National Forest System Land Management Planning, 90723-90739 [2016-30191]

Download as PDF Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations rmajette on DSK2TPTVN1PROD with RULES to Latitude N. 30°20.78′ longitude W. 88°34.13′, thence to Latitude N. 30°20.73′ longitude W. 88°34.13′, thence to Latitude N. 30°20.68′ longitude W. 88°34.13′, thence to Latitude N. 30°20.63′ longitude W. 88°34.13′, thence to Latitude N. 30°20.64′ longitude W. 88°34.10′, thence to Latitude N. 30°20.64′ longitude W. 88°34.25′, thence to Latitude N. 30°20.64′ longitude W. 88°34.33′, thence to Latitude N. 30°20.64′ longitude W. 88°34.41′, thence to Latitude N. 30°20.59′ longitude W. 88°34.47′, thence to Latitude N. 30°20.59′ longitude W. 88°34.51′, thence to Latitude N. 30°20.59′ longitude W. 88°34.57′, thence to Latitude N. 30°20.59′ longitude W. 88°34.63′, thence to Latitude N. 30°20.59′ longitude W. 88°34.70′, thence to Latitude N. 30°20.64′ longitude W. 88°34.75′, thence to Latitude N. 30°20.64′ longitude W. 88°34.82′, thence to Latitude N. 30°20.64′ longitude W. 88°34.87′, thence to Latitude N. 30°20.71′ longitude W. 88°34.87′. The datum for these coordinates is WGS84. (b) The regulations. (1) All persons, swimmers, vessels and other craft, except those vessels under the supervision or contract to local military or Naval authority, vessels of the United States Coast Guard, and local or state law enforcement vessels, are prohibited from entering the restricted area without permission from the Supervisor of Shipbuilding, Conversion and Repair, USN, Gulfcoast or his/her authorized representative. (2) The restricted area is in effect twenty-four hours per day and seven days a week (24/7). (3) Should warranted access into the restricted navigation area be needed, all entities are to contact the Supervisor of Shipbuilding, Conversion and Repair, USN, Gulf Coast, Pascagoula, Mississippi, or his/her authorized representative on Marine Communication Channel 16. (c) Enforcement. The regulation in this section shall be enforced by the Supervisor of Shipbuilding, Conversion and Repair, USN, Gulf Coast and/or such agencies or persons as he/she may designate. Dated: December 1, 2016. Susan S. Whittington, Chief, Operations and Regulatory Division, Directorate of Civil Works. [FR Doc. 2016–30015 Filed 12–14–16; 8:45 am] BILLING CODE 3720–58–P VerDate Sep<11>2014 14:00 Dec 14, 2016 Jkt 241001 DEPARTMENT OF AGRICULTURE Forest Service 36 CFR Part 219 RIN 0596–AD28 National Forest System Land Management Planning Forest Service, USDA. Final rule. AGENCY: ACTION: The U.S. Department of Agriculture is amending regulations pertaining to the National Forest System Land Management Planning. This final rule amends the 2012 rule and is intended to clarify the Department’s direction for plan amendments, including direction for amending land management plans developed under the 1982 rule. DATES: This rule is effective January 17, 2017. ADDRESSES: For more information, refer to the World Wide Web/Internet at: http://www.fs.usda.gov/planningrule. More information may be obtained on 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: Ecosystem Management Coordination staff’s Assistant Director for Planning Andrea Bedell Loucks at 202–295–7968 or Planning Specialist Regis Terney at 202–205–1552. SUPPLEMENTARY INFORMATION: The Forest Service proposed changing the existing land management planning rule to clarify the amendment process for land management plans. The proposed rule to amend the 2012 rule (hereafter referred to as the proposed rule) was published in the Federal Register on October 12, 2016, at 81 FR 70381. SUMMARY: Background The National Forest Management Act (NFMA) requires the Forest Service to develop land management plans to guide management of the 154 national forests, 20 grasslands, and 1 prairie that comprise the 193 million acre National Forest System (NFS). 16 U.S.C. 1604. The NFMA required the Secretary of Agriculture to develop a planning rule ‘‘under the principles of the MultipleUse Sustained-Yield Act of 1960, that set[s] out the process for the development and revision of the land management plans, and the guidelines and standards’’ (16 U.S.C. 1604(g)). Compliance with this requirement has had a long history, culminating in the PO 00000 Frm 00049 Fmt 4700 Sfmt 4700 90723 current land management planning rule issued April 9, 2012 (77 FR 22160, codified at title 36, Code of Federal Regulations, part 219 (36 CFR part 219)) (hereinafter referred to as the 2012 rule). In 1979, the U.S. Department of Agriculture (Department) issued the first regulations to comply with this statutory requirement. The 1979 regulations were superseded by the 1982 planning rule (hereinafter referred to as the 1982 rule). Numerous efforts were made over the past three decades to improve on the 1982 rule. On November 9, 2000, the Department issued a new planning rule that superseded the 1982 rule (65 FR 67514). Shortly after the issuance of the 2000 rule, a review of the rule found that it would be unworkable and recommended that a new rule should be developed. The Department amended the 2000 rule so that the Forest Service could continue to use the 1982 rule provisions until a new rule was issued (67 FR 35431, May 20, 2002). Attempts to replace the 2000 rule, in 2005 and 2008, were set aside by the courts on procedural grounds, with the result that the 2000 rule remained in effect. In 2009, the Department reinstated the 2000 rule in the Code of Federal Regulations to eliminate any confusion over which rule was in effect (74 FR 67062, December 18, 2009; 36 CFR part 219, published at 36 CFR parts 200 to 299, revised as of July 1, 2010). In reinstating the 2000 rule in the CFR, the Department specifically provided for the continued use of the 1982 rule provisions, which the Forest Service used for all land management planning done under the 2000 rule. The 1982 rule procedures have therefore formed the basis of all existing Forest Service land management plans. In 2012, after extensive public engagement, the Department issued a new planning rule to update the thirtyyear old 1982 rule. The 2012 rule sets forth directions for developing, amending, revising, and monitoring land management plans (77 FR 21260, April 9, 2012). The 2012 rule is available online at https://www.gpo.gov/ fdsys/pkg/CFR-2013-title36-vol2/pdf/ CFR-2013-title36-vol2-part219.pdf. On February 6, 2015, the Forest Service issued National Forest System Land Management Planning Directives for the 2012 Planning Rule (planning directives; see 80 FR 6683). The planning directives are the Forest Service Handbook (FSH) 1909.12 and Forest Service Manual (FSM) Chapter 1920, which together establish procedures and responsibilities for carrying out the 2012 rule. The planning E:\FR\FM\15DER1.SGM 15DER1 90724 Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations rmajette on DSK2TPTVN1PROD with RULES directives are available online at http:// www.fs.fed.us/im/directives/. After the issuance of the 2012 rule, the Secretary of Agriculture chartered a Federal Advisory Committee (Committee) to assist the Department and the Forest Service in implementing the new rule. The Committee has been rechartered twice. The Committee has consistently been made up of 21 diverse members who provide balanced and broad representation on behalf of the public; State, local, and tribal governments; the science community; environmental and conservation groups; dispersed and motorized recreation users; hunters and anglers; private landowners; mining, energy, grazing, timber, and other user groups; and other public interests. The Committee has convened regularly since 2012 to provide the Department and Forest Service with recommendations on implementation of the 2012 rule, including recommendations on the planning directives, assessments, and on lessons learned from the first forests to begin revisions and amendments under the 2012 rule. More information about the Committee’s membership and work is available online at http:// www.fs.usda.gov/main/planningrule/ committee. The 2012 Rule and Plan Amendments There are 127 land management plans for the administrative units of the NFS, all developed using the 1982 rule procedures. Sixty-eight of the 127 land management plans are past due for revision: most were developed between 1983 and 1993 and should have been revised between 1998 and 2008, based on NFMA direction to revise plans at least once every 15 years (16 U.S.C. 1604(f)(5)). The repeated efforts to produce a new planning rule over the past decades contributed to the delay in plan revisions. An additional challenge was that instead of amending plans as conditions on the ground changed, responsible officials often waited to make changes all at once during a plan revision, resulting in a drawn-out, difficult, and costly revision process. In promulgating the 2012 rule, the Department intended to create a more efficient and effective planning process. The planning framework set forth in the 2012 rule includes three phases: Assessment; plan development, amendment, or revision; and monitoring. The 2012 rule supports an integrated approach to the management of resources and uses, incorporates a landscape-scale context for management, and is intended to help the Forest Service adapt to changing conditions and improve management VerDate Sep<11>2014 14:00 Dec 14, 2016 Jkt 241001 based on new information and monitoring. The concept of adaptive management is an integral part of the 2012 rule. Recognizing that adaptive management requires a more responsive and iterative approach to modifying land management plans to reflect new information, the Department’s intent when developing the 2012 rule was for the planning framework to encourage and support the more regular use of amendments to update plans between revisions. More frequent amendments should also make the revision process less cumbersome because plans will not become as out-of-date between revisions. Plans may be amended at any time. The 2012 rule provides that a plan amendment is required to add, modify, or remove one or more plan components, or to change how or where one or more plan components apply to all or part of the plan area (including management areas or geographic areas). The 2012 rule included a 3-year transition period during which responsible officials could use either the 2012 rule or the 1982 rule procedures to amend plans approved or revised under the 1982 rule procedures (36 CFR 219.17(b)(2)). The 3-year transition period expired on May 9, 2015, and all plan amendments now must be approved under the requirements of the 2012 rule. In 2014, the Forest Service began to use the 2012 rule to amend a number of existing land management plans, all of which were developed using the 1982 rule procedures (2012 rule amendments to 1982 rule plans). Currently amendments to 43 Forest Service land management plans are pending. As the Forest Service gained some experience with the process for making 2012 rule amendments to 1982 rule plans and discussed with the Committee early lessons learned, the Committee recommended additional clarity on how to apply the 2012 rule’s substantive requirements (requirements related to sustainability, plant and animal diversity, multiple uses and timber set forth within 36 CFR 219.8 through 219.11) when amending 1982 rule plans. While the 2012 rule includes direction specific to amendments, and while there is evidence of the Department and Forest Service’s intent in rule wording, preamble text, and planning directives, the 2012 rule did not explicitly direct how to apply the substantive requirements set forth in the 2012 rule when amending 1982 rule plans. Using the 2012 rule to amend 1982 rule plans can be a challenge PO 00000 Frm 00050 Fmt 4700 Sfmt 4700 because there are fundamental structural and content differences between the two rules. Because of the underlying differences, 1982 rule plans likely will not meet all of the substantive requirements of the 2012 rule. It is therefore important for the Department to clarify how responsible officials should apply the substantive requirements of the 2012 rule when amending 1982 rule plans in a way that reflects Departmental expectations. While plans developed or revised under the 2012 rule will be expected to meet all of the 2012 rule’s substantive requirements at the time those plans are approved, clarity in how to apply the 2012 rule to amend those plans in the future will also be important. This final rule amending the 2012 rule (hereinafter referred to as the final rule) is intended to clarify the Department’s direction for plan amendments, including direction for amending 1982 rule plans. These clarifications reflect NFMA requirements; the Department’s intent and the plain wording of the 2012 rule, the preambles for the proposed and final 2012 rule, and the planning directives implementing the 2012 rule; feedback from the Committee; public comments; and Forest Service planning expertise. Applying the 2012 Rule To Amend Plans Plans are changed in two distinctly different ways. The NFMA requires revisions ‘‘when conditions in a unit have significantly changed,’’ and ‘‘at least every 15 years’’ (16 U.S.C. 1604(f)(5)). As the 2012 rule states, ‘‘[a] plan revision creates a new plan for the entire plan area, whether the plan revision differs from the prior plan to a small or large extent’’ (36 CFR 219.7(a)). The process for a plan revision requires, among other things, preparation of an environmental impact statement (36 CFR 219.7(c)). The NFMA also provides that ‘‘plans can be amended in any manner whatsoever’’ (16 U.S.C. 1604(f)(4)). As the Department explained in the preamble to the 2012 rule, ‘‘[p]lan amendments incrementally change the plan as need arises.’’ (77 FR 21161, 21237, April 9, 2012) (emphasis added). Unlike a plan revision, a plan amendment does not create a new plan; it results in an amended plan, with the underlying plan retained except where changed by the amendment. The Department explained its intent that with the 2012 rule, ‘‘plans will be kept more current, effective and relevant by the use of more frequent and efficient amendments, and administrative changes over the life of the plan, also E:\FR\FM\15DER1.SGM 15DER1 rmajette on DSK2TPTVN1PROD with RULES Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations reducing the amount of work needed for a full revision’’ (Id.). The 2012 rule provides that, ‘‘[t]he responsible official has the discretion to determine whether and how to amend the plan.’’ (36 CFR 219.13(a)). The 2012 rule reinforces this discretion by providing that the rule ‘‘does not compel a change to any existing plan, except as required in § 219.12(c)(1)’’ (which establishes monitoring requirements). (36 CFR 219.17(c)). Under the 2012 rule, ‘‘[p]lan amendments may be broad or narrow, depending on the need for change’’ (36 CFR 219.13(a)); and amendments ‘‘could range from project specific amendments or amendments of one plan component, to the amendment of multiple plan components.’’ (77 FR 21161, 21237, April 9, 2012). Unlike for a plan revision, the 2012 rule does not require an environmental impact statement for every amendment; such a requirement would be burdensome and unnecessary for amendments without significant environmental effect, and ‘‘would also inhibit the more frequent use of amendments as a tool for adaptive management to keep plans relevant, current and effective between plan revisions.’’ (Preamble to final rule, 77 FR 21161, 21239, April 9, 2012). Instead, the 2012 rule provides that ‘‘[t]he appropriate NEPA documentation for an amendment may be an environmental impact statement, an environmental assessment, or a categorical exclusion, depending upon the scope and scale of the amendment and its likely effects.’’ (36 CFR 219.13(b)(3)). The 2012 rule gives responsible officials the discretion, within the framework of the 2012 rule’s requirements, to tailor the scope and scale of an amendment to reflect the need to change the plan. No individual amendment is required to do the work of a revision. While the 2012 rule sets forth a series of substantive requirements for land management plans within §§ 219.8 through 219.11, not every section or requirement within those sections will be directly related to the scope and scale of a given amendment. Although the Department recognizes that resources and uses are connected, the Department does not expect an individual plan amendment to do the work of a revision to bring an underlying plan into compliance with all of the substantive requirements identified in §§ 219.8 through 219.11. The determination of which sections or requirements within those sections apply to an amendment will depend on the purpose and effects of the changes being proposed. VerDate Sep<11>2014 14:00 Dec 14, 2016 Jkt 241001 However, a plan amendment must be done ‘‘under the requirements of’’ the 2012 rule (36 CFR 219.17(b)(2)). Therefore the responsible official’s discretion is not unbounded. An amendment cannot be tailored so that the amendment fails to meet directly related substantive requirements of the rule. Rather, the responsible official must determine which substantive requirements within §§ 219.8 through 219.11 of the 2012 rule are directly related to the plan direction being added, modified or removed by the amendment, and apply those requirements to the amendment. As explained above, unlike a plan revision, a plan amendment does not create a new plan; it results in an amended plan, with the underlying plan retained except where changed by the amendment. Therefore, the amended plan will have plan direction changed by the amendment and plan direction that has not been changed. When amending a plan under the 2012 rule, a responsible official may choose not to change portions of the plan, even if those portions are inconsistent with a substantive requirement within §§ 219.8 through 219.11, when such portions are not directly related to the purpose or effects of the amendment. A unit may have important needs for change beyond those that form the basis of any individual amendment. However, the responsible official’s ability to target the scope and scale of an amendment is important for adaptive management, and will be especially critical for responsible officials amending 1982 plans. For example, the 2012 planning rule requires that the plan must include plan components to provide for scenic character, which is a term of art associated with the scenic management system that was developed in the mid1990s. If the scope of an amendment to a 1982 plan includes changes to plan direction for the purpose of, or that would have an effect on, scenery management, then the responsible official must apply the 2012 rule requirement about scenic character to the changes being proposed. However, a responsible official is not otherwise required to review and modify a 1982 rule plan to meet the 2012 rule’s requirement to provide for scenic character. This is true even if there is also a separate, additional need to change the plan to protect scenery. The responsible official would have to address the scenic character requirement throughout the plan area in a plan revision, but in an amendment, the responsible official has the PO 00000 Frm 00051 Fmt 4700 Sfmt 4700 90725 discretion to more narrowly focus on a specific need for change. The Department’s intent that not every requirement within §§ 219.8 through 219.11 will apply to every amendment of 1982 rule plans is reflected in the following planning directives provision at FSH 1909.12, chapter 20, section 21.3: Amendment of a plan developed and approved using the 1982 Rule process requires application of the 2012 rule requirements only to those changes to the plan made by the amendment. For example, the 2012 Rule’s requirements to establish a riparian management zone (36 CFR 219.8(a)(3)) would apply only if the plan amendment focuses on riparian area guidance. See also the Handbook’s direction regarding documentation of a decision to approve an amendment of a 1982 rule plan: ‘‘[f]or plan amendments, the decision document must discuss only those requirements of 36 CFR 219.8 through 219.11 that are applicable to the plan components that are being modified or added.’’ (FSH 1909.12 ch. 20, sec. 21.3 (emphasis added)). Similar recognition is included in the 2012 rule’s requirements for project consistency for 1982 rule plans, at 36 CFR 219.17(c). The distinction made in this provision between consistency within an amended plan with direction developed and approved pursuant to the 2012 rule and direction developed or revised under a prior rule reflects that portions of a 1982 rule plan may be changed by an amendment and other portions may remain unchanged until revision. During the Department and Forest Service’s conversations with the Committee about the Forest Service’s early efforts to use the 2012 rule to amend 1982 rule plans, the Committee advised that some members of the public expressed confusion about how to apply the substantive requirements within §§ 219.8 through 219.11 when amending 1982 rule plans. For example, some members of the public suggested that because resources and uses are connected and changes to any one resource or use will impact other resources and uses, the 2012 rule therefore requires that all of the substantive provisions in §§ 219.8 through 218.11 be applied to every amendment. Other members of the public suggested an opposite view: That the 2012 rule gives the responsible official discretion to selectively pick and choose which, if any, provisions of the rule to apply, thereby allowing the responsible official to avoid 2012 rule requirements or even propose E:\FR\FM\15DER1.SGM 15DER1 rmajette on DSK2TPTVN1PROD with RULES 90726 Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations amendments that would contradict the 2012 rule. Under this second interpretation, some members of the public hypothesized that a responsible official could amend a 1982 rule plan to remove plan direction that was required by the 1982 rule without applying relevant requirements in the 2012 rule. This final rule clarifies that neither of these interpretations is correct. The Department recognizes that resources and uses are connected and interrelated. However, an interpretation that the 2012 rule prevents a responsible official from distinguishing among connected resources and requires the application of all of the 2012 rule’s substantive requirements to every amendment would essentially turn every amendment into a revision. Such an interpretation would curtail the Forest Service’s ability to use amendments incrementally to change a plan, and directly contradicts the Department’s intent as expressed in the 2012 rule and supporting material that revisions and amendments serve different functions and that amendments be used to keep plans relevant, current and effective between plan revisions. The 2012 rule gives the responsible official the discretion to determine whether and how to amend a plan, including determining the scope and scale of an amendment based on a specific need to change the plan. At the same time, the responsible official’s discretion to tailor the scope and scale of an amendment is not unbounded; the 2012 rule does not give a responsible official the discretion to amend a plan in a manner contrary to the 2012 rule by selectively applying, or avoiding altogether, substantive requirements within §§ 219.8 through 219.11 that are directly related to the changes being proposed. Nor does the 2012 rule give responsible officials discretion to propose amendments ‘‘under the requirements’’ of the 2012 rule that actually are contrary to those requirements, or to use the amendment process to avoid both 1982 and 2012 rule requirements (§ 219.17(b)(2)). This amendment to the 2012 rule clarifies that the responsible official is not required to apply every requirement of every substantive section (§§ 219.8 through 219.11) to every amendment. However, the responsible official is required to apply those substantive requirements that are directly related to the plan direction being added, modified, or removed by the amendment. The responsible official must determine which substantive requirements are directly related to the changes being proposed based on the purpose and effects of the amendment, VerDate Sep<11>2014 14:00 Dec 14, 2016 Jkt 241001 using the best available scientific information, scoping, effects analysis, monitoring data, and other rationale to inform the determination. The responsible official must provide early notice to the public of which substantive requirements are likely to be directly related to the amendment, and must clearly document the rationale for the determination of which substantive requirements apply and how they were applied as part of the decision document. This final rule ensures that the Forest Service can use the 2012 rule to amend 1982 rule plans without any individual amendment bearing the burden of bringing the underlying plan into compliance with all of the 2012 rule’s substantive requirements, even if unchanged direction in the 1982 rule plan fails to address, meet or is contrary to 2012 rule requirements. Twenty-two forests are currently using the 2012 rule to revise their 1982 rule plans, but given Forest Service budget constraints and staff capacity, revision of all 127 of the Forest Service’s 1982 rule plans will likely take more than 15 years. Because the 2012 rule allowed the continued use of the 1982 rule procedures to complete revisions that were underway at the time the 2012 rule was published (36 CFR 219.17(b)(3)), the most contemporary land management plan published using the 1982 rule procedures was approved in 2016, with a few more to come. The clarifications in this final rule will help ensure that the Forest Service can effectively use the 2012 rule to amend 1982 rule plans until they are revised. Future amendments to plans developed or revised under the 2012 rule will likely be less complicated than using the 2012 rule to amend 1982 rule plans, because plans developed or revised under the 2012 rule are expected to meet all of the 2012 rule’s substantive requirements at the time of approval. However, this final rule clarifies that responsible officials have the discretion to tailor the scope and scale of amendments to adaptively change plans whether an amendment is to a 1982 rule plan or, in the future, to a 2012 rule plan. The final rule also supports transparency and public participation by clarifying notification and documentation requirements for applying the 2012 rule’s substantive requirements to amendments. Clarifications This amendment to the 2012 rule clarifies that: • The responsible official has the discretion to determine whether and how to amend a plan, and the scope and PO 00000 Frm 00052 Fmt 4700 Sfmt 4700 scale of a plan amendment, based on a need to change the plan. • The responsible official must use the best available scientific information to inform the amendment process. • The responsible official must determine which substantive requirements within §§ 219.8 through 219.11 are directly related to plan direction being added, modified or removed by the amendment and apply those requirements to the amendment in a way that is commensurate with the scope and scale of the amendment. • The responsible official is not required to apply any substantive requirement within §§ 219.8 through 219.11 that is not directly related to the amendment. • The determination of which requirements are directly related to an amendment must be based on the purpose and effects (beneficial or adverse) of the changes being proposed, and informed by the best available scientific information, scoping, effects analysis, monitoring data or other rationale. • The responsible official must include information in the initial notice for the amendment about which substantive requirements of §§ 219.8 through 219.11 are likely to be directly related to the amendment. • The decision document for an amendment must include a rationale for the responsible official’s determination of the scope and scale of the amendment, which requirements within §§ 219.8 through 219.11 are directly related, and how they were applied. • If species of conservation concern (SCC) have not yet been identified for a plan area and scoping or NEPA analysis for a proposed amendment reveals substantial adverse impacts to a specific species, or the proposal would substantially lessen protections for a specific species, the responsible official must determine whether that species is a potential SCC. If so, the responsible official must apply the requirements of 2012 rule with respect to that species as if it were an SCC. • An amendment that applies only to one project or activity is not considered a significant change in the plan for the purposes of the NFMA, but is still subject to NEPA requirements. • The Department corrected a mistake made on July 27, 2012 when the Forest Service inadvertently removed a sentence about the maximum size limits for areas to be cut in one harvest operation in § 219.11(d)(4). Response to Comments The following is a description of specific comments received on the E:\FR\FM\15DER1.SGM 15DER1 Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations proposed rule, responses to comments, and changes made in response to comments. Each comment received consideration in the development of the final rule. rmajette on DSK2TPTVN1PROD with RULES General Comments The Department received the following comments not specifically tied to a particular section of the October 12, 2016 proposed rule. General Comments on Rulemaking Effort Comment: Several respondents argue for changes to the 2012 rule other than the changes in the proposed rule. For example, one respondent requested that the term ‘‘aquifer’’ be included after the term ‘‘watershed’’ in each instance that the term ‘‘watershed’’ is used in the existing rule. That same respondent recommends that groundwater monitoring be added to the monitoring program requirements of § 219.12. A respondent requested we focus more on the forestry side to manage timber better. A respondent recommended the planning rule make it clear that ‘‘other content’’ of § 219.13(c)) does not include 1982 rule monitoring plans, so that changing these monitoring plans would require a plan amendment. The respondent also recommended that the rule clarify project consistency requirements regarding amended plans that include direction based on both the 1982 rule and 2012 rule because the