redesignated at § 219.12] 

§ 219.13 Objections to plans, plan amendments, or plan revisions. 

§ 219.17 Limitation on timber harvest .................................................... [redesignated at § 219.12] 

§ 219.14 Effective dates and transition. 

§ 219.18 Plan documentation, maintenance, and availability ................ [incorporated in §§ 219.6, 219.7, and 219.9] 

§ 219.15 Severability. 

§ 219.16 Definitions. 

§ 219.19 Objections to amendments or revisions of plans .................... [redesignated at § 219.13] 

§ 219.20 Appeals of plan amendments in site-specific project decisions.[incorporated in § 219.13] 

§ 219.21 Notice of plan decisions and effective dates ........................... [incorporated in §§ 219.9 and 219.14] 

§ 219.22 Transition ................................................................................. [incorporated in § 219.14] 

§ 219.23 Definitions ................................................................................ [redesignated at § 219.16] 

In this final rule, the Department 

reorganized sections of the 2002 

proposed rule to improve clarity and 

reduce redundant material. The 

discussion of each section follows the 

numbering and titles adopted in the 

final rule, with references to where the 

text was located in the 2002 proposed 

rule. These new sections are ordered 

from general to specific. The first 

section introduces the reader to what is 

covered in the final rule and 

acknowledges the multiple-use and 

sustained yield productivity mandate of 

the Forest Service (remainder of 

§ 219.1). Section 219.2 describes 

planning in general and the levels of 

planning in the agency. Then, the final 

rule contains a general description of 

plans (§§ 219.3 and 219.4), followed by 

the specific plan requirements 

(§§ 219.5–219.16). 

Section 219.1—Purpose and 

Applicability 

This section is coded the same in the 

final rule as it was in the 2002 proposed 

rule and introduces the reader to what 

is covered in the final rule, 

acknowledges the multiple-use and 

sustained-yield productivity mandate of 

the Forest Service, and directs the Chief 

of the Forest Service to establish 

planning procedures in the Forest 

Service directives. The 2002 proposed 

rule language is retained in the final 

rule, with some clarification regarding 

the overall goal to sustain the multiple 

uses of its renewable resources in 

perpetuity while maintaining the longterm productivity of the land. 

Comment: Overall goals of planning. 

There were varied comments on the 

overall goal of National Forest System 

(NFS) planning. Some said that the 

purpose of planning should reflect 

sustainability priorities and values. 

Some respondents stated that the best 

approach to the purpose and 

applicability section is to state that 

ecological sustainability is the desired 

condition to be achieved through land 

management. Some requested that the 

Forest Service’s vision statement be 

changed to reflect a philosophy of 

preservation and sustainability and that 

the Forest Service not make 

management decisions based on a 

productivity paradigm. They stated that 

good decisions that restore the forest 

will be approved quickly without 

controversy and lawsuits, while bad 

decisions should be stopped and the 

decisionmaker held accountable. Others 

requested that the Forest Service give 

attention to how plans affect tourism 

and recreation. 

1038 Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 

Response: The Department agrees that 

the mandate under the National Forest 

Management Act (NFMA) of 1976 and 

Multiple-Use Sustained Yield Act 

(MUSYA) of 1960 is not exclusively for 

production or for preservation because 

‘‘multiple use and sustained yield’’

applies to all renewable resources, 

including outdoor recreation, range, 

timber, watershed, wildlife and fish, 

and wilderness. These laws direct the 

management of all the various 

renewable resources of the lands so that 

they are used in the combination that 

will best meet the needs of present and 

future generations of Americans. 

Planning for NFS lands is not simple, 

and often there is little agreement on 

how these lands should be managed. 

While relying on the expertise of the 

Forest Service and taking into account 

the best available science, this final rule 

also provides an open process for public 

collaboration and participation. 

Finally, other overarching planning 

guidance, such as the intent of planning 

to produce responsible land 

management and how a plan aids the 

agency to fulfill its stewardship 

responsibilities, is discussed in § 219.3. 

Comment: Multiple-Use SustainedYield Act (MUSYA). Some respondents 

pointed out that ‘‘multiple use’’ is part 

of the law and ‘‘ecosystem 

management’’ is not. Active forest 

management, they asserted, is necessary 

for forest health, maintaining biological 

diversity, and sustaining wildlife 

populations. These respondents 

requested that the final rule uphold 

what they believe are the active forest 

management principles mandated by 

the MUSYA. Further, they stated that 

timber harvesting is a goal of the 

MUSYA. They asked that the Forest 

Service provide a high-level sustained 

yield of renewable timber resources. 

Some respondents requested that the 

Forest Service comply with MUSYA by 

managing lands according to what they 

call its ‘‘wood, water, wildlife, range, 

and recreation’’ formula. Others stated 

that the 2002 proposed rule violates the 

MUSYA requirement that NFS lands be 

used to best meet the needs of the 

American people. These respondents 

requested that emphasis be placed on 

recreation, aesthetics, air and water 

quality, species habitat, and ecosystem 

integrity, rather than natural resource 

development. 

Response: The final rule is faithful to 

NFMA, which requires the use of the 

MUSYA to provide the substantive basis 

for forest planning. As used in the final 

rule, sustainability embodies these 

Congressional mandates. The 

interrelated and interdependent 

elements of sustainability are social, 

economic, and ecological as described 

in § 219.10. The final rule sets the stage 

for a planning process that can be 

responsive to the desires and needs of 

both present and future generations of 

the Americans for the multiple uses of 

NFS lands. The final rule does not make 

choices among the multiple uses; it 

describes the processes by which those 

choices will be made as a preliminary 

step during development of plans. Later, 

the plan provides guidance for projects 

and activities. 

Comment: Forest planning versus 

project planning. Some respondents 

said that, unlike the 2000 planning rule, 

the 2002 proposed rule correctly 

focused only on the forest planning 

level and not on project planning.

Response: The final rule retains the 

focus of the 2002 proposed rule on land 

management plans, while at the same 

time explaining on how plans and 

projects or activities are linked. 

Inclusion of an EMS in the land 

management framework provides a 

current scientific and informational 

foundation for the effective 

development and implementation of 

projects and activities. This framework 

ensures the continued relevance of the 

entire cycle of planning while 

maintaining the distinction between 

strategic planning and projects and 

activities. As previously noted, there 

will be a comprehensive table in the 

Forest Service directives that includes 

guidance on what direction is 

appropriate for the plan level, what 

decisions are properly made at the 

project or activity level, and what 

scheduling, prioritization, or analysis 

may take place in between. 

Section 219.2—Levels of Planning and 

Planning Authority 

This section was located in the 

proposed rule at § 219.3, but has been 

re-designated at § 219.2 as part of the 

overall reorganization of the final rule. 

This section describes planning in 

general, the levels of planning in the 

agency, and provides the basic 

authorities and direction for developing, 

amending, or revising a plan. 

Comment: Consistency of decisions 

across units and the Responsible 

Official. Some respondents were 

concerned that plans developed for 

individual units, each with a different 

Responsible Official, would not be 

consistent within larger areas. They said 

that the planning framework should be 

similar within each State or ecological 

region. Some said that without a 

regional context, the planning efforts of 

each forest or grassland would seem to 

take place in a vacuum. Some 

commented that plans needed to 

address species management plans and 

conservation agreements for wide 

ranging species in a consistent manner. 

Some commented that planning needed 

to use consistent consultation 

procedures with Tribes. 

Several respondents commented on 

the provision that the Supervisor is 

usually the Responsible Official. Those 

in favor of this provision said that local 

Supervisors and staff are involved with 

actual hands-on project implementation 

and can better gauge success or failure 

of the planning process. Some said that 

Supervisors are close to the problem 

areas and are better able than Regional 

Foresters to seek solutions proactively 

and act upon them more quickly. These 

respondents felt that Supervisors are in 

a better position to facilitate citizen 

participation and negotiation between 

competing groups and to coordinate 

with local or State plans. 

Those opposed to this provision were 

concerned that the local pressure for 

employment in forest products industry 

may outweigh the preservation of our 

national heritage if decisionmaking was 

left in local hands. They said that 

Supervisors are susceptible to political 

pressure or abuse of their authority. Still 

others said Supervisors sometimes do 

not have sufficient experience or 

expertise to make adequate plan 

decisions. Some said that local staff may 

not understand how to use inventory 

data, monitoring, or ecosystem or 

species evaluations and will simply 

copy what was done in other locations, 

causing endless escalation of planning 

efforts. Several respondents said that the 

current system has worked well with 

the Regional Forester as the Responsible 

Official. 

Still others said that both national and 

local level staffs are necessary, because 

local staff cannot reasonably understand 

complex and overlapping policies, 

regulations, and laws, and national staff 

cannot efficiently study local conditions 

or gain local consensus. Finally, one 

respondent observed that if the planning 

process becomes so burdensome that 

local officials do nothing but plan, the 

system would once again break down. 

Some respondents wanted the final rule 

to clarify the conditions under which 

officials ranking higher than the 

Supervisor can act as the Responsible 

Official and to explain the types of 

decisions that these officials can make. 

Response: Supervisors currently 

coordinate across unit and Regional 

boundaries and will continue to do so 

because the evaluations described in 

§§ 219.6, 219.7, and 219.10 will often 

cross boundaries of adjacent NFS units. 

In addition, the final rule provides the 

option for higher-level officials to act as 

Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 1039

the Responsible Official for a plan, plan 

amendment, or plan revision across a 

number of plan areas when consistency 

is needed. Additional procedural 

guidance will be placed in the Forest 

Service directives to ensure consistency 

as needed for Tribal or public 

consultation or for social, economic, or 

ecological resource related issues. 

The Department intends the final rule 

be flexible in addressing different issues 

that may arise at different levels. 

Therefore, the Department does not 

believe that the final rule should 

provide the specific criteria for when a 

higher-ranking official becomes the 

Responsible Official. 

The final rule retains the provision in 

the 2002 proposed rule for the 

Supervisor to be the Responsible 

Official because the Department 

believes that the Supervisor is the 

person most familiar with the resources 

and the people on their unit and is 

usually the most appropriate person to 

make decisions affecting those lands. 

This provision has not changed from the 

2000 planning rule. Together, 

environmental management systems, 

science, monitoring, evaluation, 

interdisciplinary teams, public 

participation, objection process, and 

other laws and direction all aid in 

providing relevant information for the 

decisionmaker. 

However, the final rule retains the 

provision in the 2002 proposed rule to 

allow higher-level officials to serve as 

Responsible Officials. Also, the final 

rule retains the provision of the 2002 

proposed rule for an objection process 

in which the Reviewing Officer, who is 

the supervisor of the Responsible 

Official, must respond to objections 

before approval of a plan, plan 

amendment, or plan revision (§§ 219.13 

and 219.16). 

Comment: Forest Service Strategic 

Plan. Some respondents observed that 

the 2002 proposed rule only 

acknowledges the existence of the 

Strategic Plan and does not provide 

guidance about using the Strategic Plan 

in new plans, plan amendments, or plan 

revisions. 

Response: The Strategic Plan provides 

an overall vision for management of the 

NFS. Land management plans, projects, 

and activities contribute to the vision 

and Responsible Officials approve them 

within the context of the Strategic Plan. 

The Department believes that decisions 

regarding how plans should use the 

Strategic Plan are best made at the 

national forest, grassland, prairie, or 

other comparable administrative unit 

level. 

Section 219.3—Nature of Planning and 

Land Management Plans 

The direction found in § 219.2 of the 

2002 proposed rule has been 

redesignated at § 219.3 as part of the 

reorganization of the final rule. The 

direction found in § 219.3 of the 2002 

proposed rule has been moved to 

§ 219.2 of the final rule. Section 219.3 

describes the nature of planning, and 

the force and effect of plans. 

Comment: Desired conditions as the 

purpose of planning. Some respondents 

believed that the final rule should 

establish desired conditions as the 

fundamental purpose of a plan and that 

this section of the final rule provides a 

clear statement of what a plan will do. 

Others said that the focus on desired 

conditions may be too narrow in light of 

the overall goals of multiple use and 

sustained yield. Others commented that 

the primary purpose should be to 

integrate human activities and 

ecological processes. Still others said 

that the term ‘‘desired conditions’’ was 

too susceptible to multiple 

interpretations and the purpose of a 

plan should be changed to ‘‘fulfill 

multiple-use objectives to ensure 

ecological sustainability.’’

Response: The Department concluded 

that, while ‘‘desired conditions’’ may 

drive how the other plan components 

are developed, ‘‘desired conditions’’ are 

not the ‘‘primary purpose’’ of a plan. 

The final rule has been changed at 

§ 219.7(a) to clarify that plans also 

provide objectives, guidelines, 

suitability of areas, and special areas. 

There is further discussion of desired 

conditions in the preamble to the final 

rule in the section entitled ‘‘The 

strategic and adaptive nature of land 

management plans.’’ Plans are 

developed in light of the overall goal of 

managing the NFS lands as described in 

§ 219.1, which is to sustain the multiple 

uses of its renewable resources in 

perpetuity while maintaining the longterm productivity of the land. 

Comment: Oil and gas leasing 

decisions. Some respondents felt that 

the 2002 proposed rule’s emphasis on 

the programmatic nature of plans is 

contrary to the Federal Onshore Oil and 

Gas Leasing Reform Act (Oil and Gas 

Leasing Reform Act) of 1987 (Pub. L. 

100–203, 101 Stat. 1330–256, 30 U.S.C. 

181, 226, 226–3), Forest Service 

regulations, and the Mining and 

Minerals Policy Act of 1970 (30 U.S.C. 

21a), which these respondents say, 

require project or activity decisions to 

be made in a plan. 

Response: The Forest Service 

directives will include guidance on 

making an initial availability decision 

for oil and gas leasing where there is the 

geologic potential for the occurrence of 

such resources or where there has been 

an expression of interest in leasing. 

There is no irretrievable or irreversible 

commitment of resources unless and 

until the Department of the Interior 

decides to issue a lease, giving certain 

exclusive rights to the lessee. Grounddisturbing activity and the final 

irreversible and irretrievable 

commitment of resources occur only 

when a decision approves a surface use 

plan of operations. Exploration or 

development of a lease requires 

additional environmental analysis, 

public disclosure, and specific project 

decisions by the appropriate regulatory 

agencies. 

Because plans include plan 

components that describe which lands 

are generally suitable for consideration 

for energy and mineral leasing, they 

meet the intent of the Oil and Gas 

Leasing Reform Act, the Forest Service 

regulations for oil and gas resources, 

and the Mining and Minerals Policy 

Act. Specific project decisions to 

explore or develop a lease or mining 

claim are properly deferred to the 

project or activity level. 

Comment: Management zone 

authorities. Some respondents said that 

only counties have authority to create 

zoning ordinances. Others said that the 

zoning system creates a dominant or 

single use that is contrary to multipleuse. 

Response: The Forest Service is 

responsible for managing the lands of 

the NFS under NFMA and other laws. 

The terms ‘‘zoning’’ or ‘‘zone’’ were not 

in the text of the 2002 proposed rule, 

nor are they in the text of the final rule. 

The Forest Service is not issuing zoning 

ordinances. The preamble to the 2002 

proposed rule described plans as 

creating ‘‘zones’’ in the forest. The 

Department used the term as a metaphor 

to help describe how plans may identify 

suitability of areas. 

Section 219.4—National Environmental 

Policy Act Compliance 

Compliance with NEPA was 

addressed in § 219.6 in the 2002 

proposed rule. This section has been 

redesignated at § 219.4 as part of the 

overall reorganization of the final rule. 

This section of the final rule describes 

how planning will comply with NEPA. 

Comment: Applicability of NEPA, 

NEPA documentation, NEPA 

‘‘significance,’’ and the nature of forest 

plans. Some respondents said that 

NEPA is not applicable to planning, 

noting that a plan should provide a 

framework for future project and 

activity decisionmaking and that the 

1040 Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 

disclosure of effects in plan-level NEPA 

documents is necessarily speculative; 

some said that plans do not significantly 

affect the environment. Others said that 

it might be more advantageous to make 

as many project-level decisions during 

the forest planning process as possible, 

because one NEPA analysis document 

could be used to make numerous 

decisions. Another said that failure to 

make decisions at the plan level would 

delay implementation of projects. 

Some respondents supported 

categorically excluding plans from 

NEPA documentation, while others 

suggested that the criteria for 

categorically excluding plans were 

unclear, or that extraordinary 

circumstances in the plan area would 

always preclude the use of a categorical 

exclusion (CE). Some respondents 

thought the criteria for determining 

whether a CE is appropriate gives the 

Responsible Official too much 

discretion; others thought the degree of 

discretion appropriate. Some 

respondents indicated that they did not 

see the relationship between 

categorically excluding plans from 

NEPA documentation and achieving a 

more streamlined, adaptive planning 

system and holding the Forest Service 

accountable for its plans. Some 

interpreted categorically excluding 

plans from NEPA documentation as not 

complying with NEPA, rather than 

application of a provision of the NEPA 

regulations. 

Many questioned how certain 

procedures, such as plan analysis and 

public involvement, would occur if a CE 

is used. Many people questioned how 

cumulative effects would be considered 

if a CE was used, and how monitoring 

would occur. Some wanted clearer and 

stronger direction for when a plan might 

be categorically excluded and when an 

environmental impact statement (EIS) 

would be required. Some respondents 

asked the Forest Service to distinguish 

between effects to the environment and 

effects to the human environment.

Respondents stated a number of 

reasons in support of an EIS for plans. 

Some respondents commented that 

plans, by their very nature, are 

controversial and therefore should 

require an EIS. Some commented that 

the requirement of the 1982 and 2000 

planning rules to prepare an EIS for 

plans and revisions was an 

acknowledgment that plans are major 

Federal actions having significant 

effects on the environment. Others 

suggested that a substantial change in 

the existing situation on the ground or 

a substantial change to an existing plan 

would trigger an EIS. Some respondents 

said that the 2002 proposed rule 

misconstrued the role of a plan and thus 

the applicability of NEPA, saying that a 

plan is not just a simple framework, but 

rather creates changes on-the-ground 

that have environmental consequences. 

Some said that if a plan acts as a zoning 

document and authorizes increased 

motorized recreational uses, detailed 

analysis would have to occur in the plan 

analysis for all affected sites. Some 

respondents thought that the 2002 

proposed rule differentiated between 

whether an EIS would be required for 

plan revisions, as opposed to new plan 

development, arguing that existing 

plans must need ‘‘significant’’ changes 

because conditions had changed since 

the plans were originally adopted. 

However, some said that a better 

approach, instead of focusing on 

‘‘zones,’’ would be to describe where in 

the plan area certain uses would have 

dominance over other uses. Others said 

that plans should set timber sale 

schedules; indicate what areas are 

available for logging, grazing, off-road 

vehicles use, and mineral extraction; 

and establish unique areas for 

protection, and that NEPA 

documentation would be necessary to 

make such decisions. They said that 

plans should establish measurable and 

enforceable standards and objectives. 

