[Federal Register: July 29, 2003 (Volume 68, Number 145)]
[Notices]
[Page 44597-44608]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29jy03-114]
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Part III
Department of Agriculture
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Forest Service
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National Environmental Policy Act Documentation Needed for Limited
Timber Harvest; Notice
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DEPARTMENT OF AGRICULTURE
Forest Service
RIN 0596-AB88
National Environmental Policy Act Documentation Needed for
Limited Timber Harvest
AGENCY: Forest Service, USDA.
ACTION: Notice of final interim directive.
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SUMMARY: The Forest Service gives notice of revised procedures for
implementing the National Environmental Policy Act (NEPA) and Council
on Environmental Quality (CEQ) regulations. These revised procedures
are being issued by Interim Directive (ID) 1909.15-2003-2 to Forest
Service Handbook 1909.15, Chapter 30, Section 31.2, which describes
categorical exclusions, i.e., categories of actions which do not
individually or cumulatively have a significant effect on the human
environment and therefore normally do not require further analysis in
either an environmental assessment or an environmental impact
statement.
This ID adds three such categories of actions to the agency's NEPA
procedures that are applicable to small timber harvesting projects:
Category 12 allows harvest of live trees not to exceed 70 acres with no
more than \1/2\ mile of temporary road construction; Category 13 allows
the salvage of dead and/or dying trees not to exceed 250 acres with no
more than \1/2\ mile of temporary road construction; and Category 14
allows commercial and non-commercial felling and removal of any trees
necessary to control the spread of insects and disease on no more than
250 acres with no more than \1/2\ mile of temporary road construction.
EFFECTIVE DATE: This interim directive is effective July 29, 2003.
ADDRESSES: The new Forest Service categorical exclusions are set out in
Interim Directive (ID) 1909.15-2003-2, which is available
electronically via the World Wide Web/Internet at http://www.fs.fed.us/im/directives.
Single paper copies are available by contacting Chris
Holmes, 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/lth
.
FOR FURTHER INFORMATION CONTACT: Chris Holmes, USDA Forest Service,
Ecosystem Management Coordination Staff, (202) 205-1006. 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 4 p.m., Eastern Standard Time, Monday through Friday.
SUPPLEMENTARY INFORMATION:
Background
The Forest Service is responsible for managing 192 million acres in
national forests, national grasslands, and other areas known
collectively as the National Forest System. The Chief of the Forest
Service, through a line organization of regional foresters, forest
supervisors, and district rangers, manages the surface resources and,
in some instances, the subsurface resources of those lands. The Forest
Service, in compliance with the Council on Environmental Quality (CEQ)
regulations at Title 40, Code of Federal Regulations, sections 1507.3
and 1508.4 (40 CFR 1507.3, 1508.4), is authorized to identify
categories of actions that it has found to have no individual or
cumulatively significant effect on the human environment.
On January 8, 2003, the Forest Service published a proposal (68 FR
1026) to revise its directives for implementing the National
Environmental Policy Act (NEPA) and CEQ regulations contained in Forest
Service Handbook (FSH) 1909.15, Chapter 30, Section 31.2. This proposal
would add three categories of actions to this section for limited
timber harvesting. These categorical exclusions were numbered 10, 11,
and 12. Since the publication of the proposal, the agency has added two
new categorical exclusions for fire management activities, which were
numbered 10 and 11 (68 FR 33814, June 5, 2003). Accordingly, these
categorical exclusions for limited timber harvest have been renumbered
12, 13, and 14.
Category 12 allows harvest of live trees not to exceed 70 acres
with no more than \1/2\ mile of temporary road construction. The
purpose of this category is to allow low-impact silvicultural
treatments through timber harvest. This category cannot be used for
even-aged regeneration harvest or vegetation type conversion. Even-aged
regeneration harvests generally remove most of an existing stand of
trees. An example would be the seed tree method of cutting where all
trees in a stand are removed except for a few dominant seed-producing
trees. Vegetation type conversion is designed to change existing
vegetative cover to another type, such as converting a timber stand to
an open field. Category 12 does not include these types of treatments.
