81 FR 70373 - National Forest System Land Management Planning

DEPARTMENT OF AGRICULTURE
Forest Service

Federal Register Volume 81, Issue 197 (October 12, 2016)

Page Range		70373-70382
FR Document		2016-24654

The U.S. Department of Agriculture, Forest Service is proposing to amend regulations pertaining to the National Forest System Land Management Planning. The proposed rule would amend the administrative procedures to amend land management plans developed or revised in conformance with the provisions under a prior planning rule.

Federal Register, Volume 81 Issue 197 (Wednesday, October 12, 2016)

[Federal Register Volume 81, Number 197 (Wednesday, October 12, 2016)]
[Proposed Rules]
[Pages 70373-70382]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2016-24654]

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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: Notice of proposed rulemaking; request for comment.

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SUMMARY: The U.S. Department of Agriculture, Forest Service is
proposing to amend regulations pertaining to the National Forest System
Land Management Planning. The proposed rule would amend the
administrative procedures to amend land management plans developed or
revised in conformance with the provisions under a prior planning rule.

DATES: Comments must be received in writing by November 14, 2016. The
Agency will consider and place comments received after this date in the
record only if practicable.

ADDRESSES: Submit comments concerning the proposed rule through one of
the following methods:
1. Public participation portal: https://cara.ecosystem-management.org/Public/CommentInput?project=NP-1403.
2. Facsimile: Fax to: 202-649-1172. Please identify your comments
by including ``RIN 0596-AD28'' or ``planning rule amendment'' on the
cover sheet or the first page.
3. U.S. Postal Service: The mailing address is: USDA Forest Service
Planning Rule Comments, 2222 W. 2300 S., Salt Lake City, UT 84119.

FOR FURTHER INFORMATION CONTACT: Ecosystem Management Coordination
staff's Assistant Director for Planning Andrea Bedell Loucks at 202-
205-8336 or Planning Specialist Regis Terney at 202-205-1552.

SUPPLEMENTARY INFORMATION:

Background

The mission of the Forest Service is to sustain the health,
diversity, and productivity of the Nation's forests and grasslands to
meet the needs of present and future generations. In accomplishing this
mission, the Agency is required by statute 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).
The National Forest Management Act 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)). The Secretary fulfilled
this requirement by issuing a rule, codified at title 36, Code of
Federal Regulations, part 219 (36 CFR part 219), which sets
requirements for land management planning and content of plans. 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.
Numerous efforts were made over the past three decades to improve
on the 1982 planning 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 responsible
officials could continue

[[Page 70374]]

to use the 1982 planning 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 into the
CFR, the Department specifically provided for the continued use of the
1982 rule provisions, which the Agency used for all planning done under
the 2000 rule. The 1982 planning rule procedures have therefore formed
the basis of all existing Forest Service land management plans.
On April 9, 2012, the Department issued title 36, Code of Federal
Regulations, part 219--Planning (the 2012 planning rule), setting forth
directions for developing, amending, revising, and monitoring land
management plans (77 FR 21161). The 2012 planning rule is available
online at https://www.thefederalregister.org/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 (planning directives; 80 FR
6683). The planning directives are the Forest Service Handbook (FSH)
1909.12 and Manual (FSM) Chapter 1920 that establish procedures and
responsibilities for carrying out the 2012 planning rule. The planning
directives are available online at http://www.fs.fed.us/im/directives/.
After the issuance of the 2012 planning rule, the Secretary of
Agriculture chartered a Federal Advisory Committee (Committee) to
assist the Department and Agency in implementing the new rule. The
Committee is 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 Agency with
recommendations on implementation of the 2012 planning rule, including
recommendations on the planning directives, assessments, and on lessons
learned from the first forests to begin revisions and amendments under
the 2012 planning rule. More information about the Committee's
membership and work is available online at http://www.fs.usda.gov/main/planningrule/committee.
The 2012 planning rule was the product of the most extensive public
engagement process in the long history of the planning rule. It
requires the use of best available scientific information to inform
planning and plan decisions. It also emphasizes providing meaningful
opportunities for public participation early and throughout the
planning process, increases the transparency of decision-making, and
provides a platform for the Agency to work with the public and across
boundaries with other land managers to identify and share information
and to inform planning. The final 2012 planning rule reflects key
themes expressed by members of the public, as well as experience gained
through the Agency's 30-year history with land management planning. It
is intended to create a more efficient and effective planning process
and provide an adaptive framework for planning.
The planning framework under the 2012 rule includes three phases:
Assessment, plan development/amendment/revision, and monitoring. The
framework supports an integrated approach to the management of
resources and uses, incorporates a landscape-scale context for
management, and was intended to help the Agency 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.
For the administrative units of the NFS there are 127 land
management plans, 68 of which are past due for revision. Most plans
were developed between 1983 and 1993 and should have been revised
between 1998 and 2008, based on the National Forest Management Act
(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 change, responsible officials often waited to make
changes all at once during a plan revision, resulting in a drawn-out,
difficult, and costly revision process.
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 planning
rule was for the planning process to encourage and support the more
regular use of amendments to keep plans current between revisions, and
thereby also make the revision process less cumbersome because plans
would not become as out-of-date between revisions.
Under the 2012 planning rule, responsible officials may amend plans
at any time. The 2012 planning 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 planning rule included a 3-year transition period during
which responsible officials could use either the 2012 planning rule or
the 1982 planning rule procedures to amend plans approved or revised
under the 1982 planning 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 planning rule.
In 2014, the Agency began to use the 2012 planning rule to amend
plans developed using the 1982 rule procedures (2012 rule amendments to
1982 rule plans). Currently amendments to 44 Forest Service land
management plans are pending. As the Agency 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
provided feedback suggesting the need for additional clarity on how to
apply the 2012 rule's substantive requirements when amending 1982 rule
plans.
While the 2012 planning rule includes direction specific to
amendments, and while there is evidence of the Department and Agency's
intent in the rule wording, preamble text, and planning directives, the
2012 planning rule did not explicitly direct how to apply the
requirements set forth in the 2012 planning 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, a 1982 rule plan likely will not meet all of the
requirements of the 2012 planning rule. The integrated approach to land
management planning presented in the 2012 planning rule has led to some

[[Page 70375]]

confusion about how responsible officials should apply the substantive
requirements for sustainability, diversity, multiple use and timber set
forth in 36 CFR 219.8 through 219.11 when amending 1982 rule plans.
This proposed amendment to the 2012 planning rule would clarify the
Department and Agency's expectations for plan amendments, including
expectations for amending 1982 rule plans.

The Department's Position on Applying the 2012 Rule to 1982 Rule Plans

The Department's position is firmly grounded in the National Forest
Management Act and the plain wording of the 2012 planning rule, as well
as the preambles for the proposed and final rules, the Forest Service
land management planning directives, and practical application of
Agency planning expertise.
Plans are changed in two distinctly different ways. The National
Forest Management Act (NFMA) requires revisions ``when conditions in a
unit have significantly changed,'' and ``at least every 15 years'' (16
U.S.C. 1604(f)(5)). NFMA also provides that ``plans can be amended in
any manner whatsoever'' (16 U.S.C. 1604(f)(4)). 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)). A process for a plan revision
requires, among other things, preparation of an environmental impact
statement (36 CFR 219.7(c)).
In contrast, and as the Department explained in the preamble to the
2012 planning 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 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)).
The Department's position is that the 2012 planning rule gives
responsible officials the discretion, within the framework of the 2012
planning rule's requirements, to tailor the scope and scale of an
amendment to a need to change the plan. This position means that, while
the 2012 planning 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.
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 or is contrary to any substantive requirement. Rather,
when responsible officials identify a need to change a plan, they must
determine which substantive requirements within Sec. Sec. 219.8
through 219.11 of the 2012 rule are directly related to such a change,
and propose an amendment that would meet those requirements and not
contradict other requirements.
The Department's position reflects the principle that no individual
amendment is required to do the work of a revision. A 2012 amendment to
a 1982 rule plan does not have to bring the entire plan into compliance
with the 2012 rule. The key distinction is between an amendment and an
amended plan. The amendment--the changed plan components--must meet the
directly related substantive requirements of the 2012 rule and not be
contrary to any substantive requirements. However, the responsible
official need not propose to change portions of a plan even if those
portions are inconsistent with or even contradictory to the 2012
planning rule; therefore, the amended plan will have plan components
changed by the amendment and plan direction that has not been changed.
An amended plan is not held to the same standard as a revised plan,
which must meet all of the 2012 planning rule requirements.
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 the amendment to a 1982
plan includes changes to plan direction related to scenery management,
then the 2012 rule requirement about scenic character would apply to
the affected area. 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, outside the scope and
scale of the amendment being proposed. This is true even if there is
also a separate need to change the plan to protect scenery in a way
that is consistent with the 2012 rule. A plan revision would be
required to address the scenic character requirement throughout the
plan area, but the responsible official has the discretion to narrowly
or broadly target plan amendments.
The Department's recognition 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 quote at
FSH 1909.12, ch. 20, sec. 21.3 (emphasis added):

Amendment of a plan developed and approved using the 1982 Rule
process requires application of the 2012 Planning 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)).
Further support for the Department's position is in the rule's
requirements for project consistency for 1982 rule plans, at 36 CFR
219.17(c):

[[Page 70376]]

None of the requirements of this part apply to projects or
activities on units with plans developed or revised under a prior
planning rule until the plan is revised under this part, except that
projects or activities on such units must comply with the
consistency requirement of Sec. 219.15 with respect to any
amendments that are developed and approved pursuant to this part.