Others said that management activities 

must be analyzed on a site-by-site basis 

in a NEPA document for the plan. 

Some respondents thought that in the 

absence of an EIS, the Forest Service 

would ignore information that would 

curb timber harvesting. Some thought 

that an EIS was needed to ensure 

ecological sustainability because 

adequate analysis needs a long-term 

view that considers science. 

Some respondents commented that 

there is a history of case law that 

requires the Forest Service to follow not 

only NEPA, but also the Council on 

Environmental Quality (CEQ) 

regulations at 40 CFR parts 1500–1508. 

Some respondents raised a number of 

NEPA regulation requirements for 

‘‘significance,’’ including the 

uncertainty of effects; the potential for 

establishing a precedent for future 

actions with significant effects; 

connectivity of actions; potential 

violations of Federal, State, or local 

environmental laws; consideration of 

the 10 ‘‘significance’’ factors in the CEQ 

regulations; and various other factors. 

Response: As described in the 

‘‘Overview of the Final 2004 Rule,’’ land 

management plans under this final rule 

will be strategic and aspirational in 

nature. They will include decisions 

with on-the-ground effects only in 

extraordinary circumstances. If a plan 

includes on-the-ground decisions, it 

will not fall within the categorical 

exclusion being proposed in connection 

with this final rule. Otherwise, it will be 

categorically excluded from NEPA 

documentation due to the fact that the 

adoption or amendment of plans 

containing the five plan components 

described above is not a major federal 

action significantly affecting the 

environment. Simultaneously with this 

rulemaking, the Forest Service is 

proposing to revise its NEPA procedures 

to provide a new categorical exclusion 

for plan development, amendment, and 

revision. The Forest Service is seeking 

comment on the proposed categorical 

exclusion. Information developed in 

plan monitoring and evaluation, 

including those required by § 219.6, 

may be incorporated by reference in 

applicable NEPA documents and used 

as basis for the analysis needed for 

specific project and activity decisions. 

The final rule establishes a planning 

process that complies with NEPA in a 

manner appropriate for NFMA 

planning. The final rule does not 

preclude Forest Service participation in 

development of an EA or EIS in a joint 

planning effort with another Federal 

agency. 

The Department emphasizes that 

project or activity decisions are 

generally not appropriate for inclusion 

in a plan level document; experience 

has shown that including project and 

activity decisionmaking in planning has 

actually delayed the planning and 

project and activity processes without 

improving natural resource management 

or public participation. Thus, by 

sharpening the distinction between 

planning and project and activity 

decisions, the Department expects both 

better planning decisions and more 

useful and timely environmental 

analysis for project and activity 

decisionmaking. Experience has shown 

the futility of attempting detailed 

project and activity proposals at the 

time of plan approval: the NEPA 

documentation for the proposed projects 

and activities would be largely 

speculative and unwieldy and would 

not account for unforeseen 

circumstances. Most of the document 

would be out of date by the time most 

of the projects or activities would be 

ready for decisionmaking.

Paragraph (d) of § 219.4 specifies that 

nothing in this rule alters the 

application of NEPA to proposed 

projects and activities. For example, a 

decision to allow motorized recreational 

use within the plan area may be made 

contemporaneously with, but not as a 

part of, a plan, but such decision can 

only be made upon the completion of 

the appropriate level of NEPA analysis. 

Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 1041

The Department believes that, in 

general, an EIS does not need to 

accompany planning decisions made 

pursuant to NFMA, particularly given 

that plans under the final rule will 

contain five components merely setting 

forth desired conditions, objectives, 

guidelines, suitability of areas, and 

special areas. Until now, the agency’s 

practice under NEPA has been to 

require programmatic EISs for plan 

development and revision, and EISs or 

EAs for proposed plan amendments. 

Because a plan, in most cases, is a 

framework for future action, EISs 

prepared at the plan level had no 

proposed ‘‘action’’ on which to focus. 

Similarly, disclosure of effects of a plan 

included discussions of possible 

environmental impacts from an array of 

potential projects and activities whose 

dimensions and details were far from 

certain and ranged over a 15-year period 

for implementation without an ability to 

predict unforeseen natural events. To 

conduct a meaningful evaluation of 

environmental impacts, and to provide 

helpful information to decisionmakers, 

the agency must examine the details of 

proposed activities, the extent of those 

activities, the specific location of those 

activities, the environmental conditions 

at the site when the activities are 

proposed, past and reasonably 

foreseeable future actions that might 

relate to the cumulative impacts of the 

proposed activities, and reasonable 

mitigation measures, if appropriate. 

After 25 years of experience, the 

Department now knows this information 

is not generally available at the time of 

plan approval, and that to provide such 

specific information at the time of 

adopting or amending a plan is an 

inefficient use of resources. 

Furthermore, between the time of 

plan evaluation and the design of 

projects, the possibilities change. A plan 

EIS disclosure of potential cumulative 

impacts and other unit-wide 

information are speculative to begin 

with, and therefore, quickly become 

outdated. The agency has found that a 

plan EIS typically does not provide 

useful, current information about 

potential cumulative impacts at the time 

of project or activity proposals; 

therefore, relying upon, or ‘‘tiering’’ to, 

a plan EIS has not proved to be effective 

over the long term. 

Under the final rule, approval of a 

plan, plan amendment, or plan revision 

creates the framework that will lead to 

projects and activities for which EISs, 

EAs, or reliance on CEs will be 

necessary. Accordingly, the Department 

believes it is appropriate at the time of 

plan development, plan amendment, or 

plan revision to begin assembling 

appropriate data and other information 

to be used in those EISs, EAs, and CEs. 

Much of this information should come 

from the environmental management 

system processes described in the other 

parts of this rule. However, the 

assembling of data and other 

information that will be useful in 

making future project or activity 

decisions does not itself constitute a 

proposal for major Federal action. Thus, 

the process of implementing NEPA is a 

continuum that begins when the 

planning framework is established, and 

moves through scoping for specific 

project and activity decisions, 

culminating in a NEPA document for 

the project and activity proposals. 

Moreover, the final rule does provide 

for extensive analysis, as set out in 

§§ 219.6 and 219.7. A comprehensive 

evaluation must be done for plan 

development and revisions and updated 

at least every five years (§ 219.6(a)). This 

evaluation will provide a broad 

overview of current conditions and 

trends relevant to the plan area. This 

overview, along with information from 

annual evaluations and other sources, 

will be part of the continually updated 

Plan Documents or Set of Documents 

that must be considered in project 

analysis. These Plan Documents or Set 

of Documents will provide a better 

context than had been provided in plan 

EISs for project cumulative effects 

disclosures; therefore, the Forest Service 

will make better informed management 

decisions at the time it decides to act. 

The Plan Documents or Set of 

Documents required by the final rule 

will make it easier to propose, approve, 

and carry out projects. 

Conditions can and do change 

between the broad ‘‘cumulative effects’’

analysis the agency has done for plan 

EIS’s and a later, actual project or 

activity decision. Fires can occur, 

adjacent landowners can do something 

that was not predicted, and the agency 

can be doing actions it had not 

anticipated at the time it developed the 

plan and not undertake projects or 

activities it thought it would. Under this 

final rule, the Forest Service uses 

monitoring and the results of the 

comprehensive evaluation with the 

most up-to-date site-specific 

information to provide a basis for the 

consideration of cumulative effects for 

projects and activities. Again, 

cumulative effects like project or 

activity specific impacts are best studied 

in the context of a concrete proposal.

The process outlined in the final rule 

retains and improves upon the 

important planning elements the public 

has come to expect, such as public 

involvement; taking into account the 

best available science; integrated 

analysis of social, economic, and 

ecological systems; monitoring and 

evaluation. An EIS is not necessary to 

ensure that the public is given an 

opportunity to participate in the 

planning process, or that the agency 

obtains high quality information, 

considers the best available science, and 

considers the long-term view. Under the 

final rule, the opportunities for the 

public will be greater than those 

opportunities required by regulation for 

an EIS, because the final rule mandates 

public involvement opportunities in 

developing and updating the 

comprehensive evaluation report, 

establishing the components of the plan, 

and designing the monitoring program. 

Additionally, by requiring an EMS, 

combined with the procedures in the 

Forest Service directives, the final rule 

provides for agency accountability 

through impartial and objective audits, 

management reviews, and public 

disclosure of the results of those 

reviews. 

Plans under this final rule will not 

contain final decisions that approve 

projects and activities except under 

extraordinary circumstances. 

Guidelines, which are intended to 

provide some direction in how to 

implement decisions, have no influence 

until they are applied in a project or 

activity. The identification of an area as 

generally suitable for a use is not a 

commitment or decision approving 

projects and activities. Any proposed 

use in an area identified as suitable for 

that use must be separately considered 

under agency NEPA procedures at the 

time of a project decision. Desired 

conditions and objectives are not 

commitments or final decisions 

approving projects and activities in the 

plan area. Special areas may be 

designated by statute or through plan 

development, plan amendment, or plan 

revision or a separate administrative 

process under NEPA and other 

applicable laws. In summary, none of 

these component parts of a plan is 

permanent, or final, in that all are 

subject to reconsideration and change 

through plan amendment or plan 

revision at any time. Should a 

Responsible Official nevertheless 

choose to include projects or activities 

within the context of a plan, plan 

revision, or plan amendment, 

extraordinary circumstances may be 

present such that an EIS or an EA may 

be required. 

From more than 25 years of NFMA 

planning experience, the Department 

concluded that it can most efficiently 

and appropriately evaluate and analyze 

the environmental consequences of an 

1042 Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 

array of potential projects and activities 

when those matters reach the status of 

a proposal. Making planning a more 

continuous process, not dependent on 

environmental impact statements that 

only give a prediction at one point in 

time, will actually make plans more 

relevant to projects by collecting, 

evaluating, and monitoring data on an 

ongoing basis, thereby maintaining a 

current base of information that Forest 

Service can use at the project or activity 

level. 

Comment: Alternative or option 

development. Some respondents 

questioned how alternatives—when 

developing plans, amendments, or 

revisions—would be considered if plans 

were categorically excluded from NEPA 

documentation. Others emphasized the 

importance of forming effective 

partnerships with government, private 

landowners, industries, and others to 

promote consensus and reduce the need 

for numerous alternatives. Some 

expressed concern that the agency 

would consider only its proposed plan 

and not the comments on, or 

alternatives to, the plan. Others asserted 

that NEPA requires a full range of 

alternatives, while others said only two 

alternatives are needed. 

Response: Requirements for how 

options may be considered while 

developing plans, amendments, or 

revisions are found in § 219.7(a)(6) of 

this final rule. The Department 

recognizes that people have many 

different ideas about how NFS lands 

should be managed and that the public 

should be involved in determining what 

the plan components should provide. 

Therefore, the final rule provides for 

participation and collaboration with the 

public at all stages of plan development, 

plan amendment, or plan revision. The 

Responsible Official shall work closely 

with the public to develop the proposed 

plan, plan amendment, or plan revision. 

Key steps in development of the 

proposed plan shall be documented in 

the plan set of documents, which will 

be available to the public. The proposed 

plans that the Forest Service presents 

for public comment shall be jointly and 

collaboratively developed with the 

public. 

Section 219.5—Environmental 

Management Systems 

This section has been added to the 

final rule to address public comments 

regarding how planning relates to 

adaptive management. Adaptive 

management was addressed in § 219.11, 

Monitoring and Evaluation, in the 2002 

proposed rule. Both the proposed and 

final rule define adaptive management 

as an approach to natural resource 

management where actions are designed 

and executed, and effects are monitored 

for the purpose of learning and 

adjusting future management actions, 

which improves the efficiency and 

responsiveness of management. The 

‘‘Overview of the Final 2004 Rule’’

section of the preamble provides a 

detailed description of the provisions of 

this section as developed through the 

response to public comments.

The Department has chosen to require 

each administrative unit to carry out an 

EMS based on standards developed by 

the International Organization for 

Standards (ISO). Each administrative 

unit’s EMS will serve as a framework for 

land management planning, adaptive 

management and, at the project level, 

provide information for EISs, EAs, or 

CEs where required by NEPA. The EMS 

will provide a structured and 

documented process for evaluating each 

unit’s environmental conditions, setting 

objectives to meet the unit’s legal and 

public obligations, developing programs 

and procedures for managing the unit 

under the land management plan, 

monitoring and measurement 

procedures to collect and track 

information about environmental 

conditions, and corrective action and 

review processes to provide a ‘‘feedback 

loop’’ to push for continual 

improvement. 

Section 219.6—Evaluations and 

Monitoring 

This section has been organized to 

specify requirements for plan evaluation 

and plan monitoring. Monitoring and 

evaluation requirements were found in 

§§ 219.4(a)(6) and 219.11 of the 2002 

proposed rule. The final rule allows the 

monitoring program to be changed with 

administrative corrections and public 

notification, instead of amendments, to 

more quickly reflect the best available 

science and account for unanticipated 

changes in conditions. Changes in a 

monitoring program will be reported 

annually, and the Responsible Official 

has flexibility to involve the public in 

a variety of ways in developing any 

changes to the program. Discussions of 

both evaluation and monitoring are 

found in the ‘‘Overview of the Final 

2004 Rule’’ section of the preamble. 

One clarification regarding the 

requirement at § 219.6(b)(2)(i) may be 

helpful. This paragraph requires that the 

plan monitoring program shall monitor 

to determine the effects of management 

on the productivity of the land. The 

term ‘‘productivity’’ refers to all of the 

multiple uses, such as outdoor 

recreation, range, timber, watershed, 

and wildlife and fish. Use of this term 

is broader than just commercial uses. 

Comment: General. Several 

respondents supported the monitoring 

and evaluation provisions of the 2002 

proposed rule, because they observed 

that the 2002 proposed rule provided 

the appropriate level of monitoring and 

evaluation. Others thought the 2002 

proposed rule gave too much flexibility 

to the Responsible Official, weakening 

monitoring and evaluation 

requirements. Some respondents 

wanted the requirements from the 2000 

planning rule retained because they felt 

the 2002 proposed rule did not have 

sufficient requirements to mandate 

adequate monitoring and evaluation. 

Others thought the Responsible 

Official was given the appropriate level 

of flexibility to allow for alteration of 

monitoring and evaluation strategies 

and methods. Still others thought the 

2002 proposed rule had burdensome 

requirements that needed to be relaxed. 

One person suggested the Forest Service 

establish an independent division to 

ensure monitoring compliance. Some 

suggested specific monitoring they 

believed was needed. 

Several respondents submitted 

suggestions about how the Forest 

Service evaluates the information 

obtained from monitoring. One 

respondent stated that the use of 

evaluation is fuzzy and needs 

clarification. Others suggested that 

evaluation could be used to indicate the 

need for a new use of the NFS. Another 

cautioned that any evaluation of the 

information obtained from monitoring 

should include an estimate of error 

reliability of any apparent trend to 

preclude premature or ill-advised 

corrections. 

Response: The Department believes 

that monitoring and evaluation are a 

critical and necessary part of the 

planning process. As the 2002 proposed 

rule provided, the final rule requires the 

Responsible Official to provide for 

monitoring of degree to which on-theground management is maintaining or 

making progress toward the desired 

conditions and objectives for the plan 

(§ 219.6(b)(2)). The Department has 

strengthened this section in the final 

rule by adding a requirement for 

comprehensive evaluation of the area of 

analysis (§ 219.6(a)(1)) at no longer than 

5-year intervals and conducting an 

evaluation when amending a plan 

(§ 219.6(a)(2)). In addition, the use of an 

EMS with impartial and objective audits 

will address both the concerns 

expressed in the comments for local 

flexibility and those for agency 

accountability and compliance. The 

Department has also added a provision 

that the monitoring program take into 

account the best available science to 

Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 1043

improve the evaluation process. These 

evaluations are an integral part of 

answering key planning questions such 

as the state of social, economic, and 

ecological conditions and trends, and 

the need for an amendment or revision. 

Comment: Involvement of science. 

Several respondents wanted assurance 

that science would be involved in 

monitoring. 

Response: The Department believes 

that the taking into account the best 

available science is important in 

monitoring and in evaluating results. 

The Department added the provision 

that the monitoring program shall take 

into account the best available science 

at § 219.6(b). In addition, the final rule 

at § 219.11 retains the intent of the 2002 

proposed rule (§ 219.14) that requires 

the consideration of best available 

science during planning, including the 

development and implementation of 

monitoring program. 

Section 219.7—Developing, Amending, 

or Revising a Plan

The provisions in §§ 219.4, 219.7, 

219.8, 219.9, 219.15, and 219.18 of the 

2002 proposed rule have been combined 

at § 219.7 of the final rule so that 

procedural requirements are located in 

one section. This section includes 

requirements for plan components; 

planning authorities; plan process, 

including review of areas with potential 

for wilderness recommendation; 

administrative corrections; Plan 

Document or Set of Documents; and the 

plan approval document. The detailed 

public participation, collaboration, and 

notification requirements found in 

§§ 219.7, 219.8, and 219.12 of the 2002 

proposed rule have been moved, with 

additional detail, and consolidated at 

§ 219.9 in the final rule to improve 

clarity and readability. 

Section 219.7(b) provides for 

administrative corrections. The final 

rule, at § 219.7(b)(5), adds a new 

category for administrative corrections 

to include changes in the Plan 

Document or Set of Documents, except 

for changes in the plan components. 

The Department made this addition 

because, although an emphasis of the 

final rule is to allow for continual 

inclusion of new science and other 

information into the Plan Document or 

Set of Documents, the 2002 proposed 

rule included no specific vehicle for 

allowing this supplementation and 

change to occur. Changes to the Plan 

Document or Set of Documents may also 

occur when outdated documents are 

removed, for example, when a new 

inventory replaces an older one. The 

addition of this new administrative 

correction category fills this procedural 

gap. 

Comment: Desired conditions. Some 

respondents said that it is unclear what 

the desired conditions for the plan area 

will be and who makes the decision on 

which desired conditions will be 

included in the plan. Some said specific 

substantive requirements should be 

established, such as requiring desired 

conditions to mimic natural conditions, 

or employment of a policy such as 

‘‘limits of acceptable change.’’

Response: Desired conditions are one 

of the plan components (§ 219.7(a)) 

developed through public collaboration 

and participation. The Responsible 

Official is the decisionmaker for the 

plan. The Responsible Official will 

consider public participation, the 

comprehensive evaluation, monitoring 

information, legal requirements, and 

assessments in deciding on desired 

conditions for the plan area. The final 

rule at § 219.7(a) clarifies that desired 

conditions are the ‘‘social, economic, 

and ecological attributes’’ toward which 

the plan is to be directed. 

