81_FR_90964 81 FR 90723 - National Forest System Land Management Planning

81 FR 90723 - National Forest System Land Management Planning

DEPARTMENT OF AGRICULTURE
Forest Service

Federal Register Volume 81, Issue 241 (December 15, 2016)

Page Range90723-90739
FR Document2016-30191

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

Federal Register, Volume 81 Issue 241 (Thursday, December 15, 2016)
[Federal Register Volume 81, Number 241 (Thursday, December 15, 2016)]
[Rules and Regulations]
[Pages 90723-90739]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-30191]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 219

RIN 0596-AD28


National Forest System Land Management Planning

AGENCY: Forest Service, USDA.

ACTION: Final rule.

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

DATES: This rule is effective January 17, 2017.

ADDRESSES: For more information, refer to the World Wide Web/Internet 
at: http://www.fs.usda.gov/planningrule. More information may be 
obtained on written request from the Director, Ecosystem Management 
Coordination Staff, Forest Service, USDA Mail Stop 1104, 1400 
Independence Avenue SW., Washington, DC 20250-1104.

FOR FURTHER INFORMATION CONTACT: Ecosystem Management Coordination 
staff's Assistant Director for Planning Andrea Bedell Loucks at 202-
295-7968 or Planning Specialist Regis Terney at 202-205-1552.

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

Background

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

[[Page 90724]]

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

The 2012 Rule and Plan Amendments

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

Applying the 2012 Rule To Amend Plans

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

[[Page 90725]]

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

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

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

[[Page 90726]]

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

Clarifications

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

Response to Comments

    The following is a description of specific comments received on the

[[Page 90727]]

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

General Comments

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

[[Page 90728]]

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

[[Page 90729]]

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

Section-by-Section Explanation of the Final Rule

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

[[Page 90730]]

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

[[Page 90731]]

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

[[Page 90732]]

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

[[Page 90733]]

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

[[Page 90734]]

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

[[Page 90735]]

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

[[Page 90736]]

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

Compliance With the Endangered Species Act of 1973, as Amended

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

Regulatory Certifications

Energy Effects

    This final rule has been analyzed under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. It has been determined that it does not 
constitute a significant energy action as defined in the Executive 
Order.

Environmental Impacts

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

Consultation and Coordination With Indian Tribal Governments

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

Regulatory Impact

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

Regulatory Flexibility

    This final rule has also been considered in light of the Regulatory 
Flexibility Act, as amended (5 U.S.C. 601 et seq.), and it has been 
determined that this action will not have a significant economic impact 
on a substantial number of small business entities as defined by the 
Regulatory Flexibility Act. Therefore, a regulatory flexibility 
analysis is not required for this final rule.

Federalism

    The Forest Service has considered this final rule under the 
requirements of Executive Order 13132 on federalism. The Agency has 
determined that the final rule conforms with the federalism principles 
set out in this Executive Order; would not impose any compliance costs 
on the States; and would not have substantial direct effects on the 
States, on the relationship between the Federal government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, the Agency has determined that 
no

[[Page 90737]]

further determination of federalism implications is necessary at this 
time.

No Takings Implications

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

Civil Justice Reform

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

Unfunded Mandates

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

Controlling Paperwork Burdens on the Public

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

List of Subjects in 36 CFR Part 219

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

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

PART 219--PLANNING

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

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


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


Sec.  219.3  Role of science in planning.

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

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


Sec.  219.8  Sustainability.

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

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


Sec.  219.9  Diversity of plant and animal communities.

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

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


Sec.  219.10  Multiple use.

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

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


Sec.  219.11  Timber requirements based on the NFMA.

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

[[Page 90738]]

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

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


Sec.  219.13  Plan amendment and administrative changes.

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

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


Sec.  219.14  Decision document and planning records.

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

[[Page 90739]]


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


Sec.  219.16  Public notifications.

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

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



                                                              Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations                                        90723