The distinction made in this provision between amendments made
pursuant to the 2012 rule and the underlying plan is an acknowledgement
that portions of a 1982 rule plan will remain unchanged until revision.
The 2012 rule therefore exempts universal application of the
consistency requirements until the plan is revised, while also
requiring application of the consistency requirements to those changes
that are made by a 2012 rule amendment. The distinction between an
amendment and the amended plan is thus reflected in the text of the
2012 rule.
As a general matter, most 1982 rule plans will not be consistent
with all of the requirements of the 2012 planning rule. The
Department's position is that an individual plan amendment cannot be
expected to do the work of a plan revision. This positon not only
reflects the intent of the rule wording, preamble text, and planning
directives, but is also a practical approach to amending 1982 rule
plans under the 2012 rule. This approach comes with the full
realization that a unit may have important needs for change beyond
those that form the basis of any individual amendment.
During the Department and Agency's conversations with the Committee
about the Agency's early efforts to use the 2012 rule to amend 1982
rule plans, the Committee advised that some members of the public have
suggested interpretations of the 2012 rule that conflict with the
Department's position. For example, some members of the public
suggested that because the 2012 rule recognizes that resources and uses
are connected, changes to any one resource or use will impact other
resources and uses, and therefore all of the substantive provisions in
Sec. Sec. 219.8 through 218.11 must be applied to every amendment.
Other members of the public suggested an opposite view. They
believe that the 2012 rule gives the responsible official discretion to
selectively pick and choose which, if any, provisions of the rule to
apply, allowing the responsible official to avoid 2012 rule
requirements or even propose amendments that would contradict the 2012
rule. Under this second interpretation, members of the public
hypothesized that a responsible official could amend a 1982 plan to
remove plan direction that was required by the 1982 rule without
applying relevant requirements in the 2012 rule.
The Department intends in this preamble and proposed amendment to
the rule to clarify that neither of these interpretations is correct.
The Agency recognizes that resources and uses are connected and
interrelated. However, an interpretation that the rule prevents the
responsible official from distinguishing among connected resources such
that the Agency must comply with all of the 2012 rule's requirements in
Sec. Sec. 219.8 through 219.11 for each amendment would essentially
turn every amendment into a revision, directly contradicting the
Department's position as described earlier in this discussion that
revisions and amendments serve different functions. Such an
interpretation would freeze the Agency's ability to use amendments
adaptively to respond to new information and changed conditions on
units with 1982 rule plans.
At the same time, 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. Similarly, an interpretation
that the 2012 rule gives 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, is in opposition with the
Department's position described earlier in this discussion that the
responsible official's discretion to tailor the scope and scale of an
amendment is not unbounded.
The Department's position is that a responsible official may use
the best available scientific information, scoping, effects analysis,
monitoring data, and other rationale to distinguish among connected
resources to determine which substantive requirements are directly
related to a change being proposed. A 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 changes being proposed,
and cannot propose changes that would undermine or be contrary to other
substantive requirements.
Further, the Department's position is that 2012 rule requirements
apply to the amendment (the plan direction being added, modified, or
removed), not to the amended plan. The 2012 rule therefore can be used
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 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 planning rule to
revise their 1982 rule plans, but given Agency budget constraints and
staff capacity, revision of all 127 of the Agency's 1982 rule plans
will likely take more than 15 years. The clarifications in this
proposed rule amendment would help ensure that the Agency can
effectively use the 2012 rule to amend 1982 rule plans until they are
revised.
When revised plans under the 2012 rule are amended, the process
will be much less complicated than the present circumstance of
amendments to 1982 rule plans. That is because plans revised under the
2012 rule are expected to meet all of the 2012 rule's substantive
requirements. However, this proposed rule amendment 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.

Proposed Clarifications

To ensure that the Department's position regarding amendments of
1982 rule plans is clear, the proposed amendment to the 2012 planning
rule would clarify that:
The responsible official determines 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 apply the requirements
within Sec. Sec. 219.8 through 219.11 that are directly related to the
amendment, unlike a new plan or plan revision when they must bring the
plan into compliance with every requirement within Sec. Sec. 219.8
through 219.11.
A plan amendment cannot make changes that are contrary to
requirements of the 2012 planning rule.
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, and how they were applied.

[[Page 70377]]

Specific Changes

Revise Sec. 219.3

The Agency proposes to add the words ``for assessment; developing,
amending, or revising a plan; and monitoring,'' to the first sentence
of Sec. 219.3, so it is clear that the best available scientific
information applies to the plan amendment process as well as the other
parts of the planning framework (36 CFR 219.5). Section 219.3 currently
states ``the responsible official shall use the best available
scientific information to inform the planning process required by this
subpart.'' That process includes assessments, plan development,
revision and amendment, and monitoring. Expanding the current wording
to specifically mention each part of the process, including amendments,
would make this section more consistent with other sections of the
rule, including: Providing opportunities for public participation
(Sec. 219.4), the plan amendment process (Sec. 219.13), including
specific information in a decision document (Sec. 219.14), stating
whether or not projects authorized at the time of amendment may
continue without change (Sec. 219.15(a)), giving public notice (Sec.
219.16), setting the effective date for amendments (Sec. 219.17), and
providing an objection opportunity (subpart B).

Amend Sec. Sec. 219.8 Through 219.11 To Revise the Introductory Text

The Agency proposes to add the words ``a plan developed or revised
under this rule'' 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 plan development or plan revision. Subpart A of the 2012
planning rule (Sec. Sec. 219.1 through 219.19) recognizes the
interrelationship among resources and among the sections, but it was
not the intent of the Agency to imply that an individual plan amendment
would need to meet all of the requirements of Sec. Sec. 219.8 through
219.11. This proposed clarification would distinguish between new plans
and plan revisions, which must comply with all the requirements in
Sec. Sec. 219.8 through 219.11, and amendments, which do not.

Amend Sec. 219.13 To Revise Paragraph (a)

The Agency proposes to add the words ``and to determine the scope
and scale of any amendment'' to the end of the third sentence of
paragraph (a) that currently states: ``The responsible official has the
discretion to determine whether and how to amend the plan.'' This
change will clarify 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 except as provided in paragraphs
(b) and (c) of this section.

Amend Sec. 219.13 Revise the Introductory Text of Paragraph (b)

The Agency proposes to add the words ``For all plan amendments,''
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.

Amend Sec. 219.13 To Add Paragraph (b)(4)

The Agency proposes adding 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 (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).''
Section 219.7 of the 2012 rule includes definitions for plan
components to bring greater clarity to the Agency's plans, because 1982
rule plans often had an inconsistent approach to plan components--for
example, mislabeling desired conditions as standards, or including
objectives that did not have a measurable rate of progress.
Bringing the Handbook direction into paragraph (b)(4) of this
section would help clarify that the 2012 requirements for formatting
plan components, apply to plan amendments, but not to the part of the
plan that is not amended. This clarification is important for
amendments to 1982 rule plans, where unchanged plan direction will
likely not meet the definitions in Sec. 219.7(e), but reformatting
that direction would be complicated and could have unintended
consequences beyond the scope and scale of the amendment.
The Agency proposes to include 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 area to conform to Sec. 219.7(e), because reformatting plan
direction might accidentally broaden the scope of the amendment.
For example, an existing standard or guideline may not meet the
definition in Sec. 219.7(e) for those plan components but a formatting
change could change the meaning of that plan direction. This formatting
exemption is not an exemption from proposed paragraphs (b)(5) and (6)
of this section. The expansion or reduction of an area to which
existing direction applies would still have to meet directly related
substantive requirements of the rule and not be contrary to any
substantive requirement. This paragraph simply permits the responsible
official to avoid rewriting existing direction in a 1982 rule plan to
conform to the drafting direction for plan components set forth in
Sec. 219.7(e).

Amend Sec. 219.13 To Add Paragraph (b)(5)

The Agency proposes new paragraph (b)(5) to clarify that, when
amending a plan using the 2012 planning rule, the responsible official
must meet the specific substantive requirement(s) within Sec. Sec.
219.8 through 219.11 that are directly related to the plan direction
added, modified, or removed by the amendment. The requirements of
paragraphs (b)(5) apply only to those plan components being amended,
not to the amended plan. This clarification will help the Agency and
public understand how to apply the substantive requirements within
Sec. Sec. 219.8 through 219.11.
The Department's intent is that a responsible official use best
available scientific information, scoping, effects analyses, monitoring
data, and other rationale to inform a determination of which
substantive requirements are directly related to the proposed plan
amendment, and ensure that the amendment meets those requirements. The
responsible official must be able to clearly explain the determination
in the decision document for the amendment (see Sec. 219.14).
Interrelationships between resources do not necessarily result in a
substantive requirement being directly related to the proposed change.
The Department recognize that resources and uses within the plan area
are often related to one another--nonetheless, the responsible official
can distinguish between rule requirements directly

[[Page 70378]]

related to the amendment and those that may be unrelated or for which
the relationship is indirect.
For example:
Soil and water resources are interrelated, but the
responsible official can determine that for a plan amendment to change
standards and guidelines to protect a water body, the water
requirements of Sec. 219.8 would apply, while that section's
requirements for soil would not.
A change in plan components for timber harvest to support
restoration may be related to the overall ecological integrity of the
plan area, but a responsible official can determine that a change to a
plan component for timber harvest for restoration purposes under Sec.
219.11 would not require the application across the plan area of all of
the requirements in Sec. 219.8 related to ecological integrity.
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.
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.
For example, an amendment to plan direction for a specific riparian
area would require the application of Sec. 219.8 riparian management
requirements to the changed direction for that area, but would not
require that application of those requirements to other riparian areas
in the plan area.
Likewise, 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 go directly through critical habitat for a
threatened species, then the requirements of Sec. 219.9 would be
directly related to the amendment as applied to that particular
species. The responsible official may be required, for example, to add
standards or guidelines to protect the critical habitat. However, the
determination that Sec. 219.9 is directly related to the amendment
because of the potential impacts to one species would not trigger the
application of Sec. 219.9 to evaluate ecological conditions for all
other species on the unit.