Because desired conditions are a 

component of a plan, but not necessarily 

the primary focus of a plan, the final 

rule removes the words ‘‘primary focus 

of a plan.’’ As it will for all plan 

components, the public will have an 

opportunity to comment on all aspects 

of the proposed plan, including desired 

conditions (§ 219.9), and may object to 

the plan in whole or in part (§ 219.13) 

if they have concerns. A discussion of 

plan components is found in the 

‘‘Overview of the Final 2004 Rule’’

section of the preamble. 

Comment: Objectives. Some 

respondents said that plan objectives 

must be clear and measurable. They said 

that plans should provide for a good 

faith commitment to accomplish a 

plan’s multiple-use and sustained-yield 

objectives. Others said that it may be 

counterproductive to write simple 

objectives when many factors lead to 

complexity in their implementation. 

Some said that the 2002 proposed rule 

lacks policy direction concerning the 

extent to which investment in resource 

management activities may support 

different outputs. Others said the push 

for clear objectives, where there is no 

clear science, will lead to direction that 

is meaningless and simply become a 

tool of a political agenda. Others said 

the final rule should explicitly provide 

for forest plan objectives to be 

established in accordance with 

guidelines in the Forest Service 

directives. 

Response: The final rule retains the 

provision of the 2002 proposed rule 

stating that objectives are measurable 

outcomes intended to guide 

management toward reaching desired 

conditions. Objectives can be thought of 

as a prospectus of outcomes, based on 

past performance and estimates of 

future trends. Objectives should be 

measurable so progress toward 

attainment of desired conditions can be 

determined. Variation should be 

expected due to changes in 

environmental conditions, available 

budgets, and other factors. In addition, 

the Department added the concept of 

maintenance of desired conditions to 

the description of objectives, because 

the desired conditions may already have 

been met and only need to be 

maintained. 

Comment: Standards. One respondent 

commented that clear, measurable 

standards are important. One 

respondent identified the intent of the 

proposed regulations to simplify, 

clarify, and minimize the standards. 

Some said that only measurable 

standards allow the public to know 

what the Forest Service is doing. Some 

said that NFMA requires enforceable 

standards and that judicial review 

would be more difficult without 

measurable standards. Some said that 

standards should be defined as 

‘‘requirements’’ instead of ‘‘limitations.’’

Others wanted to make clear that 

standards can be forest-wide or areaspecific. 

Response: As explained in the 

‘‘Overview of the Final 2004 Rule’’

section of the preamble, the Department 

has replaced the component of 

‘‘standards’’ with ‘‘guidelines.’’ The 

Department believes requiring 

mandatory standards are too restrictive; 

however, guidelines will be used and, in 

many cases, will be measurable. Policy 

contained in the Forest Service 

directives will provide the detailed 

direction for writing plan guidelines. 

The Forest Service directives will 

provide criteria for guidelines, requiring 

they be written clearly, so decision 

makers and the public know when a 

project is consistent with the guidelines. 

While the final rule will not require 

standards, the public shall be kept 

informed about what the Forest Service 

is doing by procedures such as: (1) 

Providing opportunities for the public to 

collaborate and participate (§ 219.9(a)); 

(2) opportunities to object before 

approving plans, plan amendments, or 

plan revisions (§ 219.13(a)); and (3) 

public notice requirements for land 

management planning (§ 219.9(b)), 

NEPA procedures for projects and 

activities, and annual evaluation of 

monitoring results. The final rule also 

allows for forest-wide and area-specific 

guidelines. 

1044 Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 

Comment: Special designations. Some 

respondents suggested that the final rule 

should contain language that addresses 

presidential and congressionally 

designated areas. Respondents stated 

that the 2000 planning rule gives the 

Responsible Official too much 

discretion when evaluating roadless 

areas for special designation. Some said 

the final rule should provide standards 

for the Responsible Official to follow 

when evaluating and considering 

special designations of the roadless 

areas. Some said these standards should 

ensure that evaluations of roadless areas 

are completed, taking into account the 

best available science, and focus on 

ecological sustainability. One group 

wanted to ensure that special 

designations are not determined in a 

vacuum favoring only ecological values, 

and the group said that social and 

economic values must also be 

addressed. Others felt the effects of 

special designations should be 

considered for recreational access and 

mirror the increasing demand for 

recreation. Some said the final rule 

should require that plans set specific 

goals, such as an amount or a percentage 

of the forest for special area 

recommendations.

Response: Special area identification 

is an integral part of the planning 

process. The proposed and final rules 

provide for the identification of special 

areas in the plan. After reviewing 

comments, and consideration of the 

Forest Service’s experience with 

planning over the past 25 years, the 

Department concluded that guidance 

about special area concerns, such as 

roadless area evaluations or social and 

economic values, are more properly 

included in the Forest Service 

directives. Provisions in directives can 

be more extensive and can be more 

easily changed as the agency learns how 

to improve its processes and as new 

scientific concepts become available. 

Comment: Specific uses. Many 

respondents suggested that the final rule 

identify specific uses that should be 

included in plans. One person suggested 

that the final rule provide for large 

recreational gatherings. Another said 

that livestock grazing should be 

specifically discussed. 

Response: Plans establish desired 

conditions, which include recognition 

of the type of societal benefits that the 

NFS provides. The final rule begins 

with a presumption that lands are 

available for multiple uses and that 

plans will identify suitable uses that 

best fit the local situation. 

Comment: Need for amendment or 

revision. Several respondents were 

concerned about the discretion the 2002 

proposed rule gives the Responsible 

Official in determining when a plan 

amendment or plan revision is needed. 

Some felt the final rule needs clear 

direction on when to propose a plan 

amendment or plan revision. Of equal 

concern was the discretion given to the 

Responsible Official to decide which 

issues would be considered in an 

amendment or revision. They felt that 

without specific requirements resources, 

such as flora and fauna, would not be 

analyzed for every plan amendment or 

plan revision. One respondent did not 

want plans to be revised or amended 

after disturbance events, such as 

wildfire, insect epidemics, and 

windstorms. Others supported limiting 

the analysis required in amending or 

revising a plan. 

Response: The final rule provides the 

Responsible Official discretion about 

whether or not to initiate a plan 

amendment or plan revision (subject to 

the NFMA requirement that the plan be 

revised at least every 15 years) and what 

issues to consider (§ 219.7(a)(4)). The 

evaluations required by the final rule 

will document current conditions and 

trends for social, economic, and 

ecological systems within the area of 

analysis (§ 219.6(a)) and aid the 

Responsible Official in determining if a 

plan amendment or plan revision is 

needed and which issues need to be 

considered. The Responsible Official 

may amend or revise the plan based on 

monitoring and evaluation, as well as 

other factors. The Department believes 

that the efficiencies of the final rule 

would be reduced if the final rule 

identified specific issues that must be 

considered for every plan revision or 

plan amendment. 

Comment: Interim amendments. 

Many respondents did not support 

interim amendments and suggested this 

provision be removed or at least have 

additional parameters added. Others 

supported this concept. 

Response: The final rule allows for an 

efficient plan amendment process. 

Therefore, there is no need for interim 

amendments. Accordingly, the interim 

amendment provision has been removed 

from the final rule. 

Comment: Significant plan 

amendments. Many respondents were 

concerned with how ‘‘significance’’ is 

determined for an amendment. Some 

wanted significance described, while 

others suggested certain factors to 

determine significance. Others wanted 

to understand the connection between 

an EIS and NFMA significance with 

respect to the 2002 proposed rule’s 

provision that every amendment 

prepared with an EIS would be deemed 

a significant amendment. 

Response: The Department decided 

not to distinguish between ‘‘significant’’

and ‘‘non-significant’’ amendments. The 

Department is not requiring an EIS with 

any plan amendment. The final rule 

treats all amendments as ‘‘significant,’’

except when an amendment would 

relate only to a proposed project or 

activity. Plan amendments prepared 

under the procedures described in this 

final rule must have a 90-day comment 

period (required for significant 

amendments by NFMA) and must have 

an objection opportunity. Plan 

amendments associated with a proposed 

project or activity will follow the NEPA 

documentation required for the project 

or activity, as well as notice and 

comment requirements for the project or 

activity. 

Comment: Roadless area evaluation. 

Some respondents felt that under the 

2002 proposed rule, the requirements 

for evaluation and protection of the 

roadless areas’ ecological values had 

been eliminated, allowing the 

Responsible Official to redefine roadless 

area boundaries upon a determination of 

circumstances deemed necessary and 

appropriate. Some felt this language was 

too broad, deferred too much authority 

to the Responsible Official, and would 

eliminate many lands from 

consideration for new wilderness, 

though they still met the physical 

requirements of a roadless area. Others 

supported the requirement that the 

Responsible Official review and validate 

the maps of inventoried roadless areas 

and then adjust them as necessary and 

appropriate. 

Response: The Department has moved 

this provision from § 219.15(b)(3) in the 

2002 proposed rule to § 219.7(a)(5)(ii) in 

the final rule. Because the 2002 

proposed rule caused confusion 

concerning roadless area evaluation, the 

Department has changed the wording to 

describe these areas from ‘‘inventoried 

roadless areas’’ to ‘‘lands possessing 

wilderness characteristics.’’ The final 

rule at 219.7(a)(5)(ii) directs Responsible 

Officials to ensure that, unless 

otherwise provided by law, all NFS 

lands possessing wilderness 

characteristics be considered for 

recommendation as potential wilderness 

areas during plan development or 

revision. Policy and guidance contained 

in the Forest Service directives will 

provide the detailed direction for the 

identification of these areas and the 

evaluation process to follow in carrying 

out this requirement. 

Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 1045

Section 219.8—Application of a New 

Plan, Plan Amendment, or Plan 

Revision 

This provision, found in § 219.10 in 

the 2002 proposed rule, has been 

redesignated at § 219.8 as part of the 

overall reorganization of the final rule. 

This section of the final rule describes 

how and when new plans, plan 

amendments, or plan revisions are 

applied to new or ongoing projects or 

activities. The general outline and intent 

of this section in the final rule is similar 

to the corresponding section of the 2002 

proposed rule. However, § 219.10(e) of 

the proposed rule addressing testing and 

research projects was removed from the 

final rule because the acknowledgement 

that these projects are subject to all 

applicable laws is not necessary. While 

the 2002 proposed rule required project 

or activity consistency with standards, 

the final rule requires consistency with 

the applicable plan.

Comment: Valid existing rights. 

Respondents were both for and against 

the 2002 proposed rule provision that 

new plan direction is subject to valid 

existing rights. Those in favor supported 

respecting these rights. Those against 

said that protection of ecological 

conditions should take precedence. 

Response: The final rule at 

§ 219.8(a)(2) is consistent with NFMA 

(16 U.S.C. 1604(i)) which specifies that 

any revision in present or future 

permits, contracts, and other 

instruments made pursuant to the act 

shall be subject to valid existing rights. 

Comment: Consistency with the 

desired conditions. Several respondents 

commented that under the 2002 

proposed rule, projects do not need to 

be consistent with standards; they only 

have to disclose the project’s 

relationship with desired conditions. 

Some said that NFMA requires all 

projects to be consistent with the plan 

and said that if desired conditions are 

in the plan, projects need to be 

consistent with them. They also said the 

public will be disappointed to find out 

that plans have no ‘‘teeth.’’ Others were 

concerned that the 2002 proposed rule 

emphasizes desired conditions and 

objectives, which by definition may 

never be attained. 

Response: NFMA (16 U.S.C. 1604(i)) 

requires that resource plans, permits, 

contracts, and other instruments for the 

use and occupancy of NFS lands be 

consistent with land management plans. 

In response to public comment, 

§ 219.8(b) was added to the final rule to 

describe how projects or activities 

developed after approval of the plan 

must be consistent with applicable plan 

components. The Department removed 

two provisions: (1) the provision 

limiting consistency to standards and 

(2) the provision requiring disclosure of 

the project’s relationship to desired 

conditions. 

In the final rule, if an existing or 

proposed project or activity is not 

consistent with the applicable plan, the 

Responsible Official must take one of 

the following actions: (1) Modify the 

existing or proposed project; (2) reject 

the proposal or terminate the existing 

project; or (3) amend the plan. The 

Department changed the final rule so 

the wording conforms to 16 U.S.C. 

1604(i). 

Comment: Consistency with 

standards. Several respondents 

commented on the requirements that 

projects or activities not consistent with 

standards be either modified or rejected, 

or the plan be amended. Some said 

projects should not be exempted from 

standards, while others said that the 

final rule should specify that changes 

must be considered within the context 

of NEPA. 

Response: The Department changed 

the final rule so that projects or 

activities must be consistent with the 

applicable plan. A project or activityspecific amendment does not ‘‘exempt’’

a project from the plan, but rather, the 

amendment changes the plan, for that 

project. If a plan amendment is 

necessary as part of a project or activity 

decision, that decision will be 

considered in accordance with project 

NEPA procedures. 

Section 219.9—Public Participation, 

Collaboration, and Notification 

This section of the final rule 

consolidates 2002 proposed rule 

provisions for public notifications and 

comment periods found in §§ 219.7, 

Amending a plan; 219.8, Revising a 

plan; 219.12, Collaboration, 

cooperation, and consultation; and 

219.21, Notice of plan decisions and 

effective dates. A discussion of public 

involvement is found in the ‘‘Overview 

of the Final 2004 Rule’’ section of the 

preamble. 

General comments: Some respondents 

expressed the belief that the 2002 

proposed rule excludes the public from 

participation in the planning process, 

and they wanted clarification of what 

the public’s role would be under the 

final rule. Some were concerned that the 

2002 proposed rule no longer requires 

landscape goals be developed 

collaboratively. Additionally, some 

wanted a uniform process for public 

involvement. One person suggested the 

agency allow e-mail and other 

nontraditional forms of public 

participation and notification. One 

respondent said the Forest Service 

should not allow any public 

participation in planning. Many 

supported the 2002 proposed rule 

requirements for public involvement. 

Some respondents stressed the need for 

open and vigorous public participation. 

One Tribal group supported the 

requirement for consultation with 

federally recognized Indian Tribes. 

Others supported a broader range of 

media than is currently being used for 

public notification. Another felt the 

final rule should be specific about 

where plans are made available and 

about local public meetings. Some felt 

that a Notice of Intent should be placed 

in the Federal Register for all revisions. 

Response: The Department strongly 

supports public involvement in 

planning. Public participation, 

collaboration, and notification 

requirements found in §§ 219.7, 219.8, 

and 219.12 of the 2002 proposed rule 

have been moved to § 219.9 in the final 

rule to improve clarity and readability. 

The final rule states that the 

Responsible Official shall use a 

collaborative and participatory 

approach to land management planning. 

The final rule does not exclude the 

public from participation in the 

planning process. There is a wide 

variety of methods for public 

involvement. For example, where 

practical, Responsible Officials may give 

extended notice of public meetings, 

including the use of unit Internet web 

sites. It is virtually impossible at the 

national level to specify details for each 

type of public involvement used during 

a planning process; however, the Forest 

Service is developing techniques that 

will improve public notification and 

participation in the planning process. 

Because planners are constantly 

improving these techniques, other forms 

of direction, such as the Forest Service 

directives, are more appropriate ways to 

prescribe the ‘‘how to’’ details of public 

notification. 

Neither the 2002 proposed rule nor 

the final rule used the cooperative 

development of landscape goals, 

because this specific activity should not 

be a requirement of all planning efforts. 

It may not always be useful and may 

often be unachievable with participating 

groups. The Department also believes 

that one standard process for public 

involvement would not be effective for 

every unit in the NFS. The size and 

scope of issues, the interest level of the 

public, and the resources vary across the 

country. Therefore, the final rule 

requires the Responsible Official to 

involve the public, but allows discretion 

for the particular type of public 

involvement process used.

1046 Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 

The final rule retains the requirement 

of the 2002 proposed rule that the 

Responsible Official provide 

opportunities for individuals and 

entities to participate, consult with 

federally recognized Indian Tribes, and 

provide for a 90-day public comment 

period. The final rule has added 

requirements that public involvement 

must occur in developing and updating 

the comprehensive evaluation report, 

establishing the components of the plan, 

and designing the monitoring program 

(§ 219.9(a)). 

Other specific methods and timing for 

public participation and involvement 

outside of the formal public notice and 

comment process will be developed and 

implemented on a unit-specific basis so 

that they are tailored to the context and 

the stakeholders. The Department did 

not believe it appropriate to establish 

national ‘‘one-size-fits-all’’

requirements. In addition, the 

Department agrees with comments on 

the need for publication of a Notice of 

Intent to revise in the Federal Register

for all plan revisions. The final rule 

adds the requirement that notification of 

new plans and plan revisions be 

published in both the Federal Register

and the newspaper(s) of record. 

Comment: Advisory Committees. One 

respondent suggested the use of an 

advisory committee as a means to 

improve public involvement. Another 

wanted a multi-agency review board. 

Another person wanted to know why 

the Department had not required 

advisory committees in the 2002 

proposed rule. Several respondents 

supported the elimination of an 

advisory committee (required by the 

2000 planning rule) as they felt the 

general public would be left out of the 

planning process. Two recreation 

organizations felt that this elimination 

was a vast improvement and would 

invigorate the public participation 

process. 

Response: The Department believes 

that an advisory committee, or 

something similar, may be the most 

effective method to engage the public in 

some situations, but it may not be 

effective in other cases. As in the 2002 

proposed rule, the final rule allows the 

Responsible Official the discretion to 

determine the methods of public 

involvement opportunities, which can 

include, but does not require, advisory 

committees. 

Comment: Local involvement. Several 

respondents wanted local input to have 

priority over other input. Others were 

concerned that only special interests 

were being heard. 

Response: The NFS lands belong to all 

citizens of the United States. The 

Department values involvement by all 

interested parties, and understands the 

particular importance of local citizens 

and governments in the planning 

process. Responsible Officials will 

address local social, economic, and 

environmental issues in the evaluations 

for plans, plan amendments, or plan 

revisions. 

Comment: Public comment period. 

Some respondents suggested the 

establishment of a required comment 

period for plans, plan amendments, and 

plan revisions. Some said that all plans 

should have a 90-day comment period. 

Others wanted the public comment 

period to be longer than the NFMA 

requirement of 90 days (16 U.S.C. 

1604(d)). 

Response: The final rule includes a 

provision that requires a public 

comment period of 90 days for plans, 

plan amendments (except for a plan 

amendment that applies to project or 

activity decision), and plan revisions. 

The final rule consolidates the 

requirements for public notification and 

comment periods into this section so 

that it is easier for the public to 

understand and the agency to follow. 

Section 6(d) of NFMA requires a 

comment period ‘‘of at least three 

months.’’ The final rule does not 

preclude the extension of the comment 

period beyond 90 days. 

