Filming the Planning Rule Process

EPA is sponsoring a video contest to “explain rulemaking and win $2,500.” EPA says that “government regulations help set the price of the coffee you drink, the voltage of electricity your alarm clock uses, and the types of programming allowed on the morning news.”

Get your video uploaded to YouTube by 11:59 p.m. Eastern Daylight Time on Monday, May 17, 2010. Better avoid the type of video the government bars from your morning news.

K.I.S.S. in Rule Form Conclusion

In contrast to the Forest Service’s official planning rule blog, the software that supports this blog is actually useful. The WordPress search feature lets readers aggregate onto one screen blog entries that share a common word and turn that search into a URL. For example, here are the K.I.S.S. blog entries (read from bottom to top).

The K.I.S.S. rule is based on these principles:

1) Revising a forest plan is a different task than writing a new plan from scratch. Existing plan provisions are presumed valid and reviewable only when new information or changed circumstances overcome that presumption.

2) The revision includes the planned timber sale and vegetation management projects. Eliminating the two-step NEPA planning process for tree-cutting projects keeps plan revisions relevant and reduces analysis paralysis.

3) The planning rule should be flexible in those matters Congress has left to the Forest Service’s discretion. The rule should be outcome-oriented and leave the technical details for achieving the required outcomes to the agency’s expertise.

4) NFMA planning is not the end-all, be-all of Forest Service planning exercises. In NFMA Congress sought to solve logging issues. The Forest Service should resolve other issues elsewhere than in the NFMA plan.

K.I.S.S. in Rule Form, Part 8

The proposed K.I.S.S. rules are based on the premise that the Forest Service is revising forest plans, not promulgating new plans from scratch. This premise implies a rebuttable presumption that the existing plan’s provisions are satisfactory. NFMA supports this approach to plan revision.

For example, NFMA requires the Forest Service review timberland suitability decisions “at least every 10 years” and “return lands to timber production” when the Forest Service finds that “conditions have changed.” Thus, only if “conditions have changed” does the FS review its previously-made timberland suitability decisions. This mandate appears best met by adding to K.I.S.S.’s “new information or changed circumstances” assessment a new provision, as follows (addition is in italics):

36 CFR 219.3: Assessment of New Information and Changed Circumstances

(a) The revision shall assess (the “assessment”) new information and changed circumstances and conditions in the unit that are relevant to the decisions made in the land management plan. If the new information or changed circumstances and conditions warrant amendments to the land management plan, the land management plan amendments shall be assessed as a part of the vegetation management and timber harvest program’s NEPA document. If the land management plan amendments, singly or in combination with the vegetation management and timber harvest program, require an environmental impact statement pursuant to Section 102(2)(C) of the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., an environmental impact statement shall be prepared.

(b) The assessment shall determine whether new information or changed circumstances warrant a review of lands the Forest Service has classified as suitable or unsuitable for timber production. The review shall focus on, but is not limited to, lands proposed for timber harvest in the plan revision’s vegetation management and timber harvest program.

K.I.S.S. in Rule Form, Part 7

K.I.S.S. in Rule Form, Part 7

Keeping-it-simple-sweet means omitting matters from the NFMA rules that are satisfactorily covered by statute. For example, a section of NFMA (paragraph i) separate from the planning rule sections (paragraphs g and h) requires that permits (e.g., special-use permits) and contracts (e.g., stewardship, sale of timber) “for the use and occupancy” of the national forests be consistent with the plan.

There is no need to repeat this requirement in the planning rules themselves. The law speaks for itself. Forest Service employees can read the law. And the courts have routinely enforced paragraph (i) without reference to the identical 1982 NFMA rule. So I’ve deleted item 7 (“Ensure that, subject to valid existing rights, all outstanding and future permits, contracts, cooperative agreements, and other instruments for occupancy and use of affected lands are consistent with the revised plan”) from the K.I.S.S. purpose and principles post.

K.I.S.S. in Rule Form, Part 6

No NFMA provision has transformed (and bedeviled) national forest management more than the law’s mandate to “provide for diversity of plant and animal communities based on the suitability and capability of the specific land area.” 16 U.S.C. § 1604(g)(3)(B). The consensus view of the federal courts (citations upon request) is that NFMA’s diversity language is a substantive limit on the Forest Service’s discretion – procedural analysis and models alone are insufficient to meet the law.

In its 1982 (and original 1979) rules, the Forest Service met the diversity mandate by requiring that plans ensure the viability of animal species, which is accomplished by identifying and protecting management indicator species. This approach to meeting the diversity requirement was never challenged in court. Those courts that have commented upon the viability/management indicator species approach have done so favorably. Regulatory efforts to eliminate the viability/MIS rule were defeated in 1982 (by Congressional pressure) and in 2000, 2005, and 2008 (in the courts).

It is with this history in mind that I suggest the following diversity rule language. This provision relies upon the 1979/1982 rules, but with fewer words and more discretion in the methodologies individual national forests can use to meet the law’s substantive mandate.