Amend Sec. 219.13 To Add Paragraph (b)(6)

The Agency proposes adding paragraph (b)(6) to clarify that an
amendment must avoid effects that would be directly contrary to any
specific substantive requirement of Sec. Sec. 219.8 through 219.11.
The Department intended this result in the guidance in Sec. 219.1(a)
that Subpart A sets out the requirements for plan components and other
content in land management plans for developing, amending, and revising
plans, and is applicable to all units of the National Forest System.
The 2012 rule further states in Sec. 219.17(b)(2) that ``[a]fter the
3-year transition period, all plan amendments must be initiated,
completed, and approved under the requirements of this part.''
An outcome in which an amendment, using the 2012 rule, could
introduce plan components, or change the underlying plan by removing
direction in a way that contradicts or undermines the 2012 rule would
be a contrary outcome: Paragraph (b)(6) clarifies that expectation.
Proposed paragraph (b)(6) would clarify that the responsible
official does not have the discretion to approve an amendment to any
plan, whether a 1982 rule plan or a 2012 rule plan, that has effects
contrary to a requirement in the 2012 planning rule. The Department's
intent is that when a question about effects arises, the responsible
official would use best available scientific information (BASI),
effects analyses, and other rationale to evaluate whether effects are
contrary to a requirement, and to adjust the proposed amendment to
avoid such effects. However, the Department's position is that the
proposed paragraph (b)(6) does not prevent an amendment from having
negative effects on a resource--the 2012 planning rule does not require
the absence of negative effects. If effects analyses show negative
effects that would be permissible under the 2012 rule, the responsible
official would not need to change the proposal as a result of paragraph
(b)(6).
There is an important burden-of-proof expectation in proposed
paragraph (b)(6). The Department's intent is that paragraph (b)(6) does
not require responsible officials to prove that an amendment is not
contrary to the requirements in Sec. Sec. 219.8 through 219.11.
Rather, when analyses of a proposed amendment reveal that its effects
would be contrary to a requirement, the proposed amendment must be
adjusted to eliminate such effects. This burden-of-proof is similar to
how the 2012 planning rule provides for the identification of species
of conservation concern. A species must be identified as a species of
conservation concern when it is known to occur in the plan area and
BASI indicates there is substantial concern about the species'
capability to persist over the long-term in the plan area. But, the
Agency is not required to prove that there isn't substantial concern
for other species. The same burden-of-proof is intended here.
The analysis already required by the Forest Service NEPA procedures
for proposals are expected to provide the information necessary to
satisfy proposed paragraph (b)(6). This paragraph does not require
additional analyses. (See 36 CFR part 220, FSM 1950, FSH 1909.15).
Proposed paragraph (b)(6) anticipates the potential scenario in which a
responsible official does not realize that a specific requirement is
directly related to the proposed plan amendment, but discovers through
NEPA effects analysis that the proposed change would have a negative
effect that is contrary to that requirement.
If the customary analysis of effects of a proposed plan amendment
reveals effects that would be contrary to a specific substantive
requirement within Sec. Sec. 219.8 through 219.11, the responsible
official must change the proposal so that it avoids those contrary
effects.
For example: A proposed amendment would identify lands as suitable
for an energy corridor. At the time the amendment is proposed, the
responsible official does not have information indicating that the
proposed corridor includes habitat necessary for an at-risk species and
therefore determines that Sec. 219.9 is not directly related to the
amendment. However, effects analysis reveals habitat impacts that
undermine the persistence of the at-risk species, contrary to Sec.
219.9. At that point, the responsible official could avoid the contrary
effects by changing the location of the proposed corridor to avoid that
habitat, or could apply Sec. 219.9 to add coarse or fine filter plan
components for ecological conditions that would result in avoiding the
contrary effects. The responsible official would not have the
discretion to approve the amendment without avoiding the contrary
effects.
As discussed in the ``Amend Sec. 219.13 to add paragraph (b)(5)''
section of this document, the Department's intent is to distinguish
between an amendment and an amended plan. Proposed paragraph (b)(6)
applies to the amendment--plan components being added, modified or

[[Page 70379]]

removed--not to the plan as amended. The Department recognizes that a
1982 rule plan may contain direction contrary to the 2012 rule that is
outside of the scope of the amendment being proposed. Paragraph (b)(6)
would require that an amendment--the changes--to such a plan not be
contrary to 2012 rule requirements, but it does not require that the
underlying plan be modified to remove existing contrary direction
outside the scope of the amendment.

Amend Sec. 219.13 To Add New Paragraph (c)

The Agency is proposing to add a new paragraph (c), to include
additional clarifications on how to apply the 2012 rule to amend 1982
rule plans. Existing direction on administrative changes currently at
paragraph (c) would be moved to a new paragraph (d).
Proposed paragraph (c)(1) would clarify that although the existing
requirements of Sec. Sec. 219.8 through 219.11 take into account the
interrelationship among resources, an individual plan amendment is not
expected to bring an entire 1982 rule plan into compliance with all of
the 2012 rule's substantive requirements identified in Sec. Sec. 219.8
through 219.11. This paragraph reflects the Department's intent to
distinguish between the substantive requirements for the amendment
(clarified in paragraphs (b)(5) and (b)(6) of this section), and the
Department's expectations with regard to the amended plan (which will
include both changed and unchanged portions of the underlying plan).
Proposed paragraph (c)(2) would clarify that an amendment cannot
remove any existing plan direction that was required by the 1982 rule
without including plan components that meet related requirements in
Sec. Sec. 219.8 through 219.11. The Agency believes that this scenario
is covered by the proposed clarifications in paragraphs (b)(5) and
(b)(6) of this section. These two paragraphs clarify that the
responsible official cannot remove direction from a plan without
applying the directly related requirements within Sec. Sec. 219.8
through 219.11. However, we are including proposed paragraph (c)(2) in
the proposed amendment based on feedback from the Committee, to get
public input during the comment period.
Paragraph (c)(2) is not intended to add to the process burden for
amendments. Rather, this paragraph is intended to make clear that
removing plan direction required by the 1982 rule without appropriately
applying the 2012 rule is not permitted. For example, if an amendment
removes a standard that BASI has shown to be material to the viability
of an at-risk vertebrate species in the plan area as required by the
1982 rule, the responsible official would have to ensure that the plan
provides the ecological conditions for that species as required by
Sec. 219.9 of the 2012 rule.
We discussed with the Committee an earlier draft of paragraph
(c)(2) that allowed the responsible official to remove direction
required by the 1982 rule without applying directly related 2012 rule
substantive requirements, if the responsible official could demonstrate
that the amended plan still was consistent with the 1982 rule. For
example, the earlier draft would have allowed the removal of a standard
for an at-risk vertebrate species without requiring the application of
Sec. 219.9, so long as the amended plan still met the viability
requirements for that species under the 1982 rule procedures. The
Agency decided not to include that option for several reasons. The
reasons were: Concerns about the process burden that option could
create by necessitating the evaluation of amended plans, the desire to
clarify that the 2012 rule's requirements apply to amendments and not
amended plans, and because the intent of the 2012 rule was to move away
from the 1982 requirements after the 3-year transition period. However,
we are describing that option here based on Committee feedback, so that
the public can comment.
The Agency proposes to add paragraph (c)(3) to address the scenario
in which the species-specific requirements of Sec. 219.9(b) are
directly related to the amendment of a 1982 rule plan, but because the
plan has not yet been revised, the regional forester has not yet
identified the species of conservation concern (SCC) for the plan area.
Requiring the responsible official to identify potential SCC before
amending 1982 rule plans would freeze the Agency's ability to amend
1982 rule plans. Even where the diversity requirements in Sec.
219.9(b) are directly related to a proposed amendment, requiring the
development of the list of SCC to provide species-specific plan
components for one or more species would be a disproportionate
expansion of the scope and scale of an amendment. Further difficulties
would likely arise because the 1982 rule did not include the 2012
rule's 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.
However, while SCCs are a new element of the 2012 rule, regional
foresters have already identified species for which population
viability is a concern pursuant to FSM Chapter 2670--Threatened,
Endangered and Sensitive Plants and Animals (see 36 CFR 219.9(c); FSM
2670.5). These species are called regional forester sensitive species
(RFSS). RFSS are not the same as SCC, but combined with the NEPA
effects analysis that is already required for an amendment, the Agency
expects that they would be a reasonable proxy to facilitate amendments
of 1982 plans before plan revision.
Therefore, the Agency is proposing that responsible officials
substitute the RFSS list for SCC when using the 2012 rule to amend 1982
rule plans. This proposal would allow responsible officials to use RFSS
in lieu of SCC, and in addition to listed species, to determine whether
Sec. 219.9(b) is directly related to the changes being proposed by an
amendment as required by proposed paragraph (b)(5) or proposed
paragraph (c)(2) of this section, or applies to avoid contrary effects
as required by paragraph (b)(6) of this section. In applying Sec.
219.9(b), the responsible official would use RFSS in lieu of SCC to
apply the requirements of Sec. 219.9(b) to develop species-specific
plan components.

Amend Sec. 219.14

The Agency proposes to change the caption of paragraph (a) from
``Decision document'' to ``Decision document approving a new plan, plan
amendment, or revision.'' The Agency proposes to redesignate paragraph
Sec. 219.14(b) as Sec. 219.14(d).
In addition, the Agency proposes to remove paragraph (a)(2) which
requires responsible officials to explain how plan direction meets the
provisions of Sec. Sec. 219.8 through 219.11. The Agency would replace
paragraph (a)(2) with two new paragraphs (b) and (c).
The new paragraph (b) would require 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.
This wording would be identical to the existing paragraph (a)(2),
except would clarify that this requirement applies to new plans or plan
revisions only.
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

[[Page 70380]]

directly related, and how they were applied.

Technical Correction to Section 219.11

The Department proposes to include one change unrelated to the
clarifications for amending 1982 rule plans. This change is a technical
correction to fix a mistake made on July 27, 2012, (77 FR 44144, July
27, 2012). In that correcting amendment, the Agency removed a sentence
by mistake about the maximum size limits for areas to be cut in one
harvest operation in Sec. 219.11(d)(4). This change would simply
return to Sec. 219.11 the original sentence as published in the 2012
planning rule on April 9, 2012 (77 FR 21161).

Regulatory Certifications

Energy Effects

This proposed 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 rule amendment does not
require additional documentation under the National Environmental
Policy Act. Because this amendment 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 proposed rule amendment. Therefore, there is no need to
supplement the National Forest System Land Management Planning Rule
Final Programmatic Environmental Impact Statement of January 2012.
In addition, Forest Service regulations at 36 CFR 220.6(d)(2)
exclude from documentation in an environmental assessment or
environmental impact statement ``rules, regulations, or policies to
establish servicewide administrative procedures, program processes, or
instruction.'' The Agency has determined that this proposed rule
amendment falls within this category of actions and that no
extraordinary circumstances exist which require preparation of an
environmental assessment or environmental impact statement.