Examples of projects that could be implemented under Category 12
include thinning of overly dense stands of trees to improve the health
and vigor of the remaining trees, and removing individual trees for
forest products or fuelwood. Within the 70 acres, this category allows
incidental removal of trees for temporary roads, landings, and skid
trails as determined by the Forest Service in the timber sale contract
specifications.
Category 13 allows the salvage of dead and/or dying trees not to
exceed 250 acres with no more than \1/2\ mile of temporary road
construction. This categorical exclusion allows salvage harvest in
areas where trees have been severely damaged by forces such as fire,
wind, ice, insects, or disease and still have some economic value as a
forest product. The use of Category 13 is limited to salvage of dead
and dying trees by timber purchasers. Within the 250 acres, this
category allows incidental removal of trees for temporary roads,
landings, and skid trails as determined by the Forest Service in the
timber sale contract specifications.
Category 14 allows commercial and non-commercial felling and
removal of any trees necessary to control the spread of insects and
disease on no more than 250 acres with no more than \1/2\ mile of
temporary road construction. This category allows the agency to apply
harvest methods to control insects and disease before they spread to
adjacent healthy trees. Within the 250 acres, this category allows
incidental removal of trees for temporary roads, landings, and skid
trails as determined by the Forest Service in the timber sale contract
specifications. Noncommercial activities would not include temporary
road construction.
In the development of these categorical exclusions, the Forest
Service reviewed the effects of 154 projects, with actions similar to
those allowed in the three categories. A few of the projects reviewed
resulted in minor soil disturbance and compaction. A few other projects
reviewed showed that small numbers of noxious weeds or invasive plants
entered the area where the trees had been removed. Based upon a post-
implementation field review of these projects by professional experts,
the responsible officials found that these impacts were within forest
plan standards and were not significant in the NEPA context (40 CFR
1508.27).
With the exception of one project reporting cumulative visual
impacts, environmental effects were localized and of limited duration.
The visual impacts of this one project were found to be cumulative with
those of an old timber harvest visible from a scenic river. These
visual impacts were
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determined to not be significant since they still met scenery
management objectives for the river corridor.
Based upon their post-implementation field review of these projects
along with past, present, and reasonably foreseeable future actions,
the responsible officials found that the individual and cumulative
effects of the projects reviewed were not significant in the NEPA
context. The Forest Service, therefore, concluded that the activities
described in the three categories do not individually or cumulatively
have a significant effect on the human environment.
Activities conducted under these categorical exclusions must be
consistent with agency and Departmental procedures and with applicable
land and resource management plans, and they must comply with all
applicable Federal, Tribal, and State laws for protection of the
environment. These categorical exclusions shall not apply where there
are extraordinary circumstances, such as potentially significant
effects on the following: Federally listed threatened or endangered
species or designated critical habitat, species proposed for Federal
listing or proposed critical habitat, or Forest Service sensitive
species; floodplains, wetlands or municipal watersheds; Congressionally
designated areas such as wilderness, wilderness study areas, or
national recreation areas; inventoried roadless areas; research natural
areas; American Indian and Alaska Native religious or cultural sites;
archaeological sites, or historic properties or areas (FSH 1909.15, ch.
30, sec. 30.3, para. 2).
These categorical exclusions differ from those recently promulgated
for hazardous fuels reduction and fire rehabilitation (68 FR 33814,
June 5, 2003). While some small fuel reduction projects may fit the new
categories 12 and 13, most fuel reduction projects done under the
auspices of the National Fire Plan will be larger in scope than would
be allowed under categories 12 and 13. Most projects implementing the
National Fire Plan are larger in size, and involve a combination of
activities such as thinning, pruning, and prescribed burning, in
addition to timber harvest. Activities using categories 12, 13, and 14
are limited to timber harvest and therefore have a more narrow
application.