                                             to Latitude N. 30°20.78′ longitude W.                    DEPARTMENT OF AGRICULTURE                             current land management planning rule
                                             88°34.13′, thence to Latitude N.                                                                               issued April 9, 2012 (77 FR 22160,
                                             30°20.73′ longitude W. 88°34.13′, thence                 Forest Service                                        codified at title 36, Code of Federal
                                             to Latitude N. 30°20.68′ longitude W.                                                                          Regulations, part 219 (36 CFR part 219))
                                             88°34.13′, thence to Latitude N.                         36 CFR Part 219                                       (hereinafter referred to as the 2012 rule).
                                             30°20.63′ longitude W. 88°34.13′, thence                 RIN 0596–AD28                                            In 1979, the U.S. Department of
                                             to Latitude N. 30°20.64′ longitude W.                                                                          Agriculture (Department) issued the first
                                             88°34.10′, thence to Latitude N.                         National Forest System Land                           regulations to comply with this
                                             30°20.64′ longitude W. 88°34.25′, thence                 Management Planning                                   statutory requirement. The 1979
                                             to Latitude N. 30°20.64′ longitude W.                                                                          regulations were superseded by the
                                                                                                      AGENCY:    Forest Service, USDA.                      1982 planning rule (hereinafter referred
                                             88°34.33′, thence to Latitude N.
                                                                                                      ACTION:   Final rule.                                 to as the 1982 rule).
                                             30°20.64′ longitude W. 88°34.41′, thence
                                             to Latitude N. 30°20.59′ longitude W.                                                                             Numerous efforts were made over the
                                                                                                      SUMMARY:   The U.S. Department of
                                             88°34.47′, thence to Latitude N.                                                                               past three decades to improve on the
                                                                                                      Agriculture is amending regulations
                                                                                                                                                            1982 rule. On November 9, 2000, the
                                             30°20.59′ longitude W. 88°34.51′, thence                 pertaining to the National Forest System
                                                                                                                                                            Department issued a new planning rule
                                             to Latitude N. 30°20.59′ longitude W.                    Land Management Planning. This final
                                                                                                                                                            that superseded the 1982 rule (65 FR
                                             88°34.57′, thence to Latitude N.                         rule amends the 2012 rule and is
                                                                                                                                                            67514). Shortly after the issuance of the
                                             30°20.59′ longitude W. 88°34.63′, thence                 intended to clarify the Department’s
                                                                                                                                                            2000 rule, a review of the rule found
                                             to Latitude N. 30°20.59′ longitude W.                    direction for plan amendments,
                                                                                                                                                            that it would be unworkable and
                                             88°34.70′, thence to Latitude N.                         including direction for amending land
                                                                                                                                                            recommended that a new rule should be
                                             30°20.64′ longitude W. 88°34.75′, thence                 management plans developed under the
                                                                                                                                                            developed. The Department amended
                                             to Latitude N. 30°20.64′ longitude W.                    1982 rule.
                                                                                                                                                            the 2000 rule so that the Forest Service
                                             88°34.82′, thence to Latitude N.                         DATES: This rule is effective January 17,             could continue to use the 1982 rule
                                             30°20.64′ longitude W. 88°34.87′, thence                 2017.                                                 provisions until a new rule was issued
                                             to Latitude N. 30°20.71′ longitude W.                    ADDRESSES: For more information, refer                (67 FR 35431, May 20, 2002). Attempts
                                             88°34.87′. The datum for these                           to the World Wide Web/Internet at:                    to replace the 2000 rule, in 2005 and
                                             coordinates is WGS84.                                    http://www.fs.usda.gov/planningrule.                  2008, were set aside by the courts on
                                                (b) The regulations. (1) All persons,                 More information may be obtained on                   procedural grounds, with the result that
                                             swimmers, vessels and other craft,                       written request from the Director,                    the 2000 rule remained in effect. In
                                                                                                      Ecosystem Management Coordination                     2009, the Department reinstated the
                                             except those vessels under the
                                                                                                      Staff, Forest Service, USDA Mail Stop                 2000 rule in the Code of Federal
                                             supervision or contract to local military
                                                                                                      1104, 1400 Independence Avenue SW.,                   Regulations to eliminate any confusion
                                             or Naval authority, vessels of the United                Washington, DC 20250–1104.                            over which rule was in effect (74 FR
                                             States Coast Guard, and local or state
                                                                                                      FOR FURTHER INFORMATION CONTACT:                      67062, December 18, 2009; 36 CFR part
                                             law enforcement vessels, are prohibited
                                                                                                      Ecosystem Management Coordination                     219, published at 36 CFR parts 200 to
                                             from entering the restricted area without                                                                      299, revised as of July 1, 2010). In
                                                                                                      staff’s Assistant Director for Planning
                                             permission from the Supervisor of                                                                              reinstating the 2000 rule in the CFR, the
                                                                                                      Andrea Bedell Loucks at 202–295–7968
                                             Shipbuilding, Conversion and Repair,                     or Planning Specialist Regis Terney at                Department specifically provided for the
                                             USN, Gulfcoast or his/her authorized                     202–205–1552.                                         continued use of the 1982 rule
                                             representative.                                                                                                provisions, which the Forest Service
                                                                                                      SUPPLEMENTARY INFORMATION: The Forest
                                                (2) The restricted area is in effect                  Service proposed changing the existing                used for all land management planning
                                             twenty-four hours per day and seven                      land management planning rule to                      done under the 2000 rule. The 1982 rule
                                             days a week (24/7).                                      clarify the amendment process for land                procedures have therefore formed the
                                                (3) Should warranted access into the                  management plans. The proposed rule                   basis of all existing Forest Service land
                                                                                                      to amend the 2012 rule (hereafter                     management plans.
                                             restricted navigation area be needed, all
                                                                                                      referred to as the proposed rule) was                    In 2012, after extensive public
                                             entities are to contact the Supervisor of
                                                                                                      published in the Federal Register on                  engagement, the Department issued a
                                             Shipbuilding, Conversion and Repair,
                                                                                                      October 12, 2016, at 81 FR 70381.                     new planning rule to update the thirty-
                                             USN, Gulf Coast, Pascagoula,
                                                                                                                                                            year old 1982 rule. The 2012 rule sets
                                             Mississippi, or his/her authorized                       Background                                            forth directions for developing,
                                             representative on Marine                                    The National Forest Management Act                 amending, revising, and monitoring
                                             Communication Channel 16.                                (NFMA) requires the Forest Service to                 land management plans (77 FR 21260,
                                                (c) Enforcement. The regulation in                    develop land management plans to                      April 9, 2012). The 2012 rule is
                                             this section shall be enforced by the                    guide management of the 154 national                  available online at https://www.gpo.gov/
                                             Supervisor of Shipbuilding, Conversion                   forests, 20 grasslands, and 1 prairie that            fdsys/pkg/CFR-2013-title36-vol2/pdf/
                                             and Repair, USN, Gulf Coast and/or                       comprise the 193 million acre National                CFR-2013-title36-vol2-part219.pdf.
                                             such agencies or persons as he/she may                   Forest System (NFS). 16 U.S.C. 1604.                     On February 6, 2015, the Forest
                                             designate.                                                  The NFMA required the Secretary of                 Service issued National Forest System
                                                                                                      Agriculture to develop a planning rule                Land Management Planning Directives
                                               Dated: December 1, 2016.
                                                                                                      ‘‘under the principles of the Multiple-               for the 2012 Planning Rule (planning
                                             Susan S. Whittington,                                    Use Sustained-Yield Act of 1960, that                 directives; see 80 FR 6683). The
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                                             Chief, Operations and Regulatory Division,               set[s] out the process for the                        planning directives are the Forest
                                             Directorate of Civil Works.                              development and revision of the land                  Service Handbook (FSH) 1909.12 and
                                             [FR Doc. 2016–30015 Filed 12–14–16; 8:45 am]             management plans, and the guidelines                  Forest Service Manual (FSM) Chapter
                                             BILLING CODE 3720–58–P                                   and standards’’ (16 U.S.C. 1604(g)).                  1920, which together establish
                                                                                                      Compliance with this requirement has                  procedures and responsibilities for
                                                                                                      had a long history, culminating in the                carrying out the 2012 rule. The planning


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                                             90724            Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations

                                             directives are available online at http://               based on new information and                          because there are fundamental
                                             www.fs.fed.us/im/directives/.                            monitoring.                                           structural and content differences
                                               After the issuance of the 2012 rule,                      The concept of adaptive management                 between the two rules. Because of the
                                             the Secretary of Agriculture chartered a                 is an integral part of the 2012 rule.                 underlying differences, 1982 rule plans
                                             Federal Advisory Committee                               Recognizing that adaptive management                  likely will not meet all of the
                                             (Committee) to assist the Department                     requires a more responsive and iterative              substantive requirements of the 2012
                                             and the Forest Service in implementing                   approach to modifying land                            rule. It is therefore important for the
                                             the new rule. The Committee has been                     management plans to reflect new                       Department to clarify how responsible
                                             rechartered twice. The Committee has                     information, the Department’s intent                  officials should apply the substantive
                                             consistently been made up of 21 diverse                  when developing the 2012 rule was for                 requirements of the 2012 rule when
                                             members who provide balanced and                         the planning framework to encourage                   amending 1982 rule plans in a way that
                                             broad representation on behalf of the                    and support the more regular use of                   reflects Departmental expectations.
                                             public; State, local, and tribal                         amendments to update plans between                       While plans developed or revised
                                             governments; the science community;                      revisions. More frequent amendments                   under the 2012 rule will be expected to
                                             environmental and conservation groups;                   should also make the revision process                 meet all of the 2012 rule’s substantive
                                             dispersed and motorized recreation                       less cumbersome because plans will not                requirements at the time those plans are
                                             users; hunters and anglers; private                      become as out-of-date between                         approved, clarity in how to apply the
                                             landowners; mining, energy, grazing,                     revisions.                                            2012 rule to amend those plans in the
                                             timber, and other user groups; and other                    Plans may be amended at any time.                  future will also be important.
                                             public interests. The Committee has                      The 2012 rule provides that a plan                       This final rule amending the 2012
                                             convened regularly since 2012 to                         amendment is required to add, modify,                 rule (hereinafter referred to as the final
                                             provide the Department and Forest                        or remove one or more plan                            rule) is intended to clarify the
                                             Service with recommendations on                          components, or to change how or where                 Department’s direction for plan
                                             implementation of the 2012 rule,                         one or more plan components apply to                  amendments, including direction for
                                             including recommendations on the                         all or part of the plan area (including               amending 1982 rule plans. These
                                             planning directives, assessments, and                    management areas or geographic areas).                clarifications reflect NFMA
                                             on lessons learned from the first forests                   The 2012 rule included a 3-year                    requirements; the Department’s intent
                                             to begin revisions and amendments                        transition period during which                        and the plain wording of the 2012 rule,
                                             under the 2012 rule. More information                    responsible officials could use either the            the preambles for the proposed and final
                                             about the Committee’s membership and                     2012 rule or the 1982 rule procedures to              2012 rule, and the planning directives
                                             work is available online at http://                      amend plans approved or revised under                 implementing the 2012 rule; feedback
                                             www.fs.usda.gov/main/planningrule/                       the 1982 rule procedures (36 CFR                      from the Committee; public comments;
                                             committee.                                               219.17(b)(2)). The 3-year transition                  and Forest Service planning expertise.
                                                                                                      period expired on May 9, 2015, and all
                                             The 2012 Rule and Plan Amendments                        plan amendments now must be                           Applying the 2012 Rule To Amend
                                                There are 127 land management plans                   approved under the requirements of the                Plans
                                             for the administrative units of the NFS,                 2012 rule.                                               Plans are changed in two distinctly
                                             all developed using the 1982 rule                           In 2014, the Forest Service began to               different ways. The NFMA requires
                                             procedures. Sixty-eight of the 127 land                  use the 2012 rule to amend a number of                revisions ‘‘when conditions in a unit
                                             management plans are past due for                        existing land management plans, all of                have significantly changed,’’ and ‘‘at
                                             revision: most were developed between                    which were developed using the 1982                   least every 15 years’’ (16 U.S.C.
                                             1983 and 1993 and should have been                       rule procedures (2012 rule amendments                 1604(f)(5)). As the 2012 rule states, ‘‘[a]
                                             revised between 1998 and 2008, based                     to 1982 rule plans). Currently                        plan revision creates a new plan for the
                                             on NFMA direction to revise plans at                     amendments to 43 Forest Service land                  entire plan area, whether the plan
                                             least once every 15 years (16 U.S.C.                     management plans are pending. As the                  revision differs from the prior plan to a
                                             1604(f)(5)). The repeated efforts to                     Forest Service gained some experience                 small or large extent’’ (36 CFR 219.7(a)).
                                             produce a new planning rule over the                     with the process for making 2012 rule                 The process for a plan revision requires,
                                             past decades contributed to the delay in                 amendments to 1982 rule plans and                     among other things, preparation of an
                                             plan revisions. An additional challenge                  discussed with the Committee early                    environmental impact statement (36
                                             was that instead of amending plans as                    lessons learned, the Committee                        CFR 219.7(c)).
                                             conditions on the ground changed,                        recommended additional clarity on how                    The NFMA also provides that ‘‘plans
                                             responsible officials often waited to                    to apply the 2012 rule’s substantive                  can be amended in any manner
                                             make changes all at once during a plan                   requirements (requirements related to                 whatsoever’’ (16 U.S.C. 1604(f)(4)). As
                                             revision, resulting in a drawn-out,                      sustainability, plant and animal                      the Department explained in the
                                             difficult, and costly revision process.                  diversity, multiple uses and timber set               preamble to the 2012 rule, ‘‘[p]lan
                                                In promulgating the 2012 rule, the                    forth within 36 CFR 219.8 through                     amendments incrementally change the
                                             Department intended to create a more                     219.11) when amending 1982 rule                       plan as need arises.’’ (77 FR 21161,
                                             efficient and effective planning process.                plans.                                                21237, April 9, 2012) (emphasis added).
                                             The planning framework set forth in the                     While the 2012 rule includes                       Unlike a plan revision, a plan
                                             2012 rule includes three phases:                         direction specific to amendments, and                 amendment does not create a new plan;
                                             Assessment; plan development,                            while there is evidence of the                        it results in an amended plan, with the
                                             amendment, or revision; and                              Department and Forest Service’s intent                underlying plan retained except where
                                             monitoring. The 2012 rule supports an                    in rule wording, preamble text, and                   changed by the amendment. The
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                                             integrated approach to the management                    planning directives, the 2012 rule did                Department explained its intent that
                                             of resources and uses, incorporates a                    not explicitly direct how to apply the                with the 2012 rule, ‘‘plans will be kept
                                             landscape-scale context for                              substantive requirements set forth in the             more current, effective and relevant by
                                             management, and is intended to help                      2012 rule when amending 1982 rule                     the use of more frequent and efficient
                                             the Forest Service adapt to changing                     plans. Using the 2012 rule to amend                   amendments, and administrative
                                             conditions and improve management                        1982 rule plans can be a challenge                    changes over the life of the plan, also


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                                                              Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations                                         90725

                                             reducing the amount of work needed for                      However, a plan amendment must be                  discretion to more narrowly focus on a
                                             a full revision’’ (Id.).                                 done ‘‘under the requirements of’’ the                specific need for change.
                                                The 2012 rule provides that, ‘‘[t]he                  2012 rule (36 CFR 219.17(b)(2)).                        The Department’s intent that not
                                             responsible official has the discretion to               Therefore the responsible official’s                  every requirement within §§ 219.8
                                             determine whether and how to amend                       discretion is not unbounded. An                       through 219.11 will apply to every
                                             the plan.’’ (36 CFR 219.13(a)). The 2012                 amendment cannot be tailored so that                  amendment of 1982 rule plans is
                                             rule reinforces this discretion by                       the amendment fails to meet directly                  reflected in the following planning
                                             providing that the rule ‘‘does not                       related substantive requirements of the               directives provision at FSH 1909.12,
                                             compel a change to any existing plan,                    rule. Rather, the responsible official                chapter 20, section 21.3:
                                             except as required in § 219.12(c)(1)’’                   must determine which substantive                        Amendment of a plan developed and
                                             (which establishes monitoring                            requirements within §§ 219.8 through                  approved using the 1982 Rule process
                                             requirements). (36 CFR 219.17(c)).                       219.11 of the 2012 rule are directly                  requires application of the 2012 rule
                                                Under the 2012 rule, ‘‘[p]lan                         related to the plan direction being                   requirements only to those changes to the
                                             amendments may be broad or narrow,                       added, modified or removed by the                     plan made by the amendment. For example,
                                             depending on the need for change’’ (36                   amendment, and apply those                            the 2012 Rule’s requirements to establish a
                                             CFR 219.13(a)); and amendments ‘‘could                                                                         riparian management zone (36 CFR
                                                                                                      requirements to the amendment.                        219.8(a)(3)) would apply only if the plan
                                             range from project specific amendments                      As explained above, unlike a plan
                                             or amendments of one plan component,                                                                           amendment focuses on riparian area
                                                                                                      revision, a plan amendment does not                   guidance.
                                             to the amendment of multiple plan                        create a new plan; it results in an
                                             components.’’ (77 FR 21161, 21237,                                                                               See also the Handbook’s direction
                                                                                                      amended plan, with the underlying plan                regarding documentation of a decision
                                             April 9, 2012). Unlike for a plan                        retained except where changed by the
                                             revision, the 2012 rule does not require                                                                       to approve an amendment of a 1982 rule
                                                                                                      amendment. Therefore, the amended                     plan: ‘‘[f]or plan amendments, the
                                             an environmental impact statement for
                                                                                                      plan will have plan direction changed                 decision document must discuss only
                                             every amendment; such a requirement
                                                                                                      by the amendment and plan direction                   those requirements of 36 CFR 219.8
                                             would be burdensome and unnecessary
                                                                                                      that has not been changed. When                       through 219.11 that are applicable to
                                             for amendments without significant
                                                                                                      amending a plan under the 2012 rule, a                the plan components that are being
                                             environmental effect, and ‘‘would also
                                                                                                      responsible official may choose not to                modified or added.’’ (FSH 1909.12 ch.
                                             inhibit the more frequent use of
                                                                                                      change portions of the plan, even if                  20, sec. 21.3 (emphasis added)).
                                             amendments as a tool for adaptive
                                                                                                      those portions are inconsistent with a                  Similar recognition is included in the
                                             management to keep plans relevant,
                                                                                                      substantive requirement within §§ 219.8               2012 rule’s requirements for project
                                             current and effective between plan
                                                                                                      through 219.11, when such portions are                consistency for 1982 rule plans, at 36
                                             revisions.’’ (Preamble to final rule, 77
                                             FR 21161, 21239, April 9, 2012).                         not directly related to the purpose or                CFR 219.17(c).
                                             Instead, the 2012 rule provides that                     effects of the amendment. A unit may                    The distinction made in this
                                             ‘‘[t]he appropriate NEPA documentation                   have important needs for change beyond                provision between consistency within
                                             for an amendment may be an                               those that form the basis of any                      an amended plan with direction
                                             environmental impact statement, an                       individual amendment. However, the                    developed and approved pursuant to the
                                             environmental assessment, or a                           responsible official’s ability to target the          2012 rule and direction developed or
                                             categorical exclusion, depending upon                    scope and scale of an amendment is                    revised under a prior rule reflects that
                                             the scope and scale of the amendment                     important for adaptive management,                    portions of a 1982 rule plan may be
                                             and its likely effects.’’ (36 CFR                        and will be especially critical for                   changed by an amendment and other
                                             219.13(b)(3)).                                           responsible officials amending 1982                   portions may remain unchanged until
                                                The 2012 rule gives responsible                       plans.                                                revision.
                                             officials the discretion, within the                        For example, the 2012 planning rule                  During the Department and Forest
                                             framework of the 2012 rule’s                             requires that the plan must include plan              Service’s conversations with the
                                             requirements, to tailor the scope and                    components to provide for scenic                      Committee about the Forest Service’s
                                             scale of an amendment to reflect the                     character, which is a term of art                     early efforts to use the 2012 rule to
                                             need to change the plan. No individual                   associated with the scenic management                 amend 1982 rule plans, the Committee
                                             amendment is required to do the work                     system that was developed in the mid-                 advised that some members of the
                                             of a revision. While the 2012 rule sets                  1990s. If the scope of an amendment to                public expressed confusion about how
                                             forth a series of substantive                            a 1982 plan includes changes to plan                  to apply the substantive requirements
                                             requirements for land management                         direction for the purpose of, or that                 within §§ 219.8 through 219.11 when
                                             plans within §§ 219.8 through 219.11,                    would have an effect on, scenery                      amending 1982 rule plans.
                                             not every section or requirement within                  management, then the responsible                        For example, some members of the
                                             those sections will be directly related to               official must apply the 2012 rule                     public suggested that because resources
                                             the scope and scale of a given                           requirement about scenic character to                 and uses are connected and changes to
                                             amendment. Although the Department                       the changes being proposed. However, a                any one resource or use will impact
                                             recognizes that resources and uses are                   responsible official is not otherwise                 other resources and uses, the 2012 rule
                                             connected, the Department does not                       required to review and modify a 1982                  therefore requires that all of the
                                             expect an individual plan amendment                      rule plan to meet the 2012 rule’s                     substantive provisions in §§ 219.8
                                             to do the work of a revision to bring an                 requirement to provide for scenic                     through 218.11 be applied to every
                                             underlying plan into compliance with                     character. This is true even if there is              amendment. Other members of the
                                             all of the substantive requirements                      also a separate, additional need to                   public suggested an opposite view: That
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                                             identified in §§ 219.8 through 219.11.                   change the plan to protect scenery. The               the 2012 rule gives the responsible
                                             The determination of which sections or                   responsible official would have to                    official discretion to selectively pick
                                             requirements within those sections                       address the scenic character                          and choose which, if any, provisions of
                                             apply to an amendment will depend on                     requirement throughout the plan area in               the rule to apply, thereby allowing the
                                             the purpose and effects of the changes                   a plan revision, but in an amendment,                 responsible official to avoid 2012 rule
                                             being proposed.                                          the responsible official has the                      requirements or even propose