Consultation and Coordination With Indian Tribal Governments

This proposed 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 proposed 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 proposed 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 proposed rule.

Federalism

The Forest Service has considered this proposed rule under the
requirements of Executive Order 13132 on federalism. The Agency has
determined that the proposed 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 further determination of federalism
implications is necessary at this time.

No Takings Implications

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

Civil Justice Reform

This proposed rule has been reviewed under Executive Order 12988 on
civil justice reform. If the proposed rule were to be adopted, (1) all
State and local laws and regulations that conflict with the proposed
rule or that would impede its full implementation would be preempted;
(2) no retroactive effect would be given to the proposed 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 proposed
directive on State, local, and Tribal governments and the private
sector. This proposed directive 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 proposed 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

[[Page 70381]]

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 Forest
Service proposes to amend 36 CFR part 219 by making the following
amendments:

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 rule 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 rule 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. Revise the introductory text to Sec. 219.11 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 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 as follows:
0
a. Revise paragraph (a);
0
b. Revise the introductory text of paragraph (b) and add paragraphs
(b)(4) through (6);
0
c. Redesignate paragraph (c) as paragraph (d) and add new paragraph
(c).
The revisions and additions 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 (d) 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 all plan amendments, the
responsible official shall:
* * * * *
(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 modify the area to
which existing direction applies, without altering the existing
direction, the responsible official may retain the existing formatting
for that direction.
(5) Ensure that the amendment meets the specific substantive
requirement(s) within Sec. Sec. 219.8 through 219.11 that are directly
related to the plan direction added, modified, or removed by the
amendment.
(6) Ensure that the amendment avoids effects that would be contrary
to a specific substantive requirement of this

[[Page 70382]]

part identified within Sec. Sec. 219.8 through 219.11.
(c) Amendment of a plan developed or revised under a prior planning
rule. (1) An amendment of a plan developed or revised under a prior
planning rule is not required to bring the amended plan into compliance
with all of the requirements of Sec. Sec. 219.8 through 219.11.
(2) 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.
(3) If species of conservation concern (SCC) have not been
identified for the plan area, the responsible official must use 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.
0
8. Amend Sec. 219.14 as follows:
0
a. Revise the 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.
* * * * *

Dated: October 6, 2016.
Thomas L. Tidwell,
Chief, Forest Service.
[FR Doc. 2016-24654 Filed 10-11-16; 8:45 am]
BILLING CODE 3411-15-P

Federal Register / Vol. 81, No. 197 / Wednesday, October 12, 2016 / Proposed Rules 70373

The Proposal PART 71—DESIGNATION OF CLASS A, ADDRESSES: Submit comments
The FAA is proposing an amendment B, C, D, AND E AIRSPACE AREAS; AIR concerning the proposed rule through
to Title 14 Code of Federal Regulations TRAFFIC SERVICE ROUTES; AND one of the following methods:
REPORTING POINTS 1. Public participation portal: https://
(14 CFR) Part 71 by removing Class E
cara.ecosystem-management.org/Public/
airspace at Ruston Municipal Airport, ■ 1. The authority citation for 14 CFR CommentInput?project=NP-1403.
Ruston, LA, as the airport has been Part 71 continues to read as follows: 2. Facsimile: Fax to: 202–649–1172.
closed; therefore controlled airspace is
Authority: 49 U.S.C. 106(f), 106(g); 40103, Please identify your comments by
no longer needed. Class E airspace
40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, including ‘‘RIN 0596–AD28’’ or
extending upward from 700 feet above 1959–1963 Comp., p. 389. ‘‘planning rule amendment’’ on the
the surface within a 6.5-mile radius of
cover sheet or the first page.
Ruston Regional Airport, Ruston, LA § 71.1 [Amended]
3. U.S. Postal Service: The mailing
would be established. Controlled ■ 2. The incorporation by reference in address is: USDA Forest Service
airspace is necessary for the safety and 14 CFR 71.1 of FAA Order 7400.11A, Planning Rule Comments, 2222 W. 2300
management of standard instrument Airspace Designations and Reporting S., Salt Lake City, UT 84119.
approach procedures for IFR operations Points, dated August 3, 2016, and
at the airport. effective September 15, 2016, is FOR FURTHER INFORMATION CONTACT:
Class E airspace designations are amended as follows: Ecosystem Management Coordination
published in paragraph 6005 of FAA staff’s Assistant Director for Planning
Paragraph 6005. Class E Airspace Areas Andrea Bedell Loucks at 202–205–8336
Order 7400.11A, dated August 3, 2016, Extending Upward from 700 feet or More
and effective September 15, 2016, which Above the Surface of the Earth.
or Planning Specialist Regis Terney at
is incorporated by reference in 14 CFR 202–205–1552.
* * * * *
71.1. The Class E airspace designations SUPPLEMENTARY INFORMATION:
listed in this document will be ASW LA E5 Ruston, LA [Removed]
* * * * * Background
published subsequently in the Order.
ASW LA E5 Ruston, LA [New]
The mission of the Forest Service is
Regulatory Notices and Analyses to sustain the health, diversity, and
Ruston Regional Airport, LA productivity of the Nation’s forests and
The FAA has determined that this (Lat. 32°30′53″ N., long. 92°35′18″ W.)
regulation only involves an established That airspace extending upward from 700 grasslands to meet the needs of present
body of technical regulations for which feet above the surface within a 6.5-mile and future generations. In
frequent and routine amendments are radius of the airport. accomplishing this mission, the Agency
necessary to keep them operationally Issued in Fort Worth, Texas, on October 3,
is required by statute to develop land
current, is non-controversial and 2016. management plans to guide
unlikely to result in adverse or negative Walter Tweedy, management of the 154 national forests,
comments. It, therefore: (1) Is not a 20 grasslands, and 1 prairie that
Acting Manager, Operations Support Group,
‘‘significant regulatory action’’ under ATO Central Service Center. comprise the 193 million acre National
Executive Order 12866; (2) is not a Forest System (NFS).
[FR Doc. 2016–24658 Filed 10–11–16; 8:45 am]
‘‘significant rule’’ under DOT The National Forest Management Act
BILLING CODE 4910–13–P
Regulatory Policies and Procedures (44 required the Secretary of Agriculture to
FR 11034; February 26, 1979); and (3) develop a planning rule ‘‘under the
does not warrant preparation of a principles of the Multiple-Use
DEPARTMENT OF AGRICULTURE Sustained-Yield Act of 1960, that set[s]
regulatory evaluation as the anticipated
impact is so minimal. Since this is a Forest Service out the process for the development and
routine matter that will only affect air revision of the land management plans,
traffic procedures and air navigation, it 36 CFR Part 219 and the guidelines and standards’’ (16
is certified that this rule, when U.S.C. 1604(g)). The Secretary fulfilled
promulgated, would not have a RIN 0596–AD28 this requirement by issuing a rule,
significant economic impact on a codified at title 36, Code of Federal
National Forest System Land Regulations, part 219 (36 CFR part 219),
substantial number of small entities Management Planning
under the criteria of the Regulatory which sets requirements for land
Flexibility Act. AGENCY: Forest Service, USDA. management planning and content of
ACTION: Notice of proposed rulemaking; plans. In 1979, the U.S. Department of
Environmental Review Agriculture (Department) issued the first
request for comment.
This proposal will be subject to an regulations to comply with this
environmental analysis in accordance SUMMARY: The U.S. Department of statutory requirement. The 1979
with FAA Order 1050.1F, Agriculture, Forest Service is proposing regulations were superseded by the
‘‘Environmental Impacts: Policies and to amend regulations pertaining to the 1982 planning rule.
Procedures’’ prior to any FAA final National Forest System Land Numerous efforts were made over the
regulatory action. Management Planning. The proposed past three decades to improve on the
rule would amend the administrative 1982 planning rule. On November 9,
List of Subjects in 14 CFR Part 71 procedures to amend land management 2000, the Department issued a new
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Airspace, Incorporation by reference, plans developed or revised in planning rule that superseded the 1982
Navigation (air). conformance with the provisions under rule (65 FR 67514). Shortly after the
a prior planning rule. issuance of the 2000 rule, a review of
The Proposed Amendment DATES: Comments must be received in the rule found that it would be
Accordingly, pursuant to the writing by November 14, 2016. The unworkable and recommended that a
authority delegated to me, the Federal Agency will consider and place new rule should be developed. The
Aviation Administration proposes to comments received after this date in the Department amended the 2000 rule so
amend 14 CFR part 71 as follows: record only if practicable. that responsible officials could continue

