Native Plant Material Policy (Forest Service Manual 2070), 8265-8269 [E8-2659]

Agencies

• DEPARTMENT OF AGRICULTURE
• Forest Service

[Federal Register Volume 73, Number 30 (Wednesday, February 13, 2008)]
[Notices]
[Pages 8265-8269]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-2659]


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DEPARTMENT OF AGRICULTURE

Forest Service

RIN 0596-AC44


Native Plant Material Policy (Forest Service Manual 2070)

AGENCY: Forest Service, USDA.

ACTION: Notice of issuance of agency final directive.

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

DATES: This directive is effective February 13, 2008.

ADDRESSES: A copy of the final directive is available at https://
www.fs.fed.us/rangelands/whoweare/documents/FSM2070_Final_2_
062905.pdf.
    The administrative record for this final directive is available for 
inspection and copying at the office of the Director, Rangeland 
Management Staff, USDA Forest Service, 3rd Floor South, Sidney R. Yates 
Federal Building, 1400 Independence Avenue, SW., Washington, DC, from 
8:30 a.m. to 4 p.m., Monday through Friday, except holidays. Those 
wishing to inspect the administrative record are encouraged to call in 
advance to Brian Boyd, (202) 205-1496 to facilitate entrance into the 
building.

FOR FURTHER INFORMATION CONTACT: Larry Stritch, Rangeland Management 
Staff, USDA Forest Service, Mailstop 1103, 1400 Independence Avenue, 
SW., Washington, DC 20250, (202) 205-1279.

SUPPLEMENTARY INFORMATION: Title 36 CFR 219.10(b) states: ``The overall 
goal of the ecological element of sustainability is to provide a 
framework to contribute to development and maintenance of native 
ecological systems by providing desired ecological conditions to 
support diversity of native plant and animal species in the plan 
area''. Executive Order 13112 (February 3, 1999, sec. 2(a)(2)(IV)) on 
invasive species states the agencies will ``provide for restoration of 
native species and habitat conditions in ecosystems that have been 
invaded [by non-native species]''. In accordance with the Executive 
order and regulation, the Forest Service is issuing a new final 
directive to Forest Service Manual (FSM) 2070 for native plant 
materials, which addresses the uses of these materials in the 
revegetation, restoration, and rehabilitation of National Forest System 
lands in order to achieve the Agency's goal of providing for the 
diversity of plant and animal communities. The policy directs 
collaboration with federal, state, and local government entities and 
the public to develop and implement actions to increase the 
availability of native plant materials for use in revegetation, 
restoration, and rehabilitation.
    Toward development of this policy, the goal of the Forest Service 
is to promote the use of native plant materials in revegetation for 
restoration and rehabilitation in order to manage and conserve 
terrestrial and aquatic biological diversity. This policy defines a 
native plant as: all indigenous terrestrial and aquatic plant species 
that evolved naturally in an ecosystem.
    This policy also requires the use of best available information to 
choose ecologically adapted plant materials for the site and situation. 
Moreover, the policy states that native plants are to be used when 
timely natural regeneration of the native plant community is not likely 
to occur; native plant materials are the first choice in revegetation 
for restoration and rehabilitation efforts.
    This policy does not discount the management use of non-native 
plant materials. Non-native, non-invasive plant species may be used 
when needed: (1) In emergency conditions to protect basic resource 
values such as soil stability and water quality; (2) As an interim, 
non-persistent measure designed to aid in new establishment of native 
plants (unless natural soil, water and biotic conditions have been 
permanently altered); (3) In conditions and management situations where 
native plant species are not available; and (4) When working in 
permanently altered plant communities. Under no circumstances will 
invasive plant species be used.