A 60-day comment period was provided for the proposed interim
directive setting out these categorical exclusions (68 FR 1026, January
8, 2003). In addition, the Forest Service gave direct notice of the
proposal and invited comment from national organizations and Federal
agencies. A one-page notice was faxed to 73 interested groups. These
groups included environmental organizations such as the Defenders of
Wildlife, professional societies such as the American Fisheries
Society, timber groups such as the Intermountain Forest Industry
Association, Federal agencies such as the Environmental Protection
Agency, and State organizations such as the Council of State
Governments.
Approximately 16,700 comment letters were received from
individuals; representatives of Federal agencies; Tribes; State and
local government agencies; environmental groups; professional
organizations; and both commodity and non-commodity groups. The
responses were form letters as well as unique individual letters, some
sent electronically and others mailed as paper copy. All suggestions
and comments have been reviewed and considered in preparation of this
notice of the final interim directive.
In response to comments on the proposed categorical exclusions,
five revisions were made to the original proposal.
In Category 12, two changes have been made. (1) The acreage
limitation has been changed from 50 to 70. This was based on comments
that recommended using the mean of the acreage of the projects
reviewed, as was done for the other categories. In the proposal, the
rationale for 50 acres was that it was a conservative adjustment to the
mean of 70. Public comment questioned the need for this reduction. Use
of the mean reflected the consideration by the agency that this acreage
is well within the range of acreages in the project data used to
support these categories. (2) Also in Category 12, the example
concerning fuel loading formerly in paragraph b was removed. Since the
original proposal, the Forest Service adopted Category 10 (68 FR 33824,
June 5, 2003) that better addresses situations in which this example
would be used. Category 10 is found in Interim Directive (ID) 1909.15-
2003-1 to Forest Service Handbook 1909.15, Chapter 30, Section 32.1.
In Category 14, the following changes have been made: (1) The
restriction of two tree lengths was removed for the harvesting of
healthy adjacent trees; (2) the term ``green'' was changed to ``live,
uninfested/uninfected trees'' for clarification; and (3) ``non-
commercial'' was added to make it clear that the category can apply to
``cut and leave'' insect and disease control activities. The removal of
the restriction of two tree lengths for the harvesting of healthy
adjacent trees was done because this restriction applied primarily to
management for control of southern pine beetle and may not be
appropriate for outbreaks of other pests such as the sudden oak death
pathogen, emerald ash borer, and many bark beetle species other than
southern pine beetle. The provision for noncommercial ``cut and leave''
activities is appropriate for situations in which felling of trees is
needed to reduce populations of insects, but sales of that timber would
not be economically viable.
Comments on the Proposal
Public comment on the proposal addressed a wide range of topics,
many of which were directed generally at the issue of timber harvest
and particularly salvage harvest on National Forest System lands. Many
people supported the proposal or favored further expansion, while many
others opposed the proposal or recommended further restrictions.
Comment: Some respondents voiced general agreement with the
proposal. Some indicated that they think current analysis and
documentation requirements are too burdensome and that the proposal
would provide for more efficient management. Others believed that the
proposal had appropriate limitations on the use of the categorical
exclusions and that the agencies had done sufficient analysis to
conclude that the categories of limited tree harvest do not have
significant environmental effects.
Response: These comments were in support of the proposal and need
no specific response.
Comment: A number of respondents felt that the Forest Service had
not adequately demonstrated a need for the proposed timber management
categorical exclusions (CEs). Some respondents requested that the
agency demonstrate that the current National Environmental Policy Act
(NEPA) process is unduly burdensome for these types of projects.