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                                             90726            Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations

                                             amendments that would contradict the                     using the best available scientific                   scale of a plan amendment, based on a
                                             2012 rule. Under this second                             information, scoping, effects analysis,               need to change the plan.
                                             interpretation, some members of the                      monitoring data, and other rationale to                  • The responsible official must use
                                             public hypothesized that a responsible                   inform the determination. The                         the best available scientific information
                                             official could amend a 1982 rule plan to                 responsible official must provide early               to inform the amendment process.
                                             remove plan direction that was required                  notice to the public of which                            • The responsible official must
                                             by the 1982 rule without applying                        substantive requirements are likely to be             determine which substantive
                                             relevant requirements in the 2012 rule.                  directly related to the amendment, and                requirements within §§ 219.8 through
                                                This final rule clarifies that neither of             must clearly document the rationale for               219.11 are directly related to plan
                                             these interpretations is correct.                        the determination of which substantive                direction being added, modified or
                                                The Department recognizes that                        requirements apply and how they were                  removed by the amendment and apply
                                             resources and uses are connected and                     applied as part of the decision                       those requirements to the amendment in
                                             interrelated. However, an interpretation                 document.                                             a way that is commensurate with the
                                             that the 2012 rule prevents a responsible                   This final rule ensures that the Forest            scope and scale of the amendment.
                                             official from distinguishing among                       Service can use the 2012 rule to amend                   • The responsible official is not
                                             connected resources and requires the                     1982 rule plans without any individual                required to apply any substantive
                                             application of all of the 2012 rule’s                    amendment bearing the burden of                       requirement within §§ 219.8 through
                                             substantive requirements to every                        bringing the underlying plan into                     219.11 that is not directly related to the
                                             amendment would essentially turn                         compliance with all of the 2012 rule’s                amendment.
                                             every amendment into a revision. Such                    substantive requirements, even if                        • The determination of which
                                             an interpretation would curtail the                      unchanged direction in the 1982 rule                  requirements are directly related to an
                                             Forest Service’s ability to use                          plan fails to address, meet or is contrary            amendment must be based on the
                                             amendments incrementally to change a                     to 2012 rule requirements. Twenty-two                 purpose and effects (beneficial or
                                             plan, and directly contradicts the                       forests are currently using the 2012 rule             adverse) of the changes being proposed,
                                             Department’s intent as expressed in the                  to revise their 1982 rule plans, but given            and informed by the best available
                                             2012 rule and supporting material that                   Forest Service budget constraints and                 scientific information, scoping, effects
                                             revisions and amendments serve                           staff capacity, revision of all 127 of the            analysis, monitoring data or other
                                             different functions and that                             Forest Service’s 1982 rule plans will                 rationale.
                                             amendments be used to keep plans                         likely take more than 15 years. Because                  • The responsible official must
                                             relevant, current and effective between                  the 2012 rule allowed the continued use               include information in the initial notice
                                             plan revisions. The 2012 rule gives the                  of the 1982 rule procedures to complete               for the amendment about which
                                             responsible official the discretion to                   revisions that were underway at the                   substantive requirements of §§ 219.8
                                             determine whether and how to amend a                     time the 2012 rule was published (36                  through 219.11 are likely to be directly
                                             plan, including determining the scope                    CFR 219.17(b)(3)), the most                           related to the amendment.
                                             and scale of an amendment based on a                     contemporary land management plan                        • The decision document for an
                                             specific need to change the plan.                        published using the 1982 rule                         amendment must include a rationale for
                                                At the same time, the responsible                     procedures was approved in 2016, with                 the responsible official’s determination
                                             official’s discretion to tailor the scope                a few more to come. The clarifications                of the scope and scale of the
                                             and scale of an amendment is not                         in this final rule will help ensure that              amendment, which requirements within
                                             unbounded; the 2012 rule does not give                   the Forest Service can effectively use                §§ 219.8 through 219.11 are directly
                                             a responsible official the discretion to                 the 2012 rule to amend 1982 rule plans                related, and how they were applied.
                                             amend a plan in a manner contrary to                     until they are revised.                                  • If species of conservation concern
                                             the 2012 rule by selectively applying, or                   Future amendments to plans                         (SCC) have not yet been identified for a
                                             avoiding altogether, substantive                         developed or revised under the 2012                   plan area and scoping or NEPA analysis
                                             requirements within §§ 219.8 through                     rule will likely be less complicated than             for a proposed amendment reveals
                                             219.11 that are directly related to the                  using the 2012 rule to amend 1982 rule                substantial adverse impacts to a specific
                                             changes being proposed. Nor does the                     plans, because plans developed or                     species, or the proposal would
                                             2012 rule give responsible officials                     revised under the 2012 rule are                       substantially lessen protections for a
                                             discretion to propose amendments                         expected to meet all of the 2012 rule’s               specific species, the responsible official
                                             ‘‘under the requirements’’ of the 2012                   substantive requirements at the time of               must determine whether that species is
                                             rule that actually are contrary to those                 approval. However, this final rule                    a potential SCC. If so, the responsible
                                             requirements, or to use the amendment                    clarifies that responsible officials have             official must apply the requirements of
                                             process to avoid both 1982 and 2012                      the discretion to tailor the scope and                2012 rule with respect to that species as
                                             rule requirements (§ 219.17(b)(2)).                      scale of amendments to adaptively                     if it were an SCC.
                                                This amendment to the 2012 rule                       change plans whether an amendment is                     • An amendment that applies only to
                                             clarifies that the responsible official is               to a 1982 rule plan or, in the future, to             one project or activity is not considered
                                             not required to apply every requirement                  a 2012 rule plan. The final rule also                 a significant change in the plan for the
                                             of every substantive section (§§ 219.8                   supports transparency and public                      purposes of the NFMA, but is still
                                             through 219.11) to every amendment.                      participation by clarifying notification              subject to NEPA requirements.
                                             However, the responsible official is                     and documentation requirements for                       • The Department corrected a mistake
                                             required to apply those substantive                      applying the 2012 rule’s substantive                  made on July 27, 2012 when the Forest
                                             requirements that are directly related to                requirements to amendments.                           Service inadvertently removed a
                                             the plan direction being added,
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                                                                                                                                                            sentence about the maximum size limits
                                             modified, or removed by the                              Clarifications                                        for areas to be cut in one harvest
                                             amendment. The responsible official                        This amendment to the 2012 rule                     operation in § 219.11(d)(4).
                                             must determine which substantive                         clarifies that:
                                             requirements are directly related to the                   • The responsible official has the                  Response to Comments
                                             changes being proposed based on the                      discretion to determine whether and                     The following is a description of
                                             purpose and effects of the amendment,                    how to amend a plan, and the scope and                specific comments received on the