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

Overview

    On May 26, 2006, the Forest Service published the proposed policy 
in the Federal Register and sought public comment in adopting a new 
policy on native plant materials into Forest Service Manual 2070 (71 FR 
30375).
    During the 60-day comment period on the proposed policy which ended 
on July 26, 2006, the agency received one request for an extension of 
the comment period.
    On July 25, 2006 the Forest Service published the Notice of 
Extension of Public Comment Period in the Federal Register (71 FR 
42079) and extended the comment period 30 days. During the 30-day 
extended comment period on the proposed policy which ended August 24, 
2006, no requests for a further extension of the comment period were 
received.
    The Forest Service received 53 letters or electronic messages in 
response to this proposed policy. Each respondent was placed into one 
of the following categories:

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Business.......................................................       10
Federal Agencies...............................................        2
State Agencies.................................................        4
Non-Governmental Organizations.................................       16
Individuals (unaffiliated or unidentifiable)...................       21
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    Most respondents (42) offered general comments supporting the 
proposed FSM 2070 Native Plant Material Policy. Nine respondents 
offered several comments not supporting the policy and two commenters 
were neutral. Many respondents offered specific comments about sections 
of the proposed policy.

General Comments

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

[[Page 8266]]

this program was a concern as well. The Forest Service will be adding 
these duties to existing program management responsibilities.
    Comment. The preference of certain plant species ought not to be 
the foremost policy objective of the Forest Service pertaining to 
resource protection; the primary consideration should be, as it has 
been, the rapid and effective reestablishment of vegetation, using 
whatever species are most successful in doing so.
    Response. The Forest Service agrees that the timely reestablishment 
of vegetation to protect soil and water resource values is our part of 
our mission. It is important that reestablishment of vegetation does 
not itself cause a new problem, as may be the case with non-native 
species, and the FSM provides sufficient discretion to allow for non-
native planting when natives are not available or appropriate.
    Comment. Many native plant species are not conducive to being 
mechanically spread, due to oddly shaped seeds and other factors. Many 
species are also characterized by long germination periods, rendering 
them of little utility for rapid site occupancy.
    Response. The final policy takes into account factors such as those 
identified by the commenter, and native and non-native plant material 
that cannot meet this direction will not be used. The final policy has 
not been changed from the proposal in this respect.
    Comment. We do not support the use of non-native, non-invasive 
plant materials regardless of the situation. It is well known that a 
non-native plant species may be present in an ecosystem for decades 
before it becomes invasive.
    Response. The Forest Service is very aware of the challenging 
issues surrounding the removal of invasive species and not letting 
invasive, non-native species become established. There will be 
instances when native plant materials are not available or their cost 
is prohibitive. The FSM provides the line officer with ``limited'' 
circumstances when non-native plant materials may be used. The final 
policy has not been changed from the proposal in this respect. The 
Forest Service, working with our partners, will continue to use the 
best available information when selecting non-native plant materials 
for restoration, revegetation and reehabilitation projects.
    Comment. Several commenters expressed the need for the Forest 
Service to work with adjacent landowners and with other governmental 
agencies to provide for effective invasive species control. It will do 
the Forest Service no good to restore an area to native plants, only to 
have it engulfed with invasive vegetation from adjoining land.
    Response. We agree that cooperation with adjacent landholders and 
all our partners and stakeholders will be essential to successful 
implementation of this policy.
