C04p Attachment 12 FedRegister 2012 Planning Rule 1284LM26Q0117.pdf

90723 Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations to Latitude N. 30°20.78′ longitude W.

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(b) The regulations. (1) All persons, swimmers, vessels and other craft, except those vessels under the supervision or contract to local military or Naval authority, vessels of the United States Coast Guard, and local or state law enforcement vessels, are prohibited from entering the restricted area without permission from the Supervisor of Shipbuilding, Conversion and Repair, USN, Gulfcoast or his/her authorized representative.

(2) The restricted area is in effect twenty-four hours per day and seven days a week (24/7).

(3) Should warranted access into the restricted navigation area be needed, all entities are to contact the Supervisor of Shipbuilding, Conversion and Repair, USN, Gulf Coast, Pascagoula, Mississippi, or his/her authorized representative on Marine Communication Channel 16.

(c) Enforcement. The regulation in this section shall be enforced by the Supervisor of Shipbuilding, Conversion and Repair, USN, Gulf Coast and/or such agencies or persons as he/she may designate.

Dated: December 1, 2016.

Susan S. Whittington, Chief, Operations and Regulatory Division, Directorate of Civil Works.

[FR Doc. 2016–30015 Filed 12–14–16; 8:45 am]

BILLING CODE 3720–58–P

DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 219

RIN 0596–AD28

National Forest System Land Management Planning

AGENCY: Forest Service, USDA.

ACTION: Final rule.

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

DATES: This rule is effective January 17, 2017.

ADDRESSES: For more information, refer to the World Wide Web/Internet at:

http://www.fs.usda.gov/planningrule.

More information may be obtained on written request from the Director, Ecosystem Management Coordination Staff, Forest Service, USDA Mail Stop 1104, 1400 Independence Avenue SW., Washington, DC 20250–1104.

FOR FURTHER INFORMATION CONTACT:

Ecosystem Management Coordination staff’s Assistant Director for Planning Andrea Bedell Loucks at 202–295–7968 or Planning Specialist Regis Terney at 202–205–1552.

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

Background

The National Forest Management Act (NFMA) requires the Forest Service to develop land management plans to guide management of the 154 national forests, 20 grasslands, and 1 prairie that comprise the 193 million acre National Forest System (NFS). 16 U.S.C. 1604.

The NFMA required the Secretary of Agriculture to develop a planning rule ‘‘under the principles of the Multiple- Use Sustained-Yield Act of 1960, that set[s] out the process for the development and revision of the land management plans, and the guidelines and standards’’ (16 U.S.C. 1604(g)).

Compliance with this requirement has had a long history, culminating in the current land management planning rule issued April 9, 2012 (77 FR 22160, codified at title 36, Code of Federal Regulations, part 219 (36 CFR part 219)) (hereinafter referred to as the 2012 rule).

In 1979, the U.S. Department of Agriculture (Department) issued the first regulations to comply with this statutory requirement. The 1979 regulations were superseded by the 1982 planning rule (hereinafter referred to as the 1982 rule).

Numerous efforts were made over the past three decades to improve on the 1982 rule. On November 9, 2000, the Department issued a new planning rule that superseded the 1982 rule (65 FR 67514). Shortly after the issuance of the 2000 rule, a review of the rule found that it would be unworkable and recommended that a new rule should be developed. The Department amended the 2000 rule so that the Forest Service could continue to use the 1982 rule provisions until a new rule was issued (67 FR 35431, May 20, 2002). Attempts to replace the 2000 rule, in 2005 and 2008, were set aside by the courts on procedural grounds, with the result that the 2000 rule remained in effect. In 2009, the Department reinstated the 2000 rule in the Code of Federal Regulations to eliminate any confusion over which rule was in effect (74 FR 67062, December 18, 2009; 36 CFR part 219, published at 36 CFR parts 200 to 299, revised as of July 1, 2010). In reinstating the 2000 rule in the CFR, the Department specifically provided for the continued use of the 1982 rule provisions, which the Forest Service used for all land management planning done under the 2000 rule. The 1982 rule procedures have therefore formed the basis of all existing Forest Service land management plans.

In 2012, after extensive public engagement, the Department issued a new planning rule to update the thirty-year old 1982 rule. The 2012 rule sets forth directions for developing, amending, revising, and monitoring land management plans (77 FR 21260, April 9, 2012). The 2012 rule is available online at https://www.gpo.gov/ fdsys/pkg/CFR-2013-title36-vol2/pdf/ CFR-2013-title36-vol2-part219.pdf.