two rules interpret the consistency requirement differently. Yet another respondent recommended that the planning rule require buffers to overly restrictive management policies where the communities and other private landowners within the boundaries of the forest require access or forest resources should be considered for economic development of those adjacent lands and community support. Response: These suggestions focus on parts of the 2012 rule for which changes were not proposed. Because these are outside the scope of the proposal, this final rule is not the appropriate means to make such changes. Pursuant to Executive Order 13563—Improving Regulation and Regulatory Review, the Department will consider these comments under retrospective review of the planning rule in the future. Comment: Planning directives. A respondent requested the Forest Service issue planning directives about environmental analysis and NFMA diversity requirements to support the rule simultaneously with the rule. Response: The Department decided to not issue directives simultaneously with the rule because the need to obtain VerDate Sep<11>2014 14:00 Dec 14, 2016 Jkt 241001 public comment on those directives before we issued them would unnecessarily delay the final rule and could delay pending amendments to existing plans. The Department also believes that, while great effort has been made to foresee how the clarifications in this final rule will operate, it may be more helpful to issue directives if necessary after gaining practical experience through implementation, and learning the extent to which additional clarification is needed. Comment: Consultation with affected Alaska Native Corporations and tribes. An Alaska Native Corporation (ANC) wrote that it appreciated the opportunity to comment on the Planning Rule Amendment. They also said the Forest Service should consult with the ANC and engage in meaningful dialog about these issues much earlier in the process. Response: The Forest Service contacted the respondent to clarify the intent and scope of their comment. The spokesman for the respondent stated the ANC does not want consultation prior to publication of this final rule, but was simply pointing out some inefficiencies in the process. He said the respondent will be satisfied to see the response to comments. The Forest Service is fully committed to meeting its responsibilities for consultation, and appreciates the outreach from the respondent. The Forest Service had determined at the time of the proposal that consultation was not required for this amendment because there was extensive consultation associated with developing the 2012 rule, the proposed changes were simply clarifications of process for that rule, and there are no 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. However, the Forest Service Regional Office in Juneau did send a notice of the Proposed Planning Rule Amendment comment period to Alaska Native Corporations and tribes. The notice said that the Forest Service would meet with any Alaska Native Corporation or Tribe expressing an interest in discussing the proposed changes and how the amendment to the 2012 rule might benefit our collective work in forest management and restoration. The Forest Service will continue to be available to meet with any Alaska Native Corporation or Tribe when implementing the 2012 rule and these clarifications for amending plans under the 2012 rule. PO 00000 Frm 00053 Fmt 4700 Sfmt 4700 90727 Comment: Several respondents were supportive of the proposed rulemaking. Several respondents agreed with the Forest Service that the 2012 rule intended for amendments to be routine, timely, less cumbersome and flexible, allowing for adaptive management. Several respondents said that they support the Department acting to clarify the expectations for plan amendments, including expectations for amending 1982 rule plans. Response: Thank you for taking the time to comment. Comment: Plan amendments should identify and give consideration of rural communities. A respondent said that consideration of the community’s cultural, social and economic needs, especially in areas struggling economically, should be recognized as the key component in any Plan revision. Another respondent indicated the burden the plan amendment process places on industry supporting small communities particularly local sawmill and ranching industries. These industries were stated to be important to local economies and reliant on National Forests. Response: The 2012 rule already has many requirements for the consideration of local communities’ cultural, social, and economic needs, including during the amendment process. Section 219.4 requires the responsible official to engage local communities, as well as to coordinate with other public planning efforts, including State and local governments, and Tribes. Section 219.4(a)(3) requires that the responsible official request ‘‘information about native knowledge, land ethics, cultural issues, and sacred and culturally significant sites’’ during consultation and opportunities for Tribal participation. Section 219.6(b) requires in the assessment that responsible officials identify and evaluate existing relevant information about social, cultural, and economic conditions. Section 219.8(b) requires that plans provide plan components to contribute to economic and social sustainability taking into account social, cultural, and economic conditions relevant to the area influenced by the plan. Section 219.10(b)(1)(ii) requires plan components for a new plan or plan revision to provide for ‘‘protection of cultural and historic resources,’’ and ‘‘management of areas of tribal importance.’’ Section 219.12 requires monitoring progress toward meeting the desired conditions and objectives in the plan, including for providing multiple use opportunities. In addition, the Forest Service Land Management Planning Handbook E:\FR\FM\15DER1.SGM 15DER1 rmajette on DSK2TPTVN1PROD with RULES 90728 Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations requires the plan monitoring program to contain one or more questions and associated indicators addressing the plan’s contributions to communities, social and economic sustainability of communities, multiple use management in the plan area, or progress toward meeting the desired conditions and objectives related to social and economic sustainability (FSH 1909.12, ch. 30, sec. 32.13f). Comment: Adaptive management. Respondents commented that adaptive management is an essential part of the 2012 rule and as such, additional clarifications should be included to facilitate, rather than discourage, adaptive management. Several respondents expressed concern that the existing and the proposed rule would impose burdens that would discourage the responsible official from undertaking plan amendments because of a lack of clarity. They said it was not clear how the Forest Service would determine which substantive provisions of the 2012 rule require changes to the plan. The respondent indicated that this ambiguity may result in less adaptive management. One respondent said the burden associated with staff and financial capability may make some forests less likely to pursue amendments and adaptive management. Response: The Department agrees that adaptive management and preserving the responsible official’s flexibility in amending plans are essential to the 2012 rule. The Department made changes between the proposed and final rule to reduce ambiguity and provide clarity. The final rule explains that responsible officials must determine which specific substantive requirement(s) within §§ 219.8 through 219.11 are directly related to a plan amendment and then apply those requirements to the amendment. The Department removed the paragraph that would have required the responsible official to ‘‘[e]nsure that the amendment avoids effects that would be contrary’’ to the rule requirements, which some respondents found confusing. The rule is now clearer. For further details on the changes made to support adaptive management and preserve the responsible official’s ability to amend plans under the 2012 rule, see ‘‘Amend § 219.13 to add paragraph (b)(5)’’ below. Comment: Proposed changes should not apply to plans revised under the 2012 rule. A respondent stated that a 2012 rule plan is expected to meet all of rule requirements and any amendment to such plan should be evaluated on the basis of how the entire amended plan meets the provision. VerDate Sep<11>2014 14:00 Dec 14, 2016 Jkt 241001 Response: The Department believes that when amending any plan the responsible official should not be required to undertake an extensive review of an entire plan and prove that it continues to meet all of the requirements within §§ 219.8 through 219.11. For an amendment of a 2012 rule plan, the responsible official must apply the substantive requirement(s) within §§ 219.8 through 219.11 that are directly related to the amendment. The clear intent of the 2012 rule is that amendments be used to incrementally change plans. The incremental nature of amendments applies whether the amendment is to a 2012 or a 1982 rule plan, and the clarifications in this final rule must preserve that flexibility and 2012 rule intent. Comment: Limiting the applicability of 2012 rule requirements when changing land allocations. One respondent is concerned about the burden the proposed rule imposes on small changes to area allocations. The respondent said that, any change in a land allocation reduces the application of one aspect of the planning rule to favor another (e.g., a change can favor ecological integrity over economic sustainability). The respondents further states that the rule allows the responsible official to find a balance in the overall plan, but it remains unclear how a change in land allocation for a small area can meet these multiple and perhaps contradictory provisions for just the change being considered. Response: The 2012 rule did not require that every resource or use be present in every area. The Department clarifies in this final rule that directly related specific substantive requirements within §§ 219.8 through 219.11 apply within the scope and scale of the amendment. Changes in land allocation for a small area would likely require a similarly narrow application of the directly related substantive requirements, depending on the purpose and effects of the changes. It is unlikely that a change in land allocation for a small area would have substantial adverse effects. Comment: An alternate approach. A respondent suggested an alternate approach to the proposed rule that would not require the determination of which rule requirements directly relate to a proposed plan amendment. The respondent suggested instead setting clear sideboards for each type of plan amendment based upon the substantive provisions of the 2012 rule. As an example the respondent suggested not allowing plan amendment if the consequences would lead to a sensitive species or an SCC (if identified) no PO 00000 Frm 00054 Fmt 4700 Sfmt 4700 longer having the ecological conditions necessary to provide for a viable population in the plan area. The respondent further suggests that similar specific sideboards can be identified for other requirements including, air, soil and water, riparian areas key ecosystem characteristics, rare communities, tree diversity, and other items including: sustainable recreation, cultural and historic resources, areas of tribal importance, wilderness, research, wild and scenic rivers. Response: The Department believes that a rule identifying sideboards for each type of plan amendment and associated substantive provisions of the 2012 rule would be overly complex and may not be able to anticipate or account for variation across the 127 plan areas of the National Forest System. The Department believes the better approach is for responsible officials to apply specific substantive requirements within the 2012 rule to an amendment when directly related to the changes being proposed by that amendment. Comment: Environmental Impacts. One respondent commented on the Environmental Impacts discussion in the Regulatory Certification section. The respondent agreed with the Forest Service that the proposed rule’s impacts were within the range of environmental analysis in the January, 2012 environmental impact statement prepared for the planning rule. The respondent added, however, that it disagreed with the Forest Service’s additional assertion that the proposed rule amendment falls within a Forest Service categorical exclusion of actions from documentation in an environmental assessment or an environmental impact statement (‘‘rule, regulations, or policies to establish service wide administrative procedures, program processes, or instruction.’’ 36 CFR 220.6 (d)(2)). The respondent contends that the position that categorically excluding planning regulations has been rejected by the courts, and therefore the Department and Forest Service should not apply that category. The respondent cites to Citizens for Better Forestry v. U.S. Department of Agriculture, 341 F. 3d 961 (9th Cir. 2003) and Citizens for Better Forestry v. U.S. Department of Agriculture, 481 F. Supp.2d 1059 (N.D. Cal. 2007). Response: Like the respondent, the Department has determined that the scope and scale of the final rule are such that the rule’s effects are within the range of effects of the environmental impact statement prepared for the 2012 rule. As the respondent noted, with respect to the 2012 rule, which entirely E:\FR\FM\15DER1.SGM 15DER1 Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations replaced a prior planning rule, the Forest Service did not rely on the categorical exclusion for rules but prepared an environmental impact statement for that rule. Planning rules that entirely replaced prior rules were also the subject of the court decisions the respondent refers to. However, the Department holds the position that for certain changes to a planning rule, the categorical exclusion may properly apply. Section-by-Section Explanation of the Final Rule The following section-by-section descriptions are provided to explain the approach taken in the final rule. Subpart A—National Forest System Land Management Planning Revise § 219.3—Role of Science in Planning The final rule is unchanged from the proposed rule for this section. The Department added the words ‘‘for assessment; developing, amending, or revising a plan; and monitoring,’’ to the first sentence of § 219.3. This change was made to clarify that the best available scientific information is to be used to inform the plan amendment process, as well as all other parts of the planning framework (36 CFR 219.5). Specifically mentioning each part of the planning framework makes the wording of this section more consistent with other sections of the rule. rmajette on DSK2TPTVN1PROD with RULES Revise § 219.3—Response to Comments Comment: Support the clarification. Several respondents expressed support for the amendment to § 219.3 to clarify that the requirement to use the best available scientific information applies equally to plan amendments. Response: Thank you for taking the time to comment. Amend §§ 219.8 Through 219.11 To Revise the Introductory Text The final rule is unchanged from the proposed rule for these sections. The Department added the words ‘‘a plan developed or revised under this part’’ to the introductory text of §§ 219.8 through 219.11 to clarify that the combined set of requirements in each section apply only to entire plans developed or revised under the current planning rule. It was not the Department’s intent to imply that an individual plan amendment must meet all of the requirements of §§ 219.8 through 219.11. This clarification distinguishes between new plans and plan revisions, which must comply with all of the requirements in §§ 219.8 through 219.11, and amendments, which do not. VerDate Sep<11>2014 14:00 Dec 14, 2016 Jkt 241001 Amend §§ 219.8 Through 219.11— Response to Comments Comment: Support the principle that amendments do not require the application of all of the requirements within §§ 219.8 through 219.11. While no comments directly addressed the changes to §§ 219.8 through 219.11, respondents supported the principle that amendments are different from revisions, and that the 2012 rule should not be interpreted to imply that an amendment must incorporate every substantive requirement within §§ 219.8 through 219.11. Many respondents noted that such an interpretation would trigger premature plan revision and would inappropriately curtail the Forest Service’s use of the amendment process to make targeted and efficient changes to plans in response to pressing needs. These respondents strongly supported the Department’s stated intent for this amendment to the 2012 rule to preserve the Forest Service’s flexibility in using amendments to support adaptive management by clarifying that amendments do not require the application of all of the substantive requirements within these sections. Response: The Department agreed and retained the changes to §§ 219.8 through 219.11, which clarify that plans developed or revised under the 2012 rule must meet the combined set of requirements among and within §§ 219.8 through 219.11. However, amendments are not required to meet all of the substantive requirements within these sections. Direction for amendments is clarified at § 219.13. Amend § 219.13 To Revise Paragraph (a) The final rule is unchanged from the proposed rule for this section. The Department added the words ‘‘and to determine the scope and scale of any amendment’’ to the end of the third sentence of paragraph (a). This change clarifies that responsible official’s discretion to determine whether and how to amend any plan includes the discretion to determine the scope and scale of any amendment. The Department received no comments on this revision. Amend § 219.13 To Revise the Introductory Text of Paragraph (b) The Department added the words ‘‘For every plan amendment,’’ to the introductory text of paragraph (b), so it is clear that the procedural and other requirements outlined in § 219.13(b) apply to all amendments. The proposed rule used similar wording ‘‘For all plan amendments,’’ but the Department changed ‘‘all’’ to ‘‘every’’ in the final PO 00000 Frm 00055 Fmt 4700 Sfmt 4700 90729 rule for grammar’s sake to conform the wording to the singular use of the word ‘‘amendment’’ in the paragraphs that followed. The Department also changed the caption of this paragraph from ‘‘Amendment process’’ to ‘‘Amendment requirements’’ to reflect the clarified text in paragraph (b)(5) and in §§ 219.8 through 219.11. The Department received no comments on this revision. Amend § 219.13 To Revise Paragraph (b)(1) In the final rule, the Department changed the punctuation at the end of paragraph (b)(1) to a period, from a semicolon, to reflect similar punctuation at the end of the other paragraphs under paragraph (b). The Department made no other changes to paragraph (b)(1). Amend § 219.13 To Revise Paragraph (b)(2) To respond to comments about the proposed rule, the Department added a requirement to include information in the initial notice for the amendment about which substantive requirements of are likely to be directly related to the amendment. Amend § 219.13(b)(2)—Response to Comments Comment: Inform the public early in the process. A group of respondents stated that the responsible official should inform the public early in the amendment process—likely as part of the preliminary identification of the need to change the plan—about which substantive provisions within §§ 219.8 through 219.11 may be implicated by an amendment, and should allow the public to provide input through the scoping process. The comment noted that early notification would be consistent with the 2012 rule’s focus on transparency and public participation. Response: The Department agreed and added the requirement to paragraph (b)(2) of § 219.13. Amend § 219.13 To Revise Paragraph (b)(3) The final sentence of paragraph (b)(3) was modified to state that project specific amendments are not considered a significant change in the plan for the purposes of the NFMA. In addition a conforming change was also made to § 219.16(a)(2). The Department made these changes so that an amendment that applies only to one project or activity is not considered a significant change in the plan for the purposes of the NFMA, in response to comments about the proposed rule. This change also clarifies E:\FR\FM\15DER1.SGM 15DER1 90730 Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations rmajette on DSK2TPTVN1PROD with RULES that an amendment that is considered a ‘‘significant change in the plan for the purposes of the NFMA’’ does not trigger a revision-type process; it is subject to the same procedures and requirements otherwise included in § 219.13, as well as the 90-day comment period required by § 219.16(a)(2). An amendment that applies only to one project or activity may still have significant environmental effects and require the preparation of an environmental impact statement. The Department added clarification in § 219.16(a)(2) to address minimum NEPA requirements for an amendment that applies only to one project or activity for which a draft EIS is prepared. Amend § 219.13(b)(3)—Response to Comments Comments: According to the proposed rule a site-specific project amendment would be ‘‘significant,’’ and trigger the process requirements for a plan revision. Several respondents expressed concern about preserving the Forest Service’s ability to use amendments that would apply only to one project or activity. One respondent stated that paragraph (b)(3), which provides that an amendment prepared with an EIS would be a significant amendment, would make even a project-specific amendment significant. The respondent further stated that significant amendments under NFMA trigger the requirements for a revision. The respondent requests that the Forest Service rewrite and clarify § 219.13(b)(3) so that an EIS for a project containing a plan amendment does not trigger, in effect, a forest plan revision. Response: The final rule includes an exception that when an amendment applies only to one project or activity the amendment is not considered a significant change to the plan for the purposes of NFMA (such a project and associated amendment may have significant effects and require the preparation of a draft EIS under NEPA). Corresponding changes were made to § 219.16(a)(2). However, the Department disagrees with the respondent’s assertion that if an amendment is significant for the purposes of the NFMA, a revision is automatically triggered. The 2012 rule supports and this final rule preserves the responsible official’s discretion to determine the scope and scale of amendments, including amendments that may be broad or have a significant effect. The process and content requirements included in § 219.13 satisfy the NFMA requirements for a significant amendment. VerDate Sep<11>2014 14:00 Dec 14, 2016 Jkt 241001 A brief clarification here may be helpful. The 1982 rule had required the Forest Service to undertake the plan revision process (except for wilderness analysis) when ‘‘a proposed amendment would result in a significant change in such plan.’’ (36 CFR 219.10(f) (2000), (16 U.S.C. 1604(f)(4)). The Forest Service soon learned that the requirement of the 1982 rule to follow the same steps for a significant amendment as for a revision was excessively burdensome. In its 1991 Advanced Notice for proposed rulemaking to revise its land and resource planning regulations, the Forest Service’s preliminary proposal would have limited the evaluation process for what it called a ‘‘major amendment’’ to ‘‘only . . . the changes being proposed and not the entire forest program.’’ (56 FR 6508, 6523, February 15, 1991)). Since that time, the Forest Service land management planning rules issued by the Department have distinguished the requirements for significant amendments and plan revisions. The 2012 rule retained that distinction and did not carry forward the 1982 rule’s requirement that the Forest Service undertake the plan revision process when a proposed amendment would result in a significant change to the plan. The NFMA does not require the Forest Service to carry out the entire process for revision for every significant amendment. Rather, as the 2012 rule provided and the clarifications in this amendment to the 2012 rule reinforce, the responsible official has the discretion to determine the scope and scale of an amendment, and the associated processes and requirements are tailored to the changes being proposed. In some cases, the nature of the proposed changes to the plan may require an analysis of the entire plan direction, so that the Forest Service must ‘‘[re]determine forest management systems, harvesting levels, and procedures’’ in light of the multiple uses for which the forest is administered; and reconsider and if appropriate, adjust the ‘‘planned timber sale program’’ and the proportion of probable methods of timber harvest.’’ 16 U.S.C. 1604 (e) and (f). However, other amendments, including amendments that require the preparation of an environmental impact statement, may not affect these matters, and would require less analysis. The direction in paragraph (b)(5) of this final rule would require the appropriate application of the 2012 rule’s requirements in a way that satisfies the related NFMA requirements. PO 00000 Frm 00056 Fmt 4700 Sfmt 4700 The reason the Department included the final sentence of paragraph (b)(3) in the 2012 rule was to avoid applying two different standards for determining significance between the requirements of NFMA and NEPA. In the end, all plans must ‘‘provide for multiple use and sustained yield of products and services’’ and all the other specific information required by the NFMA. (16 U.S.C. 1604 (e) and (f)). The 2012 rule requires in § 219.1(f) that plans meet all applicable laws and regulations; nothing in this amendment changes that requirement. The Department’s position is that the NFMA’s requirements for significant amendments are satisfied by the requirements to prepare an environmental impact statement and to provide at least a 90 day comment period on the proposal and draft EIS, in addition to the other requirements for amendments included in § 219.13. The final rule retains these requirements. Amend § 219.13 To Add Paragraph (b)(4) The Department retained the proposed paragraph (b)(4) but slightly modified the wording for clarity. The Department removed the phrase ‘‘without altering the existing direction’’ and added the word ‘‘simply.’’ The Department added paragraph (b)(4) as a clarification that each plan component added or changed by a plan amendment must conform to the applicable definition for desired conditions, objectives, standards, guidelines, and suitability of lands set forth in § 219.7(e). The planning directives in the Handbook (FSH 1909.12, ch. 20, sec. 21.3) already state this requirement: ‘‘All additions or modifications to the text of plan direction that are made by plan amendments using the 2012 rule must be written in the form of plan components as defined at 36 CFR 219.7(e).’’ This paragraph brings the requirement into the text of the 2012 rule to help consolidate procedural requirements for amendments. The Department also included a narrow exception to the plan component formatting requirements of paragraph (b)(4) for amendments to 1982 rule plans. This exception would apply to an amendment or part thereof that would change (add to or reduce) a management or geographic area or other areas to which existing direction applies, but would not change the text of that plan direction. This exception would allow the responsible official to avoid rewriting the plan direction within that management or geographic area to conform to § 219.7(e), because E:\FR\FM\15DER1.SGM 15DER1 Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations rmajette on DSK2TPTVN1PROD with RULES reformatting plan direction might accidentally broaden the scope of the amendment. The Department received one comment on this revision, and that comment supported the addition of this paragraph. Amend § 219.13 To Add Paragraph (b)(5) The Department modified and added wording to paragraph (b)(5) of this section to specify requirements for applying the substantive requirements within §§ 219.8 through 219.11 to a plan amendment. Elements of the direction provided in the final paragraph (b)(5) were found in paragraphs (b)(5) and (6) and (c)(1) and (2) of this section of the proposed rule. Proposed paragraphs (b)(6), (c)(1), and (c)(2) were removed from the final rule. While the direction in proposed rule paragraphs (c)(1) and (2) was limited to amendments of a plan developed or revised under a prior planning rule, the requirements of paragraph (b)(5) of the final rule apply to all amendments. The Department modified the first sentence of paragraph (b)(5) for two reasons. First, this sentence now more clearly describes the required process for responsible officials to first determine and then apply substantive requirements that are directly related to changes being proposed. Second, the Department modified the proposed rule’s use of the words ‘‘[e]nsure that the amendment meets’’ to ‘‘apply such requirement(s) within the scope and scale of the amendment,’’ in order to clarify the Department’s intent that the application of directly related substantive requirements be commensurate with the scope and scale of the amendment. The Department added a sentence to paragraph (b)(5) to clarify that an amendment is not required to bring the amended plan into compliance with all of the substantive requirements of the rule. The Department made this change to apply this clarification to all amendments and to make the wording consistent with the rest of paragraph (b)(5). This sentence makes clear that amendments, unlike revisions, do not require the application of all substantive requirements within §§ 219.8 through 219.11. The Department added paragraphs (b)(5)(i) and (ii) to provide further clarification on how the responsible official will determine that a specific substantive requirement within §§ 219.8 through 219.11 is directly related to the plan direction being added, modified, or removed by the amendment. The Department added paragraph (b)(5)(i) to provide additional direction VerDate Sep<11>2014 14:00 Dec 14, 2016 Jkt 241001 to the responsible official on how to determine whether or not a specific substantive requirement is directly related to the changes being proposed by an amendment. When a specific substantive requirement is associated with either the purpose for the amendment or the effects (beneficial or adverse) of the amendment, the responsible official must apply that requirement to the amendment. The Department also added wording from the preamble to the proposed rule explaining that the best available scientific information, scoping, effects analysis, monitoring data or other rationale must inform the responsible official’s determination. The purpose of an amendment stems from the need to change the plan, which § 219.13(b)(1) requires that responsible official identify. The responsible official would determine which specific substantive requirements within §§ 219.8 through 219.11 are directly related to that purpose, and then would apply those requirements to the amendment. In addition to the purpose of an amendment, the responsible official must apply specific substantive requirements within §§ 219.8 through 219.11 based on the effects of the amendment. The effects of an amendment can be beneficial or adverse. Where the likely effects are beneficial, the intent of paragraph (b)(5)(i) is that the changes being proposed occur within the context and apply the direction of the directly related substantive requirement in a way that is commensurate with the scope and scale of the amendment. The Department added paragraph (b)(5)(ii) to provide direction, in addition to the direction in paragraph (b)(5)(i), to the responsible official on when to determine that a substantive requirement is directly related to the amendment based on adverse effects. The Department recognizes that an amendment may have adverse effects that are less than ‘‘substantial,’’ and that would not require the application of associated substantive requirements. However, if scoping or NEPA effects analysis for the amendment reveals substantial adverse effects, the responsible official must identify and apply the specific substantive requirement(s) within §§ 219.8 through 219.11 associated with those effects. Paragraph (b)(5)(ii)(A) replaces paragraph (b)(6) of the proposed rule. The Department made this change in response to comments about proposed paragraph (b)(6). The Department’s intent is that if a substantive requirement is directly related because of adverse effects (§ 219.13(b)(5)(ii)(A)), PO 00000 Frm 00057 Fmt 4700 Sfmt 4700 90731 then the responsible official may decide to modify the proposal to avoid the adverse effects so that the specific substantive requirement is no longer directly related to the changes being proposed. Otherwise, the responsible official must apply the directly related substantive requirement to determine whether the proposal can proceed or whether additional changes to the plan are required as part of the amendment. Paragraph (b)(5)(ii)(A) also clarifies that if the proposed amendment would substantially lessen protections for a specific resource or use, the responsible official must identify and apply the associated specific substantive requirement(s). The phrase ‘‘when the proposed amendment would substantially lessen protections for a specific resource or use’’ replaces the proposed rule paragraph (c)(2) of this section that stated: ‘‘If the proposed amendment would remove direction required by the prior planning regulation, the responsible official must apply the directly related requirements within §§ 219.8 through 219.11.’’ This requirement is intended to prevent the removal of protective direction in an underlying plan without the application of the relevant requirements of the 2012 rule. The Department added paragraph (b)(5)(ii)(B) to help to expedite amendments, including project-specific amendments, which will not have significant environmental effects. The Department anticipates that, for amendments that can be prepared using a categorical exclusion (CE) or environmental assessment (EA) accompanied by a finding of no significant impact (FONSI), it is unlikely that the amendment will have substantial adverse effects that would require the responsible official to apply a substantive requirement that is not otherwise directly related to the changes being proposed. Therefore, under this paragraph, the responsible official may presume that an amendment prepared under a CE or EA will not have substantial adverse effects, barring evidence to the contrary. The clarifications within paragraph (b)(5) will help the Department and public understand how to apply the substantive requirements within §§ 219.8 through 219.11 when amending plans. The Department recognizes that resources and uses within the plan area are often connected to one another— nonetheless, the responsible official can distinguish between rule requirements directly related to the amendment and those that may be unrelated or for which E:\FR\FM\15DER1.SGM 15DER1 rmajette on DSK2TPTVN1PROD with RULES 90732 Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations the relationship is indirect. For example: • Soil and water resources are interrelated, but the responsible official can determine that for a plan amendment that has the purpose of changing standards and guidelines to protect a water body, the water requirements of § 219.8 are directly related, while that section’s requirements for soil are not unless the amendment would affect the soil resource. • A plan amendment to modify recreation access under § 219.10 could be either directly related or unrelated to that section’s requirement for the protection of cultural and historic resources, depending upon the nearness and potential effects of the proposed access to the cultural and historic resources in the plan area. A determination that a substantive requirement is directly related to a proposed amendment does not mean that the amendment must be expanded so that the requirement is applied to the entire plan area, or that the amendment must address every aspect of that specific requirement; the application of the substantive requirement is intended to be commensurate with the scope and scale of the amendment. For example: • The 2012 rule’s requirements for riparian management in § 219.8 would be directly related to an amendment with the purpose of changing plan components in order to reduce sedimentation into a specific riparian area from a particular use, but the responsible official would not be required to apply those requirements to other riparian areas in the plan area. Further, if floodplain values would not be affected by the amendment, it would be beyond the scope of that amendment for the responsible official to be required to apply § 219.8 riparian management requirements to add plan components for the floodplain values of that riparian area. • An amendment that changes plan components to support habitat for an atrisk species would require application of § 219.9 to those proposed changes, but would not require application of § 219.9 to the entire underlying plan. For example, if the need to change the plan is to identify lands as suitable for an energy corridor, and the proposed corridor would have substantial adverse effects on critical habitat for a threatened species, then the requirements of § 219.9(b) would be directly related to the amendment as applied to that particular species. The responsible official may therefore be required to add standards or guidelines to protect the critical habitat. However, VerDate Sep<11>2014 14:00 Dec 14, 2016 Jkt 241001 the determination that § 219.9(b) is directly related to the amendment because of the potential impacts to one species would not trigger the application of § 219.9(b) to evaluate ecological conditions for all other species on the unit. Amend § 219.13 To Add Paragraph (b)(5)—Response to Comments Comment: Applying the substantive requirements that are directly related. Several respondents were supportive of proposed paragraph (b)(5), and appreciated the clarification that responsible officials must apply the directly related substantive requirements within §§ 219.8 through 219.11 to plan direction modified, added or removed by an amendment. One respondent supported bringing into paragraph (b)(5) the text in the preamble to the proposed rule that stated the Department’s intent that the determination of direct relationship be informed by the best available scientific information, scoping, effects analysis, monitoring data or other rationale. Response: The Department retained the direction in the proposed paragraph (b)(5) that the responsible official must apply the specific substantive requirement(s) within §§ 219.8 through 219.11 that are directly related to the plan direction being added, modified, or removed by the amendment. The Department added paragraph (b)(5)(i) to bring text from the preamble into the final rule and further clarify direction to the responsible official on how to determine that a specific substantive requirement is directly related to the amendment. In addition, the responsible official must document the rationale as required by § 219.14. Comment: Amendments do not have to meet all requirements of the rule. Several respondents supported the principle that the 2012 rule intended that amendments be used to incrementally change plans and facilitate adaptive management, and therefore supported proposed paragraph (c)(1) clarifying that amendments of plans developed or revised under a prior planning regulation do not have to bring an amended plan into compliance with all of the requirements within §§ 219.8 through 219.11. Several respondents emphasized that the final rule must provide clarity that an amendment does not trigger application of all of the substantive requirements of the 2012 rule. Response: The Department agreed, moved the concept in proposed paragraph (c)(1) into paragraph (b)(5), and modified the wording to make it clearer and more consistent with the PO 00000 Frm 00058 Fmt 4700 Sfmt 4700 rest of paragraph (b)(5). The new wording makes clear that the responsible official is not required to apply any substantive requirement that is not directly related to the changes being proposed by an amendment. Paragraph (b) of the final rule applies to all amendments, whereas proposed paragraph (c) applied only to amendments to plans developed or revised under a prior planning regulation. The Department made this change because, although the clarification is most urgent and immediately relevant for amendments to 1982 rule plans, the Department anticipates that similar clarity and flexibility will be needed for amendments to future 2012 rule plans. While plans developed or revised under the 2012 rule must meet all of the substantive provisions of the 2012 rule at the time of approval, the Forest Service will still need the ability to adaptively change those plans in response to conditions that may be rapidly changing. For example, there could be major tree die-offs associated with drought or major fire events that occur a few years after a plan is revised using the 2012 rule, which could make the plan as a whole out of sync with one or more substantive requirements of the 2012 rule. The Forest Service would still need the ability to incrementally change that plan, without re-applying all of the substantive requirements regardless of the scope and scale of the amendment. Comment: Avoid effects that would be contrary to a rule requirement. Some respondents were supportive of proposed paragraph (b)(6), which directed the responsible official to ensure that an amendment avoids effects that would be contrary to a specific substantive requirement within §§ 219.8 through 219.11, but some respondents were not supportive and expressed concerns about how the proposed paragraph would be interpreted. For example, one respondent identified concerns about how a responsible official would demonstrate that an amendment avoided contrary effects, and raised the possibility that this paragraph could inadvertently require the premature application of all of the requirements within §§ 219.8 through 219.11, despite express direction otherwise in proposed paragraph (c)(1). However, another respondent supported ensuring that amendments do not erode plan direction necessary to protect forest resources, and the concept of avoiding effects that would be contrary to a rule requirement. E:\FR\FM\15DER1.SGM 15DER1 rmajette on DSK2TPTVN1PROD with RULES Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations Response: The Department removed proposed paragraph (b)(6) and replaced it with clearer direction in paragraphs (b)(5)(i) and (ii) of this section. The Department also added a sentence to paragraph (b)(5) to clarify that an amendment is not required to bring the amended plan into compliance with all of the substantive requirements of the rule. The underlying purpose of proposed paragraph (b)(6) was to ensure that a responsible official does not avoid the application of a substantive requirement otherwise not directly related to the amendment, when analysis shows that an amendment is likely to have substantial adverse effects associated with that substantive requirement. For example, paragraph (b)(6) was intended to avoid a scenario in which an amendment proposes to modify a plan to identify a corridor suitable for energy development, but avoids the application of § 219.9(b) despite the corridor’s likely adverse effects on critical habitat necessary to contribute to the recovery of a threatened species. The Department agrees with respondents that proposed paragraphs (b)(5) and (6) could be interpreted as creating two slightly different standards for applying the 2012 rule’s substantive requirements in a way that might be confusing to implement. The Department also recognized that there could be confusion about how a responsible official would demonstrate compliance with proposed paragraph (b)(6). The Department therefore removed proposed paragraph (b)(6) and brought the intent of that paragraph into paragraph (b)(5). Instead of the direction to avoid effects contrary to a specific requirement, paragraph (b)(5) instead provides that a responsible official must determine that a substantive requirement is directly related to the changes being proposed by an amendment when the likely effects of those changes are substantially adverse in a way that implicates that substantive requirement. The Department’s intent with this direction is that if a substantive requirement is directly related to a proposed amendment because of adverse effects, then the responsible official may modify the proposal to avoid the adverse effects so that the specific substantive requirement is no longer directly related to the changes being proposed. Otherwise, paragraph (b)(5) of this section requires that the responsible apply the directly related substantive requirement. For example, if an amendment would have substantial adverse effects to a historic site, the responsible official could modify the VerDate Sep<11>2014 14:00 Dec 14, 2016 Jkt 241001 proposal so that the changes no longer have any adverse effect on that site, or apply the related substantive requirement (§ 219.10(b)(1)(ii)) to add to the amendment additional plan components that would provide for the protection of that historic site. As another example, if a proposed amendment would create an energy corridor that would have substantial adverse effects on critical habitat necessary for the recovery of an endangered species, the responsible official could choose to modify the proposed corridor to avoid the critical habitat. Otherwise, the responsible official must apply § 219.9(b) to review whether the plan provides the ecological conditions necessary to contribute to the recovery of that species. If the plan components would be insufficient to provide such ecological conditions, then the responsible official would be required to develop additional, species-specific plan components, including standards or guidelines, to provide such ecological conditions in the plan area. These changes should address the respondents’ concerns, and are responsive to respondents’ comments that this amendment to the 2012 rule must clearly preserve the Agency’s flexibility to make timely amendments. Comment: NFMA diversity requirements and application of the 2012 rule to amended plans. A respondent was concerned that the existing 2012 rule could be interpreted to allow amendments that would eliminate or weaken direction in 1982 rule plans that was designed to meet the 1982 rule’s diversity requirement, but avoid application of the 2012 rule’s diversity provisions until plan revision. The respondent contends that this scenario would create an untenable gap, because NFMA requires that regulations be in place that provide for diversity. The respondent supported the concept of proposed paragraph (c)(2), which stated: ‘‘If the proposed amendment would remove direction required by the prior planning regulation, the responsible official must apply the directly related requirements within §§ 219.8 through 219.11.’’ The respondent also supported a possible addition to proposed paragraph (c)(2) that was mentioned in the preamble to the proposed rule, which would allow the responsible official to choose to demonstrate that the amended plan remains consistent with the 1982 rule. The respondent suggested the following wording: ‘‘If the proposed amendment would remove direction required by the prior planning regulation, the responsible official must PO 00000 Frm 00059 Fmt 4700 Sfmt 4700 90733 apply the directly related requirements within §§ 219.8 through 219.11 or ensure that the amended plan avoids effects that would be contrary to the prior planning regulations.’’ In addition, the respondent questioned limiting the applicability of 2012 rule requirements to only the amendment as opposed to an amended plan, and questioned, as a practical matter, how one could determine that an amendment by itself meets substantive requirements without looking at the resulting plan in its entirety. Response: The Department removed paragraph (c)(2) and instead added direction in paragraph (b)(5)(ii)(A) and paragraph (b)(6) that the responsible official must apply any specific substantive requirement of the rule that is directly related to the amendment when the proposed amendment would substantially lessen protections for a specific resource or use. Paragraph (b)(5)(ii)(A) now requires that the responsible official determine that a specific substantive requirement is directly related to an amendment ‘‘when the proposed amendment would substantially lessen protections for a specific resource or use.’’ Paragraph (b)(6) addresses the application of the 2012 rule’s species-specific requirements when amending a 1982 rule plan, and requires that the responsible official identify whether a species is a potential species of conservation concern (SCC) and, if so, apply the requirements of § 219.9(b) if the proposed amendment would substantially lessen protections for that specific species. These changes eliminate the potential for an amendment to remove from a plan direction that was necessary to meet the 1982 rule’s diversity requirement, but avoid application of the 2012 rule’s related requirements, addressing respondent’s concern about a potential gap in application between the 1982 rule and the 2012 rule’s diversity requirements. For example, if a proposed amendment to a plan developed under the 1982 planning rule would remove direction that was necessary to meet the 1982 rule’s requirement to provide for the viability of a specific species, paragraph (b)(5) would require that responsible official apply § 219.9(b) to the proposed amendment with regard to that specific species. The Department decided against adding the suggested wording that would refer back to the 1982 rule for the reasons outlined in the preamble to the proposed rule, and because the Department believes the changes made E:\FR\FM\15DER1.SGM 15DER1 rmajette on DSK2TPTVN1PROD with RULES 90734 Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations in the final rule address respondent’s concerns and provide clear direction to responsible officials in a way that meets the Department’s original intent for the 2012 rule. The final rule also continues to require the application of directly related substantive requirements to the changes being proposed by an amendment, and does not require evaluation of the amended plan. In some cases, applying a directly related substantive requirement will lead to the evaluation of plan components across the plan area—for example, to determine whether existing plan components, with the proposed changes, meet the 2012 rule’s substantive requirement to provide the ecological conditions necessary for a potential species of conservation concern that would be substantially adversely affected by a proposed amendment. That evaluation, however, is still focused on the amendment itself. The environmental analysis for an amendment is programmatic. It would include discussions of reasonably foreseeable direct, indirect, and cumulative effects and identify the spatial and temporal extent of the effects. The responsible official would apply the 2012 rule to make any necessary changes to the amendment based on the environmental analysis. Comment: One respondent was concerned that the proposed amendment to the 2012 rule could allow amendments that would fail to comply with the National Forest Management Act (NFMA). Response: The 2012 rule clearly requires in § 219.1(f) that plans comply with all applicable laws and regulations, including the NFMA. Nothing in this amendment to the 2012 rule affects that requirement. Comment: Possible barriers to amendments that apply only to a project and activity. Several respondents were concerned that the proposed rule could create possible barriers to projectspecific amendments. One respondent requested that the Forest Service state in the preamble and the final amendment to the 2012 rule that § 219.13(b)(5), (b)(6), and (c)(2) of the proposed amendment to the rule do not operate to apply the substantive requirements in §§ 219.8 through 219.11 to plan amendments made in project or activity level decisions under § 219.15(c)(4) (project-specific amendments). Other respondents were concerned about the application of § 219.13(b)(3) to projectspecific amendments. Response: The Department modified the requirements in the final rule to address respondents’ concerns. The VerDate Sep<11>2014 14:00 Dec 14, 2016 Jkt 241001 2012 rule clearly recognized that amendments can be made together with, and apply only to, specific project and activity decisions (§ 219.13(b)(1); § 219.15(c)(4)). The Department added an exception in § 219.13(b)(3) for project and activity amendments—see an explanation of that change in above section ‘‘Amend § 219.13(b)(3)— Response to Comments.’’ The Department also made changes to the requirements in paragraphs (b)(5) and (b)(6) that should make the amendment process easier. Those paragraphs still apply to all amendments, including amendments made under 36 CFR 219.15(c)(4) that only apply to a project or activity, but the Department believes the clarifications will make it easier to apply the modified requirements to project-specific amendments, particularly those that do not have significant effects. Specifically: 1. The Department clarified in paragraph (b)(5) that the application of directly related substantive requirements is intended to be commensurate with the scope and scale of the amendment. Specifically, the Department modified the words in the proposed rule ‘‘Ensure that the amendment meets’’ to ‘‘apply such requirements within the scope and scale of the amendment’’ in the final rule to make it easier to appropriately tailor the application of paragraph (b)(5). There may be aspects of a specific substantive requirement that would be required for revision, but would be beyond the scope or scale of the amendment. For example, the responsible official would not have to apply a directly related requirement to a geographic area not affected by the amendment. Furthermore, the responsible official may not have to apply every element within a directly related substantive requirement. For example, with respect to the 2012 rule’s requirements for riparian areas in § 219.8(a)(3)(i), when a proposed amendment would have substantial adverse effects only with regard to sedimentation in a specific riparian area, the responsible official must apply the direction in § 219.8(a)(3)(i)(C) on deposits of sediment to that riparian area, but would not have to apply the direction in § 219.8(a)(3)(i)(G) on floodplain values to that riparian area. While the responsible official is required to apply the directly related substantive requirements to the changes being proposed, the application of those requirements can be as narrow as the amendment. If a project-specific amendment would change only one plan component, or impact only one management area, the responsible PO 00000 Frm 00060 Fmt 4700 Sfmt 4700 official’s application of the directly related substantive requirement would reflect the narrow scope and scale of that amendment, and would be based on its purpose and effects. 2. The Department clarified in paragraph (b)(5) that the responsible official is not required to apply any substantive requirements within §§ 219.8 through 219.11 that are not directly related to the amendment. 3. Paragraph (b)(5)(ii)(A) recognizes that an amendment may have adverse effects that are less than substantial, and that would not require the application of an otherwise unrelated substantive requirement within §§ 219.8 through 219.11 to the amendment. Evidence of substantial adverse effects would require the application of the associated substantive requirement, but less than substantial adverse effects would not. 4. The Department added paragraph (b)(5)(ii)(B) to make the process easier for many amendments, including project-specific amendments, by providing that when the environmental documentation for an amendment is a decision memo for a categorical exclusion or an environmental assessment accompanied by a finding of no significant impact, the responsible official may presume that the amendment will not have substantial adverse effects, barring evidence to the contrary. 5. The Department removed proposed paragraph (c)(3) and replaced it with paragraph (b)(6), clarifying the process for applying the species-specific requirements of § 219.9(b) when amending plans developed or revised under the prior planning regulation, and replying to respondents’ concerns about the previous wording. See further discussion of this change in the section ‘‘Amend § 219.13 to add paragraph (b)(6)—Response to Comments’’ below. Amend § 219.13 To Add Paragraph (b)(6) The Department removed the wording of proposed paragraph (b)(6) that stated: ‘‘Ensure that the amendment avoids effects that would be contrary to a specific substantive requirement of this part identified within §§ 219.8 through 219.11.’’ The Department made corresponding changes to paragraph (b)(5). An explanation of why the Department moved and changed the wording from proposed paragraph (b)(6) is provided in the section ‘‘Amend § 219.13 to add paragraph (b)(5).’’ The Department also removed proposed paragraph (c)(3) that stated: ‘‘If species of conservation concern (SCC) have not been identified for the plan area, the responsible official must use E:\FR\FM\15DER1.SGM 15DER1 rmajette on DSK2TPTVN1PROD with RULES Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations the regional forester sensitive species list in lieu of SCC when applying the requirements of § 219.9(b) to a plan amendment for a plan developed or revised under a prior planning regulation.’’ The Department added new paragraph (b)(6) to clarify the process a responsible official should use when amending a plan developed or revised under a prior planning regulation, if the regional forester has not yet identified the species of conservation concern (SCC) for the plan area. It is possible that in some cases, the regional forester will have already identified SCC within the plan area before plan revision. Paragraph (b)(6) recognizes that possibility, and focuses on providing direction that applies when SCC have not yet been identified. (A similar process clarification is not needed for the other species identified in § 219.9(b)—threatened and endangered, proposed and candidate species— because those are federally listed rather than identified by the regional forester as part of the planning process.) If SCC have been identified, paragraph (b)(6) would not apply, and the responsible official would follow the direction in paragraph (b)(5). If SCC have not yet been identified, paragraph (b)(6) requires that, when scoping or effects analysis reveals that a proposed amendment would have substantial adverse impacts to a specific species, or if the proposed amendment would substantially lessen protections for a specific species, the responsible official must determine whether or not that species is a potential SCC. The responsible official will make the determination using the definition provided in the 2012 rule (§ 219.9(c)). This paragraph is consistent with the approach already provided by the 2012 rule in § 219.6(b)(5), which requires the responsible official to ‘‘identify and evaluate existing information relevant to the plan area for . . . potential species of conservation concern present in the plan area,’’ when developing an assessment. See also Forest Service Planning Handbook 1909.12, Chapter 10, section 12.52, which provides guidance for identifying potential SCC. If the responsible official determines that the species being evaluated is a potential SCC, paragraph (b)(6) requires the responsible official to apply § 219.9(b) with respect to that species as if the regional forester had identified it as an SCC. By requiring that the responsible official apply the requirements of § 219.9(b) to a specific potential SCC that an amendment could substantially adversely impact, or if an amendment VerDate Sep<11>2014 14:00 Dec 14, 2016 Jkt 241001 90735 would substantially lessen protections found in the underlying plan for that species, paragraph (b)(6), along with paragraph (b)(5), carries forward the Department’s original intent that the species-specific protections of the 2012 rule apply in the context of amendments. At the same time, this paragraph limits unintended processrelated delays or barriers to amendments by making clear that amendments to plans developed under a prior planning regulation can proceed prior to the regional forester’s identification of SCC for the plan area. impacted by a proposed amendment. The process identified in this new wording relies on the existing definition of SCC in § 219.9(c), and provides guidance similar to that already included in § 219.6(b)(5), which requires that the responsible official identify potential SCC during the assessment phase (an assessment is required prior to plan development or revision, but is optional for an amendment). See also Forest Service Planning Handbook 1909.12, Chapter 10, section 12.52, which provides guidance for identifying potential SCC. Amend § 219.13 To Add Paragraph (b)(6)—Response to Comments Comment: Using the Regional Forester Sensitive Species (RFSS) as proxy. Several respondents were supportive of clarifying how to apply the speciesspecific protections of the existing rule when amending plans developed under a prior planning regulation, but several respondents expressed concern about using the regional forester sensitive species (RFSS) as a proxy for species of conservation concern (SCC) when SCC have not yet been identified for the plan area, as well as confusion over the scope of proposed paragraph (c)(3). For example, one respondent interpreted the proposed paragraph (c)(3) as requiring that all species on the RFSS list meet the viability requirement in § 219.9(b). Respondents observed that the RFSS list is an imperfect proxy for SCC, with one respondent noting that the RFSS lists may not reflect best available scientific information, were compiled at a regional rather than a unit scale, and did not include a public comment process. Response: The Department agreed that using the RFSS list as a proxy for SCC is an imperfect and potentially confusing procedural approach. The Department therefore removed from the final rule proposed paragraph (c)(3), which directed the responsible official, if SCC have not been identified, to use the RFSS list in lieu of identifying SCC when applying the requirements of § 219.9(b) to amend a plan developed under a prior planning regulation. Instead, the Department replaced proposed paragraph (c)(3) with paragraph (b)(6). Paragraph (b)(6) makes clear that SCC do not need to be identified by the regional forester prior to amending a plan developed or revised under a prior planning regulation, or as part of an amendment. Rather, paragraph (b)(6) operates to provide direction and a mechanism for a responsible official to be able to apply the requirements of § 219.9(b) to a specific potential SCC, when that specific species would be adversely Amend § 219.14 The final rule is unchanged from the proposed rule for this section. The Department changed the caption of paragraph (a) from ‘‘Decision document’’ to ‘‘Decision document approving a new plan, plan amendment, or revision.’’ The Department redesignated paragraph § 219.14(b) as § 219.14(d). In addition, the Department removed paragraph (a)(2) which requires responsible officials to explain how plan direction meets the provisions of §§ 219.8 through 219.11. The Department replaced paragraph (a)(2) with two new paragraphs (b) and (c) and renumbered paragraphs (a)(3) through (a)(6). The new paragraph (b) requires responsible officials to explain in a decision document for a new plan or plan revision how the plan direction meets the provisions of §§ 219.8 through 219.11. The new paragraph (c) focuses on documentation for a plan amendment. The decision document must include a rationale for the responsible official’s determination of the scope and scale of the amendment, which requirements within §§ 219.8 through 219.11 are directly related to that amendment, and how those requirements were applied. PO 00000 Frm 00061 Fmt 4700 Sfmt 4700 Amend § 219.14 Response to Comments Comment: Best available scientific information, scoping, effects analysis, monitoring. A respondent was supportive of the documentation requirements and stated that § 219.14 should also require that the responsible official discuss how the best available scientific information, scoping, effects analysis, monitoring data, and other rationale was used to determine which substantive provisions apply. They also stated that the responsible official should be required to explain the relationship between the amendment and the amended plan in the decision document, in the appropriate context of meeting rule requirements. E:\FR\FM\15DER1.SGM 15DER1 90736 Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations Response: The final rule in § 219.13(b)(5) requires that the responsible official base the determination that a specific substantive requirement is directly related to the amendment on the purpose for the amendment and the effects (beneficial or adverse) of the amendment, and requires that the determination be informed by the best available scientific information, scoping, effects analysis, monitoring data or other rationale. The requirements for documentation in this section remain the same as in the proposed rule. The decision document must explain how the responsible official determined which specific requirements within §§ 219.8 through 219.11 apply to the amendment and how those requirements were applied to the amendment. Section 219.14 requires responsible officials to explain their rationale and explain the information they used to make the determination required by § 219.13(b)(5). Amend § 219.16 To Revise Paragraph (a)(2) To be in agreement with the change made to § 219.13(b)(3) that now includes an exception so that an amendment that applies only to one project or activity is not considered a significant change in the plan for the purposes of NFMA, a conforming change is needed in paragraph (a)(2) of § 219.16. Therefore, in the final rule paragraph (a)(2) of § 219.16 specifies that a comment period of 90 days is not required for a proposed amendment that would apply only to one project or activity. However, for such amendments, normal NEPA requirements still apply. Therefore, the Department clarifies that the normal comment period is at least 45 days. See also Forest Service Handbook 1909.15, Chapter 20, section 24.1—Circulating and Filing a Draft Environmental Impact Statement. rmajette on DSK2TPTVN1PROD with RULES Technical Correction to Section 219.11 The Department added a technical correction to fix a mistake made in a correcting amendment to the 2012 rule on July 27, 2012 (77 FR 44144, July 27, 2012). In that correcting amendment, the Forest Service inadvertently removed a sentence about the maximum size limits for areas to be cut in one harvest operation in § 219.11(d)(4). This change would simply restore to § 219.11 the sentence as published in the 2012 rule on April 9, 2012 (77 FR 21161). The Department received no comments on this correction. VerDate Sep<11>2014 14:00 Dec 14, 2016 Jkt 241001 Compliance With the Endangered Species Act of 1973, as Amended In issuing the 2012 rule, the Department prepared both an Environmental Impact Statement (EIS) and a biological assessment to support its final decision. NOAA Fisheries and USFWS each issued a biological opinion pursuant to section 7(a)(2) of the Endangered Species Act. The biological opinions included conservation reviews pursuant to section 7(a)(l) Act (16 U.S.C. 1536(a)(1) and (2)). Copies of the biological assessment, its addendum, and the biological opinions are in the project record for the 2012 rule and can be viewed online at: http:// www.fs.usda.gov/planningrule. Because this final rule is to clarify the Department’s original intent for plan amendment processes and requirements, and the amendment does not change the planning requirements for endangered or threatened species, the Department has concluded that this final rule does not require additional consultation under sections 7(a)(1) and 7(a)(2) of the Endangered Species Act. Regulatory Certifications 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 it does not constitute a significant energy action as defined in the Executive Order. Environmental Impacts In issuing the 2012 planning rule, the Department prepared both an Environmental Impact Statement (EIS) and a biological assessment to support its final decision. The EIS is available online at http://www.fs.usda.gov/ planningrule. The Department has concluded that this final rule does not require additional documentation under the National Environmental Policy Act. Because this final rule is to clarify the Department’s original intent for plan amendment processes and requirements, the range of effects included in the Department’s prior NEPA analysis covers this final rule. Therefore, there is no need to supplement the National Forest System Land Management Planning Rule Final Programmatic Environmental Impact Statement of January 2012. Consultation and Coordination With Indian Tribal Governments This final rule has been reviewed under Executive Order 13175 of PO 00000 Frm 00062 Fmt 4700 Sfmt 4700 November 6, 2000, Consultation and Coordination with Indian Tribal Governments. It has been determined that this final rule would not have Tribal implications as defined by Executive Order 13175, and therefore, advance consultation with Tribes is not required. Regulatory Impact Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB) will review all significant rules. OIRA has determined that this rule is not significant. Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation’s regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovated, and least burdensome tools for achieving regulatory ends. The Executive Order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements. Regulatory Flexibility This 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. Federalism The Forest Service has considered this final rule under the requirements of Executive Order 13132 on federalism. The Agency has determined 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 Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, the Agency has determined that no E:\FR\FM\15DER1.SGM 15DER1 Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations further determination of federalism implications is necessary at this time. No Takings Implications This final rule has been analyzed in accordance with the principles and criteria in Executive Order 12630. It has been determined that this final rule does not pose the risk of a taking of private property. Civil Justice Reform This final rule has been reviewed under Executive Order 12988 on civil justice reform. The Agency has not identified any State or local laws or regulations that are in conflict with this rule or that would impede full implementation of this rule. Nevertheless, in the event that such conflicts were to be identified, (1) all State and local laws and regulations that conflict with the final rule or that would impede its full implementation would be preempted; (2) no retroactive effect would be given to the final rule; and (3) it would not require administrative proceedings before parties may file suit in court challenging its provisions. rmajette on DSK2TPTVN1PROD with RULES 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 would not compel the expenditure of $100 million or more by any State, local, or Tribal government or anyone in the private sector. Therefore, a statement under section 202 of the Act is not required. Controlling Paperwork Burdens on the Public This final rule does not contain recordkeeping or reporting requirements or other information collection requirements as defined in 5 CFR part 1320. In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501– 3520), the Forest Service requested and received approval of a new information collection requirement for subpart B as stated in 36 CFR 219.61 and assigned control number 0596–0158 as stated in the final rule approval (77 FR 21161, April 9, 2012). Subpart B specifies the information that objectors must give in an objection to a plan, plan amendment, or plan revision (36 CFR 219.54(c)). However, recently the Agency learned that subpart B is not considered an information collection under the Paperwork Reduction Act of 1995. Subpart B is not an information collection because the notice indicating the availability of the plan, plan VerDate Sep<11>2014 14:00 Dec 14, 2016 Jkt 241001 amendment, or plan revision, the appropriate final environmental documents, the draft plan decision document, and the beginning of the objection period is a general solicitation. No person is required to supply specific information pertaining to the respondent, other than that necessary for self-identification. List of Subjects in 36 CFR Part 219 Administrative practice and procedure, Environmental impact statements, Indians, Intergovernmental relations, National forests, Reporting and recordkeeping requirements, Science and technology. Therefore, for the reasons set forth in the preamble, the Department amends 36 CFR part 219 as follows: PART 219—PLANNING 1. The authority citation for part 219 continues to read as follows: ■ Authority: 5 U.S.C. 301; 16 U.S.C. 1604, 1613. ■ 2. Revise § 219.3 to read as follows: § 219.3 Role of science in planning. The responsible official shall use the best available scientific information to inform the planning process required by this subpart for assessment; developing, amending, or revising a plan; and monitoring. In doing so, the responsible official shall determine what information is the most accurate, reliable, and relevant to the issues being considered. The responsible official shall document how the best available scientific information was used to inform the assessment, the plan or amendment decision, and the monitoring program as required in §§ 219.6(a)(3) and 219.14(a)(3). Such documentation must: Identify what information was determined to be the best available scientific information, explain the basis for that determination, and explain how the information was applied to the issues considered. 3. Revise the introductory text to § 219.8 to read as follows: ■ § 219.8 Sustainability. A plan developed or revised under this part must provide for social, economic, and ecological sustainability within Forest Service authority and consistent with the inherent capability of the plan area, as follows: * * * * * 4. Revise the introductory text to § 219.9 to read as follows: ■ PO 00000 Frm 00063 Fmt 4700 Sfmt 4700 90737 § 219.9 Diversity of plant and animal communities. This section adopts a complementary ecosystem and species-specific approach to maintaining the diversity of plant and animal communities and the persistence of native species in the plan area. Compliance with the ecosystem requirements of paragraph (a) of this section is intended to provide the ecological conditions to both maintain the diversity of plant and animal communities and support the persistence of most native species in the plan area. Compliance with the requirements of paragraph (b) of this section is intended to provide for additional ecological conditions not otherwise provided by compliance with paragraph (a) of this section for individual species as set forth in paragraph (b) of this section. A plan developed or revised under this part must provide for the diversity of plant and animal communities, within Forest Service authority and consistent with the inherent capability of the plan area, as follows: * * * * * ■ 5. Revise the introductory text to § 219.10 to read as follows: § 219.10 Multiple use. While meeting the requirements of §§ 219.8 and 219.9, a plan developed or revised under this part must provide for ecosystem services and multiple uses, including outdoor recreation, range, timber, watershed, wildlife, and fish, within Forest Service authority and the inherent capability of the plan area as follows: * * * * * ■ 6. Amend § 219.11 by revising the introductory text and paragraph (d)(4) to read as follows: § 219.11 Timber requirements based on the NFMA. While meeting the requirements of §§ 219.8 through 219.10, a plan developed or revised under this part must include plan components, including standards or guidelines, and other plan content regarding timber management within Forest Service authority and the inherent capability of the plan area, as follows: * * * * * (d) * * * (4) Where plan components will allow clearcutting, seed tree cutting, shelterwood cutting, or other cuts designed to regenerate an even-aged stand of timber, the plan must include standards limiting the maximum size for openings that may be cut in one harvest operation, according to geographic E:\FR\FM\15DER1.SGM 15DER1 90738 Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations areas, forest types, or other suitable classifications. Except as provided in paragraphs (d)(4)(i) through (iii) of this section, this limit may not exceed 60 acres for the Douglas-fir forest type of California, Oregon, and Washington; 80 acres for the southern yellow pine types of Alabama, Arkansas, Georgia, Florida, Louisiana, Mississippi, North Carolina, South Carolina, Oklahoma, and Texas; 100 acres for the hemlock-Sitka spruce forest type of coastal Alaska; and 40 acres for all other forest types. * * * * * ■ 7. Amend § 219.13 by revising paragraphs (a) and (b) to read as follows: rmajette on DSK2TPTVN1PROD with RULES § 219.13 Plan amendment and administrative changes. (a) Plan amendment. A plan may be amended at any time. Plan amendments may be broad or narrow, depending on the need for change, and should be used to keep plans current and help units adapt to new information or changing conditions. The responsible official has the discretion to determine whether and how to amend the plan and to determine the scope and scale of any amendment. Except as provided by paragraph (c) of this section, a plan amendment is required to add, modify, or remove one or more plan components, or to change how or where one or more plan components apply to all or part of the plan area (including management areas or geographic areas). (b) Amendment requirements. For every plan amendment, the responsible official shall: (1) Base an amendment on a preliminary identification of the need to change the plan. The preliminary identification of the need to change the plan may be based on a new assessment; a monitoring report; or other documentation of new information, changed conditions, or changed circumstances. When a plan amendment is made together with, and only applies to, a project or activity decision, the analysis prepared for the project or activity may serve as the documentation for the preliminary identification of the need to change the plan. (2) Provide opportunities for public participation as required in § 219.4 and public notification as required in § 219.16. The responsible official may combine processes and associated public notifications where appropriate, considering the scope and scale of the need to change the plan. The responsible official must include information in the initial notice for the amendment (§ 219.16(a)(1)) about which substantive requirements of §§ 219.8 through 219.11 are likely to be directly VerDate Sep<11>2014 14:00 Dec 14, 2016 Jkt 241001 related to the amendment (§ 219.13(b)(5)). (3) Amend the plan consistent with Forest Service NEPA procedures. The appropriate NEPA documentation for an amendment may be an environmental impact statement, an environmental assessment, or a categorical exclusion, depending upon the scope and scale of the amendment and its likely effects. Except for an amendment that applies only to one project or activity, a proposed amendment that may create a significant environmental effect and thus requires preparation of an environmental impact statement is considered a significant change in the plan for the purposes of the NFMA and therefore requires a 90-day comment period for the proposed plan and draft environmental impact statement (§ 219.16(a)(2)), in addition to meeting the requirements of this section. (4) Follow the applicable format for plan components set out at § 219.7(e) for the plan direction added or modified by the amendment, except that where an amendment to a plan developed or revised under a prior planning regulation would simply modify the area to which existing direction applies, the responsible official may retain the existing formatting for that direction. (5) Determine which specific substantive requirement(s) within §§ 219.8 through 219.11 are directly related to the plan direction being added, modified, or removed by the amendment and apply such requirement(s) within the scope and scale of the amendment. The responsible official is not required to apply any substantive requirements within §§ 219.8 through 219.11 that are not directly related to the amendment. (i) The responsible official’s determination must be based on the purpose for the amendment and the effects (beneficial or adverse) of the amendment, and informed by the best available scientific information, scoping, effects analysis, monitoring data or other rationale. (ii) When basing the determination on adverse effects: (A) The responsible official must determine that a specific substantive requirement is directly related to the amendment when scoping or NEPA effects analysis for the proposed amendment reveals substantial adverse effects associated with that requirement, or when the proposed amendment would substantially lessen protections for a specific resource or use. (B) If the appropriate NEPA documentation for an amendment is a categorical exclusion or an environmental assessment accompanied PO 00000 Frm 00064 Fmt 4700 Sfmt 4700 by a finding of no significant impact (§ 219.13(b)(3)), there is a rebuttable presumption that the amendment will not have substantial adverse effects. (6) For an amendment to a plan developed or revised under a prior planning regulation, if species of conservation concern (SCC) have not been identified for the plan area and if scoping or NEPA effects analysis for the proposed amendment reveals substantial adverse impacts to a specific species, or if the proposed amendment would substantially lessen protections for a specific species, the responsible official must determine whether such species is a potential SCC, and if so, apply section § 219.9(b) with respect to that species as if it were an SCC. * * * * * ■ 8. Amend § 219.14 as follows: ■ a. Revise the heading and introductory text to paragraph (a); ■ b. Remove paragraph (a)(2); ■ c. Redesignate paragraphs (a)(3) through (6) as paragraphs (a)(2) through (5), respectively; ■ d. Redesignate paragraph (b) as paragraph (d) and add new paragraph (b); ■ e. Add paragraph (c). The revisions and additions read as follows: § 219.14 Decision document and planning records. (a) Decision document approving a new plan, plan amendment, or revision. The responsible official shall record approval of a new plan, plan amendment, or revision in a decision document prepared according to Forest Service NEPA procedures (36 CFR part 220). The decision document must include: * * * * * (b) Decision document for a new plan or plan revision. In addition to meeting the requirements of paragraph (a) of this section, the decision document must include an explanation of how the plan components meet the sustainability requirements of § 219.8, the diversity requirements of § 219.9, the multiple use requirements of § 219.10, and the timber requirements of § 219.11. (c) Decision document for a plan amendment. In addition to meeting the requirements of paragraph (a) of this section, the decision document must explain how the responsible official determined: (1) The scope and scale of the plan amendment; and (2) Which specific requirements within §§ 219.8 through 219.11 apply to the amendment and how they were applied. * * * * * E:\FR\FM\15DER1.SGM 15DER1 Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations 9. Amend § 219.16 by revising paragraph (a)(2) to read as follows: ■ § 219.16 Public notifications. * * * * * (a) * * * (2) To invite comments on a proposed plan, plan amendment, or plan revision, and associated environmental analysis. For a new plan, plan amendment, or a plan revision for which a draft environmental impact statement (EIS) is prepared, the comment period is at least 90 days, except for an amendment that applies only to one project or activity. For an amendment that applies only to one project or activity for which a draft EIS is prepared, the comment period is at least 45 days unless a different time period is required by law or regulation or authorized pursuant to 40 CFR 1506.10(d). For an amendment for which a draft EIS is not prepared, the comment period is at least 30 days; * * * * * Dated: December 9, 2016. Robert Bonnie, Under Secretary, Natural Resources and Environment. [FR Doc. 2016–30191 Filed 12–14–16; 8:45 am] BILLING CODE 3411–15–P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 1, 25, 80 and 95 [WTB Docket No. 14–36; FCC 16–119] Maritime Radio Equipment and Related Matters Federal Communications Commission. ACTION: Final rule. AGENCY: In this document, the Federal Communications Commission (Commission or FCC) addresses a number of important issues regarding updating rules and requirements for technologies used to locate and rescue distressed ships and individuals in distress at sea or on land to provide better and more accurate data to rescue personnel. The Commission also addresses issues regarding radar equipment, the use of portable marine Very High Frequency (VHF) transmitters by persons on shore; permitting VHF digital small message service (VDSMS); and allowing assignment or transfer of control of ship station licenses. The Commission is amending its rules to permit the maritime community to make use of the most advanced and reliable communications technologies available for the alerting of search and rescue rmajette on DSK2TPTVN1PROD with RULES SUMMARY: VerDate Sep<11>2014 14:00 Dec 14, 2016 Jkt 241001 authorities when a vessel or individual is in distress, and to further the Commission’s goal of ensuring that the spectrum allocated for emergency communications is used effectively and efficiently. DATES: Effective January 17, 2017 except for the amendments to §§ 80.233, 80.1061, 95.1402 and 95.1403 which contain information collection requirements that are not effective until approved by the Office of Management and Budget. The FCC will publish a document in the Federal Register announcing the effective date for those amendments. The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of January 17, 2017, except for the publications in §§ 80.7 (amendatory instruction #7), 80.233, 80.1061, 95.1402 and 95.1403 which are in sections that contain information collection requirements that are not effective until approved by the Office of Management and Budget. The FCC will publish a document in the Federal Register announcing the approval date for the incorporation by reference of publications into those sections. ADDRESSES: Federal Communications Commission, 445 12th Street SW., Washington, DC 20554. In addition to filing comments with the Office of the Secretary, a copy of any comments on the Paperwork Reduction Act information collection requirements contained herein should be submitted to Cathy Williams, Federal Communications Commission, 1–C823, 445 12th Street SW., Washington, DC 20554, or send an email to PRA@fcc.gov. The Commission will send a copy of this Report & Order, in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A). FOR FURTHER INFORMATION CONTACT: James Shaffer, James.Shaffer@FCC.gov, Wireless Telecommunications Bureau, (202) 418–0687, or TTY (202) 418–7233. For additional information concerning the Paperwork Reduction Act information collection requirements contained in this document, contact Cathy Williams, Cathy.Williams@ fcc.gov, (202) 418–2918, or send an email to PRA@fcc.gov. SUPPLEMENTARY INFORMATION: This is a summary of the Federal Communications Commission’s Report and Order (R&O), in WT Docket No. 14– 36, FCC 16–119, adopted on August 31, 2016, and released on September 1, 2016. The full text of this document is available for inspection and copying PO 00000 Frm 00065 Fmt 4700 Sfmt 4700 90739 during normal business hours in the FCC Reference Center, 445 12th Street SW., Washington, DC 20554. The full text may also be downloaded at: www.fcc.gov. Alternative formats are available to persons with disabilities by sending an email to fcc504@fcc.gov or by calling the Consumer & Governmental Affairs Bureau at 202– 418–0530 (voice), 202–418–0432 (tty). 1. The Report and Order will permit the maritime community to make use of the most advanced and reliable communications technologies available for the alerting of search and rescue authorities when a vessel is in distress. Our decisions herein also further the Commission’s goal of ensuring that the spectrum allocated for maritime communications is used effectively and efficiently. 2. The Report and Order incorporates by reference standards for certain marine and personal radio safety devices and a standard to provide VHF Digital Small Message Service (VDSMS) on certain marine VHF channels. For 406 MHz Emergency Position Indicating Radiobeacons (EPIRBs) the Radio Technical Commission for Maritime Services (RTCM) Standard 11000.3 provides the latest technical and testing procedures for EPRIBs and requires them to have an internal navigation device designed to provide position data upon activation. For 406 MHz Personal Locator Beacons (PLBs) the RTCM Standard 11010.2 provides updated technical requirements and adds test procedures for PLBs with integral GNSS receivers or internal navigation devices. For Satellite Emergency Notification Devices (SENDs) RTCM Standard 12800.0 provides minimum requirements for the functional and technical performance of SENDs to ensure reliability in emergency situations. For Maritime Survivor Locating Devices (MSLDs) RTCM Standard 11901.1 provides minimum functional and technical performance of MSLDs. For Automatic Identification System Search and Rescue Transmitters (AIS–SARTs) the International Maritime Organization (IMO) Resolution MSC.246(83) and the International Electrotechnical Commission (IEC) 61097–14 provide the minimum performance requirements and technical specifications for AIS–SARTs. Finally, for VHF digital small message services (VDSMS) RTCM Standard 12301.1 provides technical standard that enables transmission of short digital messages without interfering with other communications on the same channel. Copies of the RTCM documents are available and may be obtained from the Radio Technical Commission for E:\FR\FM\15DER1.SGM 15DER1

