Federal Register, Volume 73 Issue 143 (Thursday, July 24, 2008)

[Federal Register Volume 73, Number 143 (Thursday, July 24, 2008)]
[Rules and Regulations]
[Pages 43084-43099]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-16499]

[[Page 43084]]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 220

RIN 0596-AC49

National Environmental Policy Act Procedures

AGENCY: USDA Forest Service.

ACTION: Final rule.

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

SUMMARY: The Department of Agriculture is moving the Forest Service's
National Environmental Policy Act (NEPA) codifying procedures from
Forest Service Manual (FSM) 1950 and Forest Service Handbook (FSH)
1909.15. In addition to codifying the procedures, the Department is
clarifying and expanding them to incorporate Council on Environmental
Quality (CEQ) guidance and to better align Forest Service NEPA
procedures with its decision processes.
This rule gives Forest Service NEPA procedures more visibility,
consistent with the transparent nature of the Forest Service's
environmental analysis and decision making. Also, the additions to the
Forest Service NEPA procedures in this rule are intended to provide an
environmental analysis process that better fits with modern thinking on
decisionmaking, collaboration, and adaptive management by describing a
process for incremental alternative development and development of
adaptive management alternatives. Maintaining Forest Service
explanatory guidance in the FSH will facilitate timely responses to new
ideas, new information, procedural interpretations, training needs, and
editorial changes to assist field units when implementing the NEPA
process.

DATES: Effective Date: These NEPA procedures are effective July 24,
2008.

ADDRESSES: The Forest Service NEPA procedures are set out in 36 CFR
part 220, which is available electronically via the World Wide Web/
Internet at http://www.gpoaccess.gov/cfr/index.html. Single paper
copies are available by contacting Martha Twarkins, Forest Service,
USDA, Ecosystem Management Coordination Staff (Mail Stop 1104), 1400
Independence Avenue, SW., Washington, DC 20250-1104. Additional
information and analysis can be found at http://www.fs.fed.us/emc/nepa.

FOR FURTHER INFORMATION CONTACT: Martha Twarkins, Ecosystem Management
Staff, (202) 205-2935, Forest Service, USDA. Individuals who use
telecommunication devices for the deaf (TDD) may call the Federal
Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8
p.m. Eastern Daylight Time, Monday through Friday.

SUPPLEMENTARY INFORMATION: Council on Environmental Quality (CEQ)
regulations at 40 CFR 1507.3 require Federal agencies to adopt
procedures as necessary to supplement the requirements of the CEQ's
regulations implementing the National Environmental Policy Act (NEPA).
The regulation further encourages agencies to publish agency
explanatory guidance for CEQ's regulations and agency procedures. In
1979, the Forest Service chose to combine its implementing procedures
and explanatory guidance in Forest Service directives FSM 1950 and FSH
1909.15.
Descriptions of Forest Service NEPA authority, objectives, policy,
and responsibilities remain in FSM 1950. Forest Service explanatory
guidance interpreting CEQ and Forest Service procedures in regulation
remain in FSH 1909.15. For an explanation of NEPA and the NEPA process,
see CEQ's ``A Citizen's Guide to the NEPA--Having Your Voice Heard'' at
http://ceq.eh.doe.gov/nepa/Citizens_Guide_Dec07.pdf.
This rule gives Forest Service NEPA procedures more visibility,
consistent with the transparent nature of the Forest Service's
environmental analysis and decision making.
Maintaining Forest Service explanatory guidance in directives will
facilitate quicker responses to new ideas, new information, procedural
interpretations, training needs, and editorial changes to assist field
units when implementing the NEPA process.
Since the last major update of Forest Service NEPA policy in 1992,
CEQ has issued guidance that the Department believes is appropriate to
incorporate into Forest Service NEPA procedures with this regulation.
The Department also believes it is appropriate to incorporate several
concepts that the Forest Service currently uses, but for which explicit
provisions in its current procedures are lacking.
Finally, this rule will allow for better integration of NEPA
procedures and documentation into the current Forest Service
decisionmaking processes, including collaborative and incremental
decisionmaking.
On August 16, 2007, the Forest Service published a proposed rule to
move its NEPA procedures from FSH 1909.15 to 36 CFR part 220 (72 FR
45998). The majority of implementing procedures found in FSH 1909.15
transfer to 36 CFR part 220 and remain intact. Forest Service
explanatory guidance remains in the revised FSH 1909.15 being published
concurrently with this rule and available at http://www.fs.fed.us/cgi-bin/Directives/get_dirs/fsh?1909.15. Key changes in this final rule:
Clarify actions subject to NEPA by summarizing the
relevant CEQ regulations in one place.
Recognize Forest Service obligations to take immediate
emergency responses and emphasize the options available for subsequent
proposals to address actions related to the emergency when normal NEPA
processes are not possible.
Incorporate CEQ guidance language regarding what past
actions are ``relevant and useful'' to a cumulative effects analysis.
Clarify that an alternative(s), including the proposed
action, may be modified through an incremental process.
Clarify that adaptive management strategies may be
incorporated into an alternative(s), including the proposed action.
Incorporate CEQ guidance that states environmental
assessments (EAs) need to analyze alternatives to the proposed action
if there are unresolved conflicts concerning alterative uses of
available resources as specified by section 102(2)(E) of NEPA.
The CEQ was consulted on the proposed and final rule. CEQ has
issued a letter stating CEQ has reviewed this rule and found it to be
in conformity with NEPA and CEQ regulations (per 40 CFR 1507.3 and NEPA
section 102(2)(B)). This letter is available at http://www.fs.fed.us/emc/nepa.
To improve clarity, this final rule received numerous corrections
to punctuation, grammar, abbreviations, and citations. These edits did
not change the substance or meaning of any of the rule's provisions.
Substantive changes from the proposed to this final rule are discussed
in the responses to comments that follow.

Comments on the Proposal

The proposed rule was published in the Federal Register on August
16, 2007, for a 60-day comment period. The Forest Service received
10,975 responses, consisting of letters, e-mails, web based
submissions, and faxes. Of those, approximately 200 contained original
substantive comments; the remaining responses were organized response
campaign (form) letters. Comments were received from the public, from
within the Forest Service,

[[Page 43085]]

and from other agencies. The Department considered all the comments and
made a number of changes in response. A summary of comments received
and the Department's responses follow.

General Comments

Generally, respondents favored the Forest Service's efforts to make
the NEPA process run more efficiently for all interested parties. Many
respondents like the idea of having Forest Service NEPA procedures in
more readily accessible regulations, instead of in directives. They
also like the concept that the Forest Service would like to work more
closely with stakeholders. Respondents feel that the CFR is more
readily available to the public, making it easier for the public and
interested parties to engage the Forest Service during decisionmaking
and to ensure they are following the regulations. In addition, many
respondents feel that moving the NEPA procedures to regulation ensures
they are part of the Federal Government's official regulations,
enhancing the opportunities to legally enforce the requirements.
Generally, most respondents support the proposed rule, but have
concerns with some details, which are outlined below.
Response. The Forest Service appreciates the comments. It should be
clarified however that the Forest Service believes that the move from
internal procedures to published regulations and handbook should not
change the judicial interpretations of these procedures.

NEPA

Comments. Although most respondents agree with moving NEPA
procedures to regulation, some asked the question, ``What problem is
the Forest Service trying to solve by moving its regulations?'' Also, a
few respondents cite Western Radio Services Co. v. Espy, 79 F.2d 896,
901 (9th Cir. 1996), stating that the Forest Service must explain the
rationale for moving NEPA procedures. Many respondents are concerned
that the proposed rule would weaken or undermine NEPA, which in turn
would damage public lands, water, wildlife, and air. One individual
stated that only Congress has the authority to change NEPA.
Respondents are also concerned that the proposed rule would give
special interest groups an opportunity to develop, extract, and log
public lands without regulation or accountability to the general
public. Many individuals commented about the proposed rule being
``another attempt by the current administration to circumvent
environmental regulations.'' One conservation organization believes
that ``the Forest Service `decision process' * * * is highly subject to
political pressure, particularly from the natural resource extraction
industry, which views natural resources on Federal lands as theirs for
the taking.''
Another individual views the proposal as ``the agency giving itself
too much discretion to avoid implementing the Act, possibly undermining
NEPA's purpose.''
Response. The Department is moving Forest Service procedures from
internal directives to regulation to give its NEPA procedures more
visibility, consistent with the transparent nature of the Forest
Service's environmental analysis and decision making. The Forest
Service procedures supplement the CEQ regulations and placing Forest
Service NEPA procedures in regulation underscores their importance. The
final rule incorporates existing Forest Service procedures and existing
CEQ guidance. This final rule also incorporates existing Forest Service
practices such as collaboration and adaptive management as options for
the responsible official to use.
The Department does not interpret the Ninth Circuit's decision in
Western Radio Services Co. v. Espy as requiring a rationale for moving
NEPA procedures. That case was about compliance with special use
permitting regulations; on the page cited by the commenters the Ninth
Circuit held that directives did not have independent force and effect
of law. For this rule, the Department provides its rationale for moving
the procedures to regulation.
The Forest Service procedures supplement the CEQ and U.S.
Department of Agriculture (USDA) regulations for implementing NEPA
procedural provisions; they neither supplant nor diminish those
requirements. This final rule states under section 220.1(b), ``This
part supplements and does not lessen the applicability of the CEQ
regulations, and is to be used in conjunction with the CEQ regulations
and U.S. Department of Agriculture regulations at 7 CFR part 1b.'' The
Department is not changing NEPA nor providing deference to one group
over another. Groups for, against, or neutral on any proposed actions
including logging have equal access to the Forest Service decision
making process as described in sections 220.4(c), (d), and (e). Section
220.1(b) makes it explicitly clear that this final rule does not
``circumvent'' or ``avoid'' the Forest Service commitment to, and
responsibility for, implementing NEPA.
Comments. Some respondents commented that the Forest Service needs
to produce an environmental impact statement (EIS) for the proposed
rule. In addition, respondents stated that the proposed rule
constitutes revised agency rules and regulations and violates 40 CFR
1502.4(b), which highlights when an EIS must be prepared. CEQ
regulation at 40 CFR 1502.4(b) states `Environmental impact statements
may be prepared, and are sometimes required, for broad federal actions
such as the adoption of new agency programs or regulations (1508.18).'
Some respondents feel that the NEPA procedures described in this rule
should be characterized as the adoption of new agency regulations, thus
requiring an EIS.
Response. CEQ does not direct agencies to prepare a NEPA analysis
or document before establishing agency NEPA procedures. Agency NEPA
procedures are procedural guidance to assist agencies in the
fulfillment of agency responsibilities under NEPA, but are not the
Agency's final determination of what level of NEPA analysis is required
for a particular proposed action. As stated in the preamble to the
proposed rule, ``The rule would not directly impact the environment.''
(72 FR 46002). The regulations do not authorize or prohibit any action
or have any effect on the environment. The requirements for
establishing agency NEPA procedures are set forth at 40 CFR parts
1505.1 and 1507.3. Additionally, the Forest Service NEPA procedures
presented in this rule are established procedures described in the
Forest Service directive system, allowed under the existing Forest
Service procedures, or are existing CEQ guidance and are not considered
new agency regulations.
Regulations establishing agency NEPA procedures do not require NEPA
analysis and documentation. See, e.g., Heartwood, Inc. v. U.S. Forest
Service, 230 F.3d 947, 954-55 (7th Cir. 2000).
Comments. Several individuals are concerned that moving the Forest
Service's procedures to the CFR's could encourage other agencies to do
the same, for example, the Bureau of Land Management. One individual is
concerned that the proposed change would affect judicial
interpretations of the Forest Service's NEPA obligations, therefore
increasing the Forest Service's susceptibility to lawsuits.
Response. The majority of Federal agencies currently have their
NEPA procedures in the CFR, and the Department believes it is
appropriate to place the Forest Service's NEPA procedures in
regulation. In addition, it will place the Forest Service's NEPA

[[Page 43086]]

procedures in one easily accessible place, incorporate current CEQ
guidance and place the procedures in line with current Forest Service
decision making. The Forest Service believes that the move from
internal procedures to published regulations and handbook should not
change the judicial interpretations of these procedures and therefore
should not increase uncertainty due to litigation. As for whether a
regulation would make the Forest Service more susceptible to lawsuits,
the Forest Service has an obligation to comply with NEPA and the CEQ
regulations whether these procedures are specified in regulations or
internal procedures. Furthermore, if the Forest Service's application
of the regulation is challenged in court, the Department believes that
the courts will give appropriate deference to the CEQ's interpretation
of NEPA, as embodied in these regulations.