On February 6, 2015, the Forest Service issued National Forest System Land Management Planning Directives for the 2012 Planning Rule (planning directives; see 80 FR 6683). The planning directives are the Forest Service Handbook (FSH) 1909.12 and Forest Service Manual (FSM) Chapter 1920, which together establish procedures and responsibilities for carrying out the 2012 rule. The planning

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

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90725 Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations reducing the amount of work needed for a full revision’’ (Id.).

The 2012 rule provides that, ‘‘[t]he responsible official has the discretion to determine whether and how to amend the plan.’’ (36 CFR 219.13(a)). The 2012 rule reinforces this discretion by providing that the rule ‘‘does not compel a change to any existing plan, except as required in § 219.12(c)(1)’’ (which establishes monitoring requirements). (36 CFR 219.17(c)).

Under the 2012 rule, ‘‘[p]lan amendments may be broad or narrow, depending on the need for change’’ (36 CFR 219.13(a)); and amendments ‘‘could range from project specific amendments or amendments of one plan component, to the amendment of multiple plan components.’’ (77 FR 21161, 21237, April 9, 2012). Unlike for a plan revision, the 2012 rule does not require an environmental impact statement for every amendment; such a requirement would be burdensome and unnecessary for amendments without significant environmental effect, and ‘‘would also inhibit the more frequent use of amendments as a tool for adaptive management to keep plans relevant, current and effective between plan revisions.’’ (Preamble to final rule, 77 FR 21161, 21239, April 9, 2012).

Instead, the 2012 rule provides that ‘‘[t]he appropriate NEPA documentation for an amendment may be an environmental impact statement, an environmental assessment, or a categorical exclusion, depending upon the scope and scale of the amendment and its likely effects.’’ (36 CFR 219.13(b)(3)).

The 2012 rule gives responsible officials the discretion, within the framework of the 2012 rule’s requirements, to tailor the scope and scale of an amendment to reflect the need to change the plan. No individual amendment is required to do the work of a revision. While the 2012 rule sets forth a series of substantive requirements for land management plans within §§ 219.8 through 219.11, not every section or requirement within those sections will be directly related to the scope and scale of a given amendment. Although the Department recognizes that resources and uses are connected, the Department does not expect an individual plan amendment to do the work of a revision to bring an underlying plan into compliance with all of the substantive requirements identified in §§ 219.8 through 219.11.

The determination of which sections or requirements within those sections apply to an amendment will depend on the purpose and effects of the changes being proposed.

However, a plan amendment must be done ‘‘under the requirements of’’ the 2012 rule (36 CFR 219.17(b)(2)).

Therefore the responsible official’s discretion is not unbounded. An amendment cannot be tailored so that the amendment fails to meet directly related substantive requirements of the rule. Rather, the responsible official must determine which substantive requirements within §§ 219.8 through

219.11 of the 2012 rule are directly related to the plan direction being added, modified or removed by the amendment, and apply those requirements to the amendment.

As explained above, unlike a plan revision, a plan amendment does not create a new plan; it results in an amended plan, with the underlying plan retained except where changed by the amendment. Therefore, the amended plan will have plan direction changed by the amendment and plan direction that has not been changed. When amending a plan under the 2012 rule, a responsible official may choose not to change portions of the plan, even if those portions are inconsistent with a substantive requirement within §§ 219.8 through 219.11, when such portions are not directly related to the purpose or effects of the amendment. A unit may have important needs for change beyond those that form the basis of any individual amendment. However, the responsible official’s ability to target the scope and scale of an amendment is important for adaptive management, and will be especially critical for responsible officials amending 1982 plans.

For example, the 2012 planning rule requires that the plan must include plan components to provide for scenic character, which is a term of art associated with the scenic management system that was developed in the 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 §§ 219.8 through 219.11 will apply to every amendment of 1982 rule plans is reflected in the following planning directives provision at FSH 1909.12, chapter 20, section 21.3:

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

See also the Handbook’s direction regarding documentation of a decision to approve an amendment of a 1982 rule plan: ‘‘[f]or plan amendments, the decision document must discuss only those requirements of 36 CFR 219.8 through 219.11 that are applicable to the plan components that are being modified or added.’’ (FSH 1909.12 ch.

20, sec. 21.3 (emphasis added)).

Similar recognition is included in the 2012 rule’s requirements for project consistency for 1982 rule plans, at 36 CFR 219.17(c).