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confusion about how responsible Under the 2012 rule, ‘‘[p]lan portions are inconsistent with or even
officials should apply the substantive amendments may be broad or narrow, contradictory to the 2012 planning rule;
requirements for sustainability, depending on the need for change’’ (36 therefore, the amended plan will have
diversity, multiple use and timber set CFR 219.13(a)); and amendments ‘‘could plan components changed by the
forth in 36 CFR 219.8 through 219.11 range from project specific amendments amendment and plan direction that has
when amending 1982 rule plans. or amendments of one plan component, not been changed. An amended plan is
This proposed amendment to the to the amendment of multiple plan not held to the same standard as a
2012 planning rule would clarify the components.’’ (77 FR 21161, 21237 revised plan, which must meet all of the
Department and Agency’s expectations (April 9, 2012)). Unlike for a plan 2012 planning rule requirements.
for plan amendments, including revision, the 2012 rule does not require For example, the 2012 planning rule
expectations for amending 1982 rule an environmental impact statement for requires that the plan must include plan
plans. every amendment; such a requirement components to provide for scenic
The Department’s Position on Applying would be burdensome and unnecessary character, which is a term of art
the 2012 Rule to 1982 Rule Plans for amendments without significant associated with the scenic management
environmental effect, and ‘‘would also system that was developed in the mid-
The Department’s position is firmly inhibit the more frequent use of 1990s. If the scope of the amendment to
grounded in the National Forest amendments as a tool for adaptive a 1982 plan includes changes to plan
Management Act and the plain wording management to keep plans relevant, direction related to scenery
of the 2012 planning rule, as well as the current and effective between plan management, then the 2012 rule
preambles for the proposed and final revisions.’’ (Preamble to final rule, 77 requirement about scenic character
rules, the Forest Service land FR 21161, 21239 (April 9, 2012)). would apply to the affected area.
management planning directives, and The Department’s position is that the
practical application of Agency However, a responsible official is not
2012 planning rule gives responsible otherwise required to review and
planning expertise. officials the discretion, within the
Plans are changed in two distinctly modify a 1982 rule plan to meet the
framework of the 2012 planning rule’s 2012 rule’s requirement to provide for
different ways. The National Forest requirements, to tailor the scope and
Management Act (NFMA) requires scenic character, outside the scope and
scale of an amendment to a need to scale of the amendment being proposed.
revisions ‘‘when conditions in a unit change the plan. This position means
have significantly changed,’’ and ‘‘at This is true even if there is also a
that, while the 2012 planning rule sets separate need to change the plan to
least every 15 years’’ (16 U.S.C. forth a series of substantive
1604(f)(5)). NFMA also provides that protect scenery in a way that is
requirements for land management
‘‘plans can be amended in any manner consistent with the 2012 rule. A plan
plans within §§ 219.8 through 219.11,
whatsoever’’ (16 U.S.C. 1604(f)(4)). As revision would be required to address
not every section or requirement within
the 2012 rule states, ‘‘[a] plan revision the scenic character requirement
those sections will be directly related to
creates a new plan for the entire plan throughout the plan area, but the
the scope and scale of a given
area, whether the plan revision differs responsible official has the discretion to
amendment.
from the prior plan to a small or large However, a plan amendment must be narrowly or broadly target plan
extent’’ (36 CFR 219.7(a)). A process for done ‘‘under the requirements of’’ the amendments.
a plan revision requires, among other 2012 rule (36 CFR 219.17(b)(2)). The Department’s recognition that not
things, preparation of an environmental Therefore the responsible official’s every requirement within §§ 219.8
impact statement (36 CFR 219.7(c)). discretion is not unbounded. An through 219.11 will apply to every
In contrast, and as the Department amendment cannot be tailored so that amendment of 1982 rule plans is
explained in the preamble to the 2012 the amendment fails to meet directly reflected in the following planning
planning rule, ‘‘[p]lan amendments related substantive requirements or is directives quote at FSH 1909.12, ch. 20,
incrementally change the plan as need contrary to any substantive requirement. sec. 21.3 (emphasis added):
arises.’’ (77 FR 21161, 21237 (April 9, Rather, when responsible officials Amendment of a plan developed and
2012) (emphasis added). Unlike a plan identify a need to change a plan, they approved using the 1982 Rule process
revision, a plan amendment does not must determine which substantive requires application of the 2012 Planning
create a new plan: It results in an requirements within §§ 219.8 through Rule requirements only to those changes to
amended plan, with the underlying plan 219.11 of the 2012 rule are directly the plan made by the amendment. For
retained except where changed by the related to such a change, and propose an example, the 2012 Rule’s requirements to
amendment. The Department explained establish a riparian management zone (36
amendment that would meet those
CFR 219.8(a)(3)) would apply only if the plan
its intent that with the 2012 rule, ‘‘plans requirements and not contradict other amendment focuses on riparian area
will be kept more current, effective and requirements. guidance.
relevant by the use of more frequent and The Department’s position reflects the
efficient amendments, and principle that no individual amendment See also the Handbook’s direction
administrative changes over the life of is required to do the work of a revision. regarding documentation of a decision
the plan, also reducing the amount of A 2012 amendment to a 1982 rule plan to approve an amendment of a 1982 rule
work needed for a full revision’’ (Id.). does not have to bring the entire plan plan: ‘‘[f]or plan amendments, the
The 2012 rule provides that, ‘‘[t]he into compliance with the 2012 rule. The decision document must discuss only
responsible official has the discretion to key distinction is between an those requirements of 36 CFR 219.8
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determine whether and how to amend amendment and an amended plan. The through 219.11 that are applicable to
the plan.’’ (36 CFR 219.13(a)). The 2012 amendment—the changed plan the plan components that are being
rule reinforces this discretion by components—must meet the directly modified or added.’’ (FSH 1909.12 ch.
providing that the rule ‘‘does not related substantive requirements of the 20, sec. 21.3 (emphasis added)).
compel a change to any existing plan, 2012 rule and not be contrary to any Further support for the Department’s
except as required in § 219.12 (c)(1)’’ substantive requirements. However, the position is in the rule’s requirements for
(which establishes monitoring responsible official need not propose to project consistency for 1982 rule plans,
requirements). (36 CFR 219.17 (c)). change portions of a plan even if those at 36 CFR 219.17(c):

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70376 Federal Register / Vol. 81, No. 197 / Wednesday, October 12, 2016 / Proposed Rules

None of the requirements of this part apply official could amend a 1982 plan to amendment (the plan direction being
to projects or activities on units with plans remove plan direction that was required added, modified, or removed), not to the
developed or revised under a prior planning by the 1982 rule without applying amended plan. The 2012 rule therefore
rule until the plan is revised under this part, relevant requirements in the 2012 rule. can be used to amend 1982 rule plans
except that projects or activities on such The Department intends in this without any individual amendment
units must comply with the consistency
requirement of § 219.15 with respect to any
preamble and proposed amendment to bearing the burden of bringing the
amendments that are developed and the rule to clarify that neither of these underlying plan into compliance with
approved pursuant to this part. interpretations is correct. all of the 2012 rule requirements, even
The Agency recognizes that resources if unchanged direction in the 1982 rule
The distinction made in this and uses are connected and interrelated. plan fails to address, meet or is contrary
provision between amendments made However, an interpretation that the rule to 2012 rule requirements.
pursuant to the 2012 rule and the prevents the responsible official from Twenty-two forests are currently
underlying plan is an acknowledgement distinguishing among connected using the 2012 planning rule to revise
that portions of a 1982 rule plan will resources such that the Agency must their 1982 rule plans, but given Agency
remain unchanged until revision. The comply with all of the 2012 rule’s budget constraints and staff capacity,
2012 rule therefore exempts universal requirements in §§ 219.8 through 219.11 revision of all 127 of the Agency’s 1982
application of the consistency for each amendment would essentially rule plans will likely take more than 15
requirements until the plan is revised, turn every amendment into a revision, years. The clarifications in this
while also requiring application of the directly contradicting the Department’s proposed rule amendment would help
consistency requirements to those position as described earlier in this ensure that the Agency can effectively
changes that are made by a 2012 rule discussion that revisions and use the 2012 rule to amend 1982 rule
amendment. The distinction between an amendments serve different functions. plans until they are revised.
amendment and the amended plan is Such an interpretation would freeze the When revised plans under the 2012
thus reflected in the text of the 2012 Agency’s ability to use amendments rule are amended, the process will be
rule. adaptively to respond to new much less complicated than the present
As a general matter, most 1982 rule information and changed conditions on circumstance of amendments to 1982
plans will not be consistent with all of units with 1982 rule plans. rule plans. That is because plans revised
the requirements of the 2012 planning At the same time, the 2012 rule does under the 2012 rule are expected to
rule. The Department’s position is that not give a responsible official the meet all of the 2012 rule’s substantive
an individual plan amendment cannot discretion to amend a plan in a manner requirements. However, this proposed
be expected to do the work of a plan contrary to the 2012 rule by selectively rule amendment clarifies that
revision. This positon not only reflects applying, or avoiding altogether, responsible officials have the discretion
the intent of the rule wording, preamble substantive requirements within to tailor the scope and scale of
text, and planning directives, but is also §§ 219.8 through 219.11 that are directly amendments to adaptively change plans
a practical approach to amending 1982 related to the changes being proposed. whether an amendment is to a 1982 rule
rule plans under the 2012 rule. This Similarly, an interpretation that the plan or, in the future, to a 2012 rule
approach comes with the full realization 2012 rule gives responsible officials plan.
that a unit may have important needs discretion to propose amendments
for change beyond those that form the ‘‘under the requirements’’ of the 2012 Proposed Clarifications
basis of any individual amendment. rule that actually are contrary to those To ensure that the Department’s
During the Department and Agency’s requirements, or to use the amendment position regarding amendments of 1982
conversations with the Committee about process to avoid both 1982 and 2012 rule plans is clear, the proposed
the Agency’s early efforts to use the rule requirements, is in opposition with amendment to the 2012 planning rule
2012 rule to amend 1982 rule plans, the the Department’s position described would clarify that:
Committee advised that some members earlier in this discussion that the • The responsible official determines
of the public have suggested responsible official’s discretion to tailor the scope and scale of a plan
interpretations of the 2012 rule that the scope and scale of an amendment is amendment based on a need to change
conflict with the Department’s position. not unbounded. the plan.
For example, some members of the The Department’s position is that a • The responsible official must use
public suggested that because the 2012 responsible official may use the best the best available scientific information
rule recognizes that resources and uses available scientific information, to inform the amendment process.
are connected, changes to any one scoping, effects analysis, monitoring • The responsible official must apply
resource or use will impact other data, and other rationale to distinguish the requirements within §§ 219.8
resources and uses, and therefore all of among connected resources to through 219.11 that are directly related
the substantive provisions in §§ 219.8 determine which substantive to the amendment, unlike a new plan or
through 218.11 must be applied to every requirements are directly related to a plan revision when they must bring the
amendment. change being proposed. A responsible plan into compliance with every
Other members of the public official is not required to apply every requirement within §§ 219.8 through
suggested an opposite view. They requirement of every substantive section 219.11.
believe that the 2012 rule gives the (§§ 219.8 through 219.11) to every • A plan amendment cannot make
responsible official discretion to amendment. However, the responsible changes that are contrary to
jstallworth on DSK7TPTVN1PROD with PROPOSALS

selectively pick and choose which, if official is required to apply those requirements of the 2012 planning rule.
any, provisions of the rule to apply, substantive requirements that are • The decision document must
allowing the responsible official to directly related to the changes being include a rationale for the responsible
avoid 2012 rule requirements or even proposed, and cannot propose changes official’s determination of the scope and
propose amendments that would that would undermine or be contrary to scale of the amendment, which
contradict the 2012 rule. Under this other substantive requirements. requirements within §§ 219.8 through
second interpretation, members of the Further, the Department’s position is 219.11 are directly related, and how
public hypothesized that a responsible that 2012 rule requirements apply to the they were applied.