Public Comment on Projects

Comments. Many respondents are concerned that the proposed rule
would take away the public's ability to comment on projects.
Individuals ask the Forest Service to not limit public comment.
Response. This final rule will not take away or limit the public's
ability to comment on projects compared with current practice. The
final rule supplements, but does not supercede the CEQ regulations,
which contain public involvement requirements. Moreover, the final rule
retains the proposed rule requirements for responsible officials to
consider public and agency comments in decisionmaking and to include
such comments and responses in the administrative record (section
220.4(c)).

Collaboration

Comments. Many respondents like the idea of collaboration and urge
the Forest Service to involve the public as much as possible. One
individual would like to see all agencies, States and local
governments, organizations, and individuals included in the
collaborative process identified in the NEPA documents, along with an
indication of when they joined the process.
Some respondents recommend the Forest Service make collaboration an
optional process and if collaboration is undertaken, a strict timeline
should be imposed. One individual was concerned that the proposed
changes would ``allow domination by whichever special interest group
has the ear of those in authority.''
Respondents feel that the Forest Service should integrate
collaboration and adaptive management into the existing NEPA framework
rather than implementing new changes ``which lack the checks and
balances NEPA provides.''
Response. Given the concerns regarding collaboration being within
the regulation, the Department removed the references to collaboration
that were in the proposed section 220.5(e)(1), which is now section
220.5(e)(2). The proposed language stated ``To facilitate collaborative
processes and sound decisions, the responsible official may collaborate
with interested parties to modify the proposed action and
alternative(s) * * *.'' The proposed language was interpreted by many
as providing that the incremental development and modification of
alternatives may only be done when the Forest Service collaborates with
the public or that collaboration may only be done in a process
involving the incremental development and modification of alternatives.
Neither collaboration nor the incremental development and modification
of alternatives are required in every case, nor is one a prerequisite
for the other.
Collaboration is a tool that enables the Forest Service to focus on
issues that matter. The Department recognizes that collaboration may
not be appropriate in every case (see CEQ publication, ``Collaboration
in NEPA--A Handbook for NEPA Practitioners,'' available at http://ceq.eh.doe.gov/nepa/nepapubs/Collaboration_in_NEPA_Oct2007.pdf). The
final rule does not set collaboration requirements, including timelines
or documentation of when parties become involved in the process.
Collaboration processes, like public involvement and scoping, will vary
depending on the need and circumstances. Some situations will require a
lot of time and others will not. Adaptive management is addressed in
the final rule at section 220.5(e)(2).

Section 220.3 Definitions

Comments. Many respondents are concerned that the definition for
``reasonably foreseeable future actions,'' in section 220.3 is too
narrow. They suggest the proposed rule definition could eliminate from
consideration a large number of activities on National Forest System
lands that are clearly foreseeable. Respondents believe that if the
proposed rule is approved, the Forest Service would be ignoring the CEQ
provision regarding ``reasonably foreseeable future actions.'' Of
particular concern was the phrase ``activities not yet undertaken.''
Another concern was that the proposed rule suggests an improper
focus on activities taking place primarily on NFS lands, and fails to
include other agencies or private landowners with lands adjacent to NFS
lands.
Response. The final rule defines ``reasonably foreseeable future
actions'' to explain a term in CEQ's definition for ``cumulative
impact'' at 40 CFR 1508.7. The CEQ definition of ``cumulative impact''
includes both Federal and non-Federal actions for consideration of
cumulative effects, including reasonably foreseeable future actions. To
clarify that Federal and non-Federal actions are to be considered, in
the final rule the words ``Federal or non-Federal'' are added to the
definition of ``Reasonably Foreseeable Future Actions.'' The phrase:
``activities not yet undertaken'' is to distinguish foreseeable actions
from past and present actions and does not alter CEQ's regulatory
definition for cumulative impact (See 40 CFR 1508.7). The CEQ
definition for cumulative impact includes past and present actions.
Ongoing activities such as grazing and oil and gas development would be
considered present activities and thereby accounted for in the
description of the current state of the environment (the ``Affected
Environment'') and the future state of the environment in the absence
of the proposed action (the ``no-action alternative''), as well as in
the cumulative effects analysis. The Department has struck a balance
between speculation about activities that are not yet planned and
remain speculative and those that are reasonably foreseeable and have
evolved to the point of being a proposal capable of meaningful NEPA
analysis (for example, based on other development in the area when
there has been some decision, funding, or development of a proposal
(see 40 CFR 1508.23)).
Comments. Several individuals are concerned that ``interested
parties and agencies'' is used throughout the entire proposed rule, but
is not defined. They suggest that ``interested parties and agencies''
be defined to lend clarity on what individuals represent those groups.
Response. This final rule supplements, but does not replace the CEQ
regulations. Accordingly, the Forest Service is still subject to the
CEQ public involvement requirements at 40 CFR 1501.4, 1501.7, 1503.1,
and 1506.6, which include informing ``persons and agencies who may be
interested or affected'' by agency proposals. The CEQ regulation at 40
CFR 1506.6 further requires agencies to ``make diligent

[[Page 43087]]

efforts to involve the public in preparing and implementing their NEPA
procedures,'' which would include public involvement in preparing
environmental assessments and environmental impact statements. The
Department believes the meaning of ``interested'' and ``affected
parties and agencies'' is sufficiently defined in current NEPA usage
and the courts' and CEQ's interpretation of these terms.
Comments. The proposed rule defined preliminary environmental
impact statement (PEIS). The regulations later went on to describe that
if PEISs are prepared they would be available to those interested and
affected persons and agencies for comment.
Many respondents agree the development of a PEIS is good in that it
makes the Forest Service's decisionmaking process transparent. However,
respondents are concerned that the Forest Service does not indicate
what this process will look like in practice and at what level the
public will participate. Concern was raised that there could be
inconsistency across the Forest Service in how the PEIS would be used
which could confuse people. Also, the proposed rule does not indicate
when the public must comment in order to maintain standing to appeal.
One respondent feels the proposed rule violates CEQ regulation 40
CFR 1506.8 by adding an additional stage in the NEPA process. Some
respondents question what role the PEIS will play, and how the PEIS and
scoping process will interact. The same people ask what level of detail
will be required in a PEIS. Moreover, if the responsible official
chooses to use a PEIS, it is unknown whether there will be an
opportunity to challenge the Forest Service to provide more
information.
There are concerns that the collaborative process and PEIS would
``over-complicate the planning process,'' ``unduly burden the public
and other government agencies,'' and ``unfairly'' place those who
cannot fully participate at a ``disadvantage.'' Others who commented
felt that 40 CFR 1506.10, and 1502.19 should apply to all EISs the
Forest Service produces for comment.
Response. Due to the confusion and concern surrounding the PEIS the
Department felt it was best to remove this provision. The definition in
the proposed rule found at section 220.3 and description in section
220.5 have been removed in the final rule. As discussed previously in
the proposed rule preamble, collaboration with the public is already
allowed and will continue as an option for the responsible official.
The PEIS is simply an optional tool and its removal from the final rule
will not remove that option. The responsible official will still be
free to involve and inform the public above and beyond the regulations
in a manner that best meets the public and government good. The
provisions in the final rule at section 220.5(f) regarding circulating
and filing draft and final environmental impact statements remain
unchanged from the proposal.

Section 220.4(b) Emergency Responses

Comments. Section 220.4(b)(2) of the proposed rule provided ``the
responsible official may take emergency actions necessary to control
the immediate impacts of the emergency to mitigate harm to life,
property, or important resources.'' Overall, respondents generally
agree that some emergency actions should be allowed, for example when
an action is needed to mitigate harm to human life or property.
However, some respondents feel that by not clearly defining what an
important resource is, the Forest Service could use the emergency
response clause as a way to permit ``salvage logging'' or other ``high
impact projects'' on the national forests. Several respondents suggest
that the Forest Service re-word the emergency response provision to
something like ``The responsible official may take emergency actions
necessary to control the immediate impacts of the emergency to mitigate
harm to human life, property, or rare natural resources.''
Response. The final rule, at section 220.4(b)(1), replaces ``other
important resources'' with ``important natural or cultural resources''
to more clearly identify the type of resources impacted by the
emergency.
Under section 220.4(b)(1), timber salvage activities solely to
reduce economic loss are not emergency actions as such activity is not
necessary to control the immediate impacts to life, property, or
important natural or cultural resources. Some confusion and/or concern
may have arisen with the use of the word ``important'' because the
Forest Service appeal regulations at 36 CFR 215 includes provisions for
``emergency situations'', a term that may include the concept of
economic loss: ``A situation on National Forest System (NFS) lands for
which immediate implementation of all or part of a decision is
necessary for relief from hazards threatening human health and safety
or natural resources on those NFS or adjacent lands; or that would
result in substantial loss of economic value to the Federal Government
if implementation of the decision were delayed.'' (emphasis added). The
appeal regulations cover a different process from the proposed NEPA
procedures.
The appeal rule covers a broader range of harms which might occur
during the processing of an administrative appeal. The emergency stay
determination in the appeal rule allows the Forest Service to consider
harms that may result from this delay in implementation. In contrast,
an emergency response under this final rule is limited to actions
necessary to control the immediate effects of an emergency, not the
economic effects of delay brought about by an appeal.
Comments. Respondents wrote that an emergency response should not
be used to constitute a special use permit request or to circumvent
NEPA compliance for controversial projects.
Response. The final rule at section 220.4(b) does not create new
permits or circumvent existing permits; it simply allows limited
actions under narrowly defined emergency circumstances. As an example,
any situations involving the use of emergency procedures under these
regulations are nonetheless subject to the separate requirements of
existing special use regulations at 36 CFR 251.50(b), which allow for
the temporary occupancy of NFS lands without a special use
authorization when necessary for the protection of life and property in
emergencies.
Comment. Some people also questioned whether the emergency
provision at Sec. 220.4(b) would replace the Forest Service's efforts
to assess the impacts of its fire retardant program.
Response. The Forest Service has completed an assessment of the
impacts of the aerial application of fire retardant in an EA which is
unaffected by this final rule. The title for that assessment is Aerial
Application of Fire Retardant Environmental Analysis, October 2007.
http://www.fs.fed.us/fire/retardant/.
Comments. Respondents were concerned about specific details of the
``emergency response'' provision. For example, what constitutes an
emergency? Who determines the emergency, and how is it reported and
documented for public review? Respondents are concerned that the
looseness of the provision could provide an easy way to ``slide
projects through under the radar without having to do a proper
analysis.''
Response. There is no special meaning intended for the term
``emergency'' beyond its common usage as ``an unforeseen combination of
circumstances or the resulting state that calls for immediate action''
(Webster's Third New International Dictionary Of The English Language
1961 and Merriam-Webster's Collegiate Dictionary (11th ed. 2004)); ``a
sudden, urgent, usually unexpected occurrence or