Section 219.10—Sustainability 

The sustainability provisions found in 

§ 219.13 in the 2002 proposed rule have 

been redesignated at § 219.10 as part of 

the overall reorganization of the final 

rule. This section of the final rule 

provides provisions for social, 

economic, and ecological sustainability. 

The final rule retains sustainability as 

the overall goal for NFS planning and 

retains the concept of the 

interdependent social, economic, and 

ecological elements of sustainability 

(§ 219.10) in the 2002 proposed rule. 

The final rule does not include many of 

the specific analytical processes and 

requirements set out in the 2002 

proposed rule. These provisions will be 

placed in the Forest Service directives. 

A discussion of sustainability is found 

in the ‘‘Overview of the Final 2004 

Rule’’ section of the preamble. 

The agency also hosted a workshop to 

provide an opportunity for public 

discussion of these options and for 

identification of other ideas on how to 

best address the statutory diversity 

provision. Interested parties expressed 

an extremely wide range of opinions, 

both in public comments and in 

response to the workshop. The 

Department found these comments 

useful in developing a scientifically 

credible and realistic approach for this 

final rule to meet legal requirements and 

to meet the agency’s stewardship 

responsibilities. 

Comment: Sustainability definition. 

While some respondents focused their 

suggestions on clarification of the actual 

language of the sustainability section, 

other respondents suggested that a 

definition of the term ‘‘sustainability’’

would help clarify this topic. Some 

suggested using the 2000 planning rule’s 

definition for sustainability, others 

suggested the Department should seek 

legislative clarification of definition, 

and others requested a definition that 

balances biological productivity, human 

use, and economically affordable 

management. 

Response: The concept of 

sustainability is first addressed in this 

final rule at § 219.1, which provides 

that, consistent with MUSYA, the 

overall goal of managing the NFS is to 

sustain in perpetuity the productivity of 

the land and the multiple uses of its 

renewable resources in a manner that 

best meets the needs of the American 

people. Section 219.10 further clarifies 

that the relationship among, social, 

economic, and ecological sustainability 

is interrelated and interdependent.

Comment: Biological diversity and 

species considered. Some respondents 

requested that the Forest Service 

maintain biodiversity on NFS land. 

Similarly, there were a number of 

comments regarding what categories of 

species to consider in the final rule. 

Some respondents wanted to consider 

the full array of biodiversity as in 

Option 2 of the 2002 proposed rule and 

in the 2000 planning rule, and others 

agreed with the focus in Option 1 of the 

2002 proposed rule, that identified only 

native and desired nonnative vertebrates 

and vascular plants. Others did not 

want to go beyond the specific focus in 

NFMA on plant and animal 

communities and tree species. 

Response: The final rule affirms the 

commitment of the Forest Service to 

meet the NFMA requirement that plans 

provide for diversity of native plant and 

animal communities by providing for a 

plan framework for sustaining native 

ecological systems. The final rule at 

§ 219.10(b)(1) requires that provisions in 

plan components establish a framework 

to provide characteristics of ecosystem 

diversity in the plan area. These 

characteristics are parameters that 

describe an ecosystem in terms of the 

composition (such as major vegetation 

types, rare communities, aquatic 

systems, and riparian systems); 

structure (such as successional stages, 

water quality, wetlands, and 

floodplains); principal ecological 

Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 1047

processes (such as stream flows and 

historic and current disturbance 

regimes); and soil, water, and air 

resources. Providing characteristics of 

ecosystem diversity is the primary 

means by which a plan contributes to 

sustaining native ecological systems. 

Thus, plans provide for sustaining 

systems, the systems provide for 

diversity, and Forest Service meets 

NFMA requirements. 

The final rule adopts the concept of 

plant and animal species consistent 

with terminology in NFMA, as well as 

ESA. While adoption of the concept of 

comprehensive biodiversity is a worthy 

goal, the Department did not deem this 

necessary to meet the requirements of 

NFMA. The concept of biodiversity 

includes the full variety of life and 

associated processes. The Department 

did not think it was reasonable or 

possible to include the full scope and 

complexity of biological diversity from 

microbes to processes such as 

photosynthesis. 

Comment: Ecosystem and species 

sustainability. Respondents offered a 

variety of suggestions regarding the 

level at which to evaluate ecosystem 

sustainability. Some respondents 

requested that the Forest Service use a 

hierarchical approach to evaluate 

ecosystems, while others suggested a 

more iterative process is needed. Some 

respondents asked that analytical and 

evaluation requirements be spelled out 

in the final rule. Other respondents 

wanted ecosystem sustainability in the 

final rule to generate requirements for 

how ecosystems will be maintained and 

who will be responsible for their 

maintenance. 

Some respondents commented on the 

level at which species management 

decisions should be made. Some 

respondents requested that species 

management decisions be mandated by 

the final rule, while others asked that 

decisionmaking be left at the level of 

individual plans. Other respondents 

said that special provisions to maintain 

species are unnecessary; they asserted 

that such provisions are not particularly 

effective. 

Some respondents commented that 

species maintenance is important and is 

mandated by NFMA; they requested that 

the Forest Service retain the 

requirements from the 2000 planning 

rule. A number of respondents also 

requested that the Forest Service work 

to restore species that have been 

extirpated from the plan area. 

Response: The final rule adopts an 

overall goal for the ecological element of 

sustainability to contribute to sustaining 

native ecological systems by sustaining 

healthy, diverse, and productive 

ecological systems as well as by 

providing ecological conditions to 

support diversity of native plant and 

animal species in the plan area. To carry 

out this goal, the final rule adopts a twolevel approach to sustaining ecological 

systems: ecosystem diversity and 

species diversity. The overall goal 

demonstrates the Department’s 

commitment to ecosystem diversity and 

species conservation. This two-level 

approach was part of both Options 1 

and 2 of the 2002 proposed rule. The 

final rule clarifies the two-level 

approach and leaves the specific detail 

procedures for the Forest Service 

directives. 

As part of the two-level approach, the 

plan area will be assessed for remaining 

species diversity needs after plan 

components are developed for 

ecosystem diversity. The Responsible 

Official would evaluate the framework 

established by the plan components for 

specific federally listed threatened and 

endangered species, species-of-concern, 

and selected species-of-interest. If 

needed, the Responsible Official would 

develop additional provisions for these 

species to maintain a framework for 

providing ecological conditions within 

the plan area that contributes to the 

conservation of these species. The 

Department selected federally listed 

threatened and endangered species, 

species-of-concern, and species-ofinterest for evaluation and conservation 

because: (1) These species are not secure 

within their range (threatened, 

endangered, or species-of-concern), or 

(2) management actions may be 

necessary or desirable to achieve 

ecological or other multiple use 

objectives (species-of-interest). Speciesof-interest may have two elements: (1) 

Species that may not be secure within 

the plan area and, therefore, in need of 

consideration for additional protection, 

or (2) additional species of public 

interest including hunted, fished, and 

other species identified cooperatively 

with State fish and wildlife agencies.

Comment: Accountability for 

ecological conditions. Citing a need for 

accountability for sustainability, a 

number of respondents requested the 

final rule require land management 

plans to ‘‘provide measurable progress 

toward maintenance or restoration of 

ecological conditions.’’ A 

recommendation was made to retain the 

provision of the 2000 planning rule that 

requires the Responsible Official to be 

accountable for the long-term 

maintenance and restoration of 

ecosystems. A respondent suggested the 

Forest Service conduct research on 

validating a broad suite of indicators 

that can be used to evaluate the efficacy 

of planning in achieving the goal of 

ecological sustainability. 

Response: The Department believes 

that the plan components adopted in the 

final rule provide accountability for 

ecological conditions in that: (1) The 

land management plan’s desired 

condition component provides the 

overall vision; (2) the objectives 

component provides measurable 

intentions for attaining the desired 

conditions; (3) guidelines provide the 

recommended technical and scientific 

specifications so that projects and 

activities conserve species; and (4) that 

other provisions and monitoring ensure 

that the combined parts of the plan are 

effective. In addition, EMS will ensure 

that Responsible Officials conduct 

environmental improvement in a 

systematic and accountable manner. 

Comment: Choosing Option 1 or 2. 

There were wide varieties of views on 

the ecological sustainability options in 

the 2002 proposed rule. In general, the 

response from the public can be 

grouped into two categories: those who 

did not support either option in the 

2002 proposed rule and those who 

supported at least one of the options in 

the 2002 proposed rule. Many 

respondents suggested that neither 

option is adequate in the 2002 proposed 

rule, citing the lack of clarity, the lack 

of a Committee of Scientists to assist in 

the development of the options, and the 

lack of enforceability. 

Other respondents considered either 

option to be sufficient and remarked 

that both options uphold the agency’s 

NFMA diversity requirement. 

Alternative suggestions from 

respondents included creating a hybrid 

of Option 1 and 2; retaining the 1982 

viability regulation; protecting species 

through monitoring; or adopting one of 

the new options presented by 

participants at the February 2003 

diversity workshop. 

Response: The final rule conceptually 

uses the principles of ecological 

sustainability from both Options 1 and 

2 of the 2002 proposed rule. The final 

rule includes an ecosystem diversity 

provision that requires the development 

of plan components to establish a 

framework to provide the characteristics 

of ecosystem diversity. These 

characteristics are descriptions of 

ecosystem composition, structure, and 

processes. Responsible Officials may 

identify these characteristics for 

multiple spatial scales within the 

analysis area and characteristics may 

extend to the larger landscape adjacent 

to and beyond the plan area. This 

ecosystem diversity framework provides 

an essential ecological context and 

identifies the unique contributions that 

1048 Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 

NFS lands can make to the three 

elements of sustainability. 

Option 2 required rigorous analysis of 

ecological conditions in relation to the 

range of characteristics of native 

ecosystems within the plan area, the 

range of natural variability. Forest 

Service directives will set out the 

analytical requirements for ecosystem 

diversity including abundance, 

distribution, and condition of selected 

characteristics of ecosystem diversity 

compared to their range of variation 

under historical disturbance regimes (or 

other ecological reference). 

An important principle in the 

framework of this final rule is the 

concept that the more effective the 

ecosystem diversity provision is in 

sustaining species within the ecosystem, 

the less need there is for species-specific 

analysis. 

Comment: Species-at-risk, 

management indicator species, or focal 

species. Some respondents asked that 

the final rule require species-at-risk and 

focal species to be identified and 

maintained. A number of respondents 

wanted a survey and monitoring 

requirement for management indicator 

species (MIS) or focal species in the 

final rule. There was a suggestion to use 

reliable historic information to analyze 

the population viability of focal species. 

There were comments in favor of 

requiring species surveys and reviews, 

as well as comments not to have 

mandatory survey and monitoring 

requirements for maintaining 

populations of wildlife. Other 

respondents requested that the Forest 

Service continue to use focal species as 

a means to analyze and provide for 

species viability and species diversity. 

Response: The concept of MIS was 

not included in the 2002 proposed rule 

and is not in the final rule, except for 

transition provisions at § 219.14, 

because recent scientific evidence 

identified flaws in the MIS concept. The 

concept of MIS was that population 

trends for certain species that were 

monitored could represent trends for 

other species. Through time, this was 

found not to be the case. 

The concept of focal species that was 

proposed by the Committee of Scientists 

and adopted in the 2000 planning rule 

is also not used in the final rule. The 

focal species concept is untested and it 

would not be prudent to potentially 

make the same mistake with focal 

species as was made with MIS in the 

1982 planning rule. However, the 

concept of focal species as indicators of 

the ecological conditions may have 

merit and may be included in the Forest 

Service directives as a tool to identify 

monitoring approaches to assess 

progress towards achieving the desired 

condition articulated in a plan. 

To focus management attention on the 

at-risk species, the concepts of ‘‘speciesat-risk’’ and ‘‘species-of-concern’’

presented in the 2002 proposed rule 

were further developed in the final rule 

to make the provision for species-level 

analysis clearer and efficient in the 

planning process. However, the 

Department changed the terms used. 

‘‘Species-of-concern’’ are those species 

for which their continued existence is a 

concern and listing under the ESA may 

occur (§ 219.16). ‘‘Species-of-interest’’

are species for which the Responsible 

Official determines that management 

actions may be necessary or desirable to 

achieve ecological or other multiple use 

objectives (§ 219.16). The Forest Service 

directives will describe a systematic, 

scientifically credible, and efficient 

approach, using existing information, to 

identify species-of-concern and speciesof-interest. 

Comment: Protection of water supply, 

water quality, wetlands, and riparian 

areas. Various respondents stated the 

need to protect the nation’s water 

supply and require land management 

plans to address water quality 

restoration for those areas identified as 

water quality limited under the Clean 

Water Act. Other respondents believed 

the final rule should mandate the 

protection of wetland and riparian 

areas, which are essential for 

environmental quality and human 

health.

Response: The Department agrees that 

water quality is important, as is 

restoration of impaired watersheds. The 

final rule provides specific provisions at 

§ 219.10(b)(1) for development of plan 

components that establish a framework 

to provide the characteristics of 

ecosystem diversity, which include 

water quality, wetlands, riparian areas, 

and floodplains. It is not necessary for 

the final rule to repeat direction in the 

Clean Water Act; in addition, water 

related issues are not the same on every 

unit of the NFS. Forest Service 

directives will provide additional 

provisions as needed. 

Section 219.11—Role of Science in 

Planning 

This provision was contained in 

§ 219.14 in the 2002 proposed rule, and 

was redesignated as § 219.11 as part of 

the reorganization of the final rule. The 

final rule requires the Responsible 

Official to take into account the best 

available science. The final rule puts the 

burden on the Responsible Official 

rather than on the plan. The words 

‘‘consistent with’’ has been replaced by 

‘‘take into account’’ because this term 

better expresses that formal science is 

just one source of information for the 

Responsible Official and only one 

aspect of decisionmaking. 

The final rule, like the 2002 proposed 

rule, states that the Responsible Official 

may use independent peer reviews, 

science advisory boards, or other review 

methods to evaluate science used in the 

planning process. Forest Service 

directives will provide specific 

procedures for conducting science 

reviews. The ‘‘Overview of the Final 

2004 Rule’’ section of the preamble 

discusses the role of science in 

planning. 

Comment: Role of science. Some 

respondents felt that the 2002 proposed 

rule should add emphasis to the role of 

science, while others felt that the 2002 

proposed rule provided a welcome relief 

from the 2000 planning rule by 

eliminating excessive process 

requirements. Some felt that the 2002 

proposed rule made the use of science 

and the review of science consistency 

optional. Others thought that the use of 

science in the 2002 proposed rule 

appeared to be budget driven. Several 

respondents suggested that public 

involvement should include science and 

scientists. They thought that the 

Responsible Official should not make a 

decision without the input of science 

and scientists. However, one respondent 

felt that there should be no consultation 

with a panel of scientists when drafting 

a plan. 

Response: The Department is 

committed to taking into account the 

best available science in developing 

plans, plan amendments, and plan 

revisions as well as documenting the 

consideration of science information. 

The final rule retains the emphasis in 

the 2002 proposed rule on the 

consideration of science in planning, on 

documenting how science was 

interpreted and applied, and on 

evaluating the associated risks and 

uncertainties of using that science. In 

response to public comment regarding 

the Responsible Official’s obligation to 

‘‘demonstrate’’ consideration of science, 

the final rule requires the Responsible 

Official to ‘‘document’’ such 

consideration. The Department believes 

that this change gives clearer and 

stronger direction as to what is expected 

of the Responsible Official in 

developing the Plan Document or Set of 

Documents and in considering the best 

available science. 

Under the final rule, the Responsible 

Official must: (1) Document how the 

best available science was considered in 

the planning process within the context 

of the issues being considered; (2) 

evaluate and disclose any substantial 

Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 1049

uncertainties in that science; (3) 

evaluate and disclose substantial risks 

associated with plan components based 

on that science; and (4) document that 

the science was appropriately 

interpreted and applied. Additionally, 

the Responsible Official may use 

independent peer review, a science 

advisory board, or other review methods 

to evaluate the consideration of science 

in the planning process. Any interested 

scientists can be involved at any of the 

public involvement stages. 

Section 219.12—Suitable Uses and 

Provisions Required by NFMA 

This section (§ 219.12), which was not 

in the 2002 proposed rule, addresses the 

provisions found in §§ 219.4(a)(3), 

219.4(a)(4), 219.16, and 219.17 of the 

2002 proposed rule. The final rule 

requires the Chief of the Forest Service 

to include in the Forest Service 

directives procedures to address the 

provisions of NFMA that were 

addressed by §§ 219.4(a)(3), 219.16, and 

219.17 of the 2002 proposed rule. 

Guidance for suitable uses, located in 

paragraph (a) in the final rule, has been 

moved from § 219.4(a)(4) of the 2002 

proposed rule. In addition, the 

Department reorganized this guidance to 

better describe the overall nature of 

identifying suitable land uses. Overall, 

NFS lands are generally suitable for a 

variety of multiple uses, including 

timber harvest and timber production, 

unless administratively withdrawn or 

prohibited by statute, Executive order, 

or regulation. On lands generally 

suitable for timber, the Forest Service 

may harvest timber for a variety of 

purposes, such as to create openings for 

wildlife or for fuels reduction and 

restoration. If timber production is not 

an objective for lands generally suitable 

for timber, the Responsible Official must 

identify these lands as not suitable for 

timber production. Provisions 

concerning not suitable for timber 

production have been moved with 

modifications from § 219.16 of the 2002 

proposed rule to § 219.12(a)(2). 

Additional guidance for identification of 

lands not suitable for timber harvest and 

guidance for timber harvest that the 

proposed rule addressed at § 219.4(a)(3) 

will be placed in the Forest Service 

directives. A request for public 

comment on the Forest Service 

directives will be published in the 

Federal Register as soon as possible 

after adoption of the final rule. 

In addition, Forest Service directives 

will address additional NFMA 

requirements. These requirements 

include limitations on timber harvest 

(§ 219.17 of proposed rule) and 

provisions for plans to determine forest 

management systems, restocking 

requirements, harvesting levels in light 

of the multiple uses, and the potential 

suitability of lands for resource 

management, as well as projections of 

proposed and possible actions, 

including the planned timber sale 

program. The Department made this 

change to provide a better balance 

between the specific procedures for 

timber and the provisions for other 

sections of the final rule. 

Comment: Culmination of mean 

annual increment. Some respondents 

said that the culmination of mean 

annual increment (CMAI) requirement 

should not be limited to even-aged 

harvests and that the protection 

provided by a CMAI requirement on 

uneven-aged harvests would protect 

against over-zealous logging. 

Response: CMAI is the age in the 

growth cycle of an even-aged stand 

where average annual growth is at its 

maximum. By definition, CMAI applies 

only to even-aged timber stands and not 

to uneven-aged stands. However, 

detailed guidance for CMAI is moved to 

the Forest Service directives because 

NFMA does not require this guidance to 

be in the rule itself. NFMA requires 

establishment of guidance so that stands 

of timber, not individual trees, generally 

have reached CMAI. The Forest Service 

directives will clarify the technical 

limits of the CMAI concept.