Response: The categorical exclusions are provided as a tool to
improve planning efficiency (40 CFR 1500.4(p) and 1500.5(k)). From 1981
through 1998 the Forest Service categorically excluded some limited
timber harvesting activities from documentation in an environmental
assessment or environmental impact statement using the category found
in Forest Service Handbook (FSH) 1909.15, section 31.2, paragraph 4
(Category 4). Small timber sales implemented through these categorical
exclusions provided local managers with the flexibility to respond to
localized insect
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and disease infestations, improve forest health through thinning,
salvage dead and dying trees, and provide merchantable forest products.
This category was vacated when a District Court found that there was
insufficient evidence in the agency's administrative record to support
its establishment. The government did not appeal the District Court's
ruling on the case. The loss of this category has resulted in small
timber harvests, without the potential for significant impacts,
requiring preparation of at least an environmental assessment in order
to proceed. This has resulted in extended timeframes and the
expenditure of undue energy and funding to complete minor timber
harvesting projects.
Comment: Some respondents commented that the proposal to expand the
number of categories was an attempt by the agency to circumvent NEPA
compliance.
Response: The use of categorical exclusions is not a circumvention
of NEPA compliance. NEPA and its implementing regulations envision a
process of disclosing significant environmental impacts of major
Federal actions. To avoid repetitive documentation of known non-
significant effects of minor actions, the Council on Environmental
Quality (CEQ) regulations provide a process for defining categories of
activities whose effects are normally exempt from documentation in an
environmental assessment or an environmental impact statement. The
process of defining these categories is an integral part of the NEPA
regulatory framework. In this case, the documented review of activities
similar to those included in these categories supports the
determination that the three categories defined here describe actions
which do not individually or cumulatively have a significant effect on
the human environment and meet the intent of the CEQ regulations that
govern the establishment of categorical exclusions. The agency is
establishing these categories because the appropriate implementation of
NEPA requires concentrating agency analysis efforts on major Federal
actions and not expending scarce resources analyzing agency actions
where experience has demonstrated the insignificance of effects.
Comment: Some respondents believed that Forest Service use of these
categories would allow the agency to bypass important procedural steps
for projects, such as the notification and involvement of the general
public, State agencies, and Tribal governments prior to implementation
of proposed projects.
Response: As directed by CEQ regulations (40 CFR 1507.3), the
Forest Service has developed agency policy for implementing the NEPA
process. As noted in Chapter 10, section 11, of FSH 1909.15: ``Although
the Council on Environmental Quality (CEQ) Regulations require scoping
only for EIS preparation, the Forest Service has broadened the concept
to apply to all proposed actions.'' Chapter 30, section 30.3(3), of FSH
1909.15 further states: ``Scoping is required on all proposed actions,
including those that would appear to be categorically excluded.'' As
part of the scoping process for proposals potentially covered by these
categorical exclusions, the responsible official must determine the
extent of interest and invite the participation of affected Federal
agencies, affected Tribes, State and local agencies, and other
interested parties, as appropriate. The Forest Service is committed to
fulfilling its public involvement responsibilities with all parties
potentially interested in projects qualifying for these categorical
exclusions. The agency is working on additional methods to broaden
public awareness of all proposed activities undergoing any level of
NEPA review (CEs, EAs, and EISs) through electronic Web-based
technology. It is the line officer's responsibility to invite
participation of all interested and affected individuals and groups and
to do so by whatever method or technology is effective to achieve
participation of those individuals or groups.
Comment: Several respondents expressed concern that effects on
Tribal governments had not been appropriately analyzed in the
rulemaking process as required by Executive Order 13175, Consultation
and Coordination with Indian Tribal Governments.
Response: The Forest Service recognizes it has trust
responsibilities towards Tribes and this responsibility includes a duty
to consult with Tribes to obtain meaningful and timely input on agency
actions having substantial direct impacts on Tribes. Executive Order
13175 defines policies that have tribal implications as regulations,
legislative comments or proposed legislation, and other policy
statements or actions that have substantial direct effects on one or
more Indian tribes, on the relationship between the Federal Government
and Indian Tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian Tribes. The addition of these
categorical exclusions to the agency's NEPA procedures is concerned
with the level of documentation required for specific types of actions.