[[Page 43088]]

occasion requiring immediate action'' (Random House Dictionary of the
English Language (2ed. 1987)); ``a state of things unexpectedly
arising, and urgently demanding immediate action'' (The Oxford English
Dictionary 2ed. 1991) and ``[a] situation that demands unusual or
immediate action and that may allow people to circumvent usual
procedures * * *'' (Black's Law Dictionary 260, 562 (8th ed. 2004)).
The proposed regulation, as revised in this final rule, recognizes that
responsible officials can take immediate actions to control the
immediate impacts of an emergency to mitigate harm to life, property,
or important natural or cultural resources.
As stated in the preamble of the proposed regulations, only such
actions required to address the ``immediate impacts of the emergency
that are urgently required to mitigate harm to life, property, or
important natural or cultural resources'' may be taken without regard
to the procedural requirements of NEPA, the CEQ regulations, or the
proposed agency regulations. Thus, there are no NEPA documentation
requirements for these types of situations and the final rule requires
NEPA to apply to any and all subsequent proposed actions that address
the underlying emergency (220.4(b)(2) and (3)). The provisions of 220.4
codify the existing Forest Service practice and CEQ guidance for
emergency actions.
In the past the Forest Service has acted to protect lives,
property, and important natural or cultural resources without this rule
by adhering to CEQ regulations and guidance found in the CEQ Memorandum
for Federal NEPA Contacts on Emergency Actions and NEPA, along with its
associate attachments http://ceq.hss.doe.gov/nepa/Memo_to_NEPA_Contacts_September_8_05. For example, search and rescue or fire
suppression operations responding to specific emergency situations
caused by events such as flood, fire, landslides, storms, and
explosions.
Sections 220.4(b)(2) and (b)(3) address emergency situations where
the Forest Service puts forth proposals to address actions where
``alternative arrangements'' or routine NEPA requirements will be
followed.

Section 220.4(d) Schedule of Proposed Actions

Comments. A concern was expressed that 220.4(d) contains a great
deal of guidance rather than procedure language.
Response. The final rule removes the explanatory guidance related
to the schedule of proposed actions (SOPA). The final rule adds a
definition of ``Schedule of Proposed Actions (SOPA)'' in section 220.3.
The final rule, in section 220.4(d), establishes the duty of the
responsible official to make the SOPA available to the public. FSH
1909.15 contains the explanatory guidance associated with this
requirement.
Comments. A few respondents are concerned that the SOPA is used as
the sole or only scoping mechanism. Respondents would like to see the
Forest Service clarify that scoping must not be limited to the SOPA
mechanism.
Response. Since its inception, the SOPA has not been intended to be
used as the only scoping mechanism as stated in previous Forest Service
NEPA procedures and in the proposed rule. The final rule retains this
clarification and explicitly states ``the SOPA shall not be used as the
sole scoping mechanism for a proposed action.'' (220.4(e)(3)) (emphasis
added).
Comment. Several individuals mentioned that the Forest Service does
not produce a SOPA for categorical exclusions (CE), which leads to
projects being implemented before the public is informed.
Response. Forest Service categorical exclusions are organized in
two groups: Actions requiring a supporting record and a decision memo
documenting the decision to proceed, and actions where a supporting
record and a decision memo are not required, but may be prepared at the
discretion of the responsible official (see section 220.6). The first
group of categorically excluded actions, for which a decision memo has
been or will be prepared, are included in the SOPA (see definition at
section 220.3). The Forest Service believes the latter group of
actions, not requiring documentation, to be of low public interest and,
therefore, not appropriate for inclusion in the SOPA (such as mowing
the lawn). It is important to note that the rule states, ``the SOPA
shall not be used as the sole scoping mechanism for a proposed
action.'' (220.4(e)(3)).

Section 220.4(f) Cumulative Effects Considerations of Past Actions

Comments. Section 220.4(f) of the proposed rule addresses the
consideration of past actions in cumulative effects analysis. Many
respondents feel that in order to complete an effective cumulative
effects analysis, the Forest Service must consider past projects. Some
people are concerned that the rule would weaken the requirements to
look at past actions and future actions and would streamline the
decisionmaking process for potentially destructive projects. On that
same note, people believe that it is imperative to fully disclose all
potential impacts a project might have or could have down the road,
claiming that without full disclosure natural resources could be in
danger. They asked how field personnel know what effects from past
actions are relevant to current decisionmaking unless all such actions
and their impacts were first considered.
Another concern expressed by some respondents was that the proposed
rule would change the baseline condition of the landscape to what
condition the landscape is considered to be in at the time an action is
proposed, rather than the landscape condition at the time the Forest
Service first started ``managing'' it.
Other individuals are concerned that any reduction in the scope of
an agency's responsibility to conduct cumulative impact analyses will
undermine CEQ guidance and regulations. A respondent stated that the
CEQ itself has recognized evidence that ``the most devastating
environmental effects may result * * * from the combination of
individually minor effects of multiple actions over time.''
One respondent said the proposal was an illegal attempt to get
around court rulings on what must be considered. The respondent points
out that regulations are supposed to be complying with the CEQ
regulations, not creating some guidance that attempts to get around the
regulations. Because of the importance of national forests and their
ecological and social benefits to people, wildlife, and plants, one
respondent encouraged Forest Service personnel to consider all
cumulative impacts.
Response. At section 220.4(f), this final rule incorporates
verbatim, the language for the analysis of cumulative effects from the
June 24, 2005 CEQ Guidance on the Consideration of Past Actions in
Cumulative Effects Analysis, which may be found at http://ceq.eh.doe.gov/nepa/regs/Guidance_on_CE.pdf. This provision is to be
used with existing CEQ regulations, which use the terms effects and
impacts synonymously and define cumulative impact as the incremental
impact of an action when added to other past, present, and reasonably
foreseeable future actions (40 CFR 1508.7). The Forest Service agrees
that it must consider past actions to determine cumulative effects,
however, there is no requirement under NEPA or the CEQ regulations to
arrive at a description of the state of the environment at some distant
point in

[[Page 43089]]

the past when the Forest Service first began managing the land.
The focus of the CEQ guidance incorporated in this final rule is on
the consideration of useful and relevant information related to past
actions when determining the cumulative effects of proposals and
alternatives. The Forest Service will conduct cumulative effects
analyses necessary to inform decisionmaking and disclose environmental
effects in compliance with NEPA.
To clarify the Forest Service's commitment to follow the quoted CEQ
guidance concerning consideration of past actions, the first sentence
in the final rule at section 220.4(g) is revised to state, ``Cumulative
effects analysis shall be carried out in accordance with 40 CFR 1508.7
and in accordance with ``The Council on Environmental Quality Guidance
Memorandum on Consideration of Past Actions in Cumulative Effects
Analysis'' dated June 24, 2005:''

Section 220.4(h) Incorporation by Reference

Comments. Several conservation organizations have concerns about
the incorporation by reference provision in the proposed rule:
``Consistent with 40 CFR 1502.21, material may be incorporated by
reference into any environmental or decision document.'' They are
concerned the material will not be available to the public for review
in a timely manner or included in the administrative record.
One conservation group feels the following needs to be added to
section 220.4(h), ``No material may be incorporated by reference unless
it is available for inspection by potentially interested persons within
the time allowed for comment.'' Another conservation group proposed the
addition of ``this material must be reasonably available to the public
within the time allowed for comment and its content briefly described
in the environmental document.''
Response. Referring to material incorporated by reference, the
proposed rule at section 220.4(h) explicitly stated, ``This material
must be reasonably available to the public and its contents briefly
described in the environmental or decision document.'' This language is
retained in the final rule and meets the Forest Service
responsibilities and obligations under NEPA and the CEQ NEPA
regulations to have the materials readily available during the comment
period.