Agencies

[Federal Register Volume 81, Number 241 (Thursday, December 15, 2016)]
[Rules and Regulations]
[Pages 90723-90739]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30191]


=======================================================================
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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 219

RIN 0596-AD28


National Forest System Land Management Planning

AGENCY: Forest Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The U.S. Department of Agriculture is amending regulations 
pertaining to the National Forest System Land Management Planning. This 
final rule amends the 2012 rule and is intended to clarify the 
Department's direction for plan amendments, including direction for 
amending land management plans developed under the 1982 rule.

DATES: This rule is effective January 17, 2017.

ADDRESSES: For more information, refer to the World Wide Web/Internet 
at: http://www.fs.usda.gov/planningrule. More information may be 
obtained on 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: Ecosystem Management Coordination 
staff's Assistant Director for Planning Andrea Bedell Loucks at 202-
295-7968 or Planning Specialist Regis Terney at 202-205-1552.

SUPPLEMENTARY INFORMATION: The Forest Service proposed changing the 
existing land management planning rule to clarify the amendment process 
for land management plans. The proposed rule to amend the 2012 rule 
(hereafter referred to as the proposed rule) was published in the 
Federal Register on October 12, 2016, at 81 FR 70381.

Background

    The National Forest Management Act (NFMA) requires the Forest 
Service to develop land management plans to guide management of the 154 
national forests, 20 grasslands, and 1 prairie that comprise the 193 
million acre National Forest System (NFS). 16 U.S.C. 1604.
    The NFMA required the Secretary of Agriculture to develop a 
planning rule ``under the principles of the Multiple-Use Sustained-
Yield Act of 1960, that set[s] out the process for the development and 
revision of the land management plans, and the guidelines and 
standards'' (16 U.S.C. 1604(g)). Compliance with this requirement has 
had a long history, culminating in the current land management planning 
rule issued April 9, 2012 (77 FR 22160, codified at title 36, Code of 
Federal Regulations, part 219 (36 CFR part 219)) (hereinafter referred 
to as the 2012 rule).
    In 1979, the U.S. Department of Agriculture (Department) issued the 
first regulations to comply with this statutory requirement. The 1979 
regulations were superseded by the 1982 planning rule (hereinafter 
referred to as the 1982 rule).
    Numerous efforts were made over the past three decades to improve 
on the 1982 rule. On November 9, 2000, the Department issued a new 
planning rule that superseded the 1982 rule (65 FR 67514). Shortly 
after the issuance of the 2000 rule, a review of the rule found that it 
would be unworkable and recommended that a new rule should be 
developed. The Department amended the 2000 rule so that the Forest 
Service could continue to use the 1982 rule provisions until a new rule 
was issued (67 FR 35431, May 20, 2002). Attempts to replace the 2000 
rule, in 2005 and 2008, were set aside by the courts on procedural 
grounds, with the result that the 2000 rule remained in effect. In 
2009, the Department reinstated the 2000 rule in the Code of Federal 
Regulations to eliminate any confusion over which rule was in effect 
(74 FR 67062, December 18, 2009; 36 CFR part 219, published at 36 CFR 
parts 200 to 299, revised as of July 1, 2010). In reinstating the 2000 
rule in the CFR, the Department specifically provided for the continued 
use of the 1982 rule provisions, which the Forest Service used for all 
land management planning done under the 2000 rule. The 1982 rule 
procedures have therefore formed the basis of all existing Forest 
Service land management plans.
    In 2012, after extensive public engagement, the Department issued a 
new planning rule to update the thirty-year old 1982 rule. The 2012 
rule sets forth directions for developing, amending, revising, and 
monitoring land management plans (77 FR 21260, April 9, 2012). The 2012 
rule is available online at https://www.gpo.gov/fdsys/pkg/CFR-2013-title36-vol2/pdf/CFR-2013-title36-vol2-part219.pdf.
    On February 6, 2015, the Forest Service issued National Forest 
System Land Management Planning Directives for the 2012 Planning Rule 
(planning directives; see 80 FR 6683). The planning directives are the 
Forest Service Handbook (FSH) 1909.12 and Forest Service Manual (FSM) 
Chapter 1920, which together establish procedures and responsibilities 
for carrying out the 2012 rule. The planning

[[Page 90724]]

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

The 2012 Rule and Plan Amendments

    There are 127 land management plans for the administrative units of 
the NFS, all developed using the 1982 rule procedures. Sixty-eight of 
the 127 land management plans are past due for revision: most were 
developed between 1983 and 1993 and should have been revised between 
1998 and 2008, based on NFMA direction to revise plans at least once 
every 15 years (16 U.S.C. 1604(f)(5)). The repeated efforts to produce 
a new planning rule over the past decades contributed to the delay in 
plan revisions. An additional challenge was that instead of amending 
plans as conditions on the ground changed, responsible officials often 
waited to make changes all at once during a plan revision, resulting in 
a drawn-out, difficult, and costly revision process.
    In promulgating the 2012 rule, the Department intended to create a 
more efficient and effective planning process. The planning framework 
set forth in the 2012 rule includes three phases: Assessment; plan 
development, amendment, or revision; and monitoring. The 2012 rule 
supports an integrated approach to the management of resources and 
uses, incorporates a landscape-scale context for management, and is 
intended to help the Forest Service adapt to changing conditions and 
improve management based on new information and monitoring.
    The concept of adaptive management is an integral part of the 2012 
rule. Recognizing that adaptive management requires a more responsive 
and iterative approach to modifying land management plans to reflect 
new information, the Department's intent when developing the 2012 rule 
was for the planning framework to encourage and support the more 
regular use of amendments to update plans between revisions. More 
frequent amendments should also make the revision process less 
cumbersome because plans will not become as out-of-date between 
revisions.
    Plans may be amended at any time. The 2012 rule provides that a 
plan amendment is required to add, modify, or remove one or more plan 
components, or to change how or where one or more plan components apply 
to all or part of the plan area (including management areas or 
geographic areas).
    The 2012 rule included a 3-year transition period during which 
responsible officials could use either the 2012 rule or the 1982 rule 
procedures to amend plans approved or revised under the 1982 rule 
procedures (36 CFR 219.17(b)(2)). The 3-year transition period expired 
on May 9, 2015, and all plan amendments now must be approved under the 
requirements of the 2012 rule.
    In 2014, the Forest Service began to use the 2012 rule to amend a 
number of existing land management plans, all of which were developed 
using the 1982 rule procedures (2012 rule amendments to 1982 rule 
plans). Currently amendments to 43 Forest Service land management plans 
are pending. As the Forest Service gained some experience with the 
process for making 2012 rule amendments to 1982 rule plans and 
discussed with the Committee early lessons learned, the Committee 
recommended additional clarity on how to apply the 2012 rule's 
substantive requirements (requirements related to sustainability, plant 
and animal diversity, multiple uses and timber set forth within 36 CFR 
219.8 through 219.11) when amending 1982 rule plans.
    While the 2012 rule includes direction specific to amendments, and 
while there is evidence of the Department and Forest Service's intent 
in rule wording, preamble text, and planning directives, the 2012 rule 
did not explicitly direct how to apply the substantive requirements set 
forth in the 2012 rule when amending 1982 rule plans. Using the 2012 
rule to amend 1982 rule plans can be a challenge because there are 
fundamental structural and content differences between the two rules. 
Because of the underlying differences, 1982 rule plans likely will not 
meet all of the substantive requirements of the 2012 rule. It is 
therefore important for the Department to clarify how responsible 
officials should apply the substantive requirements of the 2012 rule 
when amending 1982 rule plans in a way that reflects Departmental 
expectations.
    While plans developed or revised under the 2012 rule will be 
expected to meet all of the 2012 rule's substantive requirements at the 
time those plans are approved, clarity in how to apply the 2012 rule to 
amend those plans in the future will also be important.
    This final rule amending the 2012 rule (hereinafter referred to as 
the final rule) is intended to clarify the Department's direction for 
plan amendments, including direction for amending 1982 rule plans. 
These clarifications reflect NFMA requirements; the Department's intent 
and the plain wording of the 2012 rule, the preambles for the proposed 
and final 2012 rule, and the planning directives implementing the 2012 
rule; feedback from the Committee; public comments; and Forest Service 
planning expertise.

Applying the 2012 Rule To Amend Plans

    Plans are changed in two distinctly different ways. The NFMA 
requires revisions ``when conditions in a unit have significantly 
changed,'' and ``at least every 15 years'' (16 U.S.C. 1604(f)(5)). As 
the 2012 rule states, ``[a] plan revision creates a new plan for the 
entire plan area, whether the plan revision differs from the prior plan 
to a small or large extent'' (36 CFR 219.7(a)). The process for a plan 
revision requires, among other things, preparation of an environmental 
impact statement (36 CFR 219.7(c)).
    The NFMA also provides that ``plans can be amended in any manner 
whatsoever'' (16 U.S.C. 1604(f)(4)). As the Department explained in the 
preamble to the 2012 rule, ``[p]lan amendments incrementally change the 
plan as need arises.'' (77 FR 21161, 21237, April 9, 2012) (emphasis 
added). Unlike a plan revision, a plan amendment does not create a new 
plan; it results in an amended plan, with the underlying plan retained 
except where changed by the amendment. The Department explained its 
intent that with the 2012 rule, ``plans will be kept more current, 
effective and relevant by the use of more frequent and efficient 
amendments, and administrative changes over the life of the plan, also

[[Page 90725]]

reducing the amount of work needed for a full revision'' (Id.).
    The 2012 rule provides that, ``[t]he responsible official has the 
discretion to determine whether and how to amend the plan.'' (36 CFR 
219.13(a)). The 2012 rule reinforces this discretion by providing that 
the rule ``does not compel a change to any existing plan, except as 
required in Sec.  219.12(c)(1)'' (which establishes monitoring 
requirements). (36 CFR 219.17(c)).
    Under the 2012 rule, ``[p]lan amendments may be broad or narrow, 
depending on the need for change'' (36 CFR 219.13(a)); and amendments 
``could range from project specific amendments or amendments of one 
plan component, to the amendment of multiple plan components.'' (77 FR 
21161, 21237, April 9, 2012). Unlike for a plan revision, the 2012 rule 
does not require an environmental impact statement for every amendment; 
such a requirement would be burdensome and unnecessary for amendments 
without significant environmental effect, and ``would also inhibit the 
more frequent use of amendments as a tool for adaptive management to 
keep plans relevant, current and effective between plan revisions.'' 
(Preamble to final rule, 77 FR 21161, 21239, April 9, 2012). Instead, 
the 2012 rule provides that ``[t]he appropriate NEPA documentation for 
an amendment may be an environmental impact statement, an environmental 
assessment, or a categorical exclusion, depending upon the scope and 
scale of the amendment and its likely effects.'' (36 CFR 219.13(b)(3)).
    The 2012 rule gives responsible officials the discretion, within 
the framework of the 2012 rule's requirements, to tailor the scope and 
scale of an amendment to reflect the need to change the plan. No 
individual amendment is required to do the work of a revision. While 
the 2012 rule sets forth a series of substantive requirements for land 
management plans within Sec. Sec.  219.8 through 219.11, not every 
section or requirement within those sections will be directly related 
to the scope and scale of a given amendment. Although the Department 
recognizes that resources and uses are connected, the Department does 
not expect an individual plan amendment to do the work of a revision to 
bring an underlying plan into compliance with all of the substantive 
requirements identified in Sec. Sec.  219.8 through 219.11. The 
determination of which sections or requirements within those sections 
apply to an amendment will depend on the purpose and effects of the 
changes being proposed.
    However, a plan amendment must be done ``under the requirements 
of'' the 2012 rule (36 CFR 219.17(b)(2)). Therefore the responsible 
official's discretion is not unbounded. An amendment cannot be tailored 
so that the amendment fails to meet directly related substantive 
requirements of the rule. Rather, the responsible official must 
determine which substantive requirements within Sec. Sec.  219.8 
through 219.11 of the 2012 rule are directly related to the plan 
direction being added, modified or removed by the amendment, and apply 
those requirements to the amendment.
    As explained above, unlike a plan revision, a plan amendment does 
not create a new plan; it results in an amended plan, with the 
underlying plan retained except where changed by the amendment. 
Therefore, the amended plan will have plan direction changed by the 
amendment and plan direction that has not been changed. When amending a 
plan under the 2012 rule, a responsible official may choose not to 
change portions of the plan, even if those portions are inconsistent 
with a substantive requirement within Sec. Sec.  219.8 through 219.11, 
when such portions are not directly related to the purpose or effects 
of the amendment. A unit may have important needs for change beyond 
those that form the basis of any individual amendment. However, the 
responsible official's ability to target the scope and scale of an 
amendment is important for adaptive management, and will be especially 
critical for responsible officials amending 1982 plans.
    For example, the 2012 planning rule requires that the plan must 
include plan components to provide for scenic character, which is a 
term of art associated with the scenic management system that was 
developed in the mid-1990s. If the scope of an amendment to a 1982 plan 
includes changes to plan direction for the purpose of, or that would 
have an effect on, scenery management, then the responsible official 
must apply the 2012 rule requirement about scenic character to the 
changes being proposed. However, a responsible official is not 
otherwise required to review and modify a 1982 rule plan to meet the 
2012 rule's requirement to provide for scenic character. This is true 
even if there is also a separate, additional need to change the plan to 
protect scenery. The responsible official would have to address the 
scenic character requirement throughout the plan area in a plan 
revision, but in an amendment, the responsible official has the 
discretion to more narrowly focus on a specific need for change.
    The Department's intent that not every requirement within 
Sec. Sec.  219.8 through 219.11 will apply to every amendment of 1982 
rule plans is reflected in the following planning directives provision 
at FSH 1909.12, chapter 20, section 21.3:

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

    See also the Handbook's direction regarding documentation of a 
decision to approve an amendment of a 1982 rule plan: ``[f]or plan 
amendments, the decision document must discuss only those requirements 
of 36 CFR 219.8 through 219.11 that are applicable to the plan 
components that are being modified or added.'' (FSH 1909.12 ch. 20, 
sec. 21.3 (emphasis added)).
    Similar recognition is included in the 2012 rule's requirements for 
project consistency for 1982 rule plans, at 36 CFR 219.17(c).
    The distinction made in this provision between consistency within 
an amended plan with direction developed and approved pursuant to the 
2012 rule and direction developed or revised under a prior rule 
reflects that portions of a 1982 rule plan may be changed by an 
amendment and other portions may remain unchanged until revision.
    During the Department and Forest Service's conversations with the 
Committee about the Forest Service's early efforts to use the 2012 rule 
to amend 1982 rule plans, the Committee advised that some members of 
the public expressed confusion about how to apply the substantive 
requirements within Sec. Sec.  219.8 through 219.11 when amending 1982 
rule plans.
    For example, some members of the public suggested that because 
resources and uses are connected and changes to any one resource or use 
will impact other resources and uses, the 2012 rule therefore requires 
that all of the substantive provisions in Sec. Sec.  219.8 through 
218.11 be applied to every amendment. Other members of the public 
suggested an opposite view: That the 2012 rule gives the responsible 
official discretion to selectively pick and choose which, if any, 
provisions of the rule to apply, thereby allowing the responsible 
official to avoid 2012 rule requirements or even propose

[[Page 90726]]

amendments that would contradict the 2012 rule. Under this second 
interpretation, some members of the public hypothesized that a 
responsible official could amend a 1982 rule plan to remove plan 
direction that was required by the 1982 rule without applying relevant 
requirements in the 2012 rule.
    This final rule clarifies that neither of these interpretations is 
correct.
    The Department recognizes that resources and uses are connected and 
interrelated. However, an interpretation that the 2012 rule prevents a 
responsible official from distinguishing among connected resources and 
requires the application of all of the 2012 rule's substantive 
requirements to every amendment would essentially turn every amendment 
into a revision. Such an interpretation would curtail the Forest 
Service's ability to use amendments incrementally to change a plan, and 
directly contradicts the Department's intent as expressed in the 2012 
rule and supporting material that revisions and amendments serve 
different functions and that amendments be used to keep plans relevant, 
current and effective between plan revisions. The 2012 rule gives the 
responsible official the discretion to determine whether and how to 
amend a plan, including determining the scope and scale of an amendment 
based on a specific need to change the plan.
    At the same time, the responsible official's discretion to tailor 
the scope and scale of an amendment is not unbounded; the 2012 rule 
does not give a responsible official the discretion to amend a plan in 
a manner contrary to the 2012 rule by selectively applying, or avoiding 
altogether, substantive requirements within Sec. Sec.  219.8 through 
219.11 that are directly related to the changes being proposed. Nor 
does the 2012 rule give responsible officials discretion to propose 
amendments ``under the requirements'' of the 2012 rule that actually 
are contrary to those requirements, or to use the amendment process to 
avoid both 1982 and 2012 rule requirements (Sec.  219.17(b)(2)).
    This amendment to the 2012 rule clarifies that the responsible 
official is not required to apply every requirement of every 
substantive section (Sec. Sec.  219.8 through 219.11) to every 
amendment. However, the responsible official is required to apply those 
substantive requirements that are directly related to the plan 
direction being added, modified, or removed by the amendment. The 
responsible official must determine which substantive requirements are 
directly related to the changes being proposed based on the purpose and 
effects of the amendment, using the best available scientific 
information, scoping, effects analysis, monitoring data, and other 
rationale to inform the determination. The responsible official must 
provide early notice to the public of which substantive requirements 
are likely to be directly related to the amendment, and must clearly 
document the rationale for the determination of which substantive 
requirements apply and how they were applied as part of the decision 
document.
    This final rule ensures that the Forest Service can use the 2012 
rule to amend 1982 rule plans without any individual amendment bearing 
the burden of bringing the underlying plan into compliance with all of 
the 2012 rule's substantive requirements, even if unchanged direction 
in the 1982 rule plan fails to address, meet or is contrary to 2012 
rule requirements. Twenty-two forests are currently using the 2012 rule 
to revise their 1982 rule plans, but given Forest Service budget 
constraints and staff capacity, revision of all 127 of the Forest 
Service's 1982 rule plans will likely take more than 15 years. Because 
the 2012 rule allowed the continued use of the 1982 rule procedures to 
complete revisions that were underway at the time the 2012 rule was 
published (36 CFR 219.17(b)(3)), the most contemporary land management 
plan published using the 1982 rule procedures was approved in 2016, 
with a few more to come. The clarifications in this final rule will 
help ensure that the Forest Service can effectively use the 2012 rule 
to amend 1982 rule plans until they are revised.
    Future amendments to plans developed or revised under the 2012 rule 
will likely be less complicated than using the 2012 rule to amend 1982 
rule plans, because plans developed or revised under the 2012 rule are 
expected to meet all of the 2012 rule's substantive requirements at the 
time of approval. However, this final rule clarifies that responsible 
officials have the discretion to tailor the scope and scale of 
amendments to adaptively change plans whether an amendment is to a 1982 
rule plan or, in the future, to a 2012 rule plan. The final rule also 
supports transparency and public participation by clarifying 
notification and documentation requirements for applying the 2012 
rule's substantive requirements to amendments.

Clarifications

    This amendment to the 2012 rule clarifies that:
     The responsible official has the discretion to determine 
whether and how to amend a plan, and the scope and scale of a plan 
amendment, based on a need to change the plan.
     The responsible official must use the best available 
scientific information to inform the amendment process.
     The responsible official must determine which substantive 
requirements within Sec. Sec.  219.8 through 219.11 are directly 
related to plan direction being added, modified or removed by the 
amendment and apply those requirements to the amendment in a way that 
is commensurate with the scope and scale of the amendment.
     The responsible official is not required to apply any 
substantive requirement within Sec. Sec.  219.8 through 219.11 that is 
not directly related to the amendment.
     The determination of which requirements are directly 
related to an amendment must be based on the purpose and effects 
(beneficial or adverse) of the changes being proposed, and informed by 
the best available scientific information, scoping, effects analysis, 
monitoring data or other rationale.
     The responsible official must include information in the 
initial notice for the amendment about which substantive requirements 
of Sec. Sec.  219.8 through 219.11 are likely to be directly related to 
the amendment.
     The decision document for an amendment must include a 
rationale for the responsible official's determination of the scope and 
scale of the amendment, which requirements within Sec. Sec.  219.8 
through 219.11 are directly related, and how they were applied.
     If species of conservation concern (SCC) have not yet been 
identified for a plan area and scoping or NEPA analysis for a proposed 
amendment reveals substantial adverse impacts to a specific species, or 
the proposal would substantially lessen protections for a specific 
species, the responsible official must determine whether that species 
is a potential SCC. If so, the responsible official must apply the 
requirements of 2012 rule with respect to that species as if it were an 
SCC.
     An amendment that applies only to one project or activity 
is not considered a significant change in the plan for the purposes of 
the NFMA, but is still subject to NEPA requirements.
     The Department corrected a mistake made on July 27, 2012 
when the Forest Service inadvertently removed a sentence about the 
maximum size limits for areas to be cut in one harvest operation in 
Sec.  219.11(d)(4).