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Federal Register / Vol. 81, No. 197 / Wednesday, October 12, 2016 / Proposed Rules 70377

Specific Changes whether and how to amend the plan.’’ areas to which existing direction
This change will clarify that responsible applies, but would not change the text
Revise § 219.3
official’s discretion to determine of that plan direction. This exception
The Agency proposes to add the whether and how to amend any plan would allow the responsible official to
words ‘‘for assessment; developing, includes the discretion to determine the avoid rewriting the plan direction
amending, or revising a plan; and scope and scale of any amendment within that management area to conform
monitoring,’’ to the first sentence of except as provided in paragraphs (b) to § 219.7(e), because reformatting plan
§ 219.3, so it is clear that the best and (c) of this section. direction might accidentally broaden
available scientific information applies the scope of the amendment.
to the plan amendment process as well Amend § 219.13 Revise the Introductory For example, an existing standard or
as the other parts of the planning Text of Paragraph (b) guideline may not meet the definition in
framework (36 CFR 219.5). Section The Agency proposes to add the § 219.7(e) for those plan components but
219.3 currently states ‘‘the responsible words ‘‘For all plan amendments,’’ to a formatting change could change the
official shall use the best available the introductory text of paragraph b, so meaning of that plan direction. This
scientific information to inform the it is clear that the procedural and other formatting exemption is not an
planning process required by this requirements outlined in § 219.13(b) exemption from proposed paragraphs
subpart.’’ That process includes apply to all amendments. (b)(5) and (6) of this section. The
assessments, plan development, expansion or reduction of an area to
Amend § 219.13 To Add Paragraph
revision and amendment, and which existing direction applies would
(b)(4)
monitoring. Expanding the current still have to meet directly related
wording to specifically mention each The Agency proposes adding substantive requirements of the rule and
part of the process, including paragraph (b)(4) as a clarification that not be contrary to any substantive
amendments, would make this section each plan component added or changed requirement. This paragraph simply
more consistent with other sections of by a plan amendment must conform to permits the responsible official to avoid
the rule, including: Providing the applicable definition for desired rewriting existing direction in a 1982
opportunities for public participation conditions, objectives, standards, rule plan to conform to the drafting
(§ 219.4), the plan amendment process guidelines, and suitability of lands set direction for plan components set forth
(§ 219.13), including specific forth in § 219.7(e). The planning in § 219.7(e).
information in a decision document directives in the Handbook (1909.12, ch.
20, sec. 21.3) already state this Amend § 219.13 To Add Paragraph
(§ 219.14), stating whether or not
requirement: ‘‘All additions or (b)(5)
projects authorized at the time of
amendment may continue without modifications to the text of plan The Agency proposes new paragraph
change (§ 219.15(a)), giving public direction that are made by plan (b)(5) to clarify that, when amending a
notice (§ 219.16), setting the effective amendments using the 2012 rule must plan using the 2012 planning rule, the
date for amendments (§ 219.17), and be written in the form of plan responsible official must meet the
providing an objection opportunity components as defined at 36 CFR specific substantive requirement(s)
(subpart B). 219.7(e).’’ within §§ 219.8 through 219.11 that are
Section 219.7 of the 2012 rule directly related to the plan direction
Amend §§ 219.8 Through 219.11 To includes definitions for plan added, modified, or removed by the
Revise the Introductory Text components to bring greater clarity to amendment. The requirements of
The Agency proposes to add the the Agency’s plans, because 1982 rule paragraphs (b)(5) apply only to those
words ‘‘a plan developed or revised plans often had an inconsistent plan components being amended, not to
under this rule’’ to the introductory text approach to plan components—for the amended plan. This clarification
of §§ 219.8 through 219.11 to clarify that example, mislabeling desired conditions will help the Agency and public
the combined set of requirements in as standards, or including objectives understand how to apply the
each section apply only to plan that did not have a measurable rate of substantive requirements within
development or plan revision. Subpart progress. §§ 219.8 through 219.11.
A of the 2012 planning rule (§§ 219.1 Bringing the Handbook direction into The Department’s intent is that a
through 219.19) recognizes the paragraph (b)(4) of this section would responsible official use best available
interrelationship among resources and help clarify that the 2012 requirements scientific information, scoping, effects
among the sections, but it was not the for formatting plan components, apply analyses, monitoring data, and other
intent of the Agency to imply that an to plan amendments, but not to the part rationale to inform a determination of
individual plan amendment would need of the plan that is not amended. This which substantive requirements are
to meet all of the requirements of clarification is important for directly related to the proposed plan
§§ 219.8 through 219.11. This proposed amendments to 1982 rule plans, where amendment, and ensure that the
clarification would distinguish between unchanged plan direction will likely not amendment meets those requirements.
new plans and plan revisions, which meet the definitions in § 219.7(e), but The responsible official must be able to
must comply with all the requirements reformatting that direction would be clearly explain the determination in the
in §§ 219.8 through 219.11, and complicated and could have unintended decision document for the amendment
amendments, which do not. consequences beyond the scope and (see § 219.14).
scale of the amendment. Interrelationships between resources
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Amend § 219.13 To Revise Paragraph The Agency proposes to include a do not necessarily result in a
(a) narrow exception to the plan substantive requirement being directly
The Agency proposes to add the component formatting requirements of related to the proposed change. The
words ‘‘and to determine the scope and paragraph (b)(4) for amendments to Department recognize that resources
scale of any amendment’’ to the end of 1982 rule plans. This exception would and uses within the plan area are often
the third sentence of paragraph (a) that apply to an amendment or part thereof related to one another—nonetheless, the
currently states: ‘‘The responsible that would change (add to or reduce) a responsible official can distinguish
official has the discretion to determine management or geographic area or other between rule requirements directly

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70378 Federal Register / Vol. 81, No. 197 / Wednesday, October 12, 2016 / Proposed Rules

related to the amendment and those that evaluate ecological conditions for all must be adjusted to eliminate such
may be unrelated or for which the other species on the unit. effects. This burden-of-proof is similar
relationship is indirect. to how the 2012 planning rule provides
Amend § 219.13 To Add Paragraph
For example: for the identification of species of
(b)(6)
• Soil and water resources are conservation concern. A species must be
interrelated, but the responsible official The Agency proposes adding identified as a species of conservation
can determine that for a plan paragraph (b)(6) to clarify that an concern when it is known to occur in
amendment to change standards and amendment must avoid effects that the plan area and BASI indicates there
guidelines to protect a water body, the would be directly contrary to any is substantial concern about the species’
water requirements of § 219.8 would specific substantive requirement of capability to persist over the long-term
apply, while that section’s requirements §§ 219.8 through 219.11. The in the plan area. But, the Agency is not
for soil would not. Department intended this result in the required to prove that there isn’t
• A change in plan components for guidance in § 219.1(a) that Subpart A substantial concern for other species.
timber harvest to support restoration sets out the requirements for plan The same burden-of-proof is intended
may be related to the overall ecological components and other content in land here.
integrity of the plan area, but a management plans for developing, The analysis already required by the
responsible official can determine that a amending, and revising plans, and is Forest Service NEPA procedures for
applicable to all units of the National proposals are expected to provide the
change to a plan component for timber
Forest System. The 2012 rule further information necessary to satisfy
harvest for restoration purposes under
states in § 219.17(b)(2) that ‘‘[a]fter the proposed paragraph (b)(6). This
§ 219.11 would not require the
3-year transition period, all plan paragraph does not require additional
application across the plan area of all of
amendments must be initiated, analyses. (See 36 CFR part 220, FSM
the requirements in § 219.8 related to
completed, and approved under the 1950, FSH 1909.15). Proposed
ecological integrity.
requirements of this part.’’ paragraph (b)(6) anticipates the
• A plan amendment to modify An outcome in which an amendment, potential scenario in which a
recreation access under § 219.10 could using the 2012 rule, could introduce responsible official does not realize that
be either directly related or unrelated to plan components, or change the a specific requirement is directly related
that section’s requirement for the underlying plan by removing direction to the proposed plan amendment, but
protection of cultural and historic in a way that contradicts or undermines discovers through NEPA effects analysis
resources, depending upon the nearness the 2012 rule would be a contrary that the proposed change would have a
and potential effects of the proposed outcome: Paragraph (b)(6) clarifies that negative effect that is contrary to that
access to the cultural and historic expectation. requirement.
resources. Proposed paragraph (b)(6) would If the customary analysis of effects of
A determination that a substantive clarify that the responsible official does a proposed plan amendment reveals
requirement is directly related to a not have the discretion to approve an effects that would be contrary to a
proposed amendment does not mean amendment to any plan, whether a 1982 specific substantive requirement within
that the amendment must be expanded rule plan or a 2012 rule plan, that has §§ 219.8 through 219.11, the responsible
so that the requirement is applied to the effects contrary to a requirement in the official must change the proposal so that
entire plan area. For example, an 2012 planning rule. The Department’s it avoids those contrary effects.
amendment to plan direction for a intent is that when a question about For example: A proposed amendment
specific riparian area would require the effects arises, the responsible official would identify lands as suitable for an
application of § 219.8 riparian would use best available scientific energy corridor. At the time the
management requirements to the information (BASI), effects analyses, amendment is proposed, the responsible
changed direction for that area, but and other rationale to evaluate whether official does not have information
would not require that application of effects are contrary to a requirement, indicating that the proposed corridor
those requirements to other riparian and to adjust the proposed amendment includes habitat necessary for an at-risk
areas in the plan area. to avoid such effects. However, the species and therefore determines that
Likewise, an amendment that changes Department’s position is that the § 219.9 is not directly related to the
plan components to support habitat for proposed paragraph (b)(6) does not amendment. However, effects analysis
an at-risk species would require prevent an amendment from having reveals habitat impacts that undermine
application of § 219.9 to those proposed negative effects on a resource—the 2012 the persistence of the at-risk species,
changes, but would not require planning rule does not require the contrary to § 219.9. At that point, the
application of § 219.9 to the entire absence of negative effects. If effects responsible official could avoid the
underlying plan. For example, if the analyses show negative effects that contrary effects by changing the location
need to change the plan is to identify would be permissible under the 2012 of the proposed corridor to avoid that
lands as suitable for an energy corridor, rule, the responsible official would not habitat, or could apply § 219.9 to add
and the proposed corridor would go need to change the proposal as a result coarse or fine filter plan components for
directly through critical habitat for a of paragraph (b)(6). ecological conditions that would result
threatened species, then the There is an important burden-of-proof in avoiding the contrary effects. The
requirements of § 219.9 would be expectation in proposed paragraph responsible official would not have the
directly related to the amendment as (b)(6). The Department’s intent is that discretion to approve the amendment
jstallworth on DSK7TPTVN1PROD with PROPOSALS