Section 220.5(a) Classes of Actions Requiring Environmental Impact
Statements

Comments. Section 220.5(a)(1) details the classes of actions
``normally'' requiring preparation of an EIS. Given that `normally' was
not previously found in this provision of Forest Service procedures,
many respondents are concerned that the word ``normally'' would allow
the Forest Service to use its discretion to avoid preparing an EIS for
environmentally damaging actions. A concern was raised that the
examples given in classes of actions normally requiring an EIS are
extreme and fail to acknowledge the fact that far less extreme
activities will occur which will cause ``significant environmental
impacts.'' A question was raised as to whether or not the requirements
for these classes may be met by the appropriate use of program
environmental impact statements and tiered site-specific environmental
documents. A comment also noted that the requirements for a notice of
intent to prepare an EIS at 220.5(b) should provide for situations
where there is a lengthy period between the agency's decision to
prepare an environmental impacts statement and the time of actual
preparation pursuant to 40 CFR 1507.3(e).
Response. As many respondents note, previous Forest Service
procedures identified ``Classes of Actions Requiring Environmental
Impact Statements.'' The proposed rule at section 220.5 added the word
``normally'', thus identifying classes of actions for which EISs are
typically, but not always, required. This addition was made to comply
with CEQ regulations for agency NEPA procedures that require agencies
to identify typical classes of action ``Which normally do require
environmental statements'' (40 CFR 1507.3(b)(2)(i)). It will be rare to
not prepare an EIS given the circumstances described in the classes.
The responsible official may prepare an EA in situations where an EIS
is ``normally'' prepared if, in their professional judgment, they have
complied with the standards for determination of significance as
specified in the CEQ regulations at 40 CFR 1508.27. This standard is
also articulated in the handbook being published concurrently with
these regulations. Therefore, the final rule retains the word
``normally'' in section 220.5.
In the list of classes at section 220.5(a)(2), the final rule
changes the reference to ``inventoried roadless area'' to ``inventoried
roadless area or potential wilderness area''. Forest Service land
management planning procedures in FSH 1909.12, chapter 70, describe a
facet of the land management planning process whereby potential
wilderness areas are identified. Once completed, the identification of
potential wilderness areas would be a more contemporary inventory than
the previously-conducted roadless area inventory. Some units of the
National Forest System have completed the identification of potential
wilderness areas and no longer maintain an inventory of roadless areas,
while others have not yet completed identification of potential
wilderness areas and, therefore, still maintain a roadless area
inventory. The intent of the revised language at 220.5(a)(2) is to
account for either scenario.
Acreages were removed from the Class 2 examples in the proposed
rule section 220.5(a) in response to concerns that the examples of
actions for which EISs would normally be required represent extreme
cases. The word ``substantial'' replaces the acreage in the first
example (220.5(a)(i)) in the final rule to be consistent with the
description of Class 2. The following new language has been included in
the final rule at section 220.5(a): ``Examples include but are not
limited to:'' To emphasize that the stated examples are not all-
inclusive. The Department feels that the examples reflect Forest
Service experience implementing NEPA and provide the context for each
class.
The 3rd Class of Action listed in the proposed rule, ``Other
proposals to take major Federal actions that may significantly affect
the quality of the human environment'' was deleted in this final rule
because it did not describe a proposal but only rephrased the
requirement for when to prepare an EIS.
Program environmental impact statements will continue to satisfy
the requirements of this section. Such impact statements document
analyses of broad actions or programs. Site-specific environmental
impact statements or environmental assessments for actions that fall
within the scope of a program environmental impact statement need only
summarize the issues discussed in the program statement and incorporate
discussions from the program statement by reference, concentrating on
the issues specific to the subsequent action. (See 40 CFR 1502.20)
Finally, the requirements for the notice of intent at 220.5(b) have
been changed in the final rule to include the following sentence:
``Where there is a lengthy period between the agency's decision to
prepare an environmental impact statement and the time of actual

[[Page 43090]]

preparation, the notice of intent may be published at a reasonable time
in advance of preparation of the draft statement.''

Section 220.5(e) Alternatives

Comments. A concern was raised that the proposed rule language
``reasonable alternatives should meet the purpose and need,'' would
preclude alternatives that do not fully meet the purpose and need for
the proposal. The respondent felt the statement is unduly restrictive
and should be modified to provide a justifiable range of
reasonableness.
Response. The word ``should'' is retained in this provision in the
final rule because it provides focus for the development and design of
alternatives and continues to allow for reasonable variations, which
encompass a reasonable range.
Comments. The proposed rule provision for documenting consideration
of the no-action alternative by contrasting the current condition and
expected future condition should the proposed action not be undertaken,
raised a number of concerns that the Forest Service would no longer
consider a no-action alternative. Some respondents are concerned that
without the no-action alternative being documented and considered as
traditionally done, the effects of doing nothing will not be adequately
expressed. Some expressed that not considering a no-action alternative
would be illegal.
Response. The intent of the proposed regulation is to continue to
require consideration of the no-action alternative as required by 40
CFR 1502.14(d), yet the wording caused some to think the no action
alternative would not be considered. To avoid confusion as to the
Forest Service's commitment always to consider and document the no-
action alternative in an EIS, the proposed rule language is not in the
final rule.
Comments. Proposed rule section 220.5(e)(3) recognizes how adaptive
management may be incorporated into a proposal and alternatives. Some
respondents are supportive of adaptive management and feel that if
adjustments are made during implementation, the action would be
acceptable so long as the adjustments were fully described and their
effects disclosed in the EIS. Others however feel the rule is self-
defeating because it still requires that adjustments be ``clearly
articulated and pre-specified'' and ``fully analyzed.'' They would like
to see the Forest Service's final rule ``clarify that adaptive
management is intended to deal with uncertainty, and that the goal is
to use adaptation to achieve a desired result.''
Others expressed concern that a defined process for making
adjustments with adaptive management has not been described. They ask,
for example, who would be in charge of making the decision, how is the
public informed, and how will the adjustments be monitored and
reported. Several respondents feel that before an ``adjustment'' or
substantial change is made, a supplemental EIS would be needed.
Response. Section 220.5(e)(3) of the proposed rule is retained in
the final rule at section 220.5(e)(2). The intent of the adaptive
management option in the proposed regulation is to allow for possible
changes in an action to achieve the desired effect without having to
reanalyze the proposal and reconsider the decision. When proposing an
action the responsible official may identify possible adjustments that
may be appropriate during project implementation. Those possible
adjustments must be described and their effects analyzed in the EIS.
The decision may then allow for those adjustments during project
implementation.
The requirements for supplemental EISs at 40 CFR 1502.9(1)
continues to apply under the final rule (see 220.1(b)). NEPA and the
CEQ regulations do not specify how the Forest Service uses adaptive
management, and it is the responsibility of the Forest Service to
specify roles, responsibilities, and procedures for implementing
adaptive management adjustments in the documents available for public
notice and comment as part of NEPA and other statutes. If the
responsible official identifies possible adjustments in the decision,
the official will also identify any monitoring and/or public
notification requirements as part of the NEPA and decisionmaking
process. The need described under the CEQ regulations for a
supplemental EIS on an adjustment is dependent on the degree to which
the adjustment was specified and analyzed in the analyses. The
responsible official is the person who is responsible for implementing
the decision and making any adjustments during implementation. If the
responsible official identified possible adjustments in the decision,
the official will also identify any monitoring and/or public
notification requirements as part of the NEPA and decisionmaking
process.

Section 220.5(g) Circulating and Filing Draft and Final Environmental
Impact Statements

Section 220.5(f)(2) of the final rule adds the reference ``40 CFR
1506.9'' to other citations related to requirements for filing and
circulating EISs. The omission of this reference in the proposed rule
was an oversight.

Section 220.6 Categorical Exclusions

Comments. Many respondents are concerned about a number of the
categories set out in the proposed rule, for various reasons. Some
conservation groups argue that the proposed rule is a continuation of
the ``administration's disturbing and unfortunate trend toward
undermining NEPA, from categorically excluding both forest planning and
project-level decisions from NEPA analysis and documentation.'' Many
respondents feel the categorical exclusions should be eliminated from
the rule; various people suggest some categories are illegal. Many
respondents argue that certain categorically excluded actions would
create significant impacts and should go through the NEPA process.
Some respondents reference Citizens for Better Forestry v. U.S.
Dept. of Agriculture, 481 F. Supp. 2d 1059 (N.D. Cal. 2007), stating
the proposed rule is illegal in light of this ruling.
Additionally, some conservation groups are concerned about the
Forest Service's proposal to allow an internal review to determine
whether an extraordinary circumstance will cause a proposed action to
have a significant impact on the environment. Citing Rhodes v. Johnson,
153 F.3d 785, 790 (7th Cir 1998), they state that the environmental
assessment is the process required to make the determination if the
proposed action will have a significant impact on the environment. The
group believes that the wording of the proposed rule at 220.6(b),
regarding the determination whether there are extraordinary
circumstances, should be changed from ``Resource conditions that should
be considered'' to ``Resource conditions that shall be considered * *
*''. They also believe that the list of resource conditions provided in
the proposed rule should not be exhaustive, and that other items should
be added such as inventoried roadless areas, steep slopes, highly
erosive soils, state listed species, karst topography, caves, and
proposed wild and scenic river corridors. The regulations should
require an analysis addressing any extraordinary circumstance listed in
the regulations or identified in public comments, according to the
respondent.

[[Page 43091]]

Response. This final rule is moving established categories and
language on extraordinary circumstances from the Forest Service NEPA
procedures previously located in FSH 1909.15 to 36 CFR 220.6. These
categories and requirements were established following public review
and comment, in consultation with CEQ and with CEQ's concurrence. The
final rule does not add any new categories, nor does it substantively
alter existing requirements regarding extraordinary circumstances. The
Department did not propose any changes to the categorical exclusions or
associated requirements and does not believe any changes are warranted
in this final rule.
Regarding the allegation that the court ruling in Citizens for
Better Forestry v. U.S. Dept. of Agriculture makes this rule illegal:
In an order dated March 30, 2007, the United States District Court
enjoined the USDA from implementing and utilizing the 2005 land
management planning rule at 36 CFR part 219 until it takes additional
steps to comply with the court's opinion regarding the Administrative
Procedure Act (APA), Endangered Species Act (ESA), and NEPA. The Court
stated, ``In particular, the agency must provide notice and comment on
the 2005 Rule as required by the APA since the court concludes that the
rule was not a `logical outgrowth' of the 2002 Proposed Rule.
Additionally, because the 2005 Rule may significantly affect the
quality of the human environment under NEPA, and because it may affect
listed species and their habitat under ESA, the agency must conduct
further analysis and evaluation of the impact of the 2005 Rule in
accordance with those statutes.'' This ruling on the forest planning
regulations (which have been revised and reissued in 2008) in no way
invalidates this final rule regarding Forest Service NEPA obligations
and responsibilities for proposed forest plans.
The court ruling cited by some respondents in Rhodes v. Johnson
concerned an interpretation of the Forest Service's procedures for
determining whether extraordinary circumstances exist. The ruling was
made in 1998. In 2002, the Forest Service clarified its procedures for
consideration of extraordinary circumstances, in consultation with CEQ
and following public review and comment. The clarification specified
that the mere presence of one or more of the listed resource conditions
does not preclude use of a categorical exclusion; rather it is the
degree of potential effect of a proposed action on the resource
conditions that determines whether or not extraordinary circumstances
exist. Furthermore, the provision at Sec. 220.6(c) states that
uncertainty over the significance of effects of a proposed action
requires preparation of an EA.
If a proposed action is within a categorical exclusion identified
in Forest Service procedures, the responsible official must determine
that there are no extraordinary circumstances in which a normally
excluded action may have a significant environmental effect. The
responsible official relies on many sources of information in making a
determination concerning extraordinary circumstances, including public
comment, specialist reports, and consultation with other agencies.
The extraordinary circumstances requirements include a list of
resource conditions that ``should'' be considered. ``Should'' is used
instead of ``shall'' because ``should'' underscores that the list is
not intended to be exhaustive. The list of resource conditions is
intended as a starting place and does not preclude consideration of
other factors or conditions by the responsible official with the
potential for significant environmental effects.
While some Forest Service categorical exclusions of limited scope
do not require a decision memo or project record, a majority of the
Forest Service's categories do require preparation of a decision memo
and a supporting record. The project record and decision memo both
document the determination that no extraordinary circumstances exist
(Sec. 220.6(e) and (f)).
Reviewers should note that the United States Court of Appeals for
the Ninth Circuit has invalidated the categorical exclusion for
hazardous fuels reduction activities (Sec. 220.6(e)(10)). Sierra Club
v. Bosworth, 510 F.3d 1016 (9th Cir. 2007). A motion for rehearing is
pending for that case. Because judicial proceedings are ongoing the
category will be retained subject to the Chief's December 19, 2007
instructions that Forest Service officials must refrain from use of
this category while the litigation remains unresolved. See http://www.fs.fed.us/emc/nepa/nepa_procedures/index.htm. The Forest Service
will fully comply with all judicial orders and instructions. Once the
judicial process has been concluded, the category will either remain or
be removed, depending upon the litigation's outcome. If, at a later
date, the Department determines changes need to be made to section
220.6, those proposed changes will be made in consultation with CEQ and
made available to the public for review and comment.
The Department moved existing Forest Service categories and
associated language directly from its NEPA procedures previously found
in FSH 1909.15 chapter 30 to the proposed rule. The only changes made
were minor editorial changes for clarity. In transmitting and
formatting the existing categorical exclusions for the proposed
regulation, the following statement about ``decision memos'' in the
existing procedures was inadvertently left out of the proposed
regulation: ``If the proposed action is approval of a land management
plan, plan amendment, or plan revision, the plan approval document
required by 36 CFR 219.7(c) satisfies the decision memo requirements of
this section.'' The statement is intended to avoid duplicate decision
documents for land management plans. Thus, the final rule includes this
statement.