Comment: Restocking. A respondent 

said the rule is inconsistent with NFMA 

because it does not require restocking of 

lands within five years after final 

regeneration harvest. 

Response: Section 219.16(a)(3) of the 

2002 proposed rule has been removed in 

the final rule. Forest Service directives 

will address restocking requirements. 

Forest Service directives will meet the 

requirement of NFMA to ensure that 

timber will be harvested from NFS lands 

only where there is assurance that such 

lands can be adequately restocked 

within five years after harvest. Adequate 

restocking may vary depending on the 

purpose of a harvest and the objectives 

and desired conditions for the area. 

Restocking is not required for lands 

harvested to create openings for fuel 

breaks and vistas, to prevent 

encroaching conifers, and other similar 

purposes. This will apply to all timber 

harvest, including final regeneration 

harvest. Therefore, Responsible Officials 

will include in land management plans 

guidance for adequate restocking 

depending on the purpose of a harvest, 

the desired conditions, and objectives 

for the area. 

Comment: Suitability. Respondents 

both agreed and disagreed with the 

presumption that lands are suitable for 

all uses unless identified and 

determined to be not suitable. Those 

who agreed liked this presumption. 

Those who disagreed stated that more 

lands are not suitable for all uses than 

are suitable, so the process would be 

easier to start with the presumption that 

lands are not suitable. Some said that 

this presumption places commercial 

uses ahead of other considerations like 

fish and wildlife. 

One respondent stated that local 

planners should have the discretion to 

manage the range of opportunities 

offered by the forest and the flexibility 

to manage new uses unforeseen in the 

planning process. 

Response: The Department agrees 

with the Committee of Scientists report, 

which holds the basic philosophy that 

these are the people’s lands; and 

therefore, it is appropriate to have a 

presumption in the final rule that lands 

are suitable for a variety of uses. The 

Department removed the declaration 

that lands are suitable, unless identified 

and determined to be not suitable. 

Forest Service directives may use that 

analytical and philosophical 

assumption. The final rule removes the 

word ‘‘determine’’ and replaces it with 

‘‘identify’’ to conform to the NFMA. In 

the overall adaptive management 

process, the starting point for 

identifying general suitability of land 

uses will likely be the existing suitable 

or not-suitable use identifications in 

current plans, and incremental changes 

will be based on public input, review of 

inventory, monitoring, evaluation, and 

assessment information. The final rule 

uses the expression ‘‘generally suitable’’

because identification of suitability is 

guidance and must be approved through 

project and activity decisionmaking. In 

response to public comment and to 

clarify the criteria for identifying 

suitability, the final rule has changed 

the resources to outdoor recreation, 

range, timber, watershed, and wildlife 

and fish purposes so that the resources 

listed agree with the Multiple-Use 

Sustained-Yield Act (MUSYA) of 1960 

(16 U.S.C. 528–531). Energy resource 

development and mining activities were 

removed from § 219.12(a)(1) of the final 

rule because, even though allowable 

uses on many of the NFS lands, they are 

not renewable surface resources listed 

in MUSYA. 

Comment: Suitable lands. Some 

respondents felt that social, economic, 

ecological, physical, and other factors 

should not be considered when 

determining suitability of land for 

timber production. Others felt that the 

Forest Service should analyze the effects 

on these factors when no logging is 

proposed, because they felt that the 

1050 Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 

fiscal support of their communities is 

not being adequately addressed due to 

the fact that there is no requirement to 

supply timber. One respondent felt that 

the 2002 proposed rule would allow 

‘‘timber sales that are not justified by 

their social, economic, or ecological 

benefits.’’

Response: The 2002 proposed rule 

language is based on the NFMA that 

requires the Responsible Official to 

consider ‘‘physical, economic, and other 

pertinent factors to the extent feasible’’

when identifying lands which are not 

suited for timber production. However, 

the wording has been changed to 

‘‘would not be compatible with the 

achievement of desired conditions and 

objectives,’’ because desired conditions 

and objectives reflect the social, 

economic, and ecological attributes 

toward which management is to be 

directed. In addition, the NFMA does 

allow salvage sales and sales 

necessitated to protect other multipleuse values on lands identified as not 

suited for timber production. 

Comment: Salvage logging. There 

were concerns expressed by some about 

salvage harvest and about timber harvest 

in general. While some respondents felt 

there should not be any salvage logging 

on any lands, others felt that salvage 

logging is important to improve the 

health of National Forest System lands. 

Response: Salvage harvest of timber is 

a legitimate management practice, 

acknowledged by Congress in NFMA 

(16 U.S.C. 1604(k), 1611(b)). The 

Department believes that the language 

in this section of the final rule on 

suitability and salvage is an appropriate 

reflection of the intent of NFMA. The 

Department believes that specific 

decisions on the size of salvage units, 

and on where salvage logging would or 

would not occur, should be made at a 

project level and not at the national 

level.

Comment: Prohibitions for logging. 

Some suggested that the final rule 

should include more prohibitions for 

logging, including a prohibition on all 

commercial logging on NFS lands 

involving riparian areas, virgin forests, 

and old growth forests. Others suggested 

harvesting should be limited to selective 

logging, salvage harvest, or helicopter 

logging. One person suggested that the 

agency be required to justify logging for 

ecological reasons. 

Response: The Department believes 

that broad-based prohibitions on timber 

harvest or timber harvest practices are 

not appropriate at the national level, 

given the range of ecological conditions 

that exist across the units of the NFS 

and the multiple-use mandates of 

MUSYA and NFMA. Such restrictions 

may be put in place at the plan or 

project level, but should not be part of 

the planning regulations. 

Comment: Timber harvest. Many 

comments were made regarding logging. 

Many respondents felt that there should 

be more restrictions placed on logging 

and that social and economic analysis 

should eliminate areas from timber 

harvest if such harvests would produce 

below-cost sales. Conversely, some felt 

that profit was emphasized too much 

and there needed to be more emphasis 

placed on the effects to the 

environment. One person felt there 

should be a minimum mean annual 

increment threshold of timber growth, 

such as 50 cubic feet per acre per year, 

to determine if lands were suitable for 

timber. Some felt that there should be 

more requirements for evaluation of 

effects that timber harvests have on fish, 

woody debris, watershed, and wildlife 

habitat. Another felt that timber sales 

should be made affordable to local 

purchasers. Still others wanted analysis 

to consider the social and economic 

effects on timber-dependent 

communities. 

Response: Consistent with NFMA (16 

U.S.C. 1604(k)), the final rule 

(§ 219.12(a)(2)) requires the Responsible 

Official to identify lands as not suitable 

for timber production, if timber 

production would not be compatible 

with the achievement of desired 

conditions and objectives. These 

provisions give the Responsible Official 

the flexibility to develop criteria that are 

appropriate for the specific plan area. 

The Department feels that detailed 

national direction would not meet the 

social, economic, and ecological 

concerns of the individual NFS unit. 

The final rule establishes parameters 

that provide for conscientious decisions 

to be made at the local level. 

Comment: Suitability for off-highway 

vehicle use. Many respondents were 

particularly concerned about 

management for off-highway vehicle 

(OHV) use, because of the presumption 

that lands are open for use unless 

determined to be closed. Others said 

that the travel management component 

of plans has been particularly 

challenging. They said that plans have 

often failed to regulate OHV as new 

technology has enabled expanded use. 

Other commentators wrote that land 

management plans need to clearly 

establish limits to OHV use while others 

said the Forest Service should inventory 

and evaluate lands declared unsuitable 

for OHV and other recreational uses to 

determine if restoration or mitigation 

measures could make them suitable. 

Response: As a general matter, 

responsible and carefully managed OHV 

travel is an appropriate use of NFS 

lands. Under this final rule, travel 

management guidance will be expressed 

in desired conditions, objectives, 

guidelines, and identification of general 

suitability of areas for various uses. That 

guidance, in and of itself, would not 

close those lands to these uses; such a 

restriction would require a subsequent 

travel management decision and closure 

order pursuant to 36 CFR part 261, 

subpart B. Additionally, if a plan 

identifies an area as generally suitable 

for OHV travel where currently 

restricted, the plan would not open 

those lands to these uses; a subsequent 

project and activity NEPA analysis and 

decision would be necessary to effect 

the preliminary identification of the 

plan. Guidance for resource 

conservation is established in the plan 

and will be considered in the 

subsequent travel management decision. 

The final rule allows for levels and 

trends of OHV use to be monitored and 

changed as appropriate. 

Comment: Fuels treatment. Several 

respondents, citing recent fire seasons, 

suggested that the final rule should 

allow for more timber harvest than is 

currently being harvested to reduce 

fuels, and they felt that the final rule 

would accomplish that goal. There was 

a concern that much of the dead and 

down material was being wasted and 

that this biomass could be used to meet 

energy and wood supply needs. Others, 

however, felt that logging of 

commercial-size trees was not necessary 

for fuels reduction and the final rule 

would do a disservice by allowing it. 

One respondent suggested that the fuels 

problem could be solved by using 

prescribed fire only. Others felt that 

fuels treatment should be allowed only 

in areas near urban centers to protect 

structures. 

Response: The Department believes 

that the final rule, which is national in 

application, should not set out direction 

so specific that it cannot take into 

account the widely varying conditions 

found across the NFS. Such direction is 

better developed at the local level. 

Comment: Allowable sale quantity. 

Some respondents request that the 

Forest Service retain the use of 

Allowable Sale Quantity (ASQ) to 

inform timber purchasers, communities 

who support timber industry, and the 

public what the future timber 

production forecast will be.

Response: This concept has long 

caused confusion for those concerned 

with the management of the NFS lands. 

While under the 1982 rule, ASQ was the 

upper limit of timber that the 

Responsible Official may sell from the 

lands suitable for timber production, 

Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 1051

ASQ has commonly been misinterpreted 

as an absolute commitment to a timber 

production target. Neither the 2002 

proposed rule nor this final rule provide 

for ASQ. Forest Service directives will 

address the upper limit of timber and 

will likely use the concept of long-term 

sustained yield as proposed in the 2002 

proposed rule as the upper limit of 

timber that the Forest Service may 

harvest during the planning period. The 

2002 proposed rule used long-term 

sustained yield because this 

requirement is adequate, and removing 

the provision that planning establish an 

ASQ reduces the risk of misperception 

that ASQ is a target to be achieved, 

rather than a limit to harvest. 

Comment: Sustained yield. Most 

respondents agreed that the concept of 

sustained yield is, in principle, a 

positive goal. However, some took 

exception to how this requirement will 

actually be implemented. They felt that 

salvage logging and other types of 

timber sales not undertaken for timber 

production purposes should be 

included in the sustained-yield 

calculations. Others felt that the use of 

‘‘multiple-use objectives’’ gives too 

much flexibility in determining 

sustained yield, and there is actually no 

real limit. One person felt the harvest 

limits should mirror forest mortality 

rates. 

Response: This provision for 

estimating the quantity of timber that 

can be removed annually in perpetuity 

is tied directly to NFMA (16 U.S.C. 

1611(a)). The final rule moves detailed 

instructions on how sustained yield is 

calculated (found in the 2002 proposed 

rule at § 219.17) to the Forest Service 

directives. 

Section 219.13—Objections to Plans, 

Plan Amendments, or Plan Revisions 

This provision found in § 219.19 of 

the 2002 proposed rule has been 

redesignated at § 219.13 as part of the 

overall reorganization of the final rule. 

This section establishes the objection 

process by which the public can 

challenge plans, plan revisions, or plan 

amendments. 

The Committee of Scientists, in their 

1999 report, recommended that the 

Forest Service seek to harmonize its 

administrative appeal process with 

those of other Federal agencies. The 

Committee of Scientists said a predecisional process would encourage 

internal Forest Service discussion, 

encourage multi-agency collaboration, 

and encourage public interest groups to 

collaborate and work out differences. 

Therefore, to be more consistent with 

the Bureau of Land Management (BLM) 

and to improve public participation 

efforts, the Department is adopting the 

pre-decisional objection process 

(§ 219.13) to replace the appeals 

process. The objection process 

complements the public participation 

process because the objectors and the 

Reviewing Officer can collaboratively 

work through concerns before a 

Responsible Official approves a plan. 

The 30-day objection period specified 

in this final rule is the same amount of 

time provided in the BLM protest 

process. The final rule does not specify 

a time limit for agency responses; the 

final rule has adopted the BLM 

requirement that the Reviewing Officer 

promptly render a decision on the 

objection. It is in the interest of the 

agency to render a decision promptly to 

move forward. Because Responsible 

Officials would not typically develop 

plans, plan amendments, or plan 

revisions using EISs, EAs, the 

Department removed unnecessary 

language in the final rule concerning 

NEPA documents. The final rule also 

eliminates details on responding to 

objections because this information is 

more appropriate in the Forest Service 

directives. The final rule also removes 

the requirement that objectors may only 

submit original substantive comments 

as objections. These changes make the 

final rule easier to read and follow. 

References to appeals of plan 

amendments in site-specific decisions, 

previously at § 219.20 of the 2002 

proposed rule, have been moved to 

§ 219.13(a)(1) in the final rule to have 

requirements for objections and the 

reference to appeals in the same section. 

Specific requirements for administrative 

review of plan amendments approved 

contemporaneously with a project or 

activity decision are addressed in 36 

CFR 215 and 218, subpart A. 

Comment: Objection and appeals 

process. Some respondents felt that the 

final rule should include provisions to 

allow post-decisional appeals of plans. 

Some wanted both a pre-decisional 

objection process and a post-decisional 

appeals process. One person felt that the 

rule should require an objection process 

for plan amendments made in 

conjunction with site-specific project 

decisions and that the rule should 

require an appeals process for other 

plan amendments. 

Some respondents were concerned 

that the objection process would reduce 

the influence that the current appeals 

process provides, and they claimed the 

30-day objection period is insufficient 

time to identify issues and to prepare an 

objection. Although some respondents 

felt that the objection process is an 

inadequate protection of public 

interests, others supported the objection 

process and felt that requirements for 

standing to object should be much more 

stringent to prevent what they 

characterized as needless obstruction. 

Some respondents were concerned that 

there was no time limit for the agency 

to respond to objections.

Response: The objection process in 

the final rule retains the 2002 proposed 

rule’s application of the objection 

process to plans, plan amendments, or 

plan revisions not associated with a 

project or activity decision (§ 219.13(a)). 

Unlike the provisions at 36 CFR, part 

217, applicable to plan development, 

plan amendment, and plan revision 

under the 1982 planning rule, this final 

rule, like the 2002 proposed rule, 

integrates the objection process with 

public participation prior to plan 

approval. The objection process is 

expected to resolve many potential 

conflicts by encouraging resolution 

before a plan, plan amendment, or plan 

revision is approved. 

Under the 36 CFR part 217 appeal 

process, the agency and the public 

expend significant human and financial 

resources in fulfillment of procedural 

requirements. Often an appeal leads to 

a polarized relationship where there is 

no real incentive to address natural 

resource issues and there is a 

squandering of human and financial 

capital, often without long-lasting 

solutions to problems. 

Under this final rule, as in the 2002 

proposed rule, the Responsible Official, 

the Reviewing Officer, and the objector 

have the opportunity to seek reasonable 

solutions to conflicting views of plan 

components before a Responsible 

Official approves a plan, plan 

amendment, or plan revision. The 

objection process allows discretion for 

joint problem solving to resolve issues. 

Comment: Public participation. 

Several respondents expressed the 

opinion that the final rule should 

require participation in the planning 

process as a qualification for objection. 

Response: The 2002 proposed rule did 

not require participation in the planning 

process to file an objection; however, 

the Department agrees that participation 

should be a prerequisite to submitting 

an objection. Therefore, the final rule at 

§ 219.13(a) requires participation in the 

planning process through the 

submission of a written comment to 

have standing to submit an objection. 

Comment: Consistency with law. 

Some respondents supported the 

requirement in the 2002 proposed rule 

that objectors must explain their 

position that the plan, plan amendment, 

or plan revision is inconsistent with 

law, regulation, or policy as well as 

provide any recommendation for 

1052 Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 

change. Others felt this requirement 

curtailed public input and required 

legal advice to object. 

Response: The Department agrees that 

a person should be able to object to a 

plan, plan amendment, or plan revision 

even if the plan is consistent with law, 

regulation, or policy. Therefore, the 

final rule allows persons to object if 

they otherwise disagree with the 

decision. Accordingly, § 219.13(b)(3) of 

the final rule retains the main elements 

of this requirement from the 2002 

proposed rule, so that the Reviewing 

Officer will know why an objector 

objects as well as what the objector 

recommends for change. The term 

‘‘Executive order’’ has been removed 

from the final rule because Executive 

orders are already covered under the 

term ‘‘policy.’’ The Forest Service 

directives will set forth the specific 

requirements of the Reviewing Officer 

working with the objector(s) to resolve 

their issue(s). 

Section 219.14—Effective Dates and 

Transition 

This direction found in §§ 219.21 and 

219.22 of the 2002 proposed rule has 

been combined at § 219.14 to organize 

similar concepts in one location. This 

section specifies when a plan, plan 

amendment, or plan revision will take 

effect as well as how Responsible 

Officials may modify ongoing planning 

efforts to conform to the requirements of 

the final rule. The Department modified 

this section from the transition language 

in the 2002 proposed rule, primarily to 

account for integration of EMS into land 

management planning. 

With this rule, the Department is 

simultaneously repealing the 2000 rule 

and including the transition provisions 

of the former rule. Recently, the 

Department clarified that projects were 

subject to the requirements of the former 

transition rule during the transition 

period until the completion of the plan 

revision process under the 2000 rule (69 

FR 58055, September 29, 2004). The 

transition period of the former rule thus 

terminates with its repeal. This section 

defines, for purposes of pending or 

future plan documents, the applicable 

rules during the transition period. 

During the transition period, pending or 

proposed projects remain subject to the 

applicable forest plan. 

This section also contains new 

direction on application of management 

indicator species (MIS) for units that 

will continue to use the 1982 planning 

rule for plans, plan amendments, and 

plan revisions during transition. There 

has been uncertainty regarding the 

application of provisions of the 1982 

planning rule, particularly with respect 

to obligations regarding MIS (69 FR 

58055, September 29, 2004). For those 

units with plans developed, amended, 

or revised under the 1982 planning rule, 

including those amended or revised 

during the transition period for the 2000 

planning rule, § 219.14(f) provides that 

MIS obligations may be met by 

considering data and analysis relating to 

habitat unless the plan specifically 

requires population monitoring or 

population surveys. Other tools can 

often be useful and more appropriate in 

predicting the effects of projects that 

implement a land management plan 

(such as examining the effect of 

proposed activities on the habitat of 

specific species); using information 

identified, obtained, or developed 

through a variety of methods (such as 

assessments, analysis, and monitoring 

results); or using information obtained 

from other sources (such as State fish 

and wildlife agencies and organizations 

like The Nature Conservancy). The final 

rule also clarifies the appropriate scale 

for MIS monitoring which is the plan 

area. 