applied to that particular species. The paragraph (b)(6) does not require without avoiding the contrary effects.
responsible official may be required, for responsible officials to prove that an As discussed in the ‘‘Amend § 219.13
example, to add standards or guidelines amendment is not contrary to the to add paragraph (b)(5)’’ section of this
to protect the critical habitat. However, requirements in §§ 219.8 through document, the Department’s intent is to
the determination that § 219.9 is directly 219.11. Rather, when analyses of a distinguish between an amendment and
related to the amendment because of the proposed amendment reveal that its an amended plan. Proposed paragraph
potential impacts to one species would effects would be contrary to a (b)(6) applies to the amendment—plan
not trigger the application of § 219.9 to requirement, the proposed amendment components being added, modified or

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Federal Register / Vol. 81, No. 197 / Wednesday, October 12, 2016 / Proposed Rules 70379

removed—not to the plan as amended. amendment removes a standard that However, while SCCs are a new
The Department recognizes that a 1982 BASI has shown to be material to the element of the 2012 rule, regional
rule plan may contain direction contrary viability of an at-risk vertebrate species foresters have already identified species
to the 2012 rule that is outside of the in the plan area as required by the 1982 for which population viability is a
scope of the amendment being rule, the responsible official would have concern pursuant to FSM Chapter
proposed. Paragraph (b)(6) would to ensure that the plan provides the 2670—Threatened, Endangered and
require that an amendment—the ecological conditions for that species as Sensitive Plants and Animals (see 36
changes—to such a plan not be contrary required by § 219.9 of the 2012 rule. CFR 219.9(c); FSM 2670.5). These
to 2012 rule requirements, but it does We discussed with the Committee an species are called regional forester
not require that the underlying plan be earlier draft of paragraph (c)(2) that sensitive species (RFSS). RFSS are not
modified to remove existing contrary allowed the responsible official to the same as SCC, but combined with the
direction outside the scope of the remove direction required by the 1982 NEPA effects analysis that is already
amendment. rule without applying directly related required for an amendment, the Agency
Amend § 219.13 To Add New Paragraph 2012 rule substantive requirements, if expects that they would be a reasonable
(c) the responsible official could proxy to facilitate amendments of 1982
demonstrate that the amended plan still plans before plan revision.
The Agency is proposing to add a new was consistent with the 1982 rule. For Therefore, the Agency is proposing
paragraph (c), to include additional example, the earlier draft would have that responsible officials substitute the
clarifications on how to apply the 2012 allowed the removal of a standard for an RFSS list for SCC when using the 2012
rule to amend 1982 rule plans. Existing rule to amend 1982 rule plans. This
at-risk vertebrate species without
direction on administrative changes proposal would allow responsible
requiring the application of § 219.9, so
currently at paragraph (c) would be officials to use RFSS in lieu of SCC, and
long as the amended plan still met the
moved to a new paragraph (d). in addition to listed species, to
Proposed paragraph (c)(1) would viability requirements for that species
under the 1982 rule procedures. The determine whether § 219.9(b) is directly
clarify that although the existing
Agency decided not to include that related to the changes being proposed
requirements of §§ 219.8 through 219.11
option for several reasons. The reasons by an amendment as required by
take into account the interrelationship
among resources, an individual plan were: Concerns about the process proposed paragraph (b)(5) or proposed
amendment is not expected to bring an burden that option could create by paragraph (c)(2) of this section, or
entire 1982 rule plan into compliance necessitating the evaluation of amended applies to avoid contrary effects as
with all of the 2012 rule’s substantive plans, the desire to clarify that the 2012 required by paragraph (b)(6) of this
requirements identified in §§ 219.8 rule’s requirements apply to section. In applying § 219.9(b), the
through 219.11. This paragraph reflects amendments and not amended plans, responsible official would use RFSS in
the Department’s intent to distinguish and because the intent of the 2012 rule lieu of SCC to apply the requirements of
between the substantive requirements was to move away from the 1982 § 219.9(b) to develop species-specific
for the amendment (clarified in requirements after the 3-year transition plan components.
paragraphs (b)(5) and (b)(6) of this period. However, we are describing that
Amend § 219.14
section), and the Department’s option here based on Committee
expectations with regard to the feedback, so that the public can The Agency proposes to change the
amended plan (which will include both comment. caption of paragraph (a) from ‘‘Decision
changed and unchanged portions of the The Agency proposes to add document’’ to ‘‘Decision document
underlying plan). paragraph (c)(3) to address the scenario approving a new plan, plan amendment,
Proposed paragraph (c)(2) would in which the species-specific or revision.’’ The Agency proposes to
clarify that an amendment cannot requirements of § 219.9(b) are directly redesignate paragraph § 219.14(b) as
remove any existing plan direction that related to the amendment of a 1982 rule § 219.14(d).
was required by the 1982 rule without plan, but because the plan has not yet In addition, the Agency proposes to
including plan components that meet been revised, the regional forester has remove paragraph (a)(2) which requires
related requirements in §§ 219.8 through not yet identified the species of responsible officials to explain how
219.11. The Agency believes that this conservation concern (SCC) for the plan plan direction meets the provisions of
scenario is covered by the proposed area. Requiring the responsible official §§ 219.8 through 219.11. The Agency
clarifications in paragraphs (b)(5) and to identify potential SCC before would replace paragraph (a)(2) with two
(b)(6) of this section. These two amending 1982 rule plans would freeze new paragraphs (b) and (c).
paragraphs clarify that the responsible the Agency’s ability to amend 1982 rule The new paragraph (b) would require
official cannot remove direction from a plans. Even where the diversity responsible officials to explain in a
plan without applying the directly requirements in § 219.9(b) are directly decision document for a new plan or
related requirements within §§ 219.8 related to a proposed amendment, plan revision how the plan direction
through 219.11. However, we are requiring the development of the list of meets the provisions of §§ 219.8 through
including proposed paragraph (c)(2) in SCC to provide species-specific plan 219.11. This wording would be identical
the proposed amendment based on components for one or more species to the existing paragraph (a)(2), except
feedback from the Committee, to get would be a disproportionate expansion would clarify that this requirement
public input during the comment of the scope and scale of an amendment. applies to new plans or plan revisions
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period. Further difficulties would likely arise only.
Paragraph (c)(2) is not intended to add because the 1982 rule did not include The new paragraph (c) focuses on
to the process burden for amendments. the 2012 rule’s complementary documentation for a plan amendment.
Rather, this paragraph is intended to ecosystem and species-specific The decision document must include a
make clear that removing plan direction approach to maintaining the diversity of rationale for the responsible official’s
required by the 1982 rule without plant and animal communities and the determination of the scope and scale of
appropriately applying the 2012 rule is persistence of native species in the plan the amendment, which requirements
not permitted. For example, if an area. within §§ 219.8 through 219.11 are

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70380 Federal Register / Vol. 81, No. 197 / Wednesday, October 12, 2016 / Proposed Rules