Section 220.7 Environmental Assessments

Comments. One conservation group is concerned about the length of
EAs. This group believes the Forest Service is producing lengthy EAs,
which should be EISs. They state that the CEQ has advised agencies to
keep the length for an EA to 10-15 pages. They feel that the Forest
Service may incorporate material by reference to reduce the length of
the document. The group suggests that the Forest Service should add
page requirements to its proposed rule, to avoid lengthy EAs.
Response. The final rule includes incorporation by reference in
section 220.4, General Requirements, subsection (h) `Incorporation by
Reference', section 220.7 `Environmental Analysis and Decision Notice',
subsections (a), (b)(2)(iii) and (iv). Section 220.7, `Environmental
Analysis and Decision Notices' emphasizes brief, succinct
documentation. Existing guidance emphasizes the use of incorporation by
reference as a tool for the responsible official to use, and grants the
flexibility needed to provide the documentation necessary for the
analysis but keeps the page limits within what is required for adequate
disclosure. Consequently, there is no need to set specific page limits.
Comments. Many respondents commented on section 220.7(b)(iii) of
the proposed rule, which would allow consideration of a no-action
alternative to be shown by contrasting the impacts of the proposal and
alternatives with the current condition and expected future conditions
if the proposed action were not implemented. Many respondents expressed
the importance of not allowing such a ``no-action alternative''

[[Page 43092]]

to lead to a decreased analysis and consideration of ``no-action.''
They emphasize that informed and meaningful consideration of
alternatives, including the no-action alternative, is an integral part
of the NEPA process.
Response. After consideration of the comments, the Department has
chosen to keep the provision in the final rule. There is no specific
CEQ requirement to include a no-action alternative in an EA and the
language follows CEQ's EA guidance Preparing Focused, Concise and
Timely Environmental Assessments (see http://ceq.eh.doe.gov/nepa/regs/Preparing_Focused_Concise_and_Timely_EAs.pdf). By contrasting the
impacts of the proposal and alternatives with the current condition and
expected future condition of the environment, the effects of a no-
action alternative are considered. This provision is provided as an
option for responsible officials to use if in their best judgment it
serves the need of the analysis.
Comments. Respondents want the Forest Service to provide a
definition for ``unresolved conflicts'' and to present examples of such
actions. Others want to know who decides whether there are ``no
unresolved conflicts concerning alternative uses of available
resources.''
Response. The term ``unresolved conflicts'' comes directly from
NEPA (42 U.S.C. 4332(2)E). Typically, most Forest Service proposals
will have alternatives; however, the final rule specifically recognizes
that in some situations there may be no conflicts regarding a proposed
action and in such cases alternatives would not be required.
On September 8, 2005, the CEQ issued EA guidance to federal
agencies entitled Preparing Focused, Concise and Timely Environmental
Assessments, that explained language at section 102(2)(E) of NEPA
``unresolved conflicts concerning alternative uses of available
resources'' (42 U.S.C. 4332(2)(E)). The CEQ guidance states: ``When
there is consensus about the proposed action based on input from
interested parties, you can consider the proposed action and proceed
without consideration of additional alternatives. Otherwise, you need
to develop reasonable alternatives to meet project needs'' (Attachment
to September 8, 2005, Memorandum for Federal NEPA Contacts http://ceq.eh.doe.gov/nepa/regs/Preparing_Focused_Concise_and_Timely_EAs.pdf). Ultimately, the responsible official must decide on whether
alternatives to the proposed action are appropriate, ``based on input
from interested parties.''

Regulatory Certification

National Environmental Policy Act

The final rule would move existing procedures for implementing the
National Environmental Policy Act (NEPA) from the Forest Service
handbook to 36 CFR part 220 and provide additional direction. The rule
would not directly impact the environment. Forest Service NEPA
procedures are procedural guidance to assist in the fulfillment of
agency responsibilities under NEPA, but are not the agency's final
determination of what level of NEPA analysis is required for a
particular proposed action. The CEQ set forth the requirements for
establishing agency NEPA procedures in its regulations at 40 CFR 1505.1
and 1507.3. The CEQ regulations do not require agencies to conduct NEPA
analyses or prepare NEPA documentation when establishing their NEPA
procedures. The determination that establishing agency NEPA procedures
does not require NEPA analysis and documentation has been upheld in
Heartwood, Inc. v. U.S. Forest Service, 230 F.3d 947, 954-55 (7th Cir.
2000).

Regulatory Impact

This final rule has been reviewed under USDA procedures and
Executive Order 12866 issued September 30, 1993, as amended by
Executive Order 13422 on regulatory planning and review and the major
rule provisions of the Small Business Regulatory Enforcement and
Fairness Act (5 U.S.C. 800). It has been determined that this is not an
economically significant action. This action to issue agency
regulations will not have an annual effect of $100 million or more on
the economy nor adversely affect productivity, competition, jobs, the
environment, public health or safety, nor state or local governments.
This action will not interfere with an action taken or planned by
another agency. This action will not alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients of such programs. However, because of the
extensive interest in National Forest System (NFS) planning and
decision-making, this final rule to establish agency implementing
procedures for NEPA in the Code of Federal Regulations (CFR) has been
designated as significant and, therefore, is subject to Office of
Management and Budget (OMB) review under Executive Order 12866.
In accordance with the OMB Circular A-4, ``Regulatory Analysis,'' a
cost/benefit analysis was conducted. The analysis compared the costs
and benefits associated with the current condition of having agency
implementing procedures combined with agency explanatory guidance in
Forest Service Handbook (FSH) and this final condition of having
implementing direction in regulation and explanatory guidance in FSH.
Many benefits and costs associated with the rule are not
quantifiable. Benefits, including collaborative and participatory
public involvement to more fully address public concerns, timely and
focused environmental analysis, flexibility in preparation of
environmental documents, and improved legal standing indicate a
positive effect of the new rule.
Moving implementing NEPA procedures from the FSH to regulation is
expected to provide a variety of potentially beneficial effects. This
rule gives Forest Service NEPA procedures more visibility, consistent
with the transparent nature of the Agency's environmental analysis and
decision-making.
Maintaining agency explanatory guidance in the FSH would facilitate
timely agency responses to new ideas, new information, procedural
interpretations, training needs, and editorial changes to addresses and
internet links to assist field units when implementing the NEPA
process. Finally, the changes to the Forest Service NEPA procedures are
intended to provide the Forest Service specific options to meet the
intent of NEPA through collaboration, the establishment of incremental
alternative development, and the use of adaptive management principles.
Based on the context of this analysis, no one factor creates a
significant factor, but taken together does create the potential for
visible improvements in the agency's NEPA program.
Moreover, this final rule has been considered in light of Executive
Order 13272 regarding proper consideration of small entities and the
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA),
which amended the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). An
initial small entities flexibility assessment has been made and it has
been determined that this action will not have a significant economic
impact on a substantial number of small entities as defined by SBREFA.

Federalism

The Agency has considered this final rule under the requirements of
Executive Order 13132, Federalism. The Agency has concluded that the
rule

[[Page 43093]]

conforms with the federalism principles set out in this Executive
order; will not impose any compliance costs on the states; and will not
have substantial direct effects on the States or the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government.
Therefore, the Agency has determined that no further assessment of
federalism implications is necessary.

Consultation and Coordination With Indian Tribal Governments

Pursuant to Executive Order 13175 of November 6, 2000, Consultation
and Coordination with Indian Tribal Governments, the Agency has
assessed the impact of this rule on Indian Tribal governments and has
determined that it does not significantly or uniquely affect
communities of Indian Tribal governments. The rule deals with
requirements for NEPA analysis and has no direct effect regarding the
occupancy and use of NFS land.
The Agency has also determined that this rule does not impose
substantial direct compliance costs on Indian Tribal governments or
preempt Tribal law. Therefore, it has been determined that this rule
does not have Tribal implications requiring advance consultation with
Indian Tribes.

No Takings Implications

This rule has been analyzed in accordance with the principles and
criteria contained in Executive Order 12630, Governmental Actions and
Interference with Constitutionally Protected Property Rights, and it
has been determined that the rule does not pose the risk of a taking of
protected private property.

Civil Justice Reform

This rule has been reviewed under Executive Order 12988 of February
7, 1996, Civil Justice Reform. After adoption of this rule, (1) all
State and local laws and regulations that conflict with this rule or
that would impede full implementation of this rule would be preempted;
(2) no retroactive effect would be given to this rule; and (3) the rule
would not require the use of administrative proceedings before parties
could 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), which the President signed into law on March 22,
1995, the Agency has assessed the effects of this final rule on State,
local, and Tribal governments and the private sector. This rule does
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.

Energy Effects

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

Controlling Paperwork Burdens on the Public

This rule does not contain any additional recordkeeping or
reporting requirements or other information collection requirements as
defined in 5 CFR part 1320 that are not already required by law or not
already approved for use, and therefore, imposes no additional
paperwork burden on the public. Accordingly, the review provisions of
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its
implementing regulations at 5 CFR part 1320 do not apply.

List of Subjects in 36 CFR Part 220

Administrative practices and procedures, Environmental impact
statements, Environmental protection, National forests, Science and
technology.

0
Therefore, for the reasons set forth in the preamble, the Department of
Agriculture amends chapter II of Title 36 of the Code of Federal
Regulations by adding part 220 to read as follows:

PART 220--NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) COMPLIANCE

Sec.
220.1 Purpose and scope.
220.2 Applicability.
220.3 Definitions.
220.4 General requirements.
220.5 Environmental impact statement and record of decision.
220.6 Categorical exclusions.
220.7 Environmental assessment and decision notice.

Authority: 42 U.S.C. 4321 et seq.; E. O. 11514; 40 CFR parts
1500-1508; 7 CFR part 1b.

Sec. 220.1 Purpose and scope.