Providing explicitly for MIS 

monitoring flexibility will allow for 

monitoring of habitat conditions as a 

surrogate for population trend data. It is 

appropriate for a range of methods to be 

available to estimate, or approximate, 

population trends for MIS. The 

Responsible Official will determine the 

which monitoring method or 

combination of monitoring methods to 

use for a given MIS.

Where Responsible Officials conduct 

actual population monitoring for MIS, 

population trend data are most 

efficiently collected using a sampling 

program rather than a total enumeration. 

In a sampling program, population data 

are collected at a selection of sites 

throughout the geographic range of the 

population. These sites might be 

systematically designated (for example, 

using a grid of specific dimension), 

established randomly, or selected in 

some other way. For species that use 

distinct seasonal ranges (for example, 

elk that use winter ranges distinct from 

their summer ranges), data may be 

collected primarily on the winter range. 

The area over which sampling is 

conducted should relate to the 

geographic range occupied by the 

population, and will generally far 

exceed the area of a single management 

project. Because of using sampling 

procedures within the overall 

geographic area used by a population, 

individual project areas might or might 

not be part of a sampling program 

designed to estimate the overall 

population trend of a population. Based 

on the foregoing, for most species it 

would be technically and practically 

inappropriate to conduct population 

trend sampling at the scale of individual 

project areas. Consequently, where 

Responsible Officials conduct actual 

population monitoring for MIS, that 

monitoring should be carried out at the 

scale most appropriate to the species 

within the overall national forest, 

grassland, prairie, or other 

administrative comparable unit. 

Monitoring populations at the sites of 

individual projects is not part of this 

requirement. Therefore, the transition 

language at § 219.14 clarifies that MIS 

monitoring is appropriate at the times 

and places appropriate to the specific 

species, and is not required within 

individual project or activity areas. 

Comment: Effective date. One 

respondent was concerned that there 

was a difference in the effective date of 

plan amendments depending on 

whether or not they were significant 

amendments and suggested the final 

rule should not differentiate between 

the types of amendments when 

determining an effective date. 

Response: In the final rule, the only 

difference related to the effective date of 

plan amendments is dependent on if a 

plan amendment is approved 

contemporaneously with a project or 

activity decision and the plan 

amendment applies only to the project 

or activity; in which case, 36 CFR, part 

215 or part 218, subpart A applies, not 

the planning regulations at part 219. All 

other amendments have a 30-day 

effective date. 

Section 219.15—Severability 

The Department has chosen to add a 

new section to address the issue of 

severability, in the event that portions of 

this rule are separately challenged in 

litigation. It is the Department’s intent 

that the individual provisions of this 

rule be severable from each other. 

Section 219.16—Definitions

This direction was found in § 219.23 

in the 2002 proposed rule, but has been 

redesignated at § 219.16 as part of 

overall reorganization of the final rule. 

This section sets out and defines the 

special terms used in the final rule. A 

detailed discussion on definitions 

removed, added, or unchanged is found 

in the supplemental response to public 

comments located on the World Wide 

Web/Internet (see ADDRESSES). 

Comment: Collaboration. A few 

respondents asked that collaboration be 

defined. They said that a 

‘‘collaborative’’ process is generally a 

specific type of planning process 

involving shared power and total 

stakeholder involvement. One person 

Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 1053

wanted the process of collaboration to 

be distinguished from processes 

authorized under the Federal Advisory 

Committee Act. 

Response: The Forest Service cannot 

‘‘share’’ its administrative authority over 

the NFS and must make the decisions 

for NFS management, including 

approval of plans, plan amendments, 

and plan revisions. The agency and the 

Department are committed to 

stakeholder involvement in planning; 

however, the Department does not 

believe it is necessary to set the 

boundaries of how this process may 

operate in planning through a definition 

of the process. 

Comment: Silvicultural terminology. 

Some respondents said that the 2002 

proposed rule (§ 219.4) confuses 

silvicultural objectives (for example, 

achieving an even-aged stand condition) 

with harvesting methods. They said that 

silvicultural definitions should be taken 

from the Society of American Foresters 

handbook. 

Response: The Dictionary of Forestry 

reflects current professional acceptance 

and use of terms and definitions. 

Because the Dictionary of Forestry has 

wide acceptance, it was reviewed and 

the silvicultural definitions of the final 

rule at § 219.16, and other silvicultural 

terminology in the final rule are largely 

consistent with definitions found in the 

Dictionary of Forestry (Bethesda, MD, 

Society of American Foresters, 1998). 

5. Regulatory Certifications 

Regulatory Impact 

This final rule has been reviewed 

under U.S. Department of Agriculture 

(Department) procedures and Executive 

Order 12866 issued September 30, 1993 

(E.O. 12866) on Regulatory Planning 

and Review. It has been determined that 

this is not an economically significant 

rule. This final rule 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 

final rule will neither interfere with an 

action taken or planned by another 

agency nor raise new legal or policy 

issues. Finally, this final rule will not 

alter the budgetary impact of 

entitlements, grants, user fees, or loan 

programs or the rights and obligations of 

recipients of such programs. However, 

because of the extensive interest in 

National Forest System (NFS) planning 

and decisionmaking, this final rule has 

been designated as significant and, 

therefore, is subject to Office of 

Management and Budget review under 

E.O. 12866. 

A cost-benefit analysis was conducted 

to compare the costs and benefits of 

implementing this final rule to the 

baseline, 1982 planning rule. This 

analysis is posted on the World Wide 

Web/Internet at http://www.fs.fed.us/

emc/nfma/, along with other documents 

associated with this final rule. The 1982 

planning rule was used as the baseline 

because all the land management plan 

revisions completed to date have used 

the requirements of the 1982 planning 

rule. Quantitative differences among the 

final rule, the 2000 rule, and the 2002 

proposed rule were also estimated. 

Primary sources of data used to estimate 

the costs and benefits of the 2000 

planning rule and the 2002 proposed 

rule are from the results of a 2002 report 

entitled ‘‘A Business Evaluation of the 

2000 and Proposed NFMA Rules’’

produced by the Inventory and 

Monitoring Institutes of the Forest 

Service. The report is also identified as 

the ‘‘2002 NFMA Costing Study,’’ or 

simply as the ‘‘Costing Study.’’ The 

Costing Study used a business modeling 

process to identify and compare major 

costs for both the 2000 planning rule 

and the 2002 proposed rule. The main 

source of data used to approximate costs 

under the 1982 planning rule is from a 

recent report to Congress on planning 

costs, along with empirical data and 

inferences from the Costing Study. 

The cost-benefit analysis focuses on 

key activities in land management 

planning for which costs can be 

estimated under the 1982 planning rule, 

the 2000 planning rule, the 2002 

proposed rule, and this final rule. The 

key activities include regional guides, 

collaboration, consideration of science, 

evaluation of the sustainability of 

decisions and diversity requirements 

under the National Forest Management 

Act (NFMA) of 1976 (16 U.S.C. 1600 et 

seq.), monitoring, evaluation, and the 

resolution of disputes regarding the 

proposed plan decisions through the 

administrative processes of appeals and 

objections. 

The final rule would reduce the cost 

of producing a plan or revision by 

shortening the length of the planning 

process and providing the Responsible 

Official with more flexibility to decide 

the scope and scale of the planning 

process. The final rule, by requiring 

inclusion of environmental management 

systems into the land management 

framework, requires a comprehensive 

evaluation during plan development 

and plan revision that will be updated 

at least every five years. Some upfront 

planning costs, such as analyzing and 

developing plan components, and 

documenting the land management 

planning process, are anticipated to 

shift to monitoring and evaluation to 

better document cumulative effects of 

management activities and natural 

events when preparing a comprehensive 

evaluation of the plan under the final 

rule. 

Based on costs that can be quantified, 

implementation of this final rule is 

expected to have an estimated annual 

average cost savings of $4.6 million 

when compared to the 1982 planning 

rule, and an estimated annual average 

savings of $36.9 million when compared 

to estimates of implementation of the 

2000 planning rule. When compared to 

the 2002 proposed rule, implementation 

of the final rule is estimated to cost $19 

million less than the 2002 proposed rule 

with Option 1 and $24.9 million more 

than the 2002 proposed rule with 

Option 2. The higher cost over the 2002 

proposed rule is due to increased 

monitoring and evaluation requirements 

in the final rule.

From this cost-benefit analysis, the 

estimated total costs for implementing 

the final rule are expected to be lower 

than the 2000 planning rule; however, 

the estimated cost savings are less than 

that predicted on the 2002 proposed 

rule because costs for monitoring and 

evaluation are expected to be higher. In 

other words, although the final rule is 

expected to be less costly than the 2000 

planning rule, some of those saved costs 

are expected to be shifted to monitoring 

and evaluation. 

This final 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 final rule. The final rule imposes no 

requirements on either small or large 

entities. Rather, the final rule sets out 

the process the Forest Service will 

follow in land management planning for 

the NFS. The final rule should provide 

opportunities for small businesses to 

become involved in the national forest, 

grassland, prairie, or other comparable 

administrative unit plan approval. 

Moreover, by streamlining the land 

management planning process, the final 

rule should benefit small businesses 

through more timely decisions that 

affect outputs of products and services. 

Environmental Impacts 

This final rule establishes the 

administrative procedures to guide 

developing, amending, and revising 

NFS land management plans. This final 

rule, like earlier planning rules, does 

1054 Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 

not dictate how administrative units of 

the NFS are to be managed. The 

Department does not expect that this 

final rule will directly affect the mix of 

uses on any or all units of the NFS. 

Section 31.12 of FSH 1909.15 excludes 

from documentation in an EA or EIS 

‘‘rules, regulations, or policies to 

establish Service-wide administrative 

procedures, program processes, or 

instruction.’’ This final rule clearly falls 

within this category of actions and the 

Department has determined that no 

extraordinary circumstances exist that 

would require preparation of an EA or 

an EIS. 

Energy Effects 

This final rule has been reviewed 

under Executive Order 13211 issued 

May 18, 2001 (E.O. 13211), ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use.’’ It has been 

determined that this final rule does not 

constitute a significant energy action as 

defined in E.O. 13211. Procedural in 

nature, this final rule would guide the 

development, amendment, and revision 

of NFS land management plans. These 

plans are strategic documents that 

provide the guidance for making future 

project or activity-level resource 

management decisions. As such, these 

plans will address access requirements 

associated with energy exploration and 

development within the framework of 

multiple-use, sustained-yield 

management of the surface resources of 

the NFS lands. These land management 

plans may identify major rights-of-way 

corridors for utility transmission lines, 

pipelines, and water canals. While these 

plans consider the need for such 

facilities, they do not authorize 

construction of them; therefore, the final 

rule and the plans developed under it 

do not have energy effects within the 

meaning of E.O. 13211. The effects of 

the construction of such lines, 

pipelines, and canals are, of necessity, 

considered on a case-by-case basis as 

specific construction proposals are 

made. Consistent with E.O. 13211, 

direction to incorporate consideration of 

energy supply, distribution, and use in 

the planning process is being included 

in the agency’s administrative directives 

for implementing the final rule. 

Controlling Paperwork Burdens on the 

Public 

In accordance with the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.), the information collection or 

reporting requirements for the objection 

process were previously approved by 

the Office of Management and Budget 

(OMB) and assigned control number 

0596–0158, expiring on October 31, 

2003 for the 2000 planning rule. 

The OMB has extended this approval 

through December 31, 2006 for this final 

planning rule, using the same control 

number. This extension was made after 

the Forest Service provided the public 

an opportunity to comment on the 

extension as required by the Paperwork 

Reduction Act (68 FR 50512, August 21, 

2003). The Forest Service received no 

comments regarding extension.

The information required by 36 CFR 

219.13 is needed for an objector to 

explain the nature of the objection being 

made to a proposed land management 

plan, plan amendment, or plan revision. 

This final rule retains but simplifies the 

objection process established in the 

2000 planning rule. The final rule 

removes the requirements previously 

provided in the 2000 planning rule for 

interested parties, publication of 

objections, and formal requests for 

meetings (36 CFR 219.32). These 

changes will result in a minor reduction 

in the number of burden hours 

approved by OMB. 

Federalism 

The agency has considered this final 

rule under the requirements of 

Executive Order 13132 issued August 4, 

1999 (E.O. 13132), ‘‘Federalism.’’ The 

agency has made an assessment that the 

final 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 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 rule 

does not have Federalism implications. 

Moreover, § 219.9 of this final rule 

shows sensitivity to Federalism 

concerns by requiring the Responsible 

Official to meet with and provide 

opportunities for involvement of State 

and local governments in the planning 

process. 

In the spirit of E.O. 13132, the agency 

consulted with State and local officials, 

including their national representatives, 

early in the process of developing the 

proposed regulation. The agency has 

consulted with the Western Governors’

Association and the National 

Association of Counties to obtain their 

views on a preliminary draft of the 2002 

proposed rule. The Western Governors’

Association supported the general intent 

to create a regulation that works, and 

placed importance on the quality of 

collaboration to be provided when the 

agency implements the regulation. 

Agency representatives also contacted 

the International City and County 

Managers Association, National 

Conference of State Legislators, The 

Council of State Governments, Natural 

Resources Committee of the National 

Governors Association, U.S. Conference 

of Mayors, and the National League of 

Cities to share information about the 

2002 proposed rule prior to its 

publication. Based on comments 

received on the 2002 proposed rule, the 

agency has determined that additional 

consultation was not needed with State 

and local governments. 

Civil Rights Impact Analysis 

A civil rights impact analysis was 

conducted for this final rule. This 

analysis is posted on the World Wide 

Web/Internet at http://www.fs.fed.us/

emc/nfma/, along with other documents 

associated with this final rule. The 

analysis found that there no adverse 

civil rights or environmental justice 

impacts anticipated to the delivery of 

benefits or other program outcomes on 

a national level for any underrepresented population or to other 

United States populations or 

communities. 

Consultation With Indian Tribal 

Governments 

Pursuant to Executive Order 13175 of 

November 6, 2000, ‘‘Consultation and 

Coordination with Indian Tribal 

Governments,’’ the agency has assessed 

the impact of this final rule on Indian 

Tribal governments and has determined 

that the final rule does not significantly 

or uniquely affect communities of 

Indian Tribal governments. The final 

rule deals with the administrative 

procedures to guide the development, 

amendment, and revision of NFS land 

management plans and, as such, has no 

direct effect regarding the occupancy 

and use of NFS land. At § 219.9(a)(3), 

the final rule requires consultation with 

federally recognized Tribes when 

conducting land management planning. 

The agency has also determined that 

this final rule does not impose 

substantial direct compliance cost on 

Indian Tribal governments. This final 

rule does not mandate Tribal 

participation in NFS planning. Rather, 

the final rule imposes an obligation on 

Forest Service officials to consult early 

with Tribal governments and to work 

cooperatively with them where 

planning issues affect Tribal interests. 

No Takings Implications 

This final rule has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

12630 issued March 15, 1988, and it has 

Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 1055

been determined that the final rule does 

not pose the risk of a taking of 

Constitutionally protected private 

property. 

Civil Justice Reform 

This final rule has been reviewed 

under Executive Order 12988 of 

February 7, 1996, ‘‘Civil Justice 

Reform.’’ The Department has not 

identified any State or local laws or 

regulations that are in conflict with this 

regulation or that would impede full 

implementation of this final rule. 

Nevertheless, in the event that such a 

conflict was to be identified, the final 

rule would preempt State or local laws 

or regulations found to be in conflict. 

However, in that case, (1) no retroactive 

effect would be given to this final rule; 

and (2) the final rule does not require 

the use of 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 final rule on State, local, 

and Tribal governments and the private 

sector. This final rule does not compel 

the expenditure of $100 million or more 

by any State, local, or Tribal 

governments or anyone in the private 

sector. Therefore, a statement under 

section 202 of the Act is not required.

List of Subjects in 36 CFR Part 219

Administrative practice and 

procedure, Environmental impact 

statements, Indians, Intergovernmental 

relations, Forest and forest products, 

National forests, Natural resources, 

Reporting and recordkeeping 

requirements, Science and technology.

■ Therefore, for the reasons set forth in 

the preamble, add subpart A to part 219 

of title 36 of the Code of Federal 

Regulations to read as follows:

PART 219—PLANNING

Subpart A—National Forest System Land 

Management Planning 

Sec. 

219.1 Purpose and applicability. 

219.2 Levels of planning and planning 

authority. 

219.3 Nature of land management planning. 

219.4 National Environmental Policy Act 

compliance. 

219.5 Environmental management systems. 

219.6 Evaluations and monitoring. 

219.7 Developing, amending, or revising a 

plan. 

219.8 Application of a new plan, plan 

amendment, or plan revision. 

219.9 Public participation, collaboration, 

and notification. 

219.10 Sustainability. 

219.11 Role of science in planning. 

219.12 Suitable uses and provisions 

required by NFMA. 

219.13 Objections to plans, plan 

amendments, or plan revisions. 

219.14 Effective dates and transition. 

219.15 Severability. 

219.16 Definitions.

Subpart B [Reserved]

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

1613.

§ 219.1 Purpose and applicability. 

(a) The rules of this subpart set forth 

a process for land management 

planning, including the process for 

developing, amending, and revising 

land management plans (also referred to 

as plans) for the National Forest System, 

as required by the Forest and Rangeland 

Renewable Resources Planning Act of 

1974, as amended by the National Forest 

Management Act of 1976 (16 U.S.C. 

1600 et seq.), hereinafter referred to as 

NFMA. This subpart also describes the 

nature and scope of plans and sets forth 

the required components of a plan. This 

subpart is applicable to all units of the 

National Forest System as defined by 16 

U.S.C. 1609 or subsequent statute. 

(b) Consistent with the Multiple-Use 

Sustained-Yield Act of 1960 (16 U.S.C. 

528–531), the overall goal of managing 

the National Forest System is to sustain 

the multiple uses of its renewable 

resources in perpetuity while 

maintaining the long-term productivity 

of the land. Resources are to be managed 

so they are utilized in the combination 

that will best meet the needs of the 

American people. Maintaining or 

restoring the health of the land enables 

the National Forest System to provide a 

sustainable flow of uses, benefits, 

products, services, and visitor 

opportunities. 

(c) The Chief of the Forest Service 

shall establish planning procedures for 

this subpart for plan development, plan 

amendment, or plan revision in the 

Forest Service Directive System.

§ 219.2 Levels of planning and planning 

authority. 

Planning occurs at multiple 

organizational levels and geographic 

areas. 