The distinction made in this provision between consistency within an amended plan with direction developed and approved pursuant to the 2012 rule and direction developed or revised under a prior rule reflects that portions of a 1982 rule plan may be changed by an amendment and other portions may remain unchanged until revision.

During the Department and Forest Service’s conversations with the Committee about the Forest Service’s early efforts to use the 2012 rule to amend 1982 rule plans, the Committee advised that some members of the public expressed confusion about how to apply the substantive requirements within §§ 219.8 through 219.11 when amending 1982 rule plans.

For example, some members of the public suggested that because resources and uses are connected and changes to any one resource or use will impact other resources and uses, the 2012 rule therefore requires that all of the substantive provisions in §§ 219.8 through 218.11 be applied to every amendment. Other members of the public suggested an opposite view: That the 2012 rule gives the responsible official discretion to selectively pick and choose which, if any, provisions of the rule to apply, thereby allowing the responsible official to avoid 2012 rule requirements or even propose

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90726 Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations amendments that would contradict the 2012 rule. Under this second interpretation, some members of the public hypothesized that a responsible official could amend a 1982 rule plan to remove plan direction that was required by the 1982 rule without applying relevant requirements in the 2012 rule.

This final rule clarifies that neither of these interpretations is correct.

The Department recognizes that resources and uses are connected and interrelated. However, an interpretation that the 2012 rule prevents a responsible official from distinguishing among connected resources and requires the application of all of the 2012 rule’s substantive requirements to every amendment would essentially turn every amendment into a revision. Such an interpretation would curtail the Forest Service’s ability to use amendments incrementally to change a plan, and directly contradicts the Department’s intent as expressed in the 2012 rule and supporting material that revisions and amendments serve different functions and that amendments be used to keep plans relevant, current and effective between plan revisions. The 2012 rule gives the responsible official the discretion to determine whether and how to amend a plan, including determining the scope and scale of an amendment based on a specific need to change the plan.

At the same time, the responsible official’s discretion to tailor the scope and scale of an amendment is not unbounded; the 2012 rule does not give a responsible official the discretion to amend a plan in a manner contrary to the 2012 rule by selectively applying, or avoiding altogether, substantive requirements within §§ 219.8 through

219.11 that are directly related to the changes being proposed. Nor does the 2012 rule give responsible officials discretion to propose amendments ‘‘under the requirements’’ of the 2012 rule that actually are contrary to those requirements, or to use the amendment process to avoid both 1982 and 2012 rule requirements (§ 219.17(b)(2)).

This amendment to the 2012 rule clarifies that the responsible official is not required to apply every requirement of every substantive section (§§ 219.8 through 219.11) to every amendment.

However, the responsible official is required to apply those substantive requirements that are directly related to the plan direction being added, modified, or removed by the amendment. The responsible official must determine which substantive requirements are directly related to the changes being proposed based on the purpose and effects of the amendment, 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 §§ 219.8 through

219.11 are directly related to plan direction being added, modified or removed by the amendment and apply those requirements to the amendment in a way that is commensurate with the scope and scale of the amendment.

• The responsible official is not required to apply any substantive requirement within §§ 219.8 through

219.11 that is not directly related to the amendment.

• The determination of which requirements are directly related to an amendment must be based on the purpose and effects (beneficial or adverse) of the changes being proposed, and informed by the best available scientific information, scoping, effects analysis, monitoring data or other rationale.

• The responsible official must include information in the initial notice for the amendment about which substantive requirements of §§ 219.8 through 219.11 are likely to be directly related to the amendment.

• The decision document for an amendment must include a rationale for the responsible official’s determination of the scope and scale of the amendment, which requirements within §§ 219.8 through 219.11 are directly related, and how they were applied.

• If species of conservation concern (SCC) have not yet been identified for a plan area and scoping or NEPA analysis for a proposed amendment reveals substantial adverse impacts to a specific species, or the proposal would substantially lessen protections for a specific species, the responsible official must determine whether that species is a potential SCC. If so, the responsible official must apply the requirements of 2012 rule with respect to that species as if it were an SCC.

• An amendment that applies only to one project or activity is not considered a significant change in the plan for the purposes of the NFMA, but is still subject to NEPA requirements.

• The Department corrected a mistake made on July 27, 2012 when the Forest Service inadvertently removed a sentence about the maximum size limits for areas to be cut in one harvest operation in § 219.11(d)(4).

Response to Comments The following is a description of specific comments received on the

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90727 Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations proposed rule, responses to comments, and changes made in response to comments. Each comment received consideration in the development of the final rule.