(a) Purpose. This part establishes Forest Service, U.S. Department
of Agriculture (USDA) procedures for compliance with the National
Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.) and
the Council on Environmental Quality (CEQ) regulations for implementing
the procedural provisions of NEPA (40 CFR parts 1500 through 1508).
(b) Scope. This part supplements and does not lessen the
applicability of the CEQ regulations, and is to be used in conjunction
with the CEQ regulations and USDA regulations at 7 CFR part 1b.

Sec. 220.2 Applicability.

This part applies to all organizational elements of the Forest
Service. Consistent with 40 CFR 1500.3, no trivial violation of this
part shall give rise to any independent cause of action.

Sec. 220.3 Definitions.

The following definitions supplement, by adding to, the terms
defined at 40 CFR parts 1500-1508.
Adaptive management. A system of management practices based on
clearly identified intended outcomes and monitoring to determine if
management actions are meeting those outcomes; and, if not, to
facilitate management changes that will best ensure that those outcomes
are met or re-evaluated. Adaptive management stems from the recognition
that knowledge about natural resource systems is sometimes uncertain.
Decision document. A record of decision, decision notice or
decision memo.
Decision memo. A concise written record of the responsible
official's decision to implement an action categorically excluded from
further analysis and documentation in an environmental impact statement
(EIS) or environmental assessment (EA).
Decision notice. A concise written record of the responsible
official's decision when an EA and finding of no significant impact
(FONSI) have been prepared.
Environmentally preferable alternative. The environmentally
preferable alternative is the alternative that will best promote the
national environmental policy as expressed in NEPA's section 101 (42
U.S.C. 4321). Ordinarily, the environmentally preferable alternative is
that which causes the least harm to the biological and physical
environment; it also is the alternative which best protects and
preserves historic, cultural, and natural resources. In some
situations, there may be more than one environmentally preferable
alternative.
Reasonably foreseeable future actions. Those Federal or non-Federal
activities not yet undertaken, for which there are existing decisions,
funding, or identified

[[Page 43094]]

proposals. Identified proposals for Forest Service actions are
described in Sec. 220.4(a)(1).
Responsible official. The Agency employee who has the authority to
make and implement a decision on a proposed action.
Schedule of proposed actions (SOPA). A Forest Service document that
informs the public about those proposed and ongoing Forest Service
actions for which a record of decision, decision notice or decision
memo would be or has been prepared. The SOPA also identifies a contact
for additional information on any proposed actions.

Sec. 220.4 General requirements.

(a) Proposed actions subject to the NEPA requirements. As required
by 42 U.S.C. 4321 et seq., a Forest Service proposal is subject to the
NEPA requirements when all of the following apply:
(1) The Forest Service has a goal and is actively preparing to make
a decision on one or more alternative means of accomplishing that goal
and the effects can be meaningfully evaluated (see 40 CFR 1508.23);
(2) The proposed action is subject to Forest Service control and
responsibility (see 40 CFR 1508.18);
(3) The proposed action would cause effects on the natural and
physical environment and the relationship of people with that
environment (see 40 CFR 1508.14); and
(4) The proposed action is not statutorily exempt from the
requirements of section 102(2)(C) of the NEPA (42 U.S.C. 4332(2)(C)).
(b) Emergency responses. When the responsible official determines
that an emergency exists that makes it necessary to take urgently
needed actions before preparing a NEPA analysis and any required
documentation in accordance with the provisions in Sec. Sec. 220.5,
220.6, and 220.7 of this part, then the following provisions apply.
(1) The responsible official may take actions necessary to control
the immediate impacts of the emergency and are urgently needed to
mitigate harm to life, property, or important natural or cultural
resources. When taking such actions, the responsible official shall
take into account the probable environmental consequences of the
emergency action and mitigate foreseeable adverse environmental effects
to the extent practical.
(2) If the responsible official proposes emergency actions other
than those actions described in paragraph (b)(1) of this section, and
such actions are not likely to have significant environmental impacts,
the responsible official shall document that determination in an EA and
FONSI prepared in accord with these regulations. If the responsible
official finds that the nature and scope of proposed emergency actions
are such that they must be undertaken prior to preparing any NEPA
analysis and documentation associated with a CE or an EA and FONSI, the
responsible official shall consult with the Washington Office about
alternative arrangements for NEPA compliance. The Chief or Associate
Chief of the Forest Service may grant emergency alternative
arrangements under NEPA for environmental assessments, findings of no
significant impact and categorical exclusions (FSM 1950.41a).
Consultation with the Washington Office shall be coordinated through
the appropriate regional office.
(3) If the responsible official proposes emergency actions other
than those actions described in paragraph (b)(1) of this section and
such actions are likely to have significant environmental impacts, then
the responsible official shall consult with CEQ, through the
appropriate regional office and the Washington Office, about
alternative arrangements in accordance with CEQ regulations at 40 CFR
1506.11 as soon as possible.
(c) Agency decisionmaking. For each Forest Service proposal (Sec.
220.4(a)), the responsible official shall coordinate and integrate NEPA
review and relevant environmental documents with agency decisionmaking
by:
(1) Completing the environmental document review before making a
decision on the proposal;
(2) Considering environmental documents, public and agency comments
(if any) on those documents, and agency responses to those comments;
(3) Including environmental documents, comments, and responses in
the administrative record;
(4) Considering the alternatives analyzed in environmental
document(s) before rendering a decision on the proposal; and
(5) Making a decision encompassed within the range of alternatives
analyzed in the environmental documents.
(d) Schedule of proposed actions (SOPA). The responsible official
shall ensure the SOPA is updated and notify the public of the
availability of the SOPA.
(e) Scoping (40 CFR 1501.7). (1) Scoping is required for all Forest
Service proposed actions, including those that would appear to be
categorically excluded from further analysis and documentation in an EA
or an EIS (Sec. 220.6).
(2) Scoping shall be carried out in accordance with the
requirements of 40 CFR 1501.7. Because the nature and complexity of a
proposed action determine the scope and intensity of analysis, no
single scoping technique is required or prescribed.
(3) The SOPA shall not to be used as the sole scoping mechanism for
a proposed action.
(f) Cumulative effects considerations of past actions. Cumulative
effects analysis shall be carried out in accordance with 40 CFR 1508.7
and in accordance with ``The Council on Environmental Quality Guidance
Memorandum on Consideration of Past Actions in Cumulative Effects
Analysis'' dated June 24, 2005. The analysis of cumulative effects
begins with consideration of the direct and indirect effects on the
environment that are expected or likely to result from the alternative
proposals for agency action. Agencies then look for present effects of
past actions that are, in the judgment of the agency, relevant and
useful because they have a significant cause-and-effect relationship
with the direct and indirect effects of the proposal for agency action
and its alternatives. CEQ regulations do not require the consideration
of the individual effects of all past actions to determine the present
effects of past actions. Once the agency has identified those present
effects of past actions that warrant consideration, the agency assesses
the extent that the effects of the proposal for agency action or its
alternatives will add to, modify, or mitigate those effects. The final
analysis documents an agency assessment of the cumulative effects of
the actions considered (including past, present, and reasonable
foreseeable future actions) on the affected environment. With respect
to past actions, during the scoping process and subsequent preparation
of the analysis, the agency must determine what information regarding
past actions is useful and relevant to the required analysis of
cumulative effects. Cataloging past actions and specific information
about the direct and indirect effects of their design and
implementation could in some contexts be useful to predict the
cumulative effects of the proposal. The CEQ regulations, however, do
not require agencies to catalogue or exhaustively list and analyze all
individual past actions. Simply because information about past actions
may be available or obtained with reasonable effort does not mean that
it is relevant and necessary to inform decisionmaking. (40 CFR 1508.7)

[[Page 43095]]

(g) Classified information. To the extent practicable, the
responsible official shall segregate any information that has been
classified pursuant to Executive order or statute. The responsible
official shall maintain the confidentiality of such information in a
manner required for the information involved. Such information may not
be included in any publicly disclosed documents. If such material
cannot be reasonably segregated, or if segregation would leave
essentially meaningless material, the responsible official must
withhold the entire analysis document from the public; however, the
responsible official shall otherwise prepare the analysis documentation
in accord with applicable regulations. (40 CFR 1507.3(c))
(h) Incorporation by reference. Material may be incorporated by
reference into any environmental or decision document. This material
must be reasonably available to the public and its contents briefly
described in the environmental or decision document. (40 CFR 1502.21)
(i) Applicants. The responsible official shall make policies or
staff available to advise potential applicants of studies or other
information foreseeably required for acceptance of their applications.
Upon acceptance of an application as provided by 36 CFR 251.54(g) the
responsible official shall initiate the NEPA process.

Sec. 220.5 Environmental impact statement and record of decision.

(a) Classes of actions normally requiring environmental impact
statements.
(1) Class 1: Proposals to carry out or to approve aerial
application of chemical pesticides on an operational basis. Examples
include but are not limited to:
(i) Applying chemical insecticides by helicopter on an area
infested with spruce budworm to prevent serious resource loss.
(ii) Authorizing the application of herbicides by helicopter on a
major utility corridor to control unwanted vegetation.
(iii) Applying herbicides by fixed-wing aircraft on an area to
release trees from competing vegetation.
(2) Class 2: Proposals that would substantially alter the
undeveloped character of an inventoried roadless area or a potential
wilderness area. Examples include but are not limited to:
(i) Constructing roads and harvesting timber in an inventoried
roadless area where the proposed road and harvest units impact a
substantial part of the inventoried roadless area.
(ii) Constructing or reconstructing water reservoir facilities in a
potential wilderness area where flow regimens may be substantially
altered.
(iii) Approving a plan of operations for a mine that would cause
considerable surface disturbance in a potential wilderness area.
(b) Notice of intent. Normally, a notice of intent to prepare an
EIS shall be published in the Federal Register as soon as practicable
after deciding that an EIS will be prepared. Where there is a lengthy
period between the agency's decision to prepare an environmental impact
statement and the time of actual preparation, the notice of intent may
be published at a reasonable time in advance of preparation of the
draft statement. A notice must meet the requirements of 40 CFR 1508.22,
and in addition, include the following:
(1) Title of the responsible official(s);
(2) Any permits or licenses required to implement the proposed
action and the issuing authority;
(3) Lead, joint lead, or cooperating agencies if identified; and
(4) Address(es) to which comments may be sent.
(c) Withdrawal notice. A withdrawal notice must be published in the
Federal Register if, after publication of the notice of intent or
notice of availability, an EIS is no longer necessary. A withdrawal
notice must refer to the date and Federal Register page number of the
previously published notice(s).
(d) Environmental impact statement format and content. The
responsible official may use any EIS format and design as long as the
statement is in accord with 40 CFR 1502.10.
(e) Alternative(s). The EIS shall document the examination of
reasonable alternatives to the proposed action. An alternative should
meet the purpose and need and address one or more significant issues
related to the proposed action. Since an alternative may be developed
to address more than one significant issue, no specific number of
alternatives is required or prescribed. The following procedures are
available to the responsible official to develop and analyze
alternatives:
(1) The responsible official may modify the proposed action and
alternative(s) under consideration prior to issuing a draft EIS. In
such cases, the responsible official may consider the incremental
changes as alternatives considered. The documentation of these
incremental changes to a proposed action or alternatives shall be
included or incorporated by reference in accord with 40 CFR 1502.21.
(2) The proposed action and one or more alternatives to the
proposed action may include adaptive management. An adaptive management
proposal or alternative must clearly identify the adjustment(s) that
may be made when monitoring during project implementation indicates
that the action is not having its intended effect, or is causing
unintended and undesirable effects. The EIS must disclose not only the
effect of the proposed action or alternative but also the effect of the
adjustment. Such proposal or alternative must also describe the
monitoring that would take place to inform the responsible official
during implementation whether the action is having its intended effect.
(f) Circulating and filing draft and final environmental impact
statements.
(1) The draft and final EISs shall be filed with the Environmental
Protection Agency's Office of Federal Activities in Washington, DC (see
40 CFR 1506.9).
(2) Requirements at 40 CFR 1506.9 ``Filing requirements,'' 40 CFR
1506.10 ``Timing of agency action,'' and 40 CFR 1502.19 ``Circulation
of the environmental impact statement'' shall only apply to the last
draft and final EIS and not apply to material produced prior to the
draft EIS or between the draft and final EIS which are filed with EPA.
(3) When the responsible official determines that an extension of
the review period on a draft EIS is appropriate, notice shall be given
in the same manner used for inviting comments on the draft.
(g) Distribution of the record of decision. The responsible
official shall notify interested or affected parties of the
availability of the record of decision as soon as practical after
signing.