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                                                              Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations                                       90727

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


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                                             90728            Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations

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


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                                                              Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations                                         90729

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


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                                             90730            Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations

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


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                                                              Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations                                      90731

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


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                                             90732            Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations

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


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                                                              Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations                                      90733

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


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                                             90734            Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations

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


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                                                              Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations                                      90735

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


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                                             90736            Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations

                                               Response: The final rule in                            Compliance With the Endangered                        November 6, 2000, Consultation and
                                             § 219.13(b)(5) requires that the                         Species Act of 1973, as Amended                       Coordination with Indian Tribal
                                             responsible official base the                               In issuing the 2012 rule, the                      Governments. It has been determined
                                             determination that a specific substantive                Department prepared both an                           that this final rule would not have
                                             requirement is directly related to the                   Environmental Impact Statement (EIS)                  Tribal implications as defined by
                                             amendment on the purpose for the                         and a biological assessment to support                Executive Order 13175, and therefore,
                                             amendment and the effects (beneficial                    its final decision. NOAA Fisheries and                advance consultation with Tribes is not
                                             or adverse) of the amendment, and                        USFWS each issued a biological opinion                required.
                                             requires that the determination be                       pursuant to section 7(a)(2) of the                    Regulatory Impact
                                             informed by the best available scientific                Endangered Species Act. The biological
                                             information, scoping, effects analysis,                                                                          Executive Order 12866 provides that
                                                                                                      opinions included conservation reviews                the Office of Information and Regulatory
                                             monitoring data or other rationale. The                  pursuant to section 7(a)(l) Act (16 U.S.C.
                                             requirements for documentation in this                                                                         Affairs (OIRA) at the Office of
                                                                                                      1536(a)(1) and (2)). Copies of the                    Management and Budget (OMB) will
                                             section remain the same as in the                        biological assessment, its addendum,                  review all significant rules. OIRA has
                                             proposed rule. The decision document                     and the biological opinions are in the                determined that this rule is not
                                             must explain how the responsible                         project record for the 2012 rule and can              significant.
                                             official determined which specific                       be viewed online at: http://                            Executive Order 13563 reaffirms the
                                             requirements within §§ 219.8 through                     www.fs.usda.gov/planningrule.                         principles of Executive Order 12866
                                             219.11 apply to the amendment and                           Because this final rule is to clarify the          while calling for improvements in the
                                             how those requirements were applied to                   Department’s original intent for plan                 nation’s regulatory system to promote
                                             the amendment. Section 219.14 requires                   amendment processes and                               predictability, to reduce uncertainty,
                                             responsible officials to explain their                   requirements, and the amendment does                  and to use the best, most innovated, and
                                             rationale and explain the information                    not change the planning requirements                  least burdensome tools for achieving
                                             they used to make the determination                      for endangered or threatened species,                 regulatory ends. The Executive Order
                                             required by § 219.13(b)(5).                              the Department has concluded that this                directs agencies to consider regulatory
                                                                                                      final rule does not require additional                approaches that reduce burdens and
                                             Amend § 219.16 To Revise Paragraph                       consultation under sections 7(a)(1) and
                                             (a)(2)                                                                                                         maintain flexibility and freedom of
                                                                                                      7(a)(2) of the Endangered Species Act.                choice for the public where these
                                                To be in agreement with the change                    Regulatory Certifications                             approaches are relevant, feasible, and
                                             made to § 219.13(b)(3) that now                                                                                consistent with regulatory objectives.
                                             includes an exception so that an                         Energy Effects                                        Executive Order 13563 emphasizes
                                             amendment that applies only to one                         This final rule has been analyzed                   further that regulations must be based
                                             project or activity is not considered a                  under Executive Order 13211, Actions                  on the best available science and that
                                             significant change in the plan for the                   Concerning Regulations That                           the rulemaking process must allow for
                                             purposes of NFMA, a conforming                           Significantly Affect Energy Supply,                   public participation and an open
                                             change is needed in paragraph (a)(2) of                  Distribution, or Use. It has been                     exchange of ideas. We have developed
                                             § 219.16.                                                determined that it does not constitute a              this rule in a manner consistent with
                                                Therefore, in the final rule paragraph                significant energy action as defined in               these requirements.
                                             (a)(2) of § 219.16 specifies that a                      the Executive Order.
                                                                                                                                                            Regulatory Flexibility
                                             comment period of 90 days is not                         Environmental Impacts                                    This final rule has also been
                                             required for a proposed amendment that
                                                                                                         In issuing the 2012 planning rule, the             considered in light of the Regulatory
                                             would apply only to one project or
                                                                                                      Department prepared both an                           Flexibility Act, as amended (5 U.S.C.
                                             activity. However, for such
                                                                                                      Environmental Impact Statement (EIS)                  601 et seq.), and it has been determined
                                             amendments, normal NEPA
                                                                                                      and a biological assessment to support                that this action will not have a
                                             requirements still apply. Therefore, the
                                                                                                      its final decision. The EIS is available              significant economic impact on a
                                             Department clarifies that the normal
                                                                                                      online at http://www.fs.usda.gov/                     substantial number of small business
                                             comment period is at least 45 days. See
                                                                                                      planningrule.                                         entities as defined by the Regulatory
                                             also Forest Service Handbook 1909.15,
                                                                                                         The Department has concluded that                  Flexibility Act. Therefore, a regulatory
                                             Chapter 20, section 24.1—Circulating
                                                                                                      this final rule does not require                      flexibility analysis is not required for
                                             and Filing a Draft Environmental Impact
                                                                                                      additional documentation under the                    this final rule.
                                             Statement.
                                                                                                      National Environmental Policy Act.
                                                                                                                                                            Federalism
                                             Technical Correction to Section 219.11                   Because this final rule is to clarify the
                                                                                                      Department’s original intent for plan                    The Forest Service has considered
                                               The Department added a technical                       amendment processes and                               this final rule under the requirements of
                                             correction to fix a mistake made in a                    requirements, the range of effects                    Executive Order 13132 on federalism.
                                             correcting amendment to the 2012 rule                    included in the Department’s prior                    The Agency has determined that the
                                             on July 27, 2012 (77 FR 44144, July 27,                  NEPA analysis covers this final rule.                 final rule conforms with the federalism
                                             2012). In that correcting amendment,                     Therefore, there is no need to                        principles set out in this Executive
                                             the Forest Service inadvertently                         supplement the National Forest System                 Order; would not impose any
                                             removed a sentence about the maximum                     Land Management Planning Rule Final                   compliance costs on the States; and
                                             size limits for areas to be cut in one                                                                         would not have substantial direct effects
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                                                                                                      Programmatic Environmental Impact
                                             harvest operation in § 219.11(d)(4). This                Statement of January 2012.                            on the States, on the relationship
                                             change would simply restore to § 219.11                                                                        between the Federal government and
                                             the sentence as published in the 2012                    Consultation and Coordination With                    the States, or on the distribution of
                                             rule on April 9, 2012 (77 FR 21161). The                 Indian Tribal Governments                             power and responsibilities among the
                                             Department received no comments on                         This final rule has been reviewed                   various levels of government. Therefore,
                                             this correction.                                         under Executive Order 13175 of                        the Agency has determined that no