(a) National. The Chief of the Forest 

Service is responsible for national 

planning, such as preparation of the 

Forest Service Strategic Plan required 

under the Government Performance and 

Results Act of 1993 (5 U.S.C. 306; 31 

U.S.C. 1115—1119; 31 U.S.C. 9703–

9704), which is integrated with the 

requirements of the Forest and 

Rangeland Renewable Resources 

Planning Act of 1974, as amended by 

the NFMA. The Strategic Plan 

establishes goals, objectives, 

performance measures, and strategies 

for management of the National Forest 

System, as well as the other Forest 

Service mission areas. 

(b) Forest, grassland, prairie, or other 

comparable administrative unit. (1) 

Land management plans provide broad 

guidance and information for project 

and activity decisionmaking in a 

national forest, grassland, prairie, or 

other comparable administrative unit. 

The Supervisor of the National Forest, 

Grassland, Prairie, or other comparable 

administrative unit is the Responsible 

Official for development and approval 

of a plan, plan amendment, or plan 

revision for lands under the 

responsibility of the Supervisor, unless 

a Regional Forester, the Chief, or the 

Secretary chooses to act as the 

Responsible Official.

(2) When plans, plan amendments, or 

plan revisions are prepared for more 

than one administrative unit, a unit 

Supervisor identified by the Regional 

Forester, or the Regional Forester, the 

Chief, or the Secretary may be the 

Responsible Official. Two or more 

Responsible Officials may undertake 

joint planning over lands under their 

respective jurisdictions. 

(3) The appropriate Station Director 

must concur with that part of a plan 

applicable to any experimental forest 

within the plan area. 

(c) Projects and activities. The 

Supervisor or District Ranger is the 

Responsible Official for project and 

activity decisions, unless a higher-level 

official chooses to act as the Responsible 

Official. Requirements for project or 

activity planning are established in the 

Forest Service Directive System. Except 

as specifically provided, none of the 

requirements of this subpart applies to 

projects or activities. 

(d) Developing, amending, and 

revising plans. (1) Plan development. If 

a new national forest, grassland, prairie, 

or other administrative unit of the 

National Forest System is established, 

the Regional Forester, or a forest, 

grassland, prairie, or other comparable 

unit Supervisor identified by the 

Regional Forester must either develop a 

plan for the unit or amend or revise an 

existing plan to apply to the lands 

within the new unit. 

(2) Plan amendment. The Responsible 

Official may amend a plan at any time. 

(3) Plan revision. The Responsible 

Official must revise the plan if the 

Responsible Official concludes that 

conditions within the plan area have 

significantly changed. Unless otherwise 

provided by law, a plan must be revised 

at least every 15 years.

1056 Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 

§ 219.3 Nature of land management 

planning. 

(a) Principles of land management 

planning. Land management planning is 

an adaptive management process that 

includes social, economic, and 

ecological evaluation; plan 

development, plan amendment, and 

plan revision; and monitoring. The 

overall aim of planning is to produce 

responsible land management for the 

National Forest System based on useful 

and current information and guidance. 

Land management planning guides the 

Forest Service in fulfilling its 

responsibilities for stewardship of the 

National Forest System to best meet the 

needs of the American people. 

(b) Force and effect of plans. Plans 

developed in accordance with this 

subpart generally contain desired 

conditions, objectives, and guidance for 

project and activity decisionmaking in 

the plan area. Plans do not grant, 

withhold, or modify any contract, 

permit, or other legal instrument, 

subject anyone to civil or criminal 

liability, or create any legal rights. Plans 

typically do not approve or execute 

projects and activities. Decisions with 

effects that can be meaningfully 

evaluated (40 CFR 1508.23) typically are 

made when projects and activities are 

approved.

§ 219.4 National Environmental Policy Act 

compliance. 

(a) In accordance with 16 U.S.C. 

1604(g)(1) this subpart clarifies how the 

National Environmental Policy Act of 

1969 (42 U.S.C. 4321–4346) (hereinafter 

referred to as NEPA) applies to National 

Forest System land management 

planning. 

(b) Approval of a plan, plan 

amendment, or plan revision, under the 

authority of this subpart, will be done 

in accordance with the Forest Service 

NEPA procedures and may be 

categorically excluded from NEPA 

documentation under an appropriate 

category provided in such procedures.

(c) Nothing in this subpart alters the 

application of NEPA to proposed 

projects and activities. 

(d) Monitoring and evaluations, 

including those required by § 219.6, 

may be used or incorporated by 

reference, as appropriate, in applicable 

NEPA documents.

§ 219.5 Environmental management 

systems. 

The Responsible Official must 

establish an environmental management 

system (EMS) for each unit of the 

National Forest System. The scope of an 

EMS will include, at the minimum, the 

land management planning process 

defined by this subpart. An EMS for any 

unit may include environmental aspects 

unrelated to the land management 

planning process under this subpart. 

(a) Plan development, plan 

amendment, or plan revision must be 

completed in accordance with the EMS 

and § 219.14. An EMS may be 

established independently of the 

planning process. 

(b) The EMS must conform to the 

consensus standard developed by the 

International Organization for 

Standardization (ISO) and adopted by 

the American National Standards 

Institute (ANSI) as ‘‘ISO 14001: 

Environmental Management Systems—

Specification With Guidance For Use’’

(ISO 14001). The ISO 14001 describes 

EMSs and outlines the elements of an 

EMS. The ISO 14001 is available from 

the ANSI website at http://

webstore.ansi.org/ansidocstore/

default.asp.

(c) Pursuant to § 219.1(c), the Chief of 

the Forest Service shall establish 

procedures in the Forest Service 

Directive System to ensure that 

appropriate EMSs are in place. The 

Responsible Official may determine 

whether and how to change and 

improve an EMS for the plan area, 

consistent with applicable Forest 

Service Directive System procedures.

§ 219.6 Evaluations and monitoring. 

(a) Evaluations. The Responsible 

Official shall keep the Plan Set of 

Documents up to date with evaluation 

reports, which will reflect changing 

conditions, science, and other relevant 

information. The following three types 

of evaluations are required for land 

management planning: comprehensive 

evaluations for plan development and 

revision, evaluations for plan 

amendment, and annual evaluations of 

monitoring information. The 

Responsible Official shall document 

evaluations in evaluation reports, make 

these reports available to the public as 

required in § 219.9, and include these 

reports in the Plan Set of Documents 

(§ 219.7(a)(1)). Evaluations under this 

section should be commensurate to the 

level of risk or benefit associated with 

the nature and level of expected 

management activities in the plan area. 

(1) Comprehensive evaluations. These 

evaluate current social, economic, and 

ecological conditions and trends that 

contribute to sustainability, as described 

in § 219.10. Comprehensive evaluations 

and comprehensive evaluation reports 

must be updated at least every five years 

to reflect any substantial changes in 

conditions and trends since the last 

comprehensive evaluation. The 

Responsible Official must ensure that 

comprehensive evaluations, including 

any updates necessary, include the 

following elements: 

(i) Area of analysis. The area(s) of 

analysis must be clearly identified. 

(ii) Conditions and trends. The 

current social, economic, and ecological 

conditions and trends and substantial 

changes from previously identified 

conditions and trends must be described 

based on available information, 

including monitoring information, 

surveys, assessments, analyses, and 

other studies as appropriate. 

Evaluations may build upon existing 

studies and evaluations. 

(2) Evaluation for a plan amendment.

An evaluation for a plan amendment 

must analyze the issues relevant to the 

purposes of the amendment and may 

use the information in comprehensive 

evaluations relevant to the plan 

amendment. When a plan amendment is 

made contemporaneously with, and 

only applies to, a project or activity 

decision, the analysis prepared for the 

project or activity satisfies the 

requirements for an evaluation for an 

amendment. 

(3) Annual evaluation of the 

monitoring information. Monitoring 

results must be evaluated annually and 

in accordance with paragraph (b)(2) of 

this section. 

(b) Monitoring. The plan must 

describe the monitoring program for the 

plan area. Monitoring information in the 

Plan Document or Set of Documents 

may be changed and updated as 

appropriate, at any time. Such changes 

and updates are administrative 

corrections (§ 219.7(b)) and do not 

require a plan amendment or revision. 

(1) The plan-monitoring program shall 

be developed with public participation 

and take into account: 

(i) Financial and technical 

capabilities; 

(ii) Key social, economic, and 

ecological performance measures 

relevant to the plan area: and 

(iii) The best available science. 

(2) The plan-monitoring program shall 

provide for:

(i) Monitoring to determine whether 

plan implementation is achieving 

multiple use objectives; 

(ii) Monitoring to determine the 

effects of the various resource 

management activities within the plan 

area on the productivity of the land; 

(iii) Monitoring of the degree to which 

on-the-ground management is 

maintaining or making progress toward 

the desired conditions and objectives for 

the plan; and 

(iv) Adjustment of the monitoring 

program as appropriate to account for 

unanticipated changes in conditions. 

Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 1057

(3) The Responsible Official may 

conduct monitoring jointly with others, 

including but not limited to, Forest 

Service units, Federal, State or local 

government agencies, federally 

recognized Indian Tribes, and members 

of the public.

§ 219.7 Developing, amending, or revising 

a plan. 

(a) General planning requirements.

(1) Plan Documents or Set of 

Documents. The Responsible Official 

must maintain a Plan Document or Set 

of Documents for the plan. A Plan 

Document or Set of Documents 

includes, but is not limited to, 

evaluation reports; documentation of 

public involvement; the plan, including 

applicable maps; applicable plan 

approval documents; applicable NEPA 

documents, if any; the monitoring 

program for the plan area; and 

documents relating to the EMS 

established for the unit. 

(2) Plan components. Plan 

components may apply to all or part of 

the plan area. A plan should include the 

following components: 

(i) Desired conditions. Desired 

conditions are the social, economic, and 

ecological attributes toward which 

management of the land and resources 

of the plan area is to be directed. 

Desired conditions are aspirations and 

are not commitments or final decisions 

approving projects and activities, and 

may be achievable only over a long time 

period. 

(ii) Objectives. Objectives are concise 

projections of measurable, time-specific 

intended outcomes. The objectives for a 

plan are the means of measuring 

progress toward achieving or 

maintaining desired conditions. Like 

desired conditions, objectives are 

aspirations and are not commitments or 

final decisions approving projects and 

activities. 

(iii) Guidelines. Guidelines provide 

information and guidance for project 

and activity decisionmaking to help 

achieve desired conditions and 

objectives. Guidelines are not 

commitments or final decisions 

approving projects and activities. 

(iv) Suitability of areas. Areas of each 

National Forest System unit are 

identified as generally suitable for 

various uses (§ 219.12). An area may be 

identified as generally suitable for uses 

that are compatible with desired 

conditions and objectives for that area. 

The identification of an area as 

generally suitable for a use is guidance 

for project and activity decisionmaking 

and is not a commitment or a final 

decision approving projects and 

activities. Uses of specific areas are 

approved through project and activity 

decisionmaking. 

(v) Special areas. Special areas are 

areas within the National Forest System 

designated because of their unique or 

special characteristics. Special areas 

such as botanical areas or significant 

caves may be designated, by the 

Responsible Official in approving a 

plan, plan amendment, or plan revision. 

Such designations are not final 

decisions approving projects and 

activities. The plan may also recognize 

special areas designated by statute or 

through a separate administrative 

process in accordance with NEPA 

requirements (§ 219.4) and other 

applicable laws. 

(3) Changing plan components. Plan 

components may be changed through 

plan amendment or revision, or through 

an administrative correction in 

accordance with § 219.7(b). 

(4) Planning authorities. The 

Responsible Official has the discretion 

to determine whether and how to 

change the plan, subject to the 

requirement that the plan be revised at 

least every 15 years. A decision by a 

Responsible Official about whether or 

not to initiate the plan amendment or 

plan revision process and what issues to 

consider for plan development, plan 

amendment, or plan revision is not 

subject to objection under this subpart 

(§ 219.13). 

(5) Plan process. (i) Required 

evaluation reports, plan, plan 

amendments, and plan revisions must 

be prepared by an interdisciplinary 

team; and 

(ii) Unless otherwise provided by law, 

all National Forest System lands 

possessing wilderness characteristics 

must be considered for recommendation 

as potential wilderness areas during 

plan development or revision. 

(6) Developing plan options. In the 

collaborative and participatory process 

of land management planning, the 

Responsible Official may use an 

iterative approach in development of a 

plan, plan amendment, and plan 

revision in which plan options are 

developed and narrowed successively. 

The key steps in this process shall be 

documented in the Plan Set of 

Documents.

(b) Administrative corrections.

Administrative corrections may be made 

at any time and are not plan 

amendments or revisions. 

Administrative corrections include the 

following: 

(1) Corrections and updates of data 

and maps; 

(2) Corrections of typographical errors 

or other non-substantive changes; 

(3) Changes in the monitoring 

program and monitoring information 

(§ 219.6(b)); 

(4) Changes in timber management 

projections; and 

(5) Other changes in the Plan 

Document or Set of Documents, except 

for substantive changes in the plan 

components. 

(c) Approval document. The 

Responsible Official must record 

approval of a new plan, plan 

amendment, or plan revision in a plan 

approval document, which must 

include: 

(1) The rationale for the approval of 

the plan, plan amendment, or plan 

revision; 

(2) Concurrence by the appropriate 

Station Director with any part of the 

plan applicable to any experimental 

forest within the plan area, in 

accordance with § 219.2(b)(3); 

(3) A statement of how the plan, plan 

amendment, or plan revision applies to 

approved projects and activities, in 

accordance with § 219.8; 

(4) Science documentation, in 

accordance with § 219.11; and 

(5) The effective date of the approval 

(§ 219.14(a)).

§ 219.8 Application of a new plan, plan 

amendment, or plan revision. 

(a) Application of a new plan, plan 

amendment, or plan revision to existing 

authorizations and approved projects or 

activities. (1) The Responsible Official 

must include in any document 

approving a plan amendment or 

revision a description of the effects of 

the plan, plan amendments, or plan 

revision on existing occupancy and use, 

authorized by permits, contracts, or 

other instruments implementing 

approved projects and activities. If not 

expressly excepted, approved projects 

and activities must be consistent with 

applicable plan components, as 

provided in paragraph (e) of this 

section. Approved projects and 

activities are those for which a 

Responsible Official has signed a 

decision document. 

(2) Any modifications of such 

permits, contracts, or other instruments 

necessary to make them consistent with 

applicable plan components as 

developed, amended, or revised are 

subject to valid existing rights. Such 

modifications should be made as soon 

as practicable following approval of a 

new plan, plan amendment, or plan 

revision. 

(b) Application of a new plan, plan 

amendment, or plan revision to 

authorizations and projects or activities 

subsequent to plan approval. Decisions 

approving projects and activities 

1058 Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 

subsequent to approval of a plan, plan 

amendment, or plan revision must be 

consistent with the plan as provided in 

paragraph (e) of this section. 

(c) Application of a plan. Plan 

provisions remain in effect until the 

effective date of a new plan, plan 

amendment, or plan revision. 

(d) Effect of new information on 

projects or activities. Although new 

information will be considered in 

accordance with agency NEPA 

procedures, nothing in this subpart 

requires automatic deferral, suspension, 

or modification of approved decisions 

in light of new information. 

(e) Ensuring project or activity 

consistency with plans. Projects and 

activities must be consistent with the 

applicable plan. If an existing 

(paragraph (a) of this section) or 

proposed (paragraph (b) of this section) 

use, project, or activity is not consistent 

with the applicable plan, the 

Responsible Official may take one of the 

following steps, subject to valid existing 

rights: 

(1) Modify the project or activity to 

make it consistent with the applicable 

plan components; 

(2) Reject the proposal or terminate 

the project or activity, subject to valid 

existing rights; or 

(3) Amend the plan 

contemporaneously with the approval of 

the project or activity so that it will be 

consistent with the plan as amended. 

The amendment may be limited to 

apply only to the project or activity.

§ 219.9 Public participation, collaboration, 

and notification. 

The Responsible Official must use a 

collaborative and participatory 

approach to land management planning, 

in accordance with this subpart and 

consistent with applicable laws, 

regulations, and policies, by engaging 

the skills and interests of appropriate 

combinations of Forest Service staff, 

consultants, contractors, other Federal 

agencies, federally recognized Indian 

Tribes, State or local governments, or 

other interested or affected 

communities, groups, or persons. 

(a) Providing opportunities for 

participation. The Responsible Official 

must provide opportunities for the 

public to collaborate and participate 

openly and meaningfully in the 

planning process, taking into account 

the discrete and diverse roles, 

jurisdictions, and responsibilities of 

interested and affected parties. 

Specifically, as part of plan 

development, plan amendment, and 

plan revision, the Responsible Official 

shall involve the public in developing 

and updating the comprehensive 

evaluation report, establishing the 

components of the plan, and designing 

the monitoring program. The 

Responsible Official has the discretion 

to determine the methods and timing of 

public involvement opportunities.

(1) Engaging interested individuals 

and organizations. The Responsible 

Official must provide for and encourage 

collaboration and participation by 

interested individuals and 

organizations, including private 

landowners whose lands are within, 

adjacent to, or otherwise affected by 

future management actions within the 

plan area. 

(2) Engaging State and local 

governments and Federal agencies. The 

Responsible Official must provide 

opportunities for the coordination of 

Forest Service planning efforts 

undertaken in accordance with this 

subpart with those of other resource 

management agencies. The Responsible 

Official also must meet with and 

provide early opportunities for other 

government agencies to be involved, 

collaborate, and participate in planning 

for National Forest System lands. The 

Responsible Official should seek 

assistance, where appropriate, from 

other State and local governments, 

Federal agencies, and scientific and 

academic institutions to help address 

management issues or opportunities. 

(3) Engaging Tribal governments. The 

Forest Service recognizes the Federal 

Government’s trust responsibility for 

federally recognized Indian Tribes. The 

Responsible Official must consult with, 

invite, and provide opportunities for 

federally recognized Indian Tribes to 

collaborate and participate in planning. 

In working with federally recognized 

Indian Tribes, the Responsible Official 

must honor the government-togovernment relationship between Tribes 

and the Federal Government. 

(b) Public notification. The following 

public notification requirements apply 

to plan development, amendment, or 

revision, except when a plan 

amendment is approved 

contemporaneously with approval of a 

project or activity and the amendment 

applies only to the project or activity, in 

which case 36 CFR part 215 or part 218, 

subpart A, applies: 

(1) When formal public notification is 

provided. Public notification must be 

provided at the following times: 

(i) Initiation of development of a plan, 

plan amendment, or plan revision; 

(ii) Commencement of the 90-day 

comment period on a proposed plan, 

plan amendment, or plan revision; 

(iii) Commencement of the 30-day 

objection period prior to approval of a 

plan, plan amendment, or plan revision; 

(iv) Approval of a plan, plan 

amendment, or plan revision; and 

(v) Adjustment to conform to this 

subpart of a planning process for a plan, 

plan amendment, or plan revision 

initiated under the provisions of a 

previous planning regulation. 