    Comment. The proposed directive does not include any language about 
commercial uses of native plants.
    Response. FSM direction for the commercial harvest of special 
forest products is contained within FSM 2400.
    Comment. We would encourage adding a policy to include a segment on 
native plant materials in Forest Service outreach and education 
efforts, forest visitor centers and supporting interpretive materials 
and adding appropriate native plant materials curriculum to existing 
training courses for managers, planners and field staff.
    Response. We agree with the goal of public outreach, education 
efforts, etc. FSM 2070.2 objectives 1--6 contain specific direction to 
promote, inform, train, and educate our personel and to work with our 
partners in doing so. Many of these public outreach objectives are met 
through our various interpretive materials and programs that are 
created and delivered on the forest and grassland level, making it more 
specific to their local publics. A great deal of this type of 
information has already been placed on the Forest Service's Celebrating 
Wildflowers Web site (https://www.fs.fed.us/wildflowers) where a 
considerable amount of material on native plant materials has been 
posted. As it pertains to training, the Forest Service will incorporate 
aspects of this native plant materials policy into various exisiting 
training courses. FSM 2070.45(3) and FSM 2070.45(6) require Forest and 
Grassland Supervisors to ensure that this policy is implemented and 
that all pertinent and required training is carried out so as to 
implement this new policy on native plant materials.
    Comment. Several Commenters want certain parts of the policy to 
list important partners such as state native plant societies, local 
universities, invasive/exotic plant pest species councils and others.
    Response. The Forest Service has a proud history of working with 
our partners, concerned citizens and other stakeholders. The Forest 
Service believes there is no need to list specific partners in order to 
carry out the policy to cooperate with partners. Moreover, it would be 
a long list, and even so would inevitably be incomplete. The agency 
will work closely with all interested parties in the implementation of 
this new policy.
    Comment. One Commenter stated, ``if invasive plants are removed and 
the area replanted with native plants, the native plants do not 
survive. They are browsed by deer. Revegetation and rehabilitation 
cannot take place until the size of the deer herd is controlled. Deer 
herd management is the first priority.''
    Response. We agree in many of our national forests very large 
numbers of deer are having adverse effects on our native plants and 
native plant communities. The Forest Service has close working 
relationships with the state wildlife agencies. We are working with 
them to find long-term solutions to overly large deer populations. The 
Forest Service has undertaken short-term measures to protect native 
plants from deer such as fencing exclosures and use of protective 
netting over native plants.
    Comment. All the attention appears to focus on the `large flora' 
species, and ignores the rhizosphere species of mycorrhiza, rhizobium 
and other soil beneficial bacteria and fungi.
    Response. We agree that micro flora and fauna contained in the soil 
are very important considerations in the choice and use of native plant 
materials. This policy addresses species classified as belonging to the 
Kingdom Plantae. Bacteria are classified as belonging to Kingdom 
Monera. Fungi are classified as belonging to the Kingdom Fungi. 
Therefore they are not addressed in this policy.
    Comment. The assumption seems to be that ``plant species'' or 
``vegetative material'' pertains to vascular plants.
    Response. This policy addresses the use of native plant materials. 
The definition of native plant species does not exclude non-vascular 
plants. The policy addresses any species belonging to the Kingdom 
Plantae and as such includes both vascular and non-vascular plant 
species.
    Comment. There absolutely must be some standard reference list as 
to what is native and what is not.
    Response. The policy does not provide a standard list or reference 
because the determination of whether a plant species is native must be 
made on a local basis; a species may be native in one area of a state 
and not in another.
    The Forest Service did not receive any Comments on sections 2070.11 
Laws; section 2070.12 Regulations; and section 2070.13 Executive 
Orders.
    Sections 2070.2 Objectives and 2070.3 Policy received many Comments 
that cut across both sections. Therefore,