General Comments The Department received the following comments not specifically tied to a particular section of the October 12, 2016 proposed rule.

General Comments on Rulemaking Effort

Comment: Several respondents argue for changes to the 2012 rule other than the changes in the proposed rule. For example, one respondent requested that the term ‘‘aquifer’’ be included after the term ‘‘watershed’’ in each instance that the term ‘‘watershed’’ is used in the existing rule. That same respondent recommends that groundwater monitoring be added to the monitoring program requirements of § 219.12. A respondent requested we focus more on the forestry side to manage timber better. A respondent recommended the planning rule make it clear that ‘‘other content’’ of § 219.13(c)) does not include 1982 rule monitoring plans, so that changing these monitoring plans would require a plan amendment. The respondent also recommended that the rule clarify project consistency requirements regarding amended plans that include direction based on both the 1982 rule and 2012 rule because the two rules interpret the consistency requirement differently. Yet another respondent recommended that the planning rule require buffers to overly restrictive management policies where the communities and other private landowners within the boundaries of the forest require access or forest resources should be considered for economic development of those adjacent lands and community support.

Response: These suggestions focus on parts of the 2012 rule for which changes were not proposed. Because these are outside the scope of the proposal, this final rule is not the appropriate means to make such changes. Pursuant to Executive Order 13563—Improving Regulation and Regulatory Review, the Department will consider these comments under retrospective review of the planning rule in the future.

Comment: Planning directives. A respondent requested the Forest Service issue planning directives about environmental analysis and NFMA diversity requirements to support the rule simultaneously with the rule.

Response: The Department decided to not issue directives simultaneously with the rule because the need to obtain 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

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90728 Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations requires the plan monitoring program to contain one or more questions and associated indicators addressing the plan’s contributions to communities, social and economic sustainability of communities, multiple use management in the plan area, or progress toward meeting the desired conditions and objectives related to social and economic sustainability (FSH 1909.12,

ch. 30, sec. 32.13f).

Comment: Adaptive management.

Respondents commented that adaptive management is an essential part of the 2012 rule and as such, additional clarifications should be included to facilitate, rather than discourage, adaptive management. Several respondents expressed concern that the existing and the proposed rule would impose burdens that would discourage the responsible official from undertaking plan amendments because of a lack of clarity. They said it was not clear how the Forest Service would determine which substantive provisions of the 2012 rule require changes to the plan. The respondent indicated that this ambiguity may result in less adaptive management. One respondent said the burden associated with staff and financial capability may make some forests less likely to pursue amendments and adaptive management.

Response: The Department agrees that adaptive management and preserving the responsible official’s flexibility in amending plans are essential to the 2012 rule. The Department made changes between the proposed and final rule to reduce ambiguity and provide clarity.

The final rule explains that responsible officials must determine which specific substantive requirement(s) within §§ 219.8 through 219.11 are directly related to a plan amendment and then apply those requirements to the amendment. The Department removed the paragraph that would have required the responsible official to ‘‘[e]nsure that the amendment avoids effects that would be contrary’’ to the rule requirements, which some respondents found confusing. The rule is now clearer. For further details on the changes made to support adaptive management and preserve the responsible official’s ability to amend plans under the 2012 rule, see ‘‘Amend § 219.13 to add paragraph (b)(5)’’ below.

Comment: Proposed changes should not apply to plans revised under the 2012 rule. A respondent stated that a 2012 rule plan is expected to meet all of rule requirements and any amendment to such plan should be evaluated on the basis of how the entire amended plan meets the provision.

Response: The Department believes that when amending any plan the responsible official should not be required to undertake an extensive review of an entire plan and prove that it continues to meet all of the requirements within §§ 219.8 through

219.11. For an amendment of a 2012

rule plan, the responsible official must apply the substantive requirement(s) within §§ 219.8 through 219.11 that are directly related to the amendment. The clear intent of the 2012 rule is that amendments be used to incrementally change plans. The incremental nature of amendments applies whether the amendment is to a 2012 or a 1982 rule plan, and the clarifications in this final rule must preserve that flexibility and 2012 rule intent.

Comment: Limiting the applicability of 2012 rule requirements when changing land allocations. One respondent is concerned about the burden the proposed rule imposes on small changes to area allocations. The respondent said that, any change in a land allocation reduces the application of one aspect of the planning rule to favor another (e.g., a change can favor ecological integrity over economic sustainability). The respondents further states that the rule allows the responsible official to find a balance in the overall plan, but it remains unclear how a change in land allocation for a small area can meet these multiple and perhaps contradictory provisions for just the change being considered.