(2) How public notice is provided.

Public notice must be provided in the 

following manner: 

(i) All required public notices 

applicable to a new plan, plan revision, 

or adjustment of any ongoing plan 

revision as provided at § 219.14(e) must 

be published in the Federal Register

and newspaper(s) of record. 

(ii) Required notifications that are 

associated with a plan amendment or 

adjustment of any ongoing plan 

amendment as provided at § 219.14(e) 

and that apply to one plan must be 

published in the newspaper(s) of record. 

Required notifications that are 

associated with plan amendments and 

adjustment of any ongoing plan 

amendments (as provided at § 219.14(e)) 

and that apply to more than one plan 

must be published in the Federal 

Register. 

(iii) Public notification of evaluation 

reports and monitoring program changes 

may be made in a manner deemed 

appropriate by the Responsible Official. 

(3) Content of the public notice.

Public notices must contain the 

following information: 

(i) Content of the public notice for 

initiating a plan development, plan 

amendment, or plan revision. The 

notice must inform the public of the 

documents available for review and how 

to obtain them; provide a summary of 

the need to develop a plan or change a 

plan; invite the public to comment on 

the need for change in a plan and to 

identify any other need for change in a 

plan that they feel should be addressed 

during the planning process; and 

provide an estimated schedule for the 

planning process, including the time 

available for comments, and inform the 

public how to submit comments. 

(ii) Content of the public notice for a 

proposed plan, plan amendment, or 

plan revision. The notice must inform 

the public of the availability of the 

proposed plan, plan amendment, or 

plan revision, including any relevant 

evaluation report; the commencement of 

the 90-day comment period; and the 

process for submitting comments. 

(iii) Content of the public notice for a 

plan, plan amendment, or plan revision 

prior to approval. The notice must 

inform the public of the availability of 

the plan, plan amendment, or plan 

revision; any relevant evaluation report; 

and the commencement of the 30-day 

Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 1059

objection period; and the process for 

objecting.

(iv) Content of the public notice for 

approval of a plan, plan amendment, or 

plan revision. The notice must inform 

the public of the availability of the 

approved plan, plan amendment, or 

plan revision, the approval document, 

and the effective date of the approval 

(§ 219.14(a)). 

(v) Content of the public notice for an 

adjustment to an ongoing planning 

process. The notice must state how a 

planning process initiated before the 

transition period (§ 219.14(b) and (e)) 

will be adjusted to conform to this 

subpart.

§ 219.10 Sustainability. 

Sustainability, for any unit of the 

National Forest System, has three 

interrelated and interdependent 

elements: social, economic, and 

ecological. A plan can contribute to 

sustainability by creating a framework 

to guide on-the-ground management of 

projects and activities; however, a plan 

by itself cannot ensure sustainability. 

Agency authorities, the nature of a plan, 

and the capabilities of the plan area are 

some of the factors that limit the extent 

to which a plan can contribute to 

achieving sustainability. 

(a) Sustaining social and economic 

systems. The overall goal of the social 

and economic elements of sustainability 

is to contribute to sustaining social and 

economic systems within the plan area. 

To understand the social and economic 

contributions that National Forest 

System lands presently make, and may 

make in the future, the Responsible 

Official, in accordance with § 219.6, 

must evaluate relevant economic and 

social conditions and trends as 

appropriate during plan development, 

plan amendment, or plan revision. 

(b) Sustaining ecological systems. The 

overall goal of the ecological element of 

sustainability is to provide a framework 

to contribute to sustaining native 

ecological systems by providing 

ecological conditions to support 

diversity of native plant and animal 

species in the plan area. This will 

satisfy the statutory requirement to 

provide for diversity of plant and 

animal communities based on the 

suitability and capability of the specific 

land area in order to meet overall 

multiple-use objectives (16 U.S.C. 

1604(g)(3)(B)). Procedures developed 

pursuant to § 219.1(c) for sustaining 

ecological systems must be consistent 

with the following: 

(1) Ecosystem diversity. Ecosystem 

diversity is the primary means by which 

a plan contributes to sustaining 

ecological systems. Plan components 

must establish a framework to provide 

the characteristics of ecosystem 

diversity in the plan area. 

(2) Species diversity. If the 

Responsible Official determines that 

provisions in plan components, in 

addition to those required by paragraph 

(b)(1) of this section, are needed to 

provide appropriate ecological 

conditions for specific threatened and 

endangered species, species-of-concern, 

and species-of-interest, then the plan 

must include additional provisions for 

these species, consistent with the limits 

of agency authorities, the capability of 

the plan area, and overall multiple use 

objectives.

§ 219.11 Role of science in planning. 

(a) The Responsible Official must take 

into account the best available science. 

For purposes of this subpart, taking into 

account the best available science 

means the Responsible Official must: 

(1) Document how the best available 

science was taken into account in the 

planning process within the context of 

the issues being considered; 

(2) Evaluate and disclose substantial 

uncertainties in that science; 

(3) Evaluate and disclose substantial 

risks associated with plan components 

based on that science; and 

(4) Document that the science was 

appropriately interpreted and applied. 

(b) To meet the requirements of 

paragraph (a) of this section, the 

Responsible Official may use 

independent peer review, a science 

advisory board, or other review methods 

to evaluate the consideration of science 

in the planning process.

§ 219.12 Suitable uses and provisions 

required by NFMA. 

(a) Suitable uses. (1) Identification of 

suitable land uses. National Forest 

System lands are generally suitable for 

a variety of multiple uses, such as 

outdoor recreation, range, timber, 

watershed, and wildlife and fish 

purposes. The Responsible Official, as 

appropriate, shall identify areas within 

a National Forest System unit as 

generally suitable for uses that are 

compatible with desired conditions and 

objectives for that area. Such 

identification is guidance for project 

and activity decisionmaking, is not a 

permanent land designation, and is 

subject to change through plan 

amendment or plan revision. Uses of 

specific areas are approved through 

project and activity decisionmaking. 

(2) Identification of lands not suitable 

for timber production. (i) The 

Responsible Official must identify lands 

within the plan area as not suitable for 

timber production (§ 219.16) if: 

(A) Statute, Executive order, or 

regulation prohibits timber production 

on the land; or 

(B) The Secretary of Agriculture or the 

Chief of the Forest Service has 

withdrawn the land from timber 

production; or

(C) The land is not forest land (as 

defined at § 219.16); or 

(D) Timber production would not be 

compatible with the achievement of 

desired conditions and objectives 

established by the plan for those lands. 

(ii) This identification is not a final 

decision compelling, approving, or 

prohibiting projects and activities. A 

final determination of suitability for 

timber production is made through 

project and activity decisionmaking. 

Salvage sales or other harvest necessary 

for multiple-use objectives other than 

timber production may take place on 

areas that are not suitable for timber 

production. 

(b) NFMA requirements. (1) The Chief 

of the Forest Service must include in the 

Forest Service Directive System 

procedures for estimating the quantity 

of timber that can be removed annually 

in perpetuity on a sustained-yield basis 

in accordance with 16 U.S.C. 1611. 

(2) The Chief of the Forest Service 

must include in the Forest Service 

Directive System procedures to ensure 

that plans include the resource 

management guidelines required by 16 

U.S.C. 1604(g)(3). 

(3) Forest Service Directive System 

procedures adopted to fulfill the 

requirements of this paragraph shall 

provide public involvement as 

described in 36 CFR part 216.

§ 219.13 Objections to plans, plan 

amendments, or plan revisions. 

(a) Opportunities to object. Before 

approving a plan, plan amendment, or 

plan revision, the Responsible Official 

must provide the public 30 calendar 

days for pre-decisional review and the 

opportunity to object. Federal agencies 

may not object under this subpart. 

During the 30-day review period, any 

person or organization, other than a 

Federal agency, who participated in the 

planning process through the 

submission of written comments, may 

object to a plan, plan amendment, or 

plan revision according to the 

procedures in this section, except in the 

following circumstances: 

(1) When a plan amendment is 

approved contemporaneously with a 

project or activity decision and the plan 

amendment applies only to the project 

or activity, in which case the 

administrative review process of 36 CFR 

part 215 or part 218, subpart A, applies 

1060 Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 

instead of the objection process 

established in this section; or 

(2) When the Responsible Official is 

an official in the Department of 

Agriculture at a level higher than the 

Chief of the Forest Service, in which 

case there is no opportunity for 

administrative review. 

(b) Submitting objections. The 

objection must be in writing and must 

be filed with the Reviewing Officer 

within 30 days following the 

publication date of the legal notice in 

the newspaper of record of the 

availability of the plan, plan 

amendment, or plan revision. Specific 

details will be included in the Forest 

Service Directive System. An objection 

must contain: 

(1) The name, mailing address, and 

telephone number of the person or 

entity filing the objection. Where a 

single objection is filed by more than 

one person, the objection must indicate 

the lead objector to contact. The 

Reviewing Officer may appoint the first 

name listed as the lead objector to act 

on behalf of all parties to the single 

objection when the single objection does 

not specify a lead objector. The 

Reviewing Officer may communicate 

directly with the lead objector and is not 

required to notify the other listed 

objectors of the objection response or 

any other written correspondence 

related to the single objection; 

(2) A statement of the issues, the parts 

of the plan, plan amendment, or plan 

revision to which the objection applies, 

and how the objecting party would be 

adversely affected; and 

(3) A concise statement explaining 

how the objector believes that the plan, 

plan amendment, or plan revision is 

inconsistent with law, regulation, or 

policy or how the objector disagrees 

with the decision and providing any 

recommendations for change. 

(c) Responding to objections. (1) The 

Reviewing Officer (§ 219.16) has the 

authority to make all procedural 

determinations related to the objection 

not specifically explained in this 

subpart, including those procedures 

necessary to ensure compatibility, to the 

extent practicable, with the 

administrative review processes of other 

Federal agencies. The Reviewing Officer 

must promptly render a written 

response to the objection. The response 

must be sent to the objecting party by 

certified mail, return receipt requested. 

(2) The response of the Reviewing 

Officer shall be the final decision of the 

Department of Agriculture on the 

objection. 

(d) Use of other administrative review 

processes. Where the Forest Service is a 

participant in a multi-Federal agency 

effort that would otherwise be subject to 

objection under this subpart, the 

Reviewing Officer may waive the 

objection procedures of this subpart and 

instead adopt the administrative review 

procedure of another participating 

Federal agency. As a condition of such 

a waiver, the Responsible Official for 

the Forest Service must have agreement 

with the Responsible Official of the 

other agency or agencies that a joint 

agency response will be provided to 

those who file for administrative review 

of the multi-agency effort.

(e) Compliance with the Paperwork 

Reduction Act. The information 

collection requirements associated with 

submitting an objection have been 

approved by the Office of Management 

and Budget and assigned control 

number 0596–0158.

§ 219.14 Effective dates and transition. 

(a) Effective dates. A plan, plan 

amendment, or plan revision is effective 

30 days after publication of notice of its 

approval (§ 219.9(b)), except when a 

plan amendment is approved 

contemporaneously with a project or 

activity and applies only to the project 

or activity, in which case 36 CFR part 

215 or part 218, subpart A, apply. 

(b) Transition period. For each unit of 

the National Forest System, the 

transition period begins on January 5, 

2005 and ends on the unit’s 

establishment of an EMS in accordance 

with § 219.5 or on January 7, 2008 

whichever comes first. 

(c) Initiation of plans, plan 

amendments, or plan revisions. For the 

purposes of this section, initiation 

means that the agency has provided 

notice under § 219.9(b) or issued a 

Notice of Intent or other public notice 

announcing the commencement of the 

process to develop a plan, plan 

amendment, or plan revision. 

(d) Plan development, plan 

amendments, or plan revisions initiated 

during the transition period. (1) Plan 

development and plan revisions 

initiated after January 5, 2005 must 

conform to the requirements of this 

subpart. 

(2) Plan amendments initiated during 

the transition period may continue 

using the provisions of the planning 

regulations in effect before November 9, 

2000 (See 36 CFR parts 200 to 299, 

Revised as of July 1, 2000) or may 

conform to the requirements of this 

subpart if the Responsible Official 

establishes an EMS in accordance with 

§ 219.5. 

(3) Plan amendments initiated after 

the transition period must conform to 

the requirements of this subpart. 

(e) Plan development, plan 

amendments, or plan revisions 

previously initiated. Plan development, 

plan amendments, or plan revisions 

initiated before the transition period 

may continue to use the provisions of 

the planning regulations in effect before 

November 9, 2000 (See 36 CFR parts 200 

to 299, Revised as of July 1, 2000), or 

may conform to the requirements of this 

subpart, in accordance with the 

following: 

(1) The Responsible Official is not 

required to halt the process and start 

over. Rather, upon the unit’s 

establishment of an EMS in accordance 

with § 219.5, the Responsible Official 

may apply this subpart as appropriate to 

complete the plan development, plan 

amendment, or plan revision process. 

(2) The Responsible Official may elect 

to use either the administrative appeal 

and review procedures at 36 CFR part 

217 in effect prior to November 9, 2000, 

(See 36 CFR parts 200 to 299, Revised 

as of July 1, 2000), or the objection 

procedures of this subpart, except when 

a plan amendment is approved 

contemporaneously with a project or 

activity and applies only to the project 

or activity, in which case 36 CFR part 

215 or part 218, subpart A, apply. 

(f) Management indicator species. For 

units with plans developed, amended, 

or revised using the provisions of the 

planning rule in effect prior to 

November 9, 2000, the Responsible 

Official may comply with any 

obligations relating to management 

indicator species by considering data 

and analysis relating to habitat unless 

the plan specifically requires population 

monitoring or population surveys for 

the species. Site-specific monitoring or 

surveying of a proposed project or 

activity area is not required, but may be 

conducted at the discretion of the 

Responsible Official.

§ 219.15 Severability. 

In the event that any specific 

provision of this rule is deemed by a 

court to be invalid, the remaining 

provisions shall remain in effect.

§ 219.16 Definitions. 

Definitions of the special terms used 

in this subpart are set out in 

alphabetical order. 

Adaptive management: An approach 

to natural resource management where 

actions are designed and executed and 

effects are monitored for the purpose of 

learning and adjusting future 

management actions, which improves 

the efficiency and responsiveness of 

management. 

Area of analysis: The geographic area 

within which ecosystems, their 

Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Rules and Regulations 1061

components, or their processes are 

evaluated during analysis and 

development of one or more plans, plan 

revisions, or plan amendments. This 

area may vary in size depending on the 

relevant planning issue. For a plan, an 

area of analysis may be larger than a 

plan area. For development of a plan 

amendment, an area of analysis may be 

smaller than the plan area. An area of 

analysis may include multiple 

ownerships. 

Diversity of plant and animal 

communities: The distribution and 

relative abundance or extent of plant 

and animal communities and their 

component species, including tree 

species, occurring within an area.

Ecological conditions: Components of 

the biological and physical environment 

that can affect diversity of plant and 

animal communities and the productive 

capacity of ecological systems. These 

components could include the 

abundance and distribution of aquatic 

and terrestrial habitats, roads and other 

structural developments, human uses, 

and invasive, exotic species. 

Ecosystem diversity: The variety and 

relative extent of ecosystem types, 

including their composition, structure, 

and processes within all or a part of an 

area of analysis. 

Environmental management system:

The part of the overall management 

system that includes organizational 

structure, planning activities, 

responsibilities, practices, procedures, 

processes, and resources for developing, 

implementing, achieving, reviewing, 

and maintaining the environmental 

policy of the planning unit. 

Federally recognized Indian Tribe: An 

Indian or Alaska Native Tribe, band, 

nation, pueblo, village, or community 

that the Secretary of the Interior 

acknowledges to exist as an Indian Tribe 

pursuant to the Federally Recognized 

Indian Tribe List Act of 1994, 25 U.S.C. 

479a. 

Forest land: Land at least 10 percent 

occupied by forest trees of any size or 

formerly having had such tree cover and 

not currently developed for nonforest 

uses. Lands developed for non-forest 

use include areas for crops; improved 

pasture; residential or administrative 

areas; improved roads of any width and 

adjoining road clearing; and power line 

clearings of any width. 

ISO 14001: A consensus standard 

developed by the International 

Organization for Standardization and 

adopted by the American National 

Standards Institute that describes 

environmental management systems 

and outlines the elements of an 

environmental management system. 

Newspaper(s) of record: The principal 

newspapers of general circulation 

annually identified and published in the 

Federal Register by each Regional 

Forester to be used for publishing 

notices as required by 36 CFR 215.5. 

The newspaper(s) of record for projects 

in a plan area is (are) the newspaper(s) 

of record for notices related to planning. 

Plan: A document or set of documents 

that integrates and displays information 

relevant to management of a unit of the 

National Forest System. 

Plan area: The National Forest System 

lands covered by a plan. 

Productivity: The capacity of National 

Forest System lands and their ecological 

systems to provide the various 

renewable resources in certain amounts 

in perpetuity. For the purposes of this 

subpart it is an ecological, not an 

economic, term. 

Public participation: Activities that 

include a wide range of public 

involvement tools and processes, such 

as collaboration, public meetings, open 

houses, workshops, and comment 

periods. 

Responsible Official: The official with 

the authority and responsibility to 

oversee the planning process and to 

approve plans, plan amendments, and 

plan revisions. 

Reviewing Officer: The supervisor of 

the Responsible Official. The Reviewing 

Officer responds to objections made to 

a plan, plan amendment, or plan 

revision prior to approval. 

Species: Any member of the currently 

accepted and scientifically defined 

plant or animal kingdoms of organisms. 

Species-of-concern: Species for which 

the Responsible Official determines that 

management actions may be necessary 

to prevent listing under the Endangered 

Species Act. 

Species-of-interest: Species for which 

the Responsible Official determines that 

management actions may be necessary 

or desirable to achieve ecological or 

other multiple use objectives. 

Timber production: The purposeful 

growing, tending, harvesting, and 

regeneration of regulated crops of trees 

to be cut into logs, bolts, or other round 

sections for industrial or consumer use. 

Visitor opportunities: The spectrum of 

settings, landscapes, scenery, facilities, 

services, access points, information, 

learning-based recreation, wildlife, 

natural features, cultural and heritage 

sites, and so forth available for National 

Forest System visitors to use and enjoy. 

Wilderness: Any area of land 

designated by Congress as part of the 

National Wilderness Preservation 

System that was established in the 

Wilderness Act of 1964 (16 U.S.C. 1131–

1136).

Dated: December 22, 2004. 

Mark Rey, 

Under Secretary, Natural Resources and 

Environment.

[FR Doc. 05–21 Filed 1–4–05; 8:45 am] 

BILLING CODE 3410–11–P