Response to Comments

    The following is a description of specific comments received on the

[[Page 90727]]

proposed rule, responses to comments, and changes made in response to 
comments. Each comment received consideration in the development of the 
final rule.

General Comments

    The Department received the following comments not specifically 
tied to a particular section of the October 12, 2016 proposed rule.
General Comments on Rulemaking Effort
    Comment: Several respondents argue for changes to the 2012 rule 
other than the changes in the proposed rule. For example, one 
respondent requested that the term ``aquifer'' be included after the 
term ``watershed'' in each instance that the term ``watershed'' is used 
in the existing rule. That same respondent recommends that groundwater 
monitoring be added to the monitoring program requirements of Sec.  
[thinsp]219.12. A respondent requested we focus more on the forestry 
side to manage timber better. A respondent recommended the planning 
rule make it clear that ``other content'' of Sec.  219.13(c)) does not 
include 1982 rule monitoring plans, so that changing these monitoring 
plans would require a plan amendment. The respondent also recommended 
that the rule clarify project consistency requirements regarding 
amended plans that include direction based on both the 1982 rule and 
2012 rule because the two rules interpret the consistency requirement 
differently. Yet another respondent recommended that the planning rule 
require buffers to overly restrictive management policies where the 
communities and other private landowners within the boundaries of the 
forest require access or forest resources should be considered for 
economic development of those adjacent lands and community support.
    Response: These suggestions focus on parts of the 2012 rule for 
which changes were not proposed. Because these are outside the scope of 
the proposal, this final rule is not the appropriate means to make such 
changes. Pursuant to Executive Order 13563--Improving Regulation and 
Regulatory Review, the Department will consider these comments under 
retrospective review of the planning rule in the future.
    Comment: Planning directives. A respondent requested the Forest 
Service issue planning directives about environmental analysis and NFMA 
diversity requirements to support the rule simultaneously with the 
rule.
    Response: The Department decided to not issue directives 
simultaneously with the rule because the need to obtain public comment 
on those directives before we issued them would unnecessarily delay the 
final rule and could delay pending amendments to existing plans. The 
Department also believes that, while great effort has been made to 
foresee how the clarifications in this final rule will operate, it may 
be more helpful to issue directives if necessary after gaining 
practical experience through implementation, and learning the extent to 
which additional clarification is needed.
    Comment: Consultation with affected Alaska Native Corporations and 
tribes. An Alaska Native Corporation (ANC) wrote that it appreciated 
the opportunity to comment on the Planning Rule Amendment. They also 
said the Forest Service should consult with the ANC and engage in 
meaningful dialog about these issues much earlier in the process.
    Response: The Forest Service contacted the respondent to clarify 
the intent and scope of their comment. The spokesman for the respondent 
stated the ANC does not want consultation prior to publication of this 
final rule, but was simply pointing out some inefficiencies in the 
process. He said the respondent will be satisfied to see the response 
to comments.
    The Forest Service is fully committed to meeting its 
responsibilities for consultation, and appreciates the outreach from 
the respondent. The Forest Service had determined at the time of the 
proposal that consultation was not required for this amendment because 
there was extensive consultation associated with developing the 2012 
rule, the proposed changes were simply clarifications of process for 
that rule, and there are no 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. However, the Forest Service 
Regional Office in Juneau did send a notice of the Proposed Planning 
Rule Amendment comment period to Alaska Native Corporations and tribes. 
The notice said that the Forest Service would meet with any Alaska 
Native Corporation or Tribe expressing an interest in discussing the 
proposed changes and how the amendment to the 2012 rule might benefit 
our collective work in forest management and restoration. The Forest 
Service will continue to be available to meet with any Alaska Native 
Corporation or Tribe when implementing the 2012 rule and these 
clarifications for amending plans under the 2012 rule.
    Comment: Several respondents were supportive of the proposed 
rulemaking. Several respondents agreed with the Forest Service that the 
2012 rule intended for amendments to be routine, timely, less 
cumbersome and flexible, allowing for adaptive management. Several 
respondents said that they support the Department acting to clarify the 
expectations for plan amendments, including expectations for amending 
1982 rule plans.
    Response: Thank you for taking the time to comment.
    Comment: Plan amendments should identify and give consideration of 
rural communities. A respondent said that consideration of the 
community's cultural, social and economic needs, especially in areas 
struggling economically, should be recognized as the key component in 
any Plan revision. Another respondent indicated the burden the plan 
amendment process places on industry supporting small communities 
particularly local sawmill and ranching industries. These industries 
were stated to be important to local economies and reliant on National 
Forests.
    Response: The 2012 rule already has many requirements for the 
consideration of local communities' cultural, social, and economic 
needs, including during the amendment process. Section 219.4 requires 
the responsible official to engage local communities, as well as to 
coordinate with other public planning efforts, including State and 
local governments, and Tribes. Section 219.4(a)(3) requires that the 
responsible official request ``information about native knowledge, land 
ethics, cultural issues, and sacred and culturally significant sites'' 
during consultation and opportunities for Tribal participation. Section 
219.6(b) requires in the assessment that responsible officials identify 
and evaluate existing relevant information about social, cultural, and 
economic conditions. Section 219.8(b) requires that plans provide plan 
components to contribute to economic and social sustainability taking 
into account social, cultural, and economic conditions relevant to the 
area influenced by the plan. Section 219.10(b)(1)(ii) requires plan 
components for a new plan or plan revision to provide for ``protection 
of cultural and historic resources,'' and ``management of areas of 
tribal importance.'' Section 219.12 requires monitoring progress toward 
meeting the desired conditions and objectives in the plan, including 
for providing multiple use opportunities.
    In addition, the Forest Service Land Management Planning Handbook

[[Page 90728]]

requires the plan monitoring program to contain one or more questions 
and associated indicators addressing the plan's contributions to 
communities, social and economic sustainability of communities, 
multiple use management in the plan area, or progress toward meeting 
the desired conditions and objectives related to social and economic 
sustainability (FSH 1909.12, ch. 30, sec. 32.13f).
    Comment: Adaptive management. Respondents commented that adaptive 
management is an essential part of the 2012 rule and as such, 
additional clarifications should be included to facilitate, rather than 
discourage, adaptive management. Several respondents expressed concern 
that the existing and the proposed rule would impose burdens that would 
discourage the responsible official from undertaking plan amendments 
because of a lack of clarity. They said it was not clear how the Forest 
Service would determine which substantive provisions of the 2012 rule 
require changes to the plan. The respondent indicated that this 
ambiguity may result in less adaptive management. One respondent said 
the burden associated with staff and financial capability may make some 
forests less likely to pursue amendments and adaptive management.
    Response: The Department agrees that adaptive management and 
preserving the responsible official's flexibility in amending plans are 
essential to the 2012 rule. The Department made changes between the 
proposed and final rule to reduce ambiguity and provide clarity. The 
final rule explains that responsible officials must determine which 
specific substantive requirement(s) within Sec. Sec.  219.8 through 
219.11 are directly related to a plan amendment and then apply those 
requirements to the amendment. The Department removed the paragraph 
that would have required the responsible official to ``[e]nsure that 
the amendment avoids effects that would be contrary'' to the rule 
requirements, which some respondents found confusing. The rule is now 
clearer. For further details on the changes made to support adaptive 
management and preserve the responsible official's ability to amend 
plans under the 2012 rule, see ``Amend Sec.  219.13 to add paragraph 
(b)(5)'' below.
    Comment: Proposed changes should not apply to plans revised under 
the 2012 rule. A respondent stated that a 2012 rule plan is expected to 
meet all of rule requirements and any amendment to such plan should be 
evaluated on the basis of how the entire amended plan meets the 
provision.
    Response: The Department believes that when amending any plan the 
responsible official should not be required to undertake an extensive 
review of an entire plan and prove that it continues to meet all of the 
requirements within Sec. Sec.  219.8 through 219.11. For an amendment 
of a 2012 rule plan, the responsible official must apply the 
substantive requirement(s) within Sec. Sec.  219.8 through 219.11 that 
are directly related to the amendment. The clear intent of the 2012 
rule is that amendments be used to incrementally change plans. The 
incremental nature of amendments applies whether the amendment is to a 
2012 or a 1982 rule plan, and the clarifications in this final rule 
must preserve that flexibility and 2012 rule intent.
    Comment: Limiting the applicability of 2012 rule requirements when 
changing land allocations. One respondent is concerned about the burden 
the proposed rule imposes on small changes to area allocations. The 
respondent said that, any change in a land allocation reduces the 
application of one aspect of the planning rule to favor another (e.g., 
a change can favor ecological integrity over economic sustainability). 
The respondents further states that the rule allows the responsible 
official to find a balance in the overall plan, but it remains unclear 
how a change in land allocation for a small area can meet these 
multiple and perhaps contradictory provisions for just the change being 
considered.
    Response: The 2012 rule did not require that every resource or use 
be present in every area. The Department clarifies in this final rule 
that directly related specific substantive requirements within 
Sec. Sec.  219.8 through 219.11 apply within the scope and scale of the 
amendment. Changes in land allocation for a small area would likely 
require a similarly narrow application of the directly related 
substantive requirements, depending on the purpose and effects of the 
changes. It is unlikely that a change in land allocation for a small 
area would have substantial adverse effects.
    Comment: An alternate approach. A respondent suggested an alternate 
approach to the proposed rule that would not require the determination 
of which rule requirements directly relate to a proposed plan 
amendment. The respondent suggested instead setting clear sideboards 
for each type of plan amendment based upon the substantive provisions 
of the 2012 rule. As an example the respondent suggested not allowing 
plan amendment if the consequences would lead to a sensitive species or 
an SCC (if identified) no longer having the ecological conditions 
necessary to provide for a viable population in the plan area. The 
respondent further suggests that similar specific sideboards can be 
identified for other requirements including, air, soil and water, 
riparian areas key ecosystem characteristics, rare communities, tree 
diversity, and other items including: sustainable recreation, cultural 
and historic resources, areas of tribal importance, wilderness, 
research, wild and scenic rivers.
    Response: The Department believes that a rule identifying 
sideboards for each type of plan amendment and associated substantive 
provisions of the 2012 rule would be overly complex and may not be able 
to anticipate or account for variation across the 127 plan areas of the 
National Forest System. The Department believes the better approach is 
for responsible officials to apply specific substantive requirements 
within the 2012 rule to an amendment when directly related to the 
changes being proposed by that amendment.
    Comment: Environmental Impacts. One respondent commented on the 
Environmental Impacts discussion in the Regulatory Certification 
section. The respondent agreed with the Forest Service that the 
proposed rule's impacts were within the range of environmental analysis 
in the January, 2012 environmental impact statement prepared for the 
planning rule. The respondent added, however, that it disagreed with 
the Forest Service's additional assertion that the proposed rule 
amendment falls within a Forest Service categorical exclusion of 
actions from documentation in an environmental assessment or an 
environmental impact statement (``rule, regulations, or policies to 
establish service wide administrative procedures, program processes, or 
instruction.'' 36 CFR 220.6 (d)(2)). The respondent contends that the 
position that categorically excluding planning regulations has been 
rejected by the courts, and therefore the Department and Forest Service 
should not apply that category. The respondent cites to Citizens for 
Better Forestry v. U.S. Department of Agriculture, 341 F. 3d 961 (9th 
Cir. 2003) and Citizens for Better Forestry v. U.S. Department of 
Agriculture, 481 F. Supp.2d 1059 (N.D. Cal. 2007).
    Response: Like the respondent, the Department has determined that 
the scope and scale of the final rule are such that the rule's effects 
are within the range of effects of the environmental impact statement 
prepared for the 2012 rule. As the respondent noted, with respect to 
the 2012 rule, which entirely

[[Page 90729]]

replaced a prior planning rule, the Forest Service did not rely on the 
categorical exclusion for rules but prepared an environmental impact 
statement for that rule. Planning rules that entirely replaced prior 
rules were also the subject of the court decisions the respondent 
refers to. However, the Department holds the position that for certain 
changes to a planning rule, the categorical exclusion may properly 
apply.

Section-by-Section Explanation of the Final Rule

    The following section-by-section descriptions are provided to 
explain the approach taken in the final rule.
Subpart A--National Forest System Land Management Planning
Revise Sec.  219.3--Role of Science in Planning
    The final rule is unchanged from the proposed rule for this 
section. The Department added the words ``for assessment; developing, 
amending, or revising a plan; and monitoring,'' to the first sentence 
of Sec.  219.3. This change was made to clarify that the best available 
scientific information is to be used to inform the plan amendment 
process, as well as all other parts of the planning framework (36 CFR 
219.5). Specifically mentioning each part of the planning framework 
makes the wording of this section more consistent with other sections 
of the rule.
Revise Sec.  219.3--Response to Comments
    Comment: Support the clarification. Several respondents expressed 
support for the amendment to Sec.  219.3 to clarify that the 
requirement to use the best available scientific information applies 
equally to plan amendments.
    Response: Thank you for taking the time to comment.
Amend Sec. Sec.  219.8 Through 219.11 To Revise the Introductory Text
    The final rule is unchanged from the proposed rule for these 
sections. The Department added the words ``a plan developed or revised 
under this part'' to the introductory text of Sec. Sec.  219.8 through 
219.11 to clarify that the combined set of requirements in each section 
apply only to entire plans developed or revised under the current 
planning rule. It was not the Department's intent to imply that an 
individual plan amendment must meet all of the requirements of 
Sec. Sec.  219.8 through 219.11. This clarification distinguishes 
between new plans and plan revisions, which must comply with all of the 
requirements in Sec. Sec.  219.8 through 219.11, and amendments, which 
do not.
Amend Sec. Sec.  219.8 Through 219.11--Response to Comments
    Comment: Support the principle that amendments do not require the 
application of all of the requirements within Sec. Sec.  219.8 through 
219.11. While no comments directly addressed the changes to Sec. Sec.  
219.8 through 219.11, respondents supported the principle that 
amendments are different from revisions, and that the 2012 rule should 
not be interpreted to imply that an amendment must incorporate every 
substantive requirement within Sec. Sec.  219.8 through 219.11. Many 
respondents noted that such an interpretation would trigger premature 
plan revision and would inappropriately curtail the Forest Service's 
use of the amendment process to make targeted and efficient changes to 
plans in response to pressing needs. These respondents strongly 
supported the Department's stated intent for this amendment to the 2012 
rule to preserve the Forest Service's flexibility in using amendments 
to support adaptive management by clarifying that amendments do not 
require the application of all of the substantive requirements within 
these sections.
    Response: The Department agreed and retained the changes to 
Sec. Sec.  219.8 through 219.11, which clarify that plans developed or 
revised under the 2012 rule must meet the combined set of requirements 
among and within Sec. Sec.  219.8 through 219.11. However, amendments 
are not required to meet all of the substantive requirements within 
these sections. Direction for amendments is clarified at Sec.  219.13.
Amend Sec.  219.13 To Revise Paragraph (a)
    The final rule is unchanged from the proposed rule for this 
section. The Department added the words ``and to determine the scope 
and scale of any amendment'' to the end of the third sentence of 
paragraph (a). This change clarifies that responsible official's 
discretion to determine whether and how to amend any plan includes the 
discretion to determine the scope and scale of any amendment. The 
Department received no comments on this revision.
Amend Sec.  219.13 To Revise the Introductory Text of Paragraph (b)
    The Department added the words ``For every plan amendment,'' to the 
introductory text of paragraph (b), so it is clear that the procedural 
and other requirements outlined in Sec.  219.13(b) apply to all 
amendments. The proposed rule used similar wording ``For all plan 
amendments,'' but the Department changed ``all'' to ``every'' in the 
final rule for grammar's sake to conform the wording to the singular 
use of the word ``amendment'' in the paragraphs that followed. The 
Department also changed the caption of this paragraph from ``Amendment 
process'' to ``Amendment requirements'' to reflect the clarified text 
in paragraph (b)(5) and in Sec. Sec.  219.8 through 219.11. The 
Department received no comments on this revision.
Amend Sec.  219.13 To Revise Paragraph (b)(1)
    In the final rule, the Department changed the punctuation at the 
end of paragraph (b)(1) to a period, from a semicolon, to reflect 
similar punctuation at the end of the other paragraphs under paragraph 
(b). The Department made no other changes to paragraph (b)(1).
Amend Sec.  219.13 To Revise Paragraph (b)(2)
    To respond to comments about the proposed rule, the Department 
added a requirement to include information in the initial notice for 
the amendment about which substantive requirements of are likely to be 
directly related to the amendment.
Amend Sec.  219.13(b)(2)--Response to Comments
    Comment: Inform the public early in the process. A group of 
respondents stated that the responsible official should inform the 
public early in the amendment process--likely as part of the 
preliminary identification of the need to change the plan--about which 
substantive provisions within Sec. Sec.  219.8 through 219.11 may be 
implicated by an amendment, and should allow the public to provide 
input through the scoping process. The comment noted that early 
notification would be consistent with the 2012 rule's focus on 
transparency and public participation.
    Response: The Department agreed and added the requirement to 
paragraph (b)(2) of Sec.  219.13.
Amend Sec.  219.13 To Revise Paragraph (b)(3)
    The final sentence of paragraph (b)(3) was modified to state that 
project specific amendments are not considered a significant change in 
the plan for the purposes of the NFMA. In addition a conforming change 
was also made to Sec.  219.16(a)(2).
    The Department made these changes so that an amendment that applies 
only to one project or activity is not considered a significant change 
in the plan for the purposes of the NFMA, in response to comments about 
the proposed rule. This change also clarifies

[[Page 90730]]

that an amendment that is considered a ``significant change in the plan 
for the purposes of the NFMA'' does not trigger a revision-type 
process; it is subject to the same procedures and requirements 
otherwise included in Sec.  219.13, as well as the 90-day comment 
period required by Sec.  219.16(a)(2).
    An amendment that applies only to one project or activity may still 
have significant environmental effects and require the preparation of 
an environmental impact statement. The Department added clarification 
in Sec.  219.16(a)(2) to address minimum NEPA requirements for an 
amendment that applies only to one project or activity for which a 
draft EIS is prepared.
Amend Sec.  219.13(b)(3)--Response to Comments
    Comments: According to the proposed rule a site-specific project 
amendment would be ``significant,'' and trigger the process 
requirements for a plan revision. Several respondents expressed concern 
about preserving the Forest Service's ability to use amendments that 
would apply only to one project or activity. One respondent stated that 
paragraph (b)(3), which provides that an amendment prepared with an EIS 
would be a significant amendment, would make even a project-specific 
amendment significant. The respondent further stated that significant 
amendments under NFMA trigger the requirements for a revision. The 
respondent requests that the Forest Service rewrite and clarify Sec.  
219.13(b)(3) so that an EIS for a project containing a plan amendment 
does not trigger, in effect, a forest plan revision.
    Response: The final rule includes an exception that when an 
amendment applies only to one project or activity the amendment is not 
considered a significant change to the plan for the purposes of NFMA 
(such a project and associated amendment may have significant effects 
and require the preparation of a draft EIS under NEPA). Corresponding 
changes were made to Sec.  219.16(a)(2).
    However, the Department disagrees with the respondent's assertion 
that if an amendment is significant for the purposes of the NFMA, a 
revision is automatically triggered. The 2012 rule supports and this 
final rule preserves the responsible official's discretion to determine 
the scope and scale of amendments, including amendments that may be 
broad or have a significant effect. The process and content 
requirements included in Sec.  219.13 satisfy the NFMA requirements for 
a significant amendment.
    A brief clarification here may be helpful. The 1982 rule had 
required the Forest Service to undertake the plan revision process 
(except for wilderness analysis) when ``a proposed amendment would 
result in a significant change in such plan.'' (36 CFR 219.10(f) 
(2000), (16 U.S.C. 1604(f)(4)). The Forest Service soon learned that 
the requirement of the 1982 rule to follow the same steps for a 
significant amendment as for a revision was excessively burdensome. In 
its 1991 Advanced Notice for proposed rulemaking to revise its land and 
resource planning regulations, the Forest Service's preliminary 
proposal would have limited the evaluation process for what it called a 
``major amendment'' to ``only . . . the changes being proposed and not 
the entire forest program.'' (56 FR 6508, 6523, February 15, 1991)). 
Since that time, the Forest Service land management planning rules 
issued by the Department have distinguished the requirements for 
significant amendments and plan revisions.
    The 2012 rule retained that distinction and did not carry forward 
the 1982 rule's requirement that the Forest Service undertake the plan 
revision process when a proposed amendment would result in a 
significant change to the plan. The NFMA does not require the Forest 
Service to carry out the entire process for revision for every 
significant amendment. Rather, as the 2012 rule provided and the 
clarifications in this amendment to the 2012 rule reinforce, the 
responsible official has the discretion to determine the scope and 
scale of an amendment, and the associated processes and requirements 
are tailored to the changes being proposed. In some cases, the nature 
of the proposed changes to the plan may require an analysis of the 
entire plan direction, so that the Forest Service must ``[re]determine 
forest management systems, harvesting levels, and procedures'' in light 
of the multiple uses for which the forest is administered; and 
reconsider and if appropriate, adjust the ``planned timber sale 
program'' and the proportion of probable methods of timber harvest.'' 
16 U.S.C. 1604 (e) and (f). However, other amendments, including 
amendments that require the preparation of an environmental impact 
statement, may not affect these matters, and would require less 
analysis. The direction in paragraph (b)(5) of this final rule would 
require the appropriate application of the 2012 rule's requirements in 
a way that satisfies the related NFMA requirements.
    The reason the Department included the final sentence of paragraph 
(b)(3) in the 2012 rule was to avoid applying two different standards 
for determining significance between the requirements of NFMA and NEPA. 
In the end, all plans must ``provide for multiple use and sustained 
yield of products and services'' and all the other specific information 
required by the NFMA. (16 U.S.C. 1604 (e) and (f)). The 2012 rule 
requires in Sec.  219.1(f) that plans meet all applicable laws and 
regulations; nothing in this amendment changes that requirement.
    The Department's position is that the NFMA's requirements for 
significant amendments are satisfied by the requirements to prepare an 
environmental impact statement and to provide at least a 90 day comment 
period on the proposal and draft EIS, in addition to the other 
requirements for amendments included in Sec.  219.13. The final rule 
retains these requirements.
Amend Sec.  219.13 To Add Paragraph (b)(4)
    The Department retained the proposed paragraph (b)(4) but slightly 
modified the wording for clarity. The Department removed the phrase 
``without altering the existing direction'' and added the word 
``simply.''
    The Department added paragraph (b)(4) as a clarification that each 
plan component added or changed by a plan amendment must conform to the 
applicable definition for desired conditions, objectives, standards, 
guidelines, and suitability of lands set forth in Sec.  219.7(e). The 
planning directives in the Handbook (FSH 1909.12, ch. 20, sec. 21.3) 
already state this requirement: ``All additions or modifications to the 
text of plan direction that are made by plan amendments using the 2012 
rule must be written in the form of plan components as defined at 36 
CFR 219.7(e).'' This paragraph brings the requirement into the text of 
the 2012 rule to help consolidate procedural requirements for 
amendments.
    The Department also included a narrow exception to the plan 
component formatting requirements of paragraph (b)(4) for amendments to 
1982 rule plans. This exception would apply to an amendment or part 
thereof that would change (add to or reduce) a management or geographic 
area or other areas to which existing direction applies, but would not 
change the text of that plan direction. This exception would allow the 
responsible official to avoid rewriting the plan direction within that 
management or geographic area to conform to Sec.  219.7(e), because