36 CFR 219.7: Plant and Animal Community Diversity

(a) Plan revisions and the vegetation management and timber harvest program shall ensure habitat sufficient to support viable populations of existing native and desired non-native species in the planning area. Methodologies for assessing and ensuring species viability shall consider and be appropriate to 1) the scope and scale of the plan revision and program decisions made; 2) the ecology of the plan area; and, 3) the biology of the species.

(b) Plan revisions and the vegetation management and timber harvest program shall, to the degree practicable, preserve the diversity of tree species similar to that existing in the plan region.

K.I.S.S. in Rule Form, Part 5

In drafting these K.I.S.S. model rules, I look first at what the original 1979 and subsequent 1982 rules have to say on each subject. I use the 1979 rules because I have a ragged paper copy of that day’s federal register with the rules in it. This heirloom was given to me when I was hired as an assistant to teach NFMA planning to Forest Service interdisciplinary teams. My boss told me to read the rules, which were hot of the press, and be prepared to “teach” them the following week. I look to the 1982 rules because they are the rules under which all forest plans were promulgated.

It was with some amusement that I noticed, for the first time, that the 1982 rules fail to faithfully implement NFMA’s nominal public participation requirement (see the link’s paragraph (d)). I have fixed that problem below:

36 CFR 219.6: Public Participation

(a) The revised land management plan shall be made available to the public electronically and at convenient locations in the vicinity of the unit for a period of at least three months before the revised plan is adopted. During this three-month period, public meetings at locations that foster public participation in the plan revision shall be held.

(b) If the land management plan revisions, singly or in combination with the vegetation management and timber harvest program, require an environmental impact statement pursuant to Section 102(2)(C) of the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., the public participation process set forth in Council on Environmental Quality regulations, 40 CFR Part 1500 et seq., shall be followed.

(c) In addition to the requirements of (a) and (b) above, other processes suited to the decisions made in the plan revision, including the vegetation management and timber harvest program, may be used to involve the public.

K.I.S.S. in Rule Form, Part 4

After a day listening to ecologists talk about landscape models, I am further inspired to urge planning rules that keep-it-simple-sweet.

There are three kinds of government rules. Most government rules regulate the behavior of private concerns, e.g., point-source pollution and building codes. A few regulate the behavior of other government agencies, e.g., Endangered Species Act consultation and CEQ NEPA process. Fewer still self-regulate an agency’s own behavior. The NFMA planning rule falls in this last category.

I don’t know about you, but if I wrote enforceable rules to regulate my own behavior, I’d make sure the rules were as spare and flexible as possible. Thus I offer the following rules to implement NFMA’s inventory and interdisciplinary mandates:

36 CFR 219.4: Inventories

The revision shall be based upon inventory data, maps, graphic material, and explanatory aids, of a kind, character, and quality, and to the detail appropriate for the land management plan revisions and vegetation management and timber harvest program decisions made.

36 CFR 219.5: Interdisciplinary Preparation

An interdisciplinary approach shall be used in the revision of the land management plan. The disciplines of the preparers shall be appropriate to: 1) the formulation of the vegetation management and timber harvest program; and, 2) the new information and changed circumstances and conditions in the unit that warrant revision of the plan.

K.I.S.S. in Rule Form, Part 3

In an agency beset with feelings of process predicament and analysis paralysis, it would be cruel punishment indeed to suggest NFMA rules that add more analysis and process to the mix. The new rules should also be durable; that is, not chase after every cause de jour (e.g., climate change) or impose inflexible, one-size-fits-all analysis processes.

The following “Assessment of New Information and Changed Circumstances” is based on the fact that forest plans exist now that cover every acre of the National Forest System. Congress directed that these plans “be revised from time to time” when “conditions in a unit have significantly changed, but at least every fifteen years.” It makes sense that only those parts of a forest plan affected by changed conditions require revision.

It is with these principles in mind that I put forward Part 3 of the keep-it-simple-sweet NFMA rules:

36 CFR 219.3: Assessment of New Information and Changed Circumstances

The revision shall assess new information and changed circumstances and conditions in the unit that are relevant to the decisions made in the land management plan. If the new information or changed circumstances and conditions warrant amendments to the land management plan, the land management plan amendments shall be assessed as a part of the vegetation management and timber harvest program’s NEPA document. If the land management plan amendments, singly or in combination with the vegetation management and timber harvest program, require an environmental impact statement pursuant to Section 102(2)(C) of the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., an environmental impact statement shall be prepared.

K.I.S.S. in Rule Form, Part 2


Now for some nitty-gritty. Here’s language that fleshes out the first task of plan revision: “(1) Decide the vegetation management and timber harvest program, including the proportion of probable methods of tree removal.”