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                                                              Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations                                        90737

                                             further determination of federalism                      amendment, or plan revision, the                      § 219.9 Diversity of plant and animal
                                             implications is necessary at this time.                  appropriate final environmental                       communities.
                                                                                                      documents, the draft plan decision                      This section adopts a complementary
                                             No Takings Implications                                                                                        ecosystem and species-specific
                                                                                                      document, and the beginning of the
                                               This final rule has been analyzed in                   objection period is a general solicitation.           approach to maintaining the diversity of
                                             accordance with the principles and                       No person is required to supply specific              plant and animal communities and the
                                             criteria in Executive Order 12630. It has                information pertaining to the                         persistence of native species in the plan
                                             been determined that this final rule does                respondent, other than that necessary                 area. Compliance with the ecosystem
                                             not pose the risk of a taking of private                 for self-identification.                              requirements of paragraph (a) of this
                                             property.                                                                                                      section is intended to provide the
                                                                                                      List of Subjects in 36 CFR Part 219                   ecological conditions to both maintain
                                             Civil Justice Reform
                                                                                                        Administrative practice and                         the diversity of plant and animal
                                                This final rule has been reviewed                                                                           communities and support the
                                             under Executive Order 12988 on civil                     procedure, Environmental impact
                                                                                                      statements, Indians, Intergovernmental                persistence of most native species in the
                                             justice reform. The Agency has not                                                                             plan area. Compliance with the
                                             identified any State or local laws or                    relations, National forests, Reporting
                                                                                                      and recordkeeping requirements,                       requirements of paragraph (b) of this
                                             regulations that are in conflict with this                                                                     section is intended to provide for
                                             rule or that would impede full                           Science and technology.
                                                                                                                                                            additional ecological conditions not
                                             implementation of this rule.                               Therefore, for the reasons set forth in             otherwise provided by compliance with
                                             Nevertheless, in the event that such                     the preamble, the Department amends                   paragraph (a) of this section for
                                             conflicts were to be identified, (1) all                 36 CFR part 219 as follows:                           individual species as set forth in
                                             State and local laws and regulations that                                                                      paragraph (b) of this section. A plan
                                             conflict with the final rule or that would               PART 219—PLANNING                                     developed or revised under this part
                                             impede its full implementation would                                                                           must provide for the diversity of plant
                                             be preempted; (2) no retroactive effect                  ■ 1. The authority citation for part 219              and animal communities, within Forest
                                             would be given to the final rule; and (3)                continues to read as follows:                         Service authority and consistent with
                                             it would not require administrative                        Authority: 5 U.S.C. 301; 16 U.S.C. 1604,            the inherent capability of the plan area,
                                             proceedings before parties may file suit                 1613.                                                 as follows:
                                             in court challenging its provisions.
                                                                                                                                                            *     *     *     *     *
                                                                                                      ■   2. Revise § 219.3 to read as follows:
                                             Unfunded Mandates                                                                                              ■ 5. Revise the introductory text to
                                               Pursuant to Title II of the Unfunded                   § 219.3   Role of science in planning.                § 219.10 to read as follows:
                                             Mandates Reform Act of 1995 (2 U.S.C.                      The responsible official shall use the              § 219.10   Multiple use.
                                             1531–1538), the Agency has assessed                      best available scientific information to
                                             the effects of this final rule on State,                                                                         While meeting the requirements of
                                                                                                      inform the planning process required by               §§ 219.8 and 219.9, a plan developed or
                                             local, and Tribal governments and the                    this subpart for assessment; developing,
                                             private sector. This final rule would not                                                                      revised under this part must provide for
                                                                                                      amending, or revising a plan; and                     ecosystem services and multiple uses,
                                             compel the expenditure of $100 million                   monitoring. In doing so, the responsible
                                             or more by any State, local, or Tribal                                                                         including outdoor recreation, range,
                                                                                                      official shall determine what                         timber, watershed, wildlife, and fish,
                                             government or anyone in the private                      information is the most accurate,
                                             sector. Therefore, a statement under                                                                           within Forest Service authority and the
                                                                                                      reliable, and relevant to the issues being            inherent capability of the plan area as
                                             section 202 of the Act is not required.                  considered. The responsible official                  follows:
                                             Controlling Paperwork Burdens on the                     shall document how the best available
                                                                                                                                                            *     *     *    *     *
                                             Public                                                   scientific information was used to
                                                                                                                                                            ■ 6. Amend § 219.11 by revising the
                                                                                                      inform the assessment, the plan or
                                               This final rule does not contain                                                                             introductory text and paragraph (d)(4) to
                                                                                                      amendment decision, and the
                                             recordkeeping or reporting requirements                                                                        read as follows:
                                                                                                      monitoring program as required in
                                             or other information collection
                                                                                                      §§ 219.6(a)(3) and 219.14(a)(3). Such                 § 219.11 Timber requirements based on
                                             requirements as defined in 5 CFR part
                                                                                                      documentation must: Identify what                     the NFMA.
                                             1320.
                                                                                                      information was determined to be the                    While meeting the requirements of
                                               In accordance with the Paperwork
                                                                                                      best available scientific information,                §§ 219.8 through 219.10, a plan
                                             Reduction Act of 1995 (44 U.S.C. 3501–
                                                                                                      explain the basis for that determination,             developed or revised under this part
                                             3520), the Forest Service requested and
                                                                                                      and explain how the information was                   must include plan components,
                                             received approval of a new information
                                                                                                      applied to the issues considered.                     including standards or guidelines, and
                                             collection requirement for subpart B as
                                             stated in 36 CFR 219.61 and assigned                     ■ 3. Revise the introductory text to                  other plan content regarding timber
                                             control number 0596–0158 as stated in                    § 219.8 to read as follows:                           management within Forest Service
                                             the final rule approval (77 FR 21161,                                                                          authority and the inherent capability of
                                             April 9, 2012). Subpart B specifies the                  § 219.8   Sustainability.                             the plan area, as follows:
                                             information that objectors must give in                    A plan developed or revised under                   *     *     *     *    *
                                             an objection to a plan, plan amendment,                  this part must provide for social,                      (d) * * *
                                             or plan revision (36 CFR 219.54(c)).                     economic, and ecological sustainability                 (4) Where plan components will allow
                                               However, recently the Agency learned                                                                         clearcutting, seed tree cutting,
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                                                                                                      within Forest Service authority and
                                             that subpart B is not considered an                      consistent with the inherent capability               shelterwood cutting, or other cuts
                                             information collection under the                         of the plan area, as follows:                         designed to regenerate an even-aged
                                             Paperwork Reduction Act of 1995.                                                                               stand of timber, the plan must include
                                                                                                      *     *     *     *     *
                                             Subpart B is not an information                                                                                standards limiting the maximum size for
                                             collection because the notice indicating                 ■ 4. Revise the introductory text to                  openings that may be cut in one harvest
                                             the availability of the plan, plan                       § 219.9 to read as follows:                           operation, according to geographic