directly related, and how they were Consultation and Coordination With government and the States, or on the
applied. Indian Tribal Governments distribution of power and
This proposed rule has been reviewed responsibilities among the various
Technical Correction to Section 219.11
under Executive Order 13175 of levels of government. Therefore, the
The Department proposes to include Agency has determined that no further
November 6, 2000, Consultation and
one change unrelated to the determination of federalism
Coordination with Indian Tribal
clarifications for amending 1982 rule implications is necessary at this time.
Governments. It has been determined
plans. This change is a technical
that this proposed rule would not have No Takings Implications
correction to fix a mistake made on July
Tribal implications as defined by
27, 2012, (77 FR 44144, July 27, 2012). This proposed rule has been analyzed
Executive Order 13175, and therefore,
In that correcting amendment, the in accordance with the principles and
advance consultation with Tribes is not
Agency removed a sentence by mistake criteria in Executive Order 12630. It has
required.
about the maximum size limits for areas been determined that this proposed
to be cut in one harvest operation in Regulatory Impact directive does not pose the risk of a
§ 219.11(d)(4). This change would Executive Order 12866 provides that taking of private property.
simply return to § 219.11 the original the Office of Information and Regulatory
sentence as published in the 2012 Civil Justice Reform
Affairs (OIRA) at the Office of
planning rule on April 9, 2012 (77 FR Management and Budget (OMB) will This proposed rule has been reviewed
21161). review all significant rules. OIRA has under Executive Order 12988 on civil
determined that this rule is not justice reform. If the proposed rule were
Regulatory Certifications
significant. to be adopted, (1) all State and local
Energy Effects Executive Order 13563 reaffirms the laws and regulations that conflict with
This proposed rule has been analyzed principles of Executive Order 12866 the proposed rule or that would impede
under Executive Order 13211, Actions while calling for improvements in the its full implementation would be
Concerning Regulations That nation’s regulatory system to promote preempted; (2) no retroactive effect
Significantly Affect Energy Supply, predictability, to reduce uncertainty, would be given to the proposed rule;
Distribution, or Use. It has been and to use the best, most innovated, and and (3) it would not require
determined that it does not constitute a least burdensome tools for achieving administrative proceedings before
significant energy action as defined in regulatory ends. The Executive Order parties may file suit in court challenging
the Executive Order. directs agencies to consider regulatory its provisions.
approaches that reduce burdens and Unfunded Mandates
Environmental Impacts maintain flexibility and freedom of
In issuing the 2012 planning rule, the choice for the public where these Pursuant to Title II of the Unfunded
Department prepared both an approaches are relevant, feasible, and Mandates Reform Act of 1995 (2 U.S.C.
Environmental Impact Statement (EIS) consistent with regulatory objectives. 1531–1538), the Agency has assessed
and a biological assessment to support Executive Order 13563 emphasizes the effects of this proposed directive on
its final decision. The EIS is available further that regulations must be based State, local, and Tribal governments and
online at http://www.fs.usda.gov/ on the best available science and that the private sector. This proposed
planningrule. the rulemaking process must allow for directive would not compel the
The Department has concluded that public participation and an open expenditure of $100 million or more by
this rule amendment does not require exchange of ideas. We have developed any State, local, or Tribal government or
additional documentation under the this rule in a manner consistent with anyone in the private sector. Therefore,
National Environmental Policy Act. these requirements. a statement under section 202 of the Act
Because this amendment is to clarify the is not required.
Department’s original intent for plan Regulatory Flexibility
Controlling Paperwork Burdens on the
amendment processes and This proposed rule has also been
Public
requirements, the range of effects considered in light of the Regulatory
included in the Department’s prior Flexibility Act, as amended (5 U.S.C. This proposed rule does not contain
NEPA analysis covers this proposed rule 601 et seq.), and it has been determined recordkeeping or reporting requirements
amendment. Therefore, there is no need that this action will not have a or other information collection
to supplement the National Forest significant economic impact on a requirements as defined in 5 CFR part
System Land Management Planning substantial number of small business 1320.
Rule Final Programmatic Environmental entities as defined by the Regulatory In accordance with the Paperwork
Impact Statement of January 2012. Flexibility Act. Therefore, a regulatory Reduction Act of 1995 (44 U.S.C. 3501–
In addition, Forest Service regulations flexibility analysis is not required for 3520), the Forest Service requested and
at 36 CFR 220.6(d)(2) exclude from this proposed rule. received approval of a new information
documentation in an environmental collection requirement for subpart B as
assessment or environmental impact Federalism stated in 36 CFR 219.61 and assigned
statement ‘‘rules, regulations, or policies The Forest Service has considered control number 0596–0158 as stated in
to establish servicewide administrative this proposed rule under the the final rule approval (77 FR 21161,
procedures, program processes, or requirements of Executive Order 13132 April 9, 2012). Subpart B specifies the
jstallworth on DSK7TPTVN1PROD with PROPOSALS

instruction.’’ The Agency has on federalism. The Agency has information that objectors must give in
determined that this proposed rule determined that the proposed rule an objection to a plan, plan amendment,
amendment falls within this category of conforms with the federalism principles or plan revision (36 CFR 219.54(c)).
actions and that no extraordinary set out in this Executive Order; would However, recently the Agency learned
circumstances exist which require not impose any compliance costs on the that subpart B is not considered an
preparation of an environmental States; and would not have substantial information collection under the
assessment or environmental impact direct effects on the States, on the Paperwork Reduction Act of 1995.
statement. relationship between the Federal Subpart B is not an information

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70382 Federal Register / Vol. 81, No. 197 / Wednesday, October 12, 2016 / Proposed Rules

part identified within §§ 219.8 through (2) Which specific requirements discussion of all points you wish to
219.11. within §§ 219.8 through 219.11 apply to make. The EPA will generally not
(c) Amendment of a plan developed the amendment and how they were consider comments or comment
or revised under a prior planning rule. applied. contents located outside of the primary
(1) An amendment of a plan developed * * * * * submission (i.e., on the Web, cloud or
or revised under a prior planning rule other file sharing system). For
Dated: October 6, 2016.
is not required to bring the amended additional submission methods, please
plan into compliance with all of the Thomas L. Tidwell, contact the person identified in the FOR
requirements of §§ 219.8 through Chief, Forest Service. FURTHER INFORMATION CONTACT section.
219.11. [FR Doc. 2016–24654 Filed 10–11–16; 8:45 am] For the full EPA public comment policy,
(2) If the proposed amendment would BILLING CODE 3411–15–P information about CBI or multimedia
remove direction required by the prior submissions, and general guidance on
planning regulation, the responsible making effective comments, please visit
official must apply the directly related ENVIRONMENTAL PROTECTION http://www2.epa.gov/dockets/
requirements within §§ 219.8 through AGENCY commenting-epa-dockets.
219.11. FOR FURTHER INFORMATION CONTACT:
(3) If species of conservation concern 40 CFR Part 52 Nancy Levin, (415) 972–3848, or by
(SCC) have not been identified for the email at levin.nancy@epa.gov.
[EPA–R09–OAR–2016–0543 FRL–9953–91–
plan area, the responsible official must Region 9] SUPPLEMENTARY INFORMATION:
use the regional forester sensitive
species list in lieu of SCC when Throughout this document whenever
Determination of Attainment of the ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
applying the requirements of § 219.9(b) 2008 Ozone National Ambient Air
to a plan amendment for a plan the EPA.
Quality Standards; Eastern San Luis
developed or revised under a prior Obispo, California Table of Contents
planning regulation.
AGENCY: Environmental Protection I. What is the background for this action?
■ 8. Amend § 219.14 as follows:
A. Ozone NAAQS, Area Designations and
■ a. Revise the introductory text to Agency (EPA). Classifications
paragraph (a); ACTION: Proposed rule. B. Relevant Statutory and Regulatory
■ b. Remove paragraph (a)(2); Requirements
■ c. Redesignate paragraphs (a)(3) SUMMARY: The Environmental Protection C. Ambient Air Quality Monitoring Data
through (6) as paragraphs (a)(2) through Agency (EPA) is proposing to determine II. What is the EPA’s analysis of the relevant
(5), respectively; that the San Luis Obispo County air quality data?
■ d. Redesignate paragraph (b) as (Eastern San Luis Obispo) ozone A. Monitoring Network and Data
paragraph (d) and add new paragraph nonattainment area (NAA) has attained Considerations
(b); the 2008 ozone National Ambient Air B. Evaluation of the Ambient Air Quality
■ e. Add paragraph (c). Quality Standards (NAAQS or Data
III. What is the effect of this action?
The revisions and additions read as ‘‘standards’’) by the applicable IV. Proposed Action and Public Comment
follows: attainment date of July 20, 2016. This V. Statutory and Executive Order Reviews
determination is based on complete,
§ 219.14 Decision document and planning I. What is the background for this
records.
quality-assured and certified data for the
3-year period preceding that attainment action?
(a) Decision document approving a date. If the determination is finalized,
new plan, plan amendment, or revision. A. Ozone NAAQS, Area Designations
the Eastern San Luis Obispo NAA will and Classifications
The responsible official shall record not be reclassified to a higher ozone
approval of a new plan, plan classification. The Clean Air Act (CAA or ‘‘Act’’)
amendment, or revision in a decision requires the EPA to establish national
document prepared according to Forest DATES: Any comments must arrive by primary and secondary standards for
Service NEPA procedures (36 CFR part November 14, 2016. certain widespread pollutants, such as
220). The decision document must ADDRESSES: Submit your comments, ozone, that cause or contribute to air
include: identified by Docket ID No. EPA–R09– pollution that is reasonably anticipated
* * * * * OAR–2016–0543 at http:// to endanger public health or welfare.1 In
(b) Decision document for a new plan www.regulations.gov, or via email to the 1970s, the EPA promulgated
or plan revision. In addition to meeting levin.nancy@epa.gov. For comments primary and secondary ozone standards,
the requirements of paragraph (a) of this submitted at Regulations.gov, follow the based on a 1-hour average; and, in 1997,
section, the decision document must online instructions for submitting we replaced the 1-hour ozone standards
include an explanation of how the plan comments. Once submitted, comments with primary and secondary 8-hour
components meet the sustainability cannot be edited or removed from ozone standards. In 2008, we tightened
requirements of § 219.8, the diversity Regulations.gov. For either manner of the 8-hour ozone standards to the level
requirements of § 219.9, the multiple submission, the EPA may publish any of 0.075 parts per million (ppm), daily
use requirements of § 219.10, and the comment received to its public docket.
timber requirements of § 219.11; Do not submit electronically any 1 See sections 108 and 109 of the Act. Primary
jstallworth on DSK7TPTVN1PROD with PROPOSALS

(c) Decision document for a plan information you consider to be standards represent ambient air quality standards
the attainment and maintenance of which the EPA
amendment. In addition to meeting the Confidential Business Information (CBI) has determined, including a margin of safety, are
requirements of paragraph (a) of this or other information whose disclosure is requisite to protect the public health. Secondary
section, the decision document must restricted by statute. Multimedia standards represent ambient air quality standards
explain how the responsible official submissions (audio, video, etc.) must be the attainment and maintenance of which the EPA
has determined are requisite to protect the public
determined: accompanied by a written comment. welfare from any known or anticipated adverse
(1) The scope and scale of the plan The written comment is considered the effects associated with the presence of such air
amendment; and official comment and should include pollutant in the ambient air. CAA section 109(b).

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Document Created: 2016-10-12 00:55:54
Document Modified: 2016-10-12 00:55:54

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Proposed Rules
Action		Notice of proposed rulemaking; request for comment.
Dates		Comments must be received in writing by November 14, 2016. The Agency will consider and place comments received after this date in the record only if practicable.
Contact		Ecosystem Management Coordination staff's Assistant Director for Planning Andrea Bedell Loucks at 202- 205-8336 or Planning Specialist Regis Terney at 202-205-1552.
FR Citation		81 FR 70373
RIN Number		0596-AD28
CFR Associated		Administrative Practice and Procedure; Environmental Impact Statements; Indians; Intergovernmental Relations; National Forests; Reporting and Recordkeeping Requirements and Science and Technology

81 FR 70373 - National Forest System Land Management Planning

DEPARTMENT OF AGRICULTUREForest Service

Federal Register Volume 81, Issue 197 (October 12, 2016)

DEPARTMENT OF AGRICULTURE
Forest Service