Most of the proposed rule is taken verbatim from the NFMA itself. The biggest change from the status quo is that vegetation management decisions would be made in the forest plan revision and not revisited in a second project-level decision and associated NEPA review. The proposed rule includes a strong incentive for doing so — it eliminates the site-specific notice, comment and appeals process for vegetation management/timber harvest activities. That’s because the forest plan revision would now make these site-specific decisions.

The vegetation management and timber harvest program component of forest plans would be revised more frequently (every 1 to 3 years) because the program makes site-specific decisions. But with only one NEPA document for each plan revision, this proposal would reduce by 90% (my guesstimate) the Forest Service’s vegetation-related NEPA document production.

36 CFR 219.2: Vegetation Management and Timber Harvest Program.

(a) The vegetation management and timber harvest program (“program”) shall include all site-specific vegetation management activities, including the sale of timber, purchase of vegetation management services by stewardship or other contractual method, and fire use necessary to meet the plan’s goals and objectives for a period of one to three years. An environmental impact statement shall be prepared for the program, if required by Section 102(2)(C) of the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. The program can be amended at any time. All amendments shall comply with NEPA procedures.

(b) A vegetation management activity included in the program shall not be subject to the notice, comment or appeal requirements of the Forest Service Decisionmaking and Appeals Reform Act, 16 U.S.C. 1612 (notes), but shall be subject to the objection procedures contained in this subpart.

(c) Program activities shall be conducted only on lands suitable for the activity.

(d) Program activities shall maintain viable populations of existing native and desired non-native species in the planning area.

(e) Program activities shall be consistent with the plan’s standards and guidelines, or the standard or guideline shall be revised pursuant to this subsection.

(f) Before stands of trees are harvested, the stand’s average annual growth shall have culminated calculated on the basis of cubic measurement or other method at the discretion of the responsible official. Stands can be thinned before growth has culminated. Salvage or sanitation harvesting of timber stands that are substantially damaged by fire, windthrow or other catastrophe, or that are in imminent danger from insect or disease attack, can be harvested before growth has culminated.

(g) Timber will not be harvested where soil, slope, or other watershed conditions will be irreversibly damaged.

(h) Timber will not be harvested where adequate restocking within five years is not assured.

(i) Timber will not be harvested where water conditions or fish habitat are likely to be seriously and adversely affected by detrimental changes in water temperatures, blockages of water courses, or deposits of sediments.

(j) The timber harvest system will be selected based upon meeting the plan’s goals and objectives and not primarily upon the greatest dollar return or the greatest unit of output of timber.

(k) Timber harvest designed to regenerate an even-aged stand of timber will be used only where:

(1) For clearcutting it is the optimum method to meet the plan’s goals and objectives;

(2) For other even-aged methods it is appropriate to meet the plan’s goals and objectives;

(3) The harvest activity is included in the program and has been assessed pursuant to this subpart;

(4) Cut blocks, patches, or strips are shaped and blended to the extent practicable with the natural terrain;

(5) The area to be cut in one harvest operation (e.g., one cut block) does not exceed the maximum size limit established by the land management plan. If the plan has no maximum size limits, even-aged harvest cannot proceed until the plan is revised to include maximum size limits. Maximum size limits may be exceeded after public notice and review by the responsible Forest Service officer one level above the Forest Service officer who normally would approve the harvest activity. Maximum size limits shall not apply to the size of areas harvested as a result of natural catastrophic conditions such as fire, insect and disease attack, or windstorm; and,

(6) The even-aged harvest protects soil, watershed, fish, wildlife, recreation, and esthetic resources, and assures the regeneration of trees.

K.I.S.S. in Rule Form, Part I


Our task is to write regulations required by NFMA. Having proposed a framework in previous posts (K.I.S.S. and K.I.S.S. II), it’s time to put rubber to the road. Here’s the introductory framework. What have I missed?

36 CFR 219.1: Purpose and principles.

(a) The rules in this subpart set forth the process for revising land management plans for units of the National Forest System as required by the Forest and Rangeland Renewable Resources Planning Act of 1974, as amended. Land management plans shall be revised when conditions in a unit have significantly changed, but no less frequently than every fifteen years.

(b) A land management plan revision shall:

(1) Decide the vegetation management and timber harvest sale program and the proportion of probable methods of tree removal timber harvest (Sec. __);

(2) Include an assessment of new information and changed circumstances since adoption of the previous land management plan or revision thereof (Sec. __);

(3) Be prepared by an interdisciplinary team (Sec. __);

(4) Be based upon inventories appropriate to inform the decisions made by the plan revision (Sec. __);

(5) Involve the public in its promulgation (Sec. __);

(6) Provide for diversity of plant and animal communities and preserve the diversity of tree species (Sec. __);

(7) Ensure that, subject to valid existing rights, all outstanding and future permits, contracts, cooperative agreements, and other instruments for occupancy and use of affected lands are consistent with the revised plan (Sec. __); and,

(78) Review previous decisions to classify lands as suited or not suited for timber production if the prior classification decision is older than ten years (Sec. __).