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                                             90738            Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations

                                             areas, forest types, or other suitable                   related to the amendment                              by a finding of no significant impact
                                             classifications. Except as provided in                   (§ 219.13(b)(5)).                                     (§ 219.13(b)(3)), there is a rebuttable
                                             paragraphs (d)(4)(i) through (iii) of this                  (3) Amend the plan consistent with                 presumption that the amendment will
                                             section, this limit may not exceed 60                    Forest Service NEPA procedures. The                   not have substantial adverse effects.
                                             acres for the Douglas-fir forest type of                 appropriate NEPA documentation for an                    (6) For an amendment to a plan
                                             California, Oregon, and Washington; 80                   amendment may be an environmental                     developed or revised under a prior
                                             acres for the southern yellow pine types                 impact statement, an environmental                    planning regulation, if species of
                                             of Alabama, Arkansas, Georgia, Florida,                  assessment, or a categorical exclusion,               conservation concern (SCC) have not
                                             Louisiana, Mississippi, North Carolina,                  depending upon the scope and scale of                 been identified for the plan area and if
                                             South Carolina, Oklahoma, and Texas;                     the amendment and its likely effects.                 scoping or NEPA effects analysis for the
                                             100 acres for the hemlock-Sitka spruce                   Except for an amendment that applies                  proposed amendment reveals
                                             forest type of coastal Alaska; and 40                    only to one project or activity, a                    substantial adverse impacts to a specific
                                             acres for all other forest types.                        proposed amendment that may create a                  species, or if the proposed amendment
                                             *     *     *     *     *                                significant environmental effect and                  would substantially lessen protections
                                                                                                      thus requires preparation of an                       for a specific species, the responsible
                                             ■ 7. Amend § 219.13 by revising                                                                                official must determine whether such
                                                                                                      environmental impact statement is
                                             paragraphs (a) and (b) to read as follows:               considered a significant change in the                species is a potential SCC, and if so,
                                             § 219.13 Plan amendment and                              plan for the purposes of the NFMA and                 apply section § 219.9(b) with respect to
                                             administrative changes.                                  therefore requires a 90-day comment                   that species as if it were an SCC.
                                                (a) Plan amendment. A plan may be                     period for the proposed plan and draft                *      *    *      *    *
                                             amended at any time. Plan amendments                     environmental impact statement                        ■ 8. Amend § 219.14 as follows:
                                             may be broad or narrow, depending on                     (§ 219.16(a)(2)), in addition to meeting              ■ a. Revise the heading and
                                             the need for change, and should be used                  the requirements of this section.                     introductory text to paragraph (a);
                                                                                                         (4) Follow the applicable format for               ■ b. Remove paragraph (a)(2);
                                             to keep plans current and help units
                                                                                                      plan components set out at § 219.7(e) for             ■ c. Redesignate paragraphs (a)(3)
                                             adapt to new information or changing
                                                                                                      the plan direction added or modified by               through (6) as paragraphs (a)(2) through
                                             conditions. The responsible official has
                                                                                                      the amendment, except that where an                   (5), respectively;
                                             the discretion to determine whether and
                                                                                                      amendment to a plan developed or                      ■ d. Redesignate paragraph (b) as
                                             how to amend the plan and to
                                                                                                      revised under a prior planning                        paragraph (d) and add new paragraph
                                             determine the scope and scale of any
                                                                                                      regulation would simply modify the                    (b);
                                             amendment. Except as provided by
                                                                                                      area to which existing direction applies,             ■ e. Add paragraph (c).
                                             paragraph (c) of this section, a plan                                                                             The revisions and additions read as
                                                                                                      the responsible official may retain the
                                             amendment is required to add, modify,                                                                          follows:
                                                                                                      existing formatting for that direction.
                                             or remove one or more plan                                  (5) Determine which specific
                                             components, or to change how or where                    substantive requirement(s) within                     § 219.14 Decision document and planning
                                             one or more plan components apply to                                                                           records.
                                                                                                      §§ 219.8 through 219.11 are directly
                                             all or part of the plan area (including                  related to the plan direction being                     (a) Decision document approving a
                                             management areas or geographic areas).                   added, modified, or removed by the                    new plan, plan amendment, or revision.
                                                (b) Amendment requirements. For                       amendment and apply such                              The responsible official shall record
                                             every plan amendment, the responsible                    requirement(s) within the scope and                   approval of a new plan, plan
                                             official shall:                                          scale of the amendment. The                           amendment, or revision in a decision
                                                (1) Base an amendment on a                            responsible official is not required to               document prepared according to Forest
                                             preliminary identification of the need to                apply any substantive requirements                    Service NEPA procedures (36 CFR part
                                             change the plan. The preliminary                         within §§ 219.8 through 219.11 that are               220). The decision document must
                                             identification of the need to change the                 not directly related to the amendment.                include:
                                             plan may be based on a new assessment;                      (i) The responsible official’s                     *     *     *    *     *
                                             a monitoring report; or other                            determination must be based on the                      (b) Decision document for a new plan
                                             documentation of new information,                        purpose for the amendment and the                     or plan revision. In addition to meeting
                                             changed conditions, or changed                           effects (beneficial or adverse) of the                the requirements of paragraph (a) of this
                                             circumstances. When a plan amendment                     amendment, and informed by the best                   section, the decision document must
                                             is made together with, and only applies                  available scientific information,                     include an explanation of how the plan
                                             to, a project or activity decision, the                  scoping, effects analysis, monitoring                 components meet the sustainability
                                             analysis prepared for the project or                     data or other rationale.                              requirements of § 219.8, the diversity
                                             activity may serve as the documentation                     (ii) When basing the determination on              requirements of § 219.9, the multiple
                                             for the preliminary identification of the                adverse effects:                                      use requirements of § 219.10, and the
                                             need to change the plan.                                    (A) The responsible official must                  timber requirements of § 219.11.
                                                (2) Provide opportunities for public                  determine that a specific substantive                   (c) Decision document for a plan
                                             participation as required in § 219.4 and                 requirement is directly related to the                amendment. In addition to meeting the
                                             public notification as required in                       amendment when scoping or NEPA                        requirements of paragraph (a) of this
                                             § 219.16. The responsible official may                   effects analysis for the proposed                     section, the decision document must
                                             combine processes and associated                         amendment reveals substantial adverse                 explain how the responsible official
                                             public notifications where appropriate,                  effects associated with that requirement,             determined:
                                             considering the scope and scale of the                                                                           (1) The scope and scale of the plan
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                                                                                                      or when the proposed amendment
                                             need to change the plan. The                             would substantially lessen protections                amendment; and
                                             responsible official must include                        for a specific resource or use.                         (2) Which specific requirements
                                             information in the initial notice for the                   (B) If the appropriate NEPA                        within §§ 219.8 through 219.11 apply to
                                             amendment (§ 219.16(a)(1)) about which                   documentation for an amendment is a                   the amendment and how they were
                                             substantive requirements of §§ 219.8                     categorical exclusion or an                           applied.
                                             through 219.11 are likely to be directly                 environmental assessment accompanied                  *     *     *    *     *


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                                                              Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations                                      90739