[[Page 90731]]

reformatting plan direction might accidentally broaden the scope of the 
amendment. The Department received one comment on this revision, and 
that comment supported the addition of this paragraph.
Amend Sec.  219.13 To Add Paragraph (b)(5)
    The Department modified and added wording to paragraph (b)(5) of 
this section to specify requirements for applying the substantive 
requirements within Sec. Sec.  219.8 through 219.11 to a plan 
amendment. Elements of the direction provided in the final paragraph 
(b)(5) were found in paragraphs (b)(5) and (6) and (c)(1) and (2) of 
this section of the proposed rule. Proposed paragraphs (b)(6), (c)(1), 
and (c)(2) were removed from the final rule. While the direction in 
proposed rule paragraphs (c)(1) and (2) was limited to amendments of a 
plan developed or revised under a prior planning rule, the requirements 
of paragraph (b)(5) of the final rule apply to all amendments.
    The Department modified the first sentence of paragraph (b)(5) for 
two reasons. First, this sentence now more clearly describes the 
required process for responsible officials to first determine and then 
apply substantive requirements that are directly related to changes 
being proposed. Second, the Department modified the proposed rule's use 
of the words ``[e]nsure that the amendment meets'' to ``apply such 
requirement(s) within the scope and scale of the amendment,'' in order 
to clarify the Department's intent that the application of directly 
related substantive requirements be commensurate with the scope and 
scale of the amendment.
    The Department added a sentence to paragraph (b)(5) to clarify that 
an amendment is not required to bring the amended plan into compliance 
with all of the substantive requirements of the rule. The Department 
made this change to apply this clarification to all amendments and to 
make the wording consistent with the rest of paragraph (b)(5). This 
sentence makes clear that amendments, unlike revisions, do not require 
the application of all substantive requirements within Sec. Sec.  219.8 
through 219.11.
    The Department added paragraphs (b)(5)(i) and (ii) to provide 
further clarification on how the responsible official will determine 
that a specific substantive requirement within Sec. Sec.  219.8 through 
219.11 is directly related to the plan direction being added, modified, 
or removed by the amendment.
    The Department added paragraph (b)(5)(i) to provide additional 
direction to the responsible official on how to determine whether or 
not a specific substantive requirement is directly related to the 
changes being proposed by an amendment. When a specific substantive 
requirement is associated with either the purpose for the amendment or 
the effects (beneficial or adverse) of the amendment, the responsible 
official must apply that requirement to the amendment. The Department 
also added wording from the preamble to the proposed rule explaining 
that the best available scientific information, scoping, effects 
analysis, monitoring data or other rationale must inform the 
responsible official's determination.
    The purpose of an amendment stems from the need to change the plan, 
which Sec.  219.13(b)(1) requires that responsible official identify. 
The responsible official would determine which specific substantive 
requirements within Sec. Sec.  219.8 through 219.11 are directly 
related to that purpose, and then would apply those requirements to the 
amendment. In addition to the purpose of an amendment, the responsible 
official must apply specific substantive requirements within Sec. Sec.  
219.8 through 219.11 based on the effects of the amendment. The effects 
of an amendment can be beneficial or adverse. Where the likely effects 
are beneficial, the intent of paragraph (b)(5)(i) is that the changes 
being proposed occur within the context and apply the direction of the 
directly related substantive requirement in a way that is commensurate 
with the scope and scale of the amendment.
    The Department added paragraph (b)(5)(ii) to provide direction, in 
addition to the direction in paragraph (b)(5)(i), to the responsible 
official on when to determine that a substantive requirement is 
directly related to the amendment based on adverse effects.
    The Department recognizes that an amendment may have adverse 
effects that are less than ``substantial,'' and that would not require 
the application of associated substantive requirements. However, if 
scoping or NEPA effects analysis for the amendment reveals substantial 
adverse effects, the responsible official must identify and apply the 
specific substantive requirement(s) within Sec. Sec.  219.8 through 
219.11 associated with those effects.
    Paragraph (b)(5)(ii)(A) replaces paragraph (b)(6) of the proposed 
rule. The Department made this change in response to comments about 
proposed paragraph (b)(6). The Department's intent is that if a 
substantive requirement is directly related because of adverse effects 
(Sec.  219.13(b)(5)(ii)(A)), then the responsible official may decide 
to modify the proposal to avoid the adverse effects so that the 
specific substantive requirement is no longer directly related to the 
changes being proposed. Otherwise, the responsible official must apply 
the directly related substantive requirement to determine whether the 
proposal can proceed or whether additional changes to the plan are 
required as part of the amendment.
    Paragraph (b)(5)(ii)(A) also clarifies that if the proposed 
amendment would substantially lessen protections for a specific 
resource or use, the responsible official must identify and apply the 
associated specific substantive requirement(s). The phrase ``when the 
proposed amendment would substantially lessen protections for a 
specific resource or use'' replaces the proposed rule paragraph (c)(2) 
of this section that stated: ``If the proposed amendment would remove 
direction required by the prior planning regulation, the responsible 
official must apply the directly related requirements within Sec. Sec.  
219.8 through 219.11.'' This requirement is intended to prevent the 
removal of protective direction in an underlying plan without the 
application of the relevant requirements of the 2012 rule.
    The Department added paragraph (b)(5)(ii)(B) to help to expedite 
amendments, including project-specific amendments, which will not have 
significant environmental effects. The Department anticipates that, for 
amendments that can be prepared using a categorical exclusion (CE) or 
environmental assessment (EA) accompanied by a finding of no 
significant impact (FONSI), it is unlikely that the amendment will have 
substantial adverse effects that would require the responsible official 
to apply a substantive requirement that is not otherwise directly 
related to the changes being proposed. Therefore, under this paragraph, 
the responsible official may presume that an amendment prepared under a 
CE or EA will not have substantial adverse effects, barring evidence to 
the contrary.
    The clarifications within paragraph (b)(5) will help the Department 
and public understand how to apply the substantive requirements within 
Sec. Sec.  219.8 through 219.11 when amending plans.
    The Department recognizes that resources and uses within the plan 
area are often connected to one another--nonetheless, the responsible 
official can distinguish between rule requirements directly related to 
the amendment and those that may be unrelated or for which

[[Page 90732]]

the relationship is indirect. For example:
     Soil and water resources are interrelated, but the 
responsible official can determine that for a plan amendment that has 
the purpose of changing standards and guidelines to protect a water 
body, the water requirements of Sec.  219.8 are directly related, while 
that section's requirements for soil are not unless the amendment would 
affect the soil resource.
     A plan amendment to modify recreation access under Sec.  
219.10 could be either directly related or unrelated to that section's 
requirement for the protection of cultural and historic resources, 
depending upon the nearness and potential effects of the proposed 
access to the cultural and historic resources in the plan area.
    A determination that a substantive requirement is directly related 
to a proposed amendment does not mean that the amendment must be 
expanded so that the requirement is applied to the entire plan area, or 
that the amendment must address every aspect of that specific 
requirement; the application of the substantive requirement is intended 
to be commensurate with the scope and scale of the amendment. For 
example:
     The 2012 rule's requirements for riparian management in 
Sec.  219.8 would be directly related to an amendment with the purpose 
of changing plan components in order to reduce sedimentation into a 
specific riparian area from a particular use, but the responsible 
official would not be required to apply those requirements to other 
riparian areas in the plan area. Further, if floodplain values would 
not be affected by the amendment, it would be beyond the scope of that 
amendment for the responsible official to be required to apply Sec.  
219.8 riparian management requirements to add plan components for the 
floodplain values of that riparian area.
     An amendment that changes plan components to support 
habitat for an at-risk species would require application of Sec.  219.9 
to those proposed changes, but would not require application of Sec.  
219.9 to the entire underlying plan. For example, if the need to change 
the plan is to identify lands as suitable for an energy corridor, and 
the proposed corridor would have substantial adverse effects on 
critical habitat for a threatened species, then the requirements of 
Sec.  219.9(b) would be directly related to the amendment as applied to 
that particular species. The responsible official may therefore be 
required to add standards or guidelines to protect the critical 
habitat. However, the determination that Sec.  219.9(b) is directly 
related to the amendment because of the potential impacts to one 
species would not trigger the application of Sec.  219.9(b) to evaluate 
ecological conditions for all other species on the unit.
Amend Sec.  219.13 To Add Paragraph (b)(5)--Response to Comments
    Comment: Applying the substantive requirements that are directly 
related. Several respondents were supportive of proposed paragraph 
(b)(5), and appreciated the clarification that responsible officials 
must apply the directly related substantive requirements within 
Sec. Sec.  219.8 through 219.11 to plan direction modified, added or 
removed by an amendment. One respondent supported bringing into 
paragraph (b)(5) the text in the preamble to the proposed rule that 
stated the Department's intent that the determination of direct 
relationship be informed by the best available scientific information, 
scoping, effects analysis, monitoring data or other rationale.
    Response: The Department retained the direction in the proposed 
paragraph (b)(5) that the responsible official must apply the specific 
substantive requirement(s) within Sec. Sec.  219.8 through 219.11 that 
are directly related to the plan direction being added, modified, or 
removed by the amendment. The Department added paragraph (b)(5)(i) to 
bring text from the preamble into the final rule and further clarify 
direction to the responsible official on how to determine that a 
specific substantive requirement is directly related to the amendment. 
In addition, the responsible official must document the rationale as 
required by Sec.  219.14.
    Comment: Amendments do not have to meet all requirements of the 
rule. Several respondents supported the principle that the 2012 rule 
intended that amendments be used to incrementally change plans and 
facilitate adaptive management, and therefore supported proposed 
paragraph (c)(1) clarifying that amendments of plans developed or 
revised under a prior planning regulation do not have to bring an 
amended plan into compliance with all of the requirements within 
Sec. Sec.  219.8 through 219.11. Several respondents emphasized that 
the final rule must provide clarity that an amendment does not trigger 
application of all of the substantive requirements of the 2012 rule.
    Response: The Department agreed, moved the concept in proposed 
paragraph (c)(1) into paragraph (b)(5), and modified the wording to 
make it clearer and more consistent with the rest of paragraph (b)(5). 
The new wording makes clear that the responsible official is not 
required to apply any substantive requirement that is not directly 
related to the changes being proposed by an amendment.
    Paragraph (b) of the final rule applies to all amendments, whereas 
proposed paragraph (c) applied only to amendments to plans developed or 
revised under a prior planning regulation. The Department made this 
change because, although the clarification is most urgent and 
immediately relevant for amendments to 1982 rule plans, the Department 
anticipates that similar clarity and flexibility will be needed for 
amendments to future 2012 rule plans. While plans developed or revised 
under the 2012 rule must meet all of the substantive provisions of the 
2012 rule at the time of approval, the Forest Service will still need 
the ability to adaptively change those plans in response to conditions 
that may be rapidly changing. For example, there could be major tree 
die-offs associated with drought or major fire events that occur a few 
years after a plan is revised using the 2012 rule, which could make the 
plan as a whole out of sync with one or more substantive requirements 
of the 2012 rule. The Forest Service would still need the ability to 
incrementally change that plan, without re-applying all of the 
substantive requirements regardless of the scope and scale of the 
amendment.
    Comment: Avoid effects that would be contrary to a rule 
requirement. Some respondents were supportive of proposed paragraph 
(b)(6), which directed the responsible official to ensure that an 
amendment avoids effects that would be contrary to a specific 
substantive requirement within Sec. Sec.  219.8 through 219.11, but 
some respondents were not supportive and expressed concerns about how 
the proposed paragraph would be interpreted. For example, one 
respondent identified concerns about how a responsible official would 
demonstrate that an amendment avoided contrary effects, and raised the 
possibility that this paragraph could inadvertently require the 
premature application of all of the requirements within Sec. Sec.  
219.8 through 219.11, despite express direction otherwise in proposed 
paragraph (c)(1). However, another respondent supported ensuring that 
amendments do not erode plan direction necessary to protect forest 
resources, and the concept of avoiding effects that would be contrary 
to a rule requirement.

[[Page 90733]]

    Response: The Department removed proposed paragraph (b)(6) and 
replaced it with clearer direction in paragraphs (b)(5)(i) and (ii) of 
this section. The Department also added a sentence to paragraph (b)(5) 
to clarify that an amendment is not required to bring the amended plan 
into compliance with all of the substantive requirements of the rule.
    The underlying purpose of proposed paragraph (b)(6) was to ensure 
that a responsible official does not avoid the application of a 
substantive requirement otherwise not directly related to the 
amendment, when analysis shows that an amendment is likely to have 
substantial adverse effects associated with that substantive 
requirement. For example, paragraph (b)(6) was intended to avoid a 
scenario in which an amendment proposes to modify a plan to identify a 
corridor suitable for energy development, but avoids the application of 
Sec.  219.9(b) despite the corridor's likely adverse effects on 
critical habitat necessary to contribute to the recovery of a 
threatened species.
    The Department agrees with respondents that proposed paragraphs 
(b)(5) and (6) could be interpreted as creating two slightly different 
standards for applying the 2012 rule's substantive requirements in a 
way that might be confusing to implement. The Department also 
recognized that there could be confusion about how a responsible 
official would demonstrate compliance with proposed paragraph (b)(6). 
The Department therefore removed proposed paragraph (b)(6) and brought 
the intent of that paragraph into paragraph (b)(5). Instead of the 
direction to avoid effects contrary to a specific requirement, 
paragraph (b)(5) instead provides that a responsible official must 
determine that a substantive requirement is directly related to the 
changes being proposed by an amendment when the likely effects of those 
changes are substantially adverse in a way that implicates that 
substantive requirement.
    The Department's intent with this direction is that if a 
substantive requirement is directly related to a proposed amendment 
because of adverse effects, then the responsible official may modify 
the proposal to avoid the adverse effects so that the specific 
substantive requirement is no longer directly related to the changes 
being proposed. Otherwise, paragraph (b)(5) of this section requires 
that the responsible apply the directly related substantive 
requirement. For example, if an amendment would have substantial 
adverse effects to a historic site, the responsible official could 
modify the proposal so that the changes no longer have any adverse 
effect on that site, or apply the related substantive requirement 
(Sec.  219.10(b)(1)(ii)) to add to the amendment additional plan 
components that would provide for the protection of that historic site.
    As another example, if a proposed amendment would create an energy 
corridor that would have substantial adverse effects on critical 
habitat necessary for the recovery of an endangered species, the 
responsible official could choose to modify the proposed corridor to 
avoid the critical habitat. Otherwise, the responsible official must 
apply Sec.  219.9(b) to review whether the plan provides the ecological 
conditions necessary to contribute to the recovery of that species. If 
the plan components would be insufficient to provide such ecological 
conditions, then the responsible official would be required to develop 
additional, species-specific plan components, including standards or 
guidelines, to provide such ecological conditions in the plan area.
    These changes should address the respondents' concerns, and are 
responsive to respondents' comments that this amendment to the 2012 
rule must clearly preserve the Agency's flexibility to make timely 
amendments.
    Comment: NFMA diversity requirements and application of the 2012 
rule to amended plans. A respondent was concerned that the existing 
2012 rule could be interpreted to allow amendments that would eliminate 
or weaken direction in 1982 rule plans that was designed to meet the 
1982 rule's diversity requirement, but avoid application of the 2012 
rule's diversity provisions until plan revision. The respondent 
contends that this scenario would create an untenable gap, because NFMA 
requires that regulations be in place that provide for diversity. The 
respondent supported the concept of proposed paragraph (c)(2), which 
stated: ``If the proposed amendment would remove direction required by 
the prior planning regulation, the responsible official must apply the 
directly related requirements within Sec. Sec.  219.8 through 219.11.''
    The respondent also supported a possible addition to proposed 
paragraph (c)(2) that was mentioned in the preamble to the proposed 
rule, which would allow the responsible official to choose to 
demonstrate that the amended plan remains consistent with the 1982 
rule. The respondent suggested the following wording: ``If the proposed 
amendment would remove direction required by the prior planning 
regulation, the responsible official must apply the directly related 
requirements within Sec. Sec.  219.8 through 219.11 or ensure that the 
amended plan avoids effects that would be contrary to the prior 
planning regulations.''
    In addition, the respondent questioned limiting the applicability 
of 2012 rule requirements to only the amendment as opposed to an 
amended plan, and questioned, as a practical matter, how one could 
determine that an amendment by itself meets substantive requirements 
without looking at the resulting plan in its entirety.
    Response: The Department removed paragraph (c)(2) and instead added 
direction in paragraph (b)(5)(ii)(A) and paragraph (b)(6) that the 
responsible official must apply any specific substantive requirement of 
the rule that is directly related to the amendment when the proposed 
amendment would substantially lessen protections for a specific 
resource or use. Paragraph (b)(5)(ii)(A) now requires that the 
responsible official determine that a specific substantive requirement 
is directly related to an amendment ``when the proposed amendment would 
substantially lessen protections for a specific resource or use.'' 
Paragraph (b)(6) addresses the application of the 2012 rule's species-
specific requirements when amending a 1982 rule plan, and requires that 
the responsible official identify whether a species is a potential 
species of conservation concern (SCC) and, if so, apply the 
requirements of Sec.  219.9(b) if the proposed amendment would 
substantially lessen protections for that specific species. These 
changes eliminate the potential for an amendment to remove from a plan 
direction that was necessary to meet the 1982 rule's diversity 
requirement, but avoid application of the 2012 rule's related 
requirements, addressing respondent's concern about a potential gap in 
application between the 1982 rule and the 2012 rule's diversity 
requirements. For example, if a proposed amendment to a plan developed 
under the 1982 planning rule would remove direction that was necessary 
to meet the 1982 rule's requirement to provide for the viability of a 
specific species, paragraph (b)(5) would require that responsible 
official apply Sec.  219.9(b) to the proposed amendment with regard to 
that specific species.
    The Department decided against adding the suggested wording that 
would refer back to the 1982 rule for the reasons outlined in the 
preamble to the proposed rule, and because the Department believes the 
changes made

[[Page 90734]]

in the final rule address respondent's concerns and provide clear 
direction to responsible officials in a way that meets the Department's 
original intent for the 2012 rule.
    The final rule also continues to require the application of 
directly related substantive requirements to the changes being proposed 
by an amendment, and does not require evaluation of the amended plan. 
In some cases, applying a directly related substantive requirement will 
lead to the evaluation of plan components across the plan area--for 
example, to determine whether existing plan components, with the 
proposed changes, meet the 2012 rule's substantive requirement to 
provide the ecological conditions necessary for a potential species of 
conservation concern that would be substantially adversely affected by 
a proposed amendment. That evaluation, however, is still focused on the 
amendment itself.
    The environmental analysis for an amendment is programmatic. It 
would include discussions of reasonably foreseeable direct, indirect, 
and cumulative effects and identify the spatial and temporal extent of 
the effects. The responsible official would apply the 2012 rule to make 
any necessary changes to the amendment based on the environmental 
analysis.
    Comment: One respondent was concerned that the proposed amendment 
to the 2012 rule could allow amendments that would fail to comply with 
the National Forest Management Act (NFMA).
    Response: The 2012 rule clearly requires in Sec.  219.1(f) that 
plans comply with all applicable laws and regulations, including the 
NFMA. Nothing in this amendment to the 2012 rule affects that 
requirement.
    Comment: Possible barriers to amendments that apply only to a 
project and activity. Several respondents were concerned that the 
proposed rule could create possible barriers to project-specific 
amendments. One respondent requested that the Forest Service state in 
the preamble and the final amendment to the 2012 rule that Sec.  
219.13(b)(5), (b)(6), and (c)(2) of the proposed amendment to the rule 
do not operate to apply the substantive requirements in Sec. Sec.  
219.8 through 219.11 to plan amendments made in project or activity 
level decisions under Sec.  219.15(c)(4) (project-specific amendments). 
Other respondents were concerned about the application of Sec.  
219.13(b)(3) to project-specific amendments.
    Response: The Department modified the requirements in the final 
rule to address respondents' concerns. The 2012 rule clearly recognized 
that amendments can be made together with, and apply only to, specific 
project and activity decisions (Sec.  219.13(b)(1); Sec.  
219.15(c)(4)). The Department added an exception in Sec.  219.13(b)(3) 
for project and activity amendments--see an explanation of that change 
in above section ``Amend Sec.  219.13(b)(3)--Response to Comments.''
    The Department also made changes to the requirements in paragraphs 
(b)(5) and (b)(6) that should make the amendment process easier. Those 
paragraphs still apply to all amendments, including amendments made 
under 36 CFR 219.15(c)(4) that only apply to a project or activity, but 
the Department believes the clarifications will make it easier to apply 
the modified requirements to project-specific amendments, particularly 
those that do not have significant effects. Specifically:
    1. The Department clarified in paragraph (b)(5) that the 
application of directly related substantive requirements is intended to 
be commensurate with the scope and scale of the amendment. 
Specifically, the Department modified the words in the proposed rule 
``Ensure that the amendment meets'' to ``apply such requirements within 
the scope and scale of the amendment'' in the final rule to make it 
easier to appropriately tailor the application of paragraph (b)(5). 
There may be aspects of a specific substantive requirement that would 
be required for revision, but would be beyond the scope or scale of the 
amendment. For example, the responsible official would not have to 
apply a directly related requirement to a geographic area not affected 
by the amendment. Furthermore, the responsible official may not have to 
apply every element within a directly related substantive requirement. 
For example, with respect to the 2012 rule's requirements for riparian 
areas in Sec.  219.8(a)(3)(i), when a proposed amendment would have 
substantial adverse effects only with regard to sedimentation in a 
specific riparian area, the responsible official must apply the 
direction in Sec.  219.8(a)(3)(i)(C) on deposits of sediment to that 
riparian area, but would not have to apply the direction in Sec.  
219.8(a)(3)(i)(G) on floodplain values to that riparian area.
    While the responsible official is required to apply the directly 
related substantive requirements to the changes being proposed, the 
application of those requirements can be as narrow as the amendment. If 
a project-specific amendment would change only one plan component, or 
impact only one management area, the responsible official's application 
of the directly related substantive requirement would reflect the 
narrow scope and scale of that amendment, and would be based on its 
purpose and effects.
    2. The Department clarified in paragraph (b)(5) that the 
responsible official is not required to apply any substantive 
requirements within Sec. Sec.  219.8 through 219.11 that are not 
directly related to the amendment.
    3. Paragraph (b)(5)(ii)(A) recognizes that an amendment may have 
adverse effects that are less than substantial, and that would not 
require the application of an otherwise unrelated substantive 
requirement within Sec. Sec.  219.8 through 219.11 to the amendment. 
Evidence of substantial adverse effects would require the application 
of the associated substantive requirement, but less than substantial 
adverse effects would not.
    4. The Department added paragraph (b)(5)(ii)(B) to make the process 
easier for many amendments, including project-specific amendments, by 
providing that when the environmental documentation for an amendment is 
a decision memo for a categorical exclusion or an environmental 
assessment accompanied by a finding of no significant impact, the 
responsible official may presume that the amendment will not have 
substantial adverse effects, barring evidence to the contrary.
    5. The Department removed proposed paragraph (c)(3) and replaced it 
with paragraph (b)(6), clarifying the process for applying the species-
specific requirements of Sec.  219.9(b) when amending plans developed 
or revised under the prior planning regulation, and replying to 
respondents' concerns about the previous wording. See further 
discussion of this change in the section ``Amend Sec.  219.13 to add 
paragraph (b)(6)--Response to Comments'' below.
Amend Sec.  219.13 To Add Paragraph (b)(6)
    The Department removed the wording of proposed paragraph (b)(6) 
that stated: ``Ensure that the amendment avoids effects that would be 
contrary to a specific substantive requirement of this part identified 
within Sec. Sec.  219.8 through 219.11.'' The Department made 
corresponding changes to paragraph (b)(5). An explanation of why the 
Department moved and changed the wording from proposed paragraph (b)(6) 
is provided in the section ``Amend Sec.  219.13 to add paragraph 
(b)(5).''
    The Department also removed proposed paragraph (c)(3) that stated: 
``If species of conservation concern (SCC) have not been identified for 
the plan area, the responsible official must use