Response: The 2012 rule did not require that every resource or use be present in every area. The Department clarifies in this final rule that directly related specific substantive requirements within §§ 219.8 through

219.11 apply within the scope and scale of the amendment. Changes in land allocation for a small area would likely require a similarly narrow application of the directly related substantive requirements, depending on the purpose and effects of the changes. It is unlikely that a change in land allocation for a small area would have substantial adverse effects.

Comment: An alternate approach. A respondent suggested an alternate approach to the proposed rule that would not require the determination of which rule requirements directly relate to a proposed plan amendment. The respondent suggested instead setting clear sideboards for each type of plan amendment based upon the substantive provisions of the 2012 rule. As an example the respondent suggested not allowing plan amendment if the consequences would lead to a sensitive species or an SCC (if identified) no 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

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90729 Federal Register / Vol. 81, No. 241 / Thursday, December 15, 2016 / Rules and Regulations replaced a prior planning rule, the Forest Service did not rely on the categorical exclusion for rules but prepared an environmental impact statement for that rule. Planning rules that entirely replaced prior rules were also the subject of the court decisions the respondent refers to. However, the Department holds the position that for certain changes to a planning rule, the categorical exclusion may properly apply.

Section-by-Section Explanation of the Final Rule

The following section-by-section descriptions are provided to explain the approach taken in the final rule.

Subpart A—National Forest System Land Management Planning

Revise § 219.3—Role of Science in Planning

The final rule is unchanged from the proposed rule for this section. The Department added the words ‘‘for assessment; developing, amending, or revising a plan; and monitoring,’’ to the first sentence of § 219.3. This change was made to clarify that the best available scientific information is to be used to inform the plan amendment process, as well as all other parts of the planning framework (36 CFR 219.5).

Specifically mentioning each part of the planning framework makes the wording of this section more consistent with other sections of the rule.

Revise § 219.3—Response to Comments Comment: Support the clarification.

Several respondents expressed support for the amendment to § 219.3 to clarify that the requirement to use the best available scientific information applies equally to plan amendments.

Response: Thank you for taking the time to comment.

Amend §§ 219.8 Through 219.11 To Revise the Introductory Text

The final rule is unchanged from the proposed rule for these sections. The Department added the words ‘‘a plan developed or revised under this part’’ to the introductory text of §§ 219.8 through

219.11 to clarify that the combined set of requirements in each section apply only to entire plans developed or revised under the current planning rule.

It was not the Department’s intent to imply that an individual plan amendment must meet all of the requirements of §§ 219.8 through

219.11. This clarification distinguishes

between new plans and plan revisions, which must comply with all of the requirements in §§ 219.8 through 219.11, and amendments, which do not.

Amend §§ 219.8 Through 219.11— Response to Comments

Comment: Support the principle that amendments do not require the application of all of the requirements within §§ 219.8 through 219.11. While no comments directly addressed the changes to §§ 219.8 through 219.11, respondents supported the principle that amendments are different from revisions, and that the 2012 rule should not be interpreted to imply that an amendment must incorporate every substantive requirement within §§ 219.8 through 219.11. Many respondents noted that such an interpretation would trigger premature plan revision and would inappropriately curtail the Forest Service’s use of the amendment process to make targeted and efficient changes to plans in response to pressing needs.

These respondents strongly supported the Department’s stated intent for this amendment to the 2012 rule to preserve the Forest Service’s flexibility in using amendments to support adaptive management by clarifying that amendments do not require the application of all of the substantive requirements within these sections.

Response: The Department agreed and retained the changes to §§ 219.8 through 219.11, which clarify that plans developed or revised under the 2012 rule must meet the combined set of requirements among and within §§ 219.8 through 219.11. However, amendments are not required to meet all of the substantive requirements within these sections. Direction for amendments is clarified at § 219.13.

Amend § 219.13 To Revise Paragraph (a)

The final rule is unchanged from the proposed rule for this section. The Department added the words ‘‘and to determine the scope and scale of any amendment’’ to the end of the third sentence of paragraph (a). This change clarifies that responsible official’s discretion to determine whether and how to amend any plan includes the discretion to determine the scope and scale of any amendment. The Department received no comments on this revision.

Amend § 219.13 To Revise the Introductory Text of Paragraph (b)

The Department added the words ‘‘For every plan amendment,’’ to the introductory text of paragraph (b), so it is clear that the procedural and other requirements outlined in § 219.13(b) apply to all amendments.