                                             ■ 9. Amend § 219.16 by revising                          authorities when a vessel or individual               during normal business hours in the
                                             paragraph (a)(2) to read as follows:                     is in distress, and to further the                    FCC Reference Center, 445 12th Street
                                                                                                      Commission’s goal of ensuring that the                SW., Washington, DC 20554. The full
                                             § 219.16   Public notifications.                         spectrum allocated for emergency                      text may also be downloaded at:
                                             *      *    *     *    *                                 communications is used effectively and                www.fcc.gov. Alternative formats are
                                                (a) * * *                                             efficiently.                                          available to persons with disabilities by
                                                (2) To invite comments on a proposed                  DATES: Effective January 17, 2017 except              sending an email to fcc504@fcc.gov or
                                             plan, plan amendment, or plan revision,                  for the amendments to §§ 80.233,                      by calling the Consumer &
                                             and associated environmental analysis.                   80.1061, 95.1402 and 95.1403 which                    Governmental Affairs Bureau at 202–
                                             For a new plan, plan amendment, or a                     contain information collection                        418–0530 (voice), 202–418–0432 (tty).
                                             plan revision for which a draft                          requirements that are not effective until                1. The Report and Order will permit
                                             environmental impact statement (EIS) is                  approved by the Office of Management                  the maritime community to make use of
                                             prepared, the comment period is at least                 and Budget. The FCC will publish a                    the most advanced and reliable
                                             90 days, except for an amendment that                    document in the Federal Register                      communications technologies available
                                             applies only to one project or activity.                 announcing the effective date for those               for the alerting of search and rescue
                                             For an amendment that applies only to                    amendments. The incorporation by                      authorities when a vessel is in distress.
                                             one project or activity for which a draft                reference of certain publications listed              Our decisions herein also further the
                                             EIS is prepared, the comment period is                   in the rule is approved by the Director               Commission’s goal of ensuring that the
                                             at least 45 days unless a different time                 of the Federal Register as of January 17,             spectrum allocated for maritime
                                             period is required by law or regulation                  2017, except for the publications in                  communications is used effectively and
                                             or authorized pursuant to 40 CFR                         §§ 80.7 (amendatory instruction #7),                  efficiently.
                                             1506.10(d). For an amendment for                         80.233, 80.1061, 95.1402 and 95.1403                     2. The Report and Order incorporates
                                             which a draft EIS is not prepared, the                   which are in sections that contain                    by reference standards for certain
                                             comment period is at least 30 days;                      information collection requirements that              marine and personal radio safety
                                             *      *    *     *    *                                 are not effective until approved by the               devices and a standard to provide VHF
                                                                                                      Office of Management and Budget. The                  Digital Small Message Service (VDSMS)
                                               Dated: December 9, 2016.                                                                                     on certain marine VHF channels. For
                                                                                                      FCC will publish a document in the
                                             Robert Bonnie,                                                                                                 406 MHz Emergency Position Indicating
                                                                                                      Federal Register announcing the
                                             Under Secretary, Natural Resources and                   approval date for the incorporation by                Radiobeacons (EPIRBs) the Radio
                                             Environment.                                                                                                   Technical Commission for Maritime
                                                                                                      reference of publications into those
                                             [FR Doc. 2016–30191 Filed 12–14–16; 8:45 am]
                                                                                                      sections.                                             Services (RTCM) Standard 11000.3
                                             BILLING CODE 3411–15–P                                                                                         provides the latest technical and testing
                                                                                                      ADDRESSES: Federal Communications
                                                                                                                                                            procedures for EPRIBs and requires
                                                                                                      Commission, 445 12th Street SW.,                      them to have an internal navigation
                                                                                                      Washington, DC 20554. In addition to                  device designed to provide position data
                                             FEDERAL COMMUNICATIONS
                                                                                                      filing comments with the Office of the                upon activation. For 406 MHz Personal
                                             COMMISSION
                                                                                                      Secretary, a copy of any comments on                  Locator Beacons (PLBs) the RTCM
                                             47 CFR Parts 1, 25, 80 and 95                            the Paperwork Reduction Act                           Standard 11010.2 provides updated
                                                                                                      information collection requirements                   technical requirements and adds test
                                             [WTB Docket No. 14–36; FCC 16–119]                       contained herein should be submitted to               procedures for PLBs with integral GNSS
                                                                                                      Cathy Williams, Federal                               receivers or internal navigation devices.
                                             Maritime Radio Equipment and Related                     Communications Commission, 1–C823,
                                             Matters                                                                                                        For Satellite Emergency Notification
                                                                                                      445 12th Street SW., Washington, DC                   Devices (SENDs) RTCM Standard
                                             AGENCY:  Federal Communications                          20554, or send an email to PRA@fcc.gov.               12800.0 provides minimum
                                             Commission.                                              The Commission will send a copy of                    requirements for the functional and
                                                                                                      this Report & Order, in a report to be                technical performance of SENDs to
                                             ACTION: Final rule.
                                                                                                      sent to Congress and the Government                   ensure reliability in emergency
                                             SUMMARY:   In this document, the Federal                 Accountability Office pursuant to the                 situations. For Maritime Survivor
                                             Communications Commission                                Congressional Review Act, see 5 U.S.C.                Locating Devices (MSLDs) RTCM
                                             (Commission or FCC) addresses a                          801(a)(1)(A).                                         Standard 11901.1 provides minimum
                                             number of important issues regarding                     FOR FURTHER INFORMATION CONTACT:                      functional and technical performance of
                                             updating rules and requirements for                      James Shaffer, James.Shaffer@FCC.gov,                 MSLDs. For Automatic Identification
                                             technologies used to locate and rescue                   Wireless Telecommunications Bureau,                   System Search and Rescue Transmitters
                                             distressed ships and individuals in                      (202) 418–0687, or TTY (202) 418–7233.                (AIS–SARTs) the International Maritime
                                             distress at sea or on land to provide                    For additional information concerning                 Organization (IMO) Resolution
                                             better and more accurate data to rescue                  the Paperwork Reduction Act                           MSC.246(83) and the International
                                             personnel. The Commission also                           information collection requirements                   Electrotechnical Commission (IEC)
                                             addresses issues regarding radar                         contained in this document, contact                   61097–14 provide the minimum
                                             equipment, the use of portable marine                    Cathy Williams, Cathy.Williams@                       performance requirements and technical
                                             Very High Frequency (VHF) transmitters                   fcc.gov, (202) 418–2918, or send an                   specifications for AIS–SARTs. Finally,
                                             by persons on shore; permitting VHF                      email to PRA@fcc.gov.                                 for VHF digital small message services
                                             digital small message service (VDSMS);                   SUPPLEMENTARY INFORMATION: This is a                  (VDSMS) RTCM Standard 12301.1
                                             and allowing assignment or transfer of                   summary of the Federal
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                                                                                                                                                            provides technical standard that enables
                                             control of ship station licenses. The                    Communications Commission’s Report                    transmission of short digital messages
                                             Commission is amending its rules to                      and Order (R&O), in WT Docket No. 14–                 without interfering with other
                                             permit the maritime community to make                    36, FCC 16–119, adopted on August 31,                 communications on the same channel.
                                             use of the most advanced and reliable                    2016, and released on September 1,                    Copies of the RTCM documents are
                                             communications technologies available                    2016. The full text of this document is               available and may be obtained from the
                                             for the alerting of search and rescue                    available for inspection and copying                  Radio Technical Commission for


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Document Created: 2016-12-15 01:10:21
Document Modified: 2016-12-15 01:10:21
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesThis rule is effective January 17, 2017.
ContactEcosystem Management Coordination staff's Assistant Director for Planning Andrea Bedell Loucks at 202- 295-7968 or Planning Specialist Regis Terney at 202-205-1552.
FR Citation81 FR 90723 
RIN Number0596-AD28
CFR AssociatedAdministrative Practice and Procedure; Environmental Impact Statements; Indians; Intergovernmental Relations; National Forests; Reporting and Recordkeeping Requirements and Science and Technology

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