[[Page 90735]]

the regional forester sensitive species list in lieu of SCC when 
applying the requirements of Sec.  219.9(b) to a plan amendment for a 
plan developed or revised under a prior planning regulation.''
    The Department added new paragraph (b)(6) to clarify the process a 
responsible official should use when amending a plan developed or 
revised under a prior planning regulation, if the regional forester has 
not yet identified the species of conservation concern (SCC) for the 
plan area. It is possible that in some cases, the regional forester 
will have already identified SCC within the plan area before plan 
revision. Paragraph (b)(6) recognizes that possibility, and focuses on 
providing direction that applies when SCC have not yet been identified. 
(A similar process clarification is not needed for the other species 
identified in Sec.  219.9(b)--threatened and endangered, proposed and 
candidate species--because those are federally listed rather than 
identified by the regional forester as part of the planning process.) 
If SCC have been identified, paragraph (b)(6) would not apply, and the 
responsible official would follow the direction in paragraph (b)(5).
    If SCC have not yet been identified, paragraph (b)(6) requires 
that, when scoping or effects analysis reveals that a proposed 
amendment would have substantial adverse impacts to a specific species, 
or if the proposed amendment would substantially lessen protections for 
a specific species, the responsible official must determine whether or 
not that species is a potential SCC. The responsible official will make 
the determination using the definition provided in the 2012 rule (Sec.  
219.9(c)). This paragraph is consistent with the approach already 
provided by the 2012 rule in Sec.  219.6(b)(5), which requires the 
responsible official to ``identify and evaluate existing information 
relevant to the plan area for . . . potential species of conservation 
concern present in the plan area,'' when developing an assessment. See 
also Forest Service Planning Handbook 1909.12, Chapter 10, section 
12.52, which provides guidance for identifying potential SCC.
    If the responsible official determines that the species being 
evaluated is a potential SCC, paragraph (b)(6) requires the responsible 
official to apply Sec.  219.9(b) with respect to that species as if the 
regional forester had identified it as an SCC.
    By requiring that the responsible official apply the requirements 
of Sec.  219.9(b) to a specific potential SCC that an amendment could 
substantially adversely impact, or if an amendment would substantially 
lessen protections found in the underlying plan for that species, 
paragraph (b)(6), along with paragraph (b)(5), carries forward the 
Department's original intent that the species-specific protections of 
the 2012 rule apply in the context of amendments. At the same time, 
this paragraph limits unintended process-related delays or barriers to 
amendments by making clear that amendments to plans developed under a 
prior planning regulation can proceed prior to the regional forester's 
identification of SCC for the plan area.
Amend Sec.  219.13 To Add Paragraph (b)(6)--Response to Comments
    Comment: Using the Regional Forester Sensitive Species (RFSS) as 
proxy. Several respondents were supportive of clarifying how to apply 
the species-specific protections of the existing rule when amending 
plans developed under a prior planning regulation, but several 
respondents expressed concern about using the regional forester 
sensitive species (RFSS) as a proxy for species of conservation concern 
(SCC) when SCC have not yet been identified for the plan area, as well 
as confusion over the scope of proposed paragraph (c)(3). For example, 
one respondent interpreted the proposed paragraph (c)(3) as requiring 
that all species on the RFSS list meet the viability requirement in 
Sec.  219.9(b). Respondents observed that the RFSS list is an imperfect 
proxy for SCC, with one respondent noting that the RFSS lists may not 
reflect best available scientific information, were compiled at a 
regional rather than a unit scale, and did not include a public comment 
process.
    Response: The Department agreed that using the RFSS list as a proxy 
for SCC is an imperfect and potentially confusing procedural approach. 
The Department therefore removed from the final rule proposed paragraph 
(c)(3), which directed the responsible official, if SCC have not been 
identified, to use the RFSS list in lieu of identifying SCC when 
applying the requirements of Sec.  219.9(b) to amend a plan developed 
under a prior planning regulation.
    Instead, the Department replaced proposed paragraph (c)(3) with 
paragraph (b)(6). Paragraph (b)(6) makes clear that SCC do not need to 
be identified by the regional forester prior to amending a plan 
developed or revised under a prior planning regulation, or as part of 
an amendment. Rather, paragraph (b)(6) operates to provide direction 
and a mechanism for a responsible official to be able to apply the 
requirements of Sec.  219.9(b) to a specific potential SCC, when that 
specific species would be adversely impacted by a proposed amendment. 
The process identified in this new wording relies on the existing 
definition of SCC in Sec.  219.9(c), and provides guidance similar to 
that already included in Sec.  219.6(b)(5), which requires that the 
responsible official identify potential SCC during the assessment phase 
(an assessment is required prior to plan development or revision, but 
is optional for an amendment). See also Forest Service Planning 
Handbook 1909.12, Chapter 10, section 12.52, which provides guidance 
for identifying potential SCC.
Amend Sec.  219.14
    The final rule is unchanged from the proposed rule for this 
section. The Department changed the caption of paragraph (a) from 
``Decision document'' to ``Decision document approving a new plan, plan 
amendment, or revision.'' The Department redesignated paragraph Sec.  
219.14(b) as Sec.  219.14(d).
    In addition, the Department removed paragraph (a)(2) which requires 
responsible officials to explain how plan direction meets the 
provisions of Sec. Sec.  219.8 through 219.11. The Department replaced 
paragraph (a)(2) with two new paragraphs (b) and (c) and renumbered 
paragraphs (a)(3) through (a)(6).
    The new paragraph (b) requires responsible officials to explain in 
a decision document for a new plan or plan revision how the plan 
direction meets the provisions of Sec. Sec.  219.8 through 219.11.
    The new paragraph (c) focuses on documentation for a plan 
amendment. The decision document must include a rationale for the 
responsible official's determination of the scope and scale of the 
amendment, which requirements within Sec. Sec.  219.8 through 219.11 
are directly related to that amendment, and how those requirements were 
applied.
Amend Sec.  219.14 Response to Comments
    Comment: Best available scientific information, scoping, effects 
analysis, monitoring. A respondent was supportive of the documentation 
requirements and stated that Sec.  219.14 should also require that the 
responsible official discuss how the best available scientific 
information, scoping, effects analysis, monitoring data, and other 
rationale was used to determine which substantive provisions apply. 
They also stated that the responsible official should be required to 
explain the relationship between the amendment and the amended plan in 
the decision document, in the appropriate context of meeting rule 
requirements.

[[Page 90736]]

    Response: The final rule in Sec.  219.13(b)(5) requires that the 
responsible official base the determination that a specific substantive 
requirement is directly related to the amendment on the purpose for the 
amendment and the effects (beneficial or adverse) of the amendment, and 
requires that the determination be informed by the best available 
scientific information, scoping, effects analysis, monitoring data or 
other rationale. The requirements for documentation in this section 
remain the same as in the proposed rule. The decision document must 
explain how the responsible official determined which specific 
requirements within Sec. Sec.  219.8 through 219.11 apply to the 
amendment and how those requirements were applied to the amendment. 
Section 219.14 requires responsible officials to explain their 
rationale and explain the information they used to make the 
determination required by Sec.  219.13(b)(5).
Amend Sec.  219.16 To Revise Paragraph (a)(2)
    To be in agreement with the change made to Sec.  219.13(b)(3) that 
now includes an exception so that an amendment that applies only to one 
project or activity is not considered a significant change in the plan 
for the purposes of NFMA, a conforming change is needed in paragraph 
(a)(2) of Sec.  219.16.
    Therefore, in the final rule paragraph (a)(2) of Sec.  219.16 
specifies that a comment period of 90 days is not required for a 
proposed amendment that would apply only to one project or activity. 
However, for such amendments, normal NEPA requirements still apply. 
Therefore, the Department clarifies that the normal comment period is 
at least 45 days. See also Forest Service Handbook 1909.15, Chapter 20, 
section 24.1--Circulating and Filing a Draft Environmental Impact 
Statement.
Technical Correction to Section 219.11
    The Department added a technical correction to fix a mistake made 
in a correcting amendment to the 2012 rule on July 27, 2012 (77 FR 
44144, July 27, 2012). In that correcting amendment, the Forest Service 
inadvertently removed a sentence about the maximum size limits for 
areas to be cut in one harvest operation in Sec.  219.11(d)(4). This 
change would simply restore to Sec.  219.11 the sentence as published 
in the 2012 rule on April 9, 2012 (77 FR 21161). The Department 
received no comments on this correction.

Compliance With the Endangered Species Act of 1973, as Amended

    In issuing the 2012 rule, the Department prepared both an 
Environmental Impact Statement (EIS) and a biological assessment to 
support its final decision. NOAA Fisheries and USFWS each issued a 
biological opinion pursuant to section 7(a)(2) of the Endangered 
Species Act. The biological opinions included conservation reviews 
pursuant to section 7(a)(l) Act (16 U.S.C. 1536(a)(1) and (2)). Copies 
of the biological assessment, its addendum, and the biological opinions 
are in the project record for the 2012 rule and can be viewed online 
at: http://www.fs.usda.gov/planningrule.
    Because this final rule is to clarify the Department's original 
intent for plan amendment processes and requirements, and the amendment 
does not change the planning requirements for endangered or threatened 
species, the Department has concluded that this final rule does not 
require additional consultation under sections 7(a)(1) and 7(a)(2) of 
the Endangered Species Act.

Regulatory Certifications

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 it does not 
constitute a significant energy action as defined in the Executive 
Order.

Environmental Impacts

    In issuing the 2012 planning rule, the Department prepared both an 
Environmental Impact Statement (EIS) and a biological assessment to 
support its final decision. The EIS is available online at http://www.fs.usda.gov/planningrule.
    The Department has concluded that this final rule does not require 
additional documentation under the National Environmental Policy Act. 
Because this final rule is to clarify the Department's original intent 
for plan amendment processes and requirements, the range of effects 
included in the Department's prior NEPA analysis covers this final 
rule. Therefore, there is no need to supplement the National Forest 
System Land Management Planning Rule Final Programmatic Environmental 
Impact Statement of January 2012.

Consultation and Coordination With Indian Tribal Governments

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

Regulatory Impact

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB) 
will review all significant rules. OIRA has determined that this rule 
is not significant.
    Executive Order 13563 reaffirms the principles of Executive Order 
12866 while calling for improvements in the nation's regulatory system 
to promote predictability, to reduce uncertainty, and to use the best, 
most innovated, and least burdensome tools for achieving regulatory 
ends. The Executive Order directs agencies to consider regulatory 
approaches that reduce burdens and maintain flexibility and freedom of 
choice for the public where these approaches are relevant, feasible, 
and consistent with regulatory objectives. Executive Order 13563 
emphasizes further that regulations must be based on the best available 
science and that the rulemaking process must allow for public 
participation and an open exchange of ideas. We have developed this 
rule in a manner consistent with these requirements.

Regulatory Flexibility

    This 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.

Federalism

    The Forest Service has considered this final rule under the 
requirements of Executive Order 13132 on federalism. The Agency has 
determined 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 Federal government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, the Agency has determined that 
no

[[Page 90737]]

further determination of federalism implications is necessary at this 
time.

No Takings Implications

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

Civil Justice Reform

    This final rule has been reviewed under Executive Order 12988 on 
civil justice reform. The Agency has not identified any State or local 
laws or regulations that are in conflict with this rule or that would 
impede full implementation of this rule. Nevertheless, in the event 
that such conflicts were to be identified, (1) all State and local laws 
and regulations that conflict with the final rule or that would impede 
its full implementation would be preempted; (2) no retroactive effect 
would be given to the final rule; and (3) it would not require 
administrative proceedings before parties may file suit in court 
challenging its provisions.

Unfunded Mandates

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

Controlling Paperwork Burdens on the Public

    This final rule does not contain recordkeeping or reporting 
requirements or other information collection requirements as defined in 
5 CFR part 1320.
    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501- 3520), the Forest Service requested and received approval of a 
new information collection requirement for subpart B as stated in 36 
CFR 219.61 and assigned control number 0596-0158 as stated in the final 
rule approval (77 FR 21161, April 9, 2012). Subpart B specifies the 
information that objectors must give in an objection to a plan, plan 
amendment, or plan revision (36 CFR 219.54(c)).
    However, recently the Agency learned that subpart B is not 
considered an information collection under the Paperwork Reduction Act 
of 1995. Subpart B is not an information collection because the notice 
indicating the availability of the plan, plan amendment, or plan 
revision, the appropriate final environmental documents, the draft plan 
decision document, and the beginning of the objection period is a 
general solicitation. No person is required to supply specific 
information pertaining to the respondent, other than that necessary for 
self-identification.

List of Subjects in 36 CFR Part 219

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

    Therefore, for the reasons set forth in the preamble, the 
Department amends 36 CFR part 219 as follows:

PART 219--PLANNING

0
1. The authority citation for part 219 continues to read as follows:

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


0
2. Revise Sec.  219.3 to read as follows:


Sec.  219.3  Role of science in planning.

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

0
3. Revise the introductory text to Sec.  219.8 to read as follows:


Sec.  219.8  Sustainability.

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

0
4. Revise the introductory text to Sec.  219.9 to read as follows:


Sec.  219.9  Diversity of plant and animal communities.

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

0
5. Revise the introductory text to Sec.  219.10 to read as follows:


Sec.  219.10  Multiple use.

    While meeting the requirements of Sec. Sec.  219.8 and 219.9, a 
plan developed or revised under this part must provide for ecosystem 
services and multiple uses, including outdoor recreation, range, 
timber, watershed, wildlife, and fish, within Forest Service authority 
and the inherent capability of the plan area as follows:
* * * * *

0
6. Amend Sec.  219.11 by revising the introductory text and paragraph 
(d)(4) to read as follows:


Sec.  219.11  Timber requirements based on the NFMA.

    While meeting the requirements of Sec. Sec.  219.8 through 219.10, 
a plan developed or revised under this part must include plan 
components, including standards or guidelines, and other plan content 
regarding timber management within Forest Service authority and the 
inherent capability of the plan area, as follows:
* * * * *
    (d) * * *
    (4) Where plan components will allow clearcutting, seed tree 
cutting, shelterwood cutting, or other cuts designed to regenerate an 
even-aged stand of timber, the plan must include standards limiting the 
maximum size for openings that may be cut in one harvest operation, 
according to geographic

[[Page 90738]]

areas, forest types, or other suitable classifications. Except as 
provided in paragraphs (d)(4)(i) through (iii) of this section, this 
limit may not exceed 60 acres for the Douglas-fir forest type of 
California, Oregon, and Washington; 80 acres for the southern yellow 
pine types of Alabama, Arkansas, Georgia, Florida, Louisiana, 
Mississippi, North Carolina, South Carolina, Oklahoma, and Texas; 100 
acres for the hemlock-Sitka spruce forest type of coastal Alaska; and 
40 acres for all other forest types.
* * * * *

0
7. Amend Sec.  219.13 by revising paragraphs (a) and (b) to read as 
follows:


Sec.  219.13  Plan amendment and administrative changes.

    (a) Plan amendment. A plan may be amended at any time. Plan 
amendments may be broad or narrow, depending on the need for change, 
and should be used to keep plans current and help units adapt to new 
information or changing conditions. The responsible official has the 
discretion to determine whether and how to amend the plan and to 
determine the scope and scale of any amendment. Except as provided by 
paragraph (c) of this section, a plan amendment is required to add, 
modify, or remove one or more plan components, or to change how or 
where one or more plan components apply to all or part of the plan area 
(including management areas or geographic areas).
    (b) Amendment requirements. For every plan amendment, the 
responsible official shall:
    (1) Base an amendment on a preliminary identification of the need 
to change the plan. The preliminary identification of the need to 
change the plan may be based on a new assessment; a monitoring report; 
or other documentation of new information, changed conditions, or 
changed circumstances. When a plan amendment is made together with, and 
only applies to, a project or activity decision, the analysis prepared 
for the project or activity may serve as the documentation for the 
preliminary identification of the need to change the plan.
    (2) Provide opportunities for public participation as required in 
Sec.  219.4 and public notification as required in Sec.  219.16. The 
responsible official may combine processes and associated public 
notifications where appropriate, considering the scope and scale of the 
need to change the plan. The responsible official must include 
information in the initial notice for the amendment (Sec.  
219.16(a)(1)) about which substantive requirements of Sec. Sec.  219.8 
through 219.11 are likely to be directly related to the amendment 
(Sec.  219.13(b)(5)).
    (3) Amend the plan consistent with Forest Service NEPA procedures. 
The appropriate NEPA documentation for an amendment may be an 
environmental impact statement, an environmental assessment, or a 
categorical exclusion, depending upon the scope and scale of the 
amendment and its likely effects. Except for an amendment that applies 
only to one project or activity, a proposed amendment that may create a 
significant environmental effect and thus requires preparation of an 
environmental impact statement is considered a significant change in 
the plan for the purposes of the NFMA and therefore requires a 90-day 
comment period for the proposed plan and draft environmental impact 
statement (Sec.  219.16(a)(2)), in addition to meeting the requirements 
of this section.
    (4) Follow the applicable format for plan components set out at 
Sec.  219.7(e) for the plan direction added or modified by the 
amendment, except that where an amendment to a plan developed or 
revised under a prior planning regulation would simply modify the area 
to which existing direction applies, the responsible official may 
retain the existing formatting for that direction.
    (5) Determine which specific substantive requirement(s) within 
Sec. Sec.  219.8 through 219.11 are directly related to the plan 
direction being added, modified, or removed by the amendment and apply 
such requirement(s) within the scope and scale of the amendment. The 
responsible official is not required to apply any substantive 
requirements within Sec. Sec.  219.8 through 219.11 that are not 
directly related to the amendment.
    (i) The responsible official's determination must be based on the 
purpose for the amendment and the effects (beneficial or adverse) of 
the amendment, and informed by the best available scientific 
information, scoping, effects analysis, monitoring data or other 
rationale.
    (ii) When basing the determination on adverse effects:
    (A) The responsible official must determine that a specific 
substantive requirement is directly related to the amendment when 
scoping or NEPA effects analysis for the proposed amendment reveals 
substantial adverse effects associated with that requirement, or when 
the proposed amendment would substantially lessen protections for a 
specific resource or use.
    (B) If the appropriate NEPA documentation for an amendment is a 
categorical exclusion or an environmental assessment accompanied by a 
finding of no significant impact (Sec.  219.13(b)(3)), there is a 
rebuttable presumption that the amendment will not have substantial 
adverse effects.
    (6) For an amendment to a plan developed or revised under a prior 
planning regulation, if species of conservation concern (SCC) have not 
been identified for the plan area and if scoping or NEPA effects 
analysis for the proposed amendment reveals substantial adverse impacts 
to a specific species, or if the proposed amendment would substantially 
lessen protections for a specific species, the responsible official 
must determine whether such species is a potential SCC, and if so, 
apply section Sec.  219.9(b) with respect to that species as if it were 
an SCC.
* * * * *

0
8. Amend Sec.  219.14 as follows:
0
a. Revise the heading and introductory text to paragraph (a);
0
b. Remove paragraph (a)(2);
0
c. Redesignate paragraphs (a)(3) through (6) as paragraphs (a)(2) 
through (5), respectively;
0
d. Redesignate paragraph (b) as paragraph (d) and add new paragraph 
(b);
0
e. Add paragraph (c).
    The revisions and additions read as follows:


Sec.  219.14  Decision document and planning records.

    (a) Decision document approving a new plan, plan amendment, or 
revision. The responsible official shall record approval of a new plan, 
plan amendment, or revision in a decision document prepared according 
to Forest Service NEPA procedures (36 CFR part 220). The decision 
document must include:
* * * * *
    (b) Decision document for a new plan or plan revision. In addition 
to meeting the requirements of paragraph (a) of this section, the 
decision document must include an explanation of how the plan 
components meet the sustainability requirements of Sec.  219.8, the 
diversity requirements of Sec.  219.9, the multiple use requirements of 
Sec.  219.10, and the timber requirements of Sec.  219.11.
    (c) Decision document for a plan amendment. In addition to meeting 
the requirements of paragraph (a) of this section, the decision 
document must explain how the responsible official determined:
    (1) The scope and scale of the plan amendment; and
    (2) Which specific requirements within Sec. Sec.  219.8 through 
219.11 apply to the amendment and how they were applied.
* * * * *

[[Page 90739]]


0
9. Amend Sec.  219.16 by revising paragraph (a)(2) to read as follows:


Sec.  219.16  Public notifications.

* * * * *
    (a) * * *
    (2) To invite comments on a proposed plan, plan amendment, or plan 
revision, and associated environmental analysis. For a new plan, plan 
amendment, or a plan revision for which a draft environmental impact 
statement (EIS) is prepared, the comment period is at least 90 days, 
except for an amendment that applies only to one project or activity. 
For an amendment that applies only to one project or activity for which 
a draft EIS is prepared, the comment period is at least 45 days unless 
a different time period is required by law or regulation or authorized 
pursuant to 40 CFR 1506.10(d). For an amendment for which a draft EIS 
is not prepared, the comment period is at least 30 days;
* * * * *

    Dated: December 9, 2016.
Robert Bonnie,
Under Secretary, Natural Resources and Environment.
[FR Doc. 2016-30191 Filed 12-14-16; 8:45 am]
BILLING CODE 3411-15-P