Sec. 220.6 Categorical exclusions.

(a) General. A proposed action may be categorically excluded from
further analysis and documentation in an EIS or EA only if there are no
extraordinary circumstances related to the proposed action and if:
(1) The proposed action is within one of the categories established
by the Secretary at 7 CFR part 1b.3; or
(2) The proposed action is within a category listed in Sec.
220.6(d) and (e).
(b) Resource conditions. (1) Resource conditions that should be
considered in determining whether extraordinary circumstances related
to a proposed action warrant further analysis and documentation in an
EA or an EIS are:
(i) Federally listed threatened or endangered species or designated
critical habitat, species proposed for Federal listing or proposed
critical habitat, or Forest Service sensitive species;

[[Page 43096]]

(ii) Flood plains, wetlands, or municipal watersheds;
(iii) Congressionally designated areas, such as wilderness,
wilderness study areas, or national recreation areas;
(iv) Inventoried roadless area or potential wilderness area;
(v) Research natural areas;
(vi) American Indians and Alaska Native religious or cultural
sites; and
(vii) Archaeological sites, or historic properties or areas.
(2) The mere presence of one or more of these resource conditions
does not preclude use of a categorical exclusion (CE). It is the
existence of a cause-effect relationship between a proposed action and
the potential effect on these resource conditions, and if such a
relationship exists, the degree of the potential effect of a proposed
action on these resource conditions that determines whether
extraordinary circumstances exist.
(c) Scoping. If the responsible official determines, based on
scoping, that it is uncertain whether the proposed action may have a
significant effect on the environment, prepare an EA. If the
responsible official determines, based on scoping, that the proposed
action may have a significant environmental effect, prepare an EIS.
(d) Categories of actions for which a project or case file and
decision memo are not required. A supporting record and a decision memo
are not required, but at the discretion of the responsible official,
may be prepared for the following categories:
(1) Orders issued pursuant to 36 CFR part 261--Prohibitions to
provide short-term resource protection or to protect public health and
safety. Examples include but are not limited to:
(i) Closing a road to protect bighorn sheep during lambing season,
and
(ii) Closing an area during a period of extreme fire danger.
(2) Rules, regulations, or policies to establish servicewide
administrative procedures, program processes, or instructions. Examples
include but are not limited to:
(i) Adjusting special use or recreation fees using an existing
formula;
(ii) Proposing a technical or scientific method or procedure for
screening effects of emissions on air quality related values in Class I
wildernesses;
(iii) Proposing a policy to defer payments on certain permits or
contracts to reduce the risk of default;
(iv) Proposing changes in contract terms and conditions or terms
and conditions of special use authorizations;
(v) Establishing a servicewide process for responding to offers to
exchange land and for agreeing on land values; and
(vi) Establishing procedures for amending or revising forest land
and resource management plans.
(3) Repair and maintenance of administrative sites. Examples
include but are not limited to:
(i) Mowing lawns at a district office;
(ii) Replacing a roof or storage shed;
(iii) Painting a building; and
(iv) Applying registered pesticides for rodent or vegetation
control.
(4) Repair and maintenance of roads, trails, and landline
boundaries. Examples include but are not limited to:
(i) Authorizing a user to grade, resurface, and clean the culverts
of an established NFS road;
(ii) Grading a road and clearing the roadside of brush without the
use of herbicides;
(iii) Resurfacing a road to its original condition;
(iv) Pruning vegetation and cleaning culverts along a trail and
grooming the surface of the trail; and
(v) Surveying, painting, and posting landline boundaries.
(5) Repair and maintenance of recreation sites and facilities.
Examples include but are not limited to:
(i) Applying registered herbicides to control poison ivy on
infested sites in a campground;
(ii) Applying registered insecticides by compressed air sprayer to
control insects at a recreation site complex;
(iii) Repaving a parking lot; and
(iv) Applying registered pesticides for rodent or vegetation
control.
(6) Acquisition of land or interest in land. Examples include but
are not limited to:
(i) Accepting the donation of lands or interests in land to the
NFS, and
(ii) Purchasing fee, conservation easement, reserved interest deed,
or other interests in lands.
(7) Sale or exchange of land or interest in land and resources
where resulting land uses remain essentially the same. Examples include
but are not limited to:
(i) Selling or exchanging land pursuant to the Small Tracts Act;
(ii) Exchanging NFS lands or interests with a State agency, local
government, or other non-Federal party (individual or organization)
with similar resource management objectives and practices;
(iii) Authorizing the Bureau of Land Management to issue leases on
producing wells when mineral rights revert to the United States from
private ownership and there is no change in activity; and
(iv) Exchange of administrative sites involving other than NFS
lands.
(8) Approval, modification, or continuation of minor, short-term (1
year or less) special uses of NFS lands. Examples include, but are not
limited to:
(i) Approving, on an annual basis, the intermittent use and
occupancy by a State-licensed outfitter or guide;
(ii) Approving the use of NFS land for apiaries; and
(iii) Approving the gathering of forest products for personal use.
(9) Issuance of a new permit for up to the maximum tenure allowable
under the National Forest Ski Area Permit Act of 1986 (16 U.S.C. 497b)
for an existing ski area when such issuance is a purely ministerial
action to account for administrative changes, such as a change in
ownership of ski area improvements, expiration of the current permit,
or a change in the statutory authority applicable to the current
permit. Examples include, but are not limited to:
(i) Issuing a permit to a new owner of ski area improvements within
an existing ski area with no changes to the master development plan,
including no changes to the facilities or activities for that ski area;
(ii) Upon expiration of a ski area permit, issuing a new permit to
the holder of the previous permit where the holder is not requesting
any changes to the master development plan, including changes to the
facilities or activities; and
(iii) Issuing a new permit under the National Forest Ski Area
Permit Act of 1986 to the holder of a permit issued under the Term
Permit and Organic Acts, where there are no changes in the type or
scope of activities authorized and no other changes in the master
development plan.
(10) Amendment to or replacement of an existing special use
authorization that involves only administrative changes and does not
involve changes in the authorized facilities or increase in the scope
or intensity of authorized activities, or extensions to the term of
authorization, when the applicant or holder is in full compliance with
the terms and conditions of the special use authorization. Examples
include, but are not limited to:
(i) Amending a special use authorization to reflect administrative
changes such as adjustment to the land use fees, inclusion of non-
discretionary environmental standards or updating a special use
authorization to bring it into conformance with current laws or
regulations (for example, new monitoring required by water quality
standards), and
(ii) Issuance of a new special use authorization to reflect
administrative changes such as, a change of ownership or control of
previously authorized

[[Page 43097]]

facilities or activities, or conversion of the existing special use
authorization to a new type of special use authorization (for example,
converting a permit to a lease or easement).
(e) Categories of actions for which a project or case file and
decision memo are required. A supporting record is required and the
decision to proceed must be documented in a decision memo for the
categories of action in paragraphs (e)(1) through (17) of this section.
As a minimum, the project or case file should include any records
prepared, such as: The names of interested and affected people, groups,
and agencies contacted; the determination that no extraordinary
circumstances exist; a copy of the decision memo; and a list of the
people notified of the decision. If the proposed action is approval of
a land management plan, plan amendment, or plan revision, the plan
approval document required by 36 CFR part 219 satisfies the decision
memo requirements of this section.
(1) Construction and reconstruction of trails. Examples include,
but are not limited to:
(i) Constructing or reconstructing a trail to a scenic overlook,
and
(ii) Reconstructing an existing trail to allow use by handicapped
individuals.
(2) Additional construction or reconstruction of existing telephone
or utility lines in a designated corridor. Examples include, but are
not limited to:
(i) Replacing an underground cable trunk and adding additional
phone lines, and
(ii) Reconstructing a power line by replacing poles and wires.
(3) Approval, modification, or continuation of minor special uses
of NFS lands that require less than five contiguous acres of land.
Examples include, but are not limited to:
(i) Approving the construction of a meteorological sampling site;
(ii) Approving the use of land for a one-time group event;
(iii) Approving the construction of temporary facilities for
filming of staged or natural events or studies of natural or cultural
history;
(iv) Approving the use of land for a 40-foot utility corridor that
crosses one mile of a national forest;
(v) Approving the installation of a driveway, mailbox, or other
facilities incidental to use of a residence;
(vi) Approving an additional telecommunication use at a site
already used for such purposes;
(vii) Approving the removal of mineral materials from an existing
community pit or common-use area; and
(viii) Approving the continued use of land where such use has not
changed since authorized and no change in the physical environment or
facilities are proposed.
(4) [Reserved]
(5) Regeneration of an area to native tree species, including site
preparation that does not involve the use of herbicides or result in
vegetation type conversion. Examples include, but are not limited to:
(i) Planting seedlings of superior trees in a progeny test site to
evaluate genetic worth, and
(ii) Planting trees or mechanical seed dispersal of native tree
species following a fire, flood, or landslide.
(6) Timber stand and/or wildlife habitat improvement activities
that do not include the use of herbicides or do not require more than 1
mile of low standard road construction. Examples include, but are not
limited to:
(i) Girdling trees to create snags;
(ii) Thinning or brush control to improve growth or to reduce fire
hazard including the opening of an existing road to a dense timber
stand;
(iii) Prescribed burning to control understory hardwoods in stands
of southern pine; and
(iv) Prescribed burning to reduce natural fuel build-up and improve
plant vigor.
(7) Modification or maintenance of stream or lake aquatic habitat
improvement structures using native materials or normal practices.
Examples include, but are not limited to:
(i) Reconstructing a gabion with stone from a nearby source;
(ii) Adding brush to lake fish beds; and
(iii) Cleaning and resurfacing a fish ladder at a hydroelectric
dam.
(8) Short-term (1 year or less) mineral, energy, or geophysical
investigations and their incidental support activities that may require
cross-country travel by vehicles and equipment, construction of less
than 1 mile of low standard road, or use and minor repair of existing
roads. Examples include, but are not limited to:
(i) Authorizing geophysical investigations which use existing roads
that may require incidental repair to reach sites for drilling core
holes, temperature gradient holes, or seismic shot holes;
(ii) Gathering geophysical data using shot hole, vibroseis, or
surface charge methods;
(iii) Trenching to obtain evidence of mineralization;
(iv) Clearing vegetation for sight paths or from areas used for
investigation or support facilities;
(v) Redesigning or rearranging surface facilities within an
approved site;
(vi) Approving interim and final site restoration measures; and
(vii) Approving a plan for exploration which authorizes repair of
an existing road and the construction of \1/3\ mile of temporary road;
clearing vegetation from an acre of land for trenches, drill pads, or
support facilities.
(9) Implementation or modification of minor management practices to
improve allotment condition or animal distribution when an allotment
management plan is not yet in place. Examples include, but are not
limited to:
(i) Rebuilding a fence to improve animal distribution;
(ii) Adding a stock watering facility to an existing water line;
and
(iii) Spot seeding native species of grass or applying lime to
maintain forage condition.
(10) Hazardous fuels reduction activities using prescribed fire,
not to exceed 4,500 acres; and mechanical methods for crushing, piling,
thinning, pruning, cutting, chipping, mulching, and mowing, not to
exceed 1,000 acres. Such activities:
(i) Shall be limited to areas:
(A) In the wildland-urban interface; or
(B) Condition Classes 2 or 3 in Fire Regime Groups I, II, or III,
outside the wildland-urban interface.
(ii) Shall be identified through a collaborative framework as
described in ``A Collaborative Approach for Reducing Wildland Fire
Risks to Communities and Environment 10-Year Comprehensive Strategy
Implementation Plan'';
(iii) Shall be conducted consistent with Agency and Departmental
procedures and applicable land and resource management plans;
(iv) Shall not be conducted in wilderness areas or impair the
suitability of wilderness study areas for preservation as wilderness;
and
(v) Shall not include the use of herbicides or pesticides or the
construction of new permanent roads or other new permanent
infrastructure; and may include the sale of vegetative material if the
primary purpose of the activity is hazardous fuels reduction.
(11) Post-fire rehabilitation activities, not to exceed 4,200 acres
(such as tree planting, fence replacement, habitat restoration,
heritage site restoration, repair of roads and trails, and repair of
damage to minor facilities such as campgrounds), to repair or improve
lands unlikely to recover to a management approved condition from
wildland fire damage, or to repair or replace minor facilities damaged
by fire. Such activities:

[[Page 43098]]

(i) Shall be conducted consistent with Agency and Departmental
procedures and applicable land and resource management plans;
(ii) Shall not include the use of herbicides or pesticides or the
construction of new permanent roads or other new permanent
infrastructure; and
(iii) Shall be completed within 3 years following a wildland fire.
(12) Harvest of live trees not to exceed 70 acres, requiring no
more than \1/2\ mile of temporary road construction. Do not use this
category for even-aged regeneration harvest or vegetation type
conversion. The proposed action may include incidental removal of trees
for landings, skid trails, and road clearing. Examples include, but are
not limited to:
(i) Removal of individual trees for sawlogs, specialty products, or
fuelwood, and
(ii) Commercial thinning of overstocked stands to achieve the
desired stocking level to increase health and vigor.
(13) Salvage of dead and/or dying trees not to exceed 250 acres,
requiring no more than \1/2\ mile of temporary road construction. The
proposed action may include incidental removal of live or dead trees
for landings, skid trails, and road clearing. Examples include, but are
not limited to:
(i) Harvest of a portion of a stand damaged by a wind or ice event
and construction of a short temporary road to access the damaged trees,
and
(ii) Harvest of fire-damaged trees.
(14) Commercial and non-commercial sanitation harvest of trees to
control insects or disease not to exceed 250 acres, requiring no more
than \1/2\ mile of temporary road construction, including removal of
infested/infected trees and adjacent live uninfested/uninfected trees
as determined necessary to control the spread of insects or disease.
The proposed action may include incidental removal of live or dead
trees for landings, skid trails, and road clearing. Examples include,
but are not limited to:
(i) Felling and harvest of trees infested with southern pine
beetles and immediately adjacent uninfested trees to control expanding
spot infestations, and
(ii) Removal and/or destruction of infested trees affected by a new
exotic insect or disease, such as emerald ash borer, Asian long horned
beetle, and sudden oak death pathogen.
(15) Issuance of a new special use authorization for a new term to
replace an existing or expired special use authorization when the only
changes are administrative, there are not changes to the authorized
facilities or increases in the scope or intensity of authorized
activities, and the applicant or holder is in full compliance with the
terms and conditions of the special use authorization.
(16) Land management plans, plan amendments, and plan revisions
developed in accordance with 36 CFR part 219 et seq. that provide broad
guidance and information for project and activity decisionmaking in a
NFS unit. Proposals for actions that approve projects and activities,
or that command anyone to refrain from undertaking projects and
activities, or that grant, withhold or modify contracts, permits or
other formal legal instruments, are outside the scope of this category
and shall be considered separately under Forest Service NEPA
procedures.
(17) Approval of a Surface Use Plan of Operations for oil and
natural gas exploration and initial development activities, associated
with or adjacent to a new oil and/or gas field or area, so long as the
approval will not authorize activities in excess of any of the
following:
(i) One mile of new road construction;
(ii) One mile of road reconstruction;
(iii) Three miles of individual or co-located pipelines and/or
utilities disturbance; or
(iv) Four drill sites.
(f) Decision memos. The responsible official shall notify
interested or affected parties of the availability of the decision memo
as soon as practical after signing. While sections may be combined or
rearranged in the interest of clarity and brevity, decision memos must
include the following content:
(1) A heading, which must identify:
(i) Title of document: Decision Memo;
(ii) Agency and administrative unit;
(iii) Title of the proposed action; and
(iv) Location of the proposed action, including administrative
unit, county, and State.
(2) Decision to be implemented and the reasons for categorically
excluding the proposed action including:
(i) The category of the proposed action;
(ii) The rationale for using the category and, if more than one
category could have been used, why the specific category was chosen;
(iii) A finding that no extraordinary circumstances exist;
(3) Any interested and affected agencies, organizations, and
persons contacted;
(4) Findings required by other laws such as, but not limited to
findings of consistency with the forest land and resource management
plan as required by the National Forest Management Act; or a public
interest determination (36 CFR 254.3(c));
(5) The date when the responsible official intends to implement the
decision and any conditions related to implementation;
(6) Whether the decision is subject to review or appeal, the
applicable regulations, and when and where to file a request for review
or appeal;
(7) Name, address, and phone number of a contact person who can
supply further information about the decision; and
(8) The responsible official's signature and date when the decision
is made.

Sec. 220.7 Environmental assessment and decision notice.

(a) Environmental assessment. An environmental assessment (EA)
shall be prepared for proposals as described in Sec. 220.4(a) that are
not categorically excluded from documentation (Sec. 220.6) and for
which the need of an EIS has not been determined (Sec. 220.5). An EA
may be prepared in any format useful to facilitate planning,
decisionmaking, and public disclosure as long as the requirements of
paragraph (b) of this section are met. The EA may incorporate by
reference information that is reasonably available to the public.
(b) An EA must include the following:
(1) Need for the proposal. The EA must briefly describe the need
for the project.
(2) Proposed action and alternative(s). The EA shall briefly
describe the proposed action and alternative(s) that meet the need for
action. No specific number of alternatives is required or prescribed.
(i) When there are no unresolved conflicts concerning alternative
uses of available resources (NEPA, section 102(2)(E)), the EA need only
analyze the proposed action and proceed without consideration of
additional alternatives.
(ii) The EA may document consideration of a no-action alternative
through the effects analysis by contrasting the impacts of the proposed
action and any alternative(s) with the current condition and expected
future condition if the proposed action were not implemented.
(iii) The description of the proposal and alternative(s) may
include a brief description of modifications and incremental design
features developed through the analysis process to develop the
alternatives considered. The documentation of these incremental changes
to a proposed action or alternatives may be incorporated by reference
in accord with 40 CFR 1502.21.
(iv) The proposed action and one or more alternatives to the
proposed action

[[Page 43099]]

may include adaptive management. An adaptive management proposal or
alternative must clearly identify the adjustment(s) that may be made
when monitoring during project implementation indicates that the action
is not having its intended effect, or is causing unintended and
undesirable effects. The EA must disclose not only the effect of the
proposed action or alternative but also the effect of the adjustment.
Such proposal or alternative must also describe the monitoring that
would take place to inform the responsible official whether the action
is having its intended effect.
(3) Environmental Impacts of the Proposed Action and
Alternative(s). The EA:
(i) Shall briefly provide sufficient evidence and analysis,
including the environmental impacts of the proposed action and
alternative(s), to determine whether to prepare either an EIS or a
FONSI (40 CFR 1508.9);
(ii) Shall disclose the environmental effects of any adaptive
management adjustments;
(iii) Shall describe the impacts of the proposed action and any
alternatives in terms of context and intensity as described in the
definition of ``significantly'' at 40 CFR 1508.27;
(iv) May discuss the direct, indirect, and cumulative impact(s) of
the proposed action and any alternatives together in a comparative
description or describe the impacts of each alternative separately; and
(v) May incorporate by reference data, inventories, other
information and analyses.
(4) Agencies and Persons Consulted.
(c) Decision notice. If an EA and FONSI have been prepared, the
responsible official must document a decision to proceed with an action
in a decision notice unless law or regulation requires another form of
decision documentation (40 CFR 1508.13). A decision notice must
document the conclusions drawn and the decision(s) made based on the
supporting record, including the EA and FONSI. A decision notice must
include:
(1) A heading, which identifies the:
(i) Title of document;
(ii) Agency and administrative unit;
(iii) Title of the project; and
(iv) Location of the action, including county and State.
(2) Decision and rationale;
(3) Brief summary of public involvement;
(4) A statement incorporating by reference the EA and FONSI if not
combined with the decision notice;
(5) Findings required by other laws and regulations applicable to
the decision at the time of decision;
(6) Expected implementation date;
(7) Administrative review or appeal opportunities and, when such
opportunities exist, a citation to the applicable regulations and
directions on when and where to file a request for review or an appeal;
(8) Contact information, including the name, address, and phone
number of a contact person who can supply additional information; and
(9) Responsible Official's signature, and the date the notice is
signed.
(d) Notification. The responsible official shall notify interested
and affected parties of the availability of the EA, FONSI and decision
notice, as soon as practicable after the decision notice is signed.

Dated: July 14, 2008.
Mark Rey,
Under Secretary, NRE.
[FR Doc. E8-16499 Filed 7-23-08; 8:45 am]
BILLING CODE 3410-11-P