[[Page 8267]]

comments on those sections and the agency's responses are consolidated.
    Comment. One commenter was concerned with non-native plants that 
may be ``exempted'' due to the need to maintain historical integrity. 
What would happen if an invasive species like purple loosestrife had 
been planted there by a CCC crew.
    Response. This policy does not address the removal of noxious weeds 
or invasive species. Direction for noxious weeds is addressed in FSM 
2080. The Forest Service is currently developing policy to address 
invasive species.
    Comment. One organization commented ``that Policy points 2070.3(2) 
and 2070.3(3) appear to contradict each other. * * * believes 
differentiating between the intention of using persistent plant 
materials in Policy point 2070.3(2) and non-persistent plant materials 
in Policy point 2070.3(3) can eliminate this contradiction.''
    Response. In this final directive 2070.3(2), we have inserted the 
word ``persistent'' to make the meaning of the directive clearer. 
FSM2070.3(2) now reads:

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

    Comment. One organization stated ``We feel it should be clearly 
stated in the policy that it is acceptable to utilize non-invasive, 
non-native plants for wildlife habitat improvement. Non-native non-
invasive plants should be considered for use in a variety of situations 
including areas that have not been permanently or tempoarily altered. 
Some examples would be permanent and temporary wildlife openings, log 
landings, skid trails, temporary roads that have been closed and are 
used for linear wildlife openings.'' A number of commenters took a 
similar position with respect to planting for wildlife habitat.
    Response. FSM 2070.2(4) states: ``Promote the appropriate use and 
availability of native and appropriate non-native plant materials.'' 
While the general policy is to give primary consideration to the use of 
native plant species, the policy is flexible and allows for the use of 
non-native, non-invasive plant species in certain types of situations. 
FSM 2070 gives the decision maker broad discretion in the use of both 
native and non-native non-invasive plant species. The Forest Service 
has a proud history of working with other state and federal agencies, 
Tribes, and other interested organizations including organizations with 
wildlife habitat improvement as one of their primary mission areas. 
Working with our partners we will look for opportunities to develop a 
readily available supply of native plant materials that may be used in 
place of non-native, non-invasive plant species and still meet habitat 
management goals. FSM 2070.3(2)(c) now reads: ``In permanently highly 
altered plant communities, such as road cuts, permanent and temporary 
wildlife openings, log landings, skid trails, temporary roads that have 
been closed and are used for linear wildlife openings and sites 
dominated by non-native non-invasive species.''
    Comment. This direction fails to designate criteria or 
qualifications for staff delegated to decide what plants are suitable 
for use.
    Response. The agency believes that the direction does in fact 
establish qualifications for staff who will select plants to be used in 
revegetation, rehabilitation or restoration. The FSM provides for 
direction and statement of policy. FSM 2070.45 delegates to the Forest 
and Grassland Supervisors the responsibility for training personnel to 
become trained or certified. Local conditions will require specific 
training that addresses local needs. For example, each state will have 
different laws and regulations concerning the labeling of seed.
    Comment. One commenter believes that the addition of several words 
to the introductory sentence of section 2070.3 of FSM 2070 will lend 
greater clarity to the specific purpose of this document. Specifically 
he suggests that the bold, underlined words in the phrase below be 
added to the text: ``Policies for the selection, use and storage of 
native and non-native plant materials that are used in the 
revegetation, restoration and rehabilitation of National Forest system 
lands are as follows.
    Response. The Forest Service agrees. FSM 2070.3 has been changed to 
read:

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

    Comment. In FSM 2070.3(2)(c), we are not comfortable with the 
example where reestablishment of a native plant community is not likely 
to occur. It is true some roadsides and roadcuts have fill or exposure 
of soils or other features that make establishment of the surrounding 
native community unlikely, and sites that are predominately exotic 
weeds may make establishment of a diverse native community difficult. 
However, use of even limited native species in these areas would 
provide a buffer to the surrounding areas and reduce the threat of the 
spread of weedy species following natural disturbances. In this 
instance we would prefer to include a clarifying phrase, such as 
``where no suitable native species can be established.''
    Response. Nothing in FSM 2070 precludes the use of native species 
in any revegetation, restoration or rehabilitation project including 
roadcuts. There are many projects where the Forest Service has used 
native species in roadside projects. FSM 2070.3(1) states:

    Ensure native plant materials are given primary consideration.

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

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

    Comment. Several commenters wanted further restrictions on the use 
of native plant materials that are not representative of the local 
ecotypes as outlined in FSM 2070.3.
    Response. We have changed FSM 2070.3(1) to now read

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

    Comment. One commenter wanted ``emergency conditions'' from FSM 
2070.3(2)(a) defined.
    Response. The determinination of emergency conditions is best 
determined at the local level by the appropriate line officer, i.e. 
district ranger and forest or grassland supervisor. Further FSM 
2070.3(3) directs that:

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

    Comment. FSM 2070.3(8) should address special forest products as 
well as timber.
    Response. FSM 2070.3(8) now reads in part, Specific direction for 
commercial timber species and special forest products is in FSM 2470.
    Comment. The directive does not include any mention of the cultural

[[Page 8268]]

aspects of native plants or require the involvement of experts who 
would be able to inform sociocultural considerations. Under FSM 
2070.4--Responsibilities: Language needs to be added to include social 
scientists in assessment and planning regarding the type of native 
plant species selected.
    Response. The direction does not provide for the resource skills 
necessary to carry out a project analysis. It is the responsibility of 
the Forest, Grassland Supervisor, or District Ranger to determine which 
personnel will be assigned to the inter-disciplinary team that conducts 
the project analysis. The only requirement this direction provides for 
a revegetation, restoration or rehabilitation project is found at FSM 
2070.3(5) which states:

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

    Other resource specialists are assigned to an interdisciplinary 
team based upon scoping comments from the public and the various 
resources that need to be analyzed as part of the project analysis. If 
socio-cultural aspects of potential plant species chosen is an issue 
that needs to be addressed the appropriate line officer will ensure 
that the necessary expertise is available to analyze the issue.
    The Forest Service received a comment concerning section 2070.41 
Chief.
    Comment. One commenter suggested that the Forest Service include 
the seed industry when promoting cooperation and coordination for the 
development and supply of native and non-native plant materials (FSM 
2070.41.3 Responsibilities of the Chief).
    Response. The Forest Service agrees. FSM 2070.41.3 has been changed 
to incorporate the seed industry. FSM 2070.41.3 now reads:

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

    The Forest Service received no comments for section 2070.42 Deputy 
Chief for National Forest Systems.
    The Forest Service received no comments for section 2070.43 
Regional Forester.
    The Forest Service received several comments concerning section 
2070.45 Forest and Grassland Supervisors.
    Comment. Proposed FSM 2070.45 states that Forest and Grassland 
Supervisors may ``delegate the authority, if necessary, to use 
genetically appropriate native and non-native plant materials in 
revegetation projects.'' This direction fails to designate criteria or 
qualifications for staff delegated to decide what plants are suitable 
for use.
    Response. FSM 2070.4 lays out the delegation of authorities from 
the Chief down to the District Ranger. Only a line officer can make an 
agency decision and only a line officer may be delegated authority to 
make a decision. FSM 2070.45 is stating that a Forest or Grassland 
Supervisor may delegate the authority; in this case the delegation is 
to the District Ranger. Staff do not make decisions.
    Comment. One commenter stated that the Forest Service must provide 
sufficient training based on the best available science for plant 
material specialists.
    Response. The Forest Service agrees. The Forest Service will 
provide appropriate and necessary training to enable the agency to 
implement this new direction.
    The Forest Service received no comments for section 2070.46 
District Ranger.
    The Forest Service received many comments concerning section 2070.5 
Definitions.
    Comment. Many commenters believe the Forest Service definition of 
``native plant'' is too restrictive. One commenter believes the 
selection of this material by the project manager can be better 
implemented by separating the definition of plants into three 
categories; local native plant material, non-local native plant 
material and introduced plant material. Many other comments were 
submitted concerning the definition of ``native plant.''
    Response. The definition of native plant has been changed to the 
definition used by the federal interagency Plant Conservation Alliance. 
The definition now reads:

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

    Comment. Several commenters wanted the definition of noxious weed 
changed.
    Response. The definition of noxious weed has been amended to 
provide further clarification. The definition now reads,

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

    Comment. A number of respondents offered comments asking for 
rewording of the definitions of several terms contained in FSM 2070.5.
    Response. The Forest Service disagrees in changing the definitions 
of terms except for the change of definition for ``native plant'' and 
``noxious weed'' as noted above. The remaining definitions were 
examined, and based upon the use of these terms by the scientific 
community, the definitions remain unchanged.
    Section 2070.6 References received one comment.
    Comment. More references should be cited, but I have none to offer.
    Response. Realizing that providing a list of references invariably 
will result in omissions, the Agency has removed section 2070.6--
References from the final policy.
    Therefore, for the reasons set out in this notice, the Forest 
Service is adopting as final an amendment to FSM 2070 to establish 
native plant material policy. The final directive is available at the 
addresses listed in the ADDRESSES section of this notice.

Regulatory Certifications

Regulatory Impact

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

[[Page 8269]]

Environmental Impact

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

Federalism

    The agency has considered this final directive under the 
requirements of Executive Order 13132 (August 4, 1999) on federalism. 
The agency has made an assessment that the final directive conforms 
with the federalism principles set out in this executive order; would 
not impose any compliance costs on the States; and would not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, nor on the distribution of 
power and responsibilities among the various levels of government. 
Therefore, the Agency concludes that the final directive does not have 
federalism implications.

Consultation and Coordination With Indian Tribal Governments

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

No Takings Implications

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

Civil Justice Reform Act

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

Energy Effects

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

Controlling Paperwork Burdens on the Public

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

    Dated: February 7, 2008.
Abigail R. Kimbell,
Chief.
[FR Doc. E8-2659 Filed 2-12-08; 8:45 am]
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