As such, these policies do not have Tribal implications as defined in
the Executive Order.
Effects on Tribal governments may occur on specific sites where the
categories will be used and where there are Tribal interests. Tribes
will be contacted during the scoping process and appropriate government
to government consultations will be conducted on those projects with
Tribal implications even though the project may be categorically
excluded from further analysis and documentation in an environmental
assessment or environmental impact statement.
Comment: Many respondents asked that the Forest Service adhere to
various laws, Executive orders, and agency policies, such as: the
Endangered Species Act, Clean Air Act, Clean Water Act, National Forest
Management Act, Migratory Bird Treaty Act, National Historic
Preservation Act, Forest Service Transportation System Management
Policy, Northwest Forest Plan, the Grizzly Bear Recovery Plan, and
Executive orders on management of floodplains and wetlands and on
Tribal consultation.
Response: The Forest Service agrees. The level of NEPA
documentation does not affect agency responsibility to follow other
applicable laws, regulations, Executive orders, and policies. For
example, categorically excluded timber sales are reviewed for their
potential to impact waters listed as impaired by State water quality
agencies. When appropriate, the Forest Service conducts appropriate
consultation with Federal, State, and Tribal agencies for these
projects. For example, agencies must also review the potential effects
from these types of actions on threatened and endangered species and on
designated critical habitat and consult as appropriate with the U.S.
Fish and Wildlife Service and the National Oceanic and Atmospheric
Administration Fisheries. Similarly, categorically excluded actions are
reviewed for potential effects on properties protected by the National
Historic Preservation Act, and consultation is conducted as appropriate
with State and Tribal Historic Preservation Officers. Such
consultations help ensure that cumulative effects across jurisdictions
will not be significant.
Comment: Numerous respondents commented on the role that ``special
interest groups'' play in affecting the management of the national
forests. Some individuals assumed that these categorical exclusions
were dictated by industry groups and objected vigorously to commodity
use of national forests. Others commented on the role that they
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saw environmental groups playing in the direction of national forest
management over the past several decades, especially in reducing
commodity production from national forests.
Response: NEPA and its implementing regulations outline a process
by which Federal Government decision-makers consider the potential
environmental impacts of proposals. The NEPA process is applied to
proposed actions that are governed by both the enabling legislation and
the annual appropriation acts that direct agency actions. Forest
Service management of National Forest System lands is founded in
legislation such as the Organic Act of 1897, the Bankhead-Jones Act,
the Multiple Use Sustained Yield Act, and the National Forest
Management Act.
Many comments arguing either for restriction or for expansion of
the agency's categorical exclusion authority are based on differing
perspectives on the appropriate uses of national forests. The agency is
required to manage for multiple uses and to consider the environmental
effects as required in the NEPA statute.
These categorical exclusions will allow the Forest Service to
improve its efficiency by reducing the delay and paperwork for proposed
actions that, in the absence of extraordinary circumstances, do not
individually or cumulatively have a significant impact on the human
environment (40 CFR 1500.4(p), 1500.5(k)). In addition to complying
with environmental statutory requirements, the proposed projects must
be consistent with all other agency legislative and regulatory
direction and must be consistent with land and resource management
plans that govern activities on each national forest. Those projects
that are appropriately categorically excluded can therefore meet goals
of the multiple-use mission without the preparation of an environmental
assessment or an environmental impact statement.
Comment: Many respondents expressed opinions on the issue of
subjecting decisions allowed under these categorical exclusions to the
public notice, comment, and appeal process. Some respondents considered
the public notice, comment, and appeal process as absolutely essential
for responsive decision-making. Others felt the appeals process is
unnecessarily burdensome and lengthy, leading to agency inability to
conduct land management activities in a timely manner.
Response: The agency recently completed rulemaking to revise the
agency's administrative appeals process at 36 CFR part 215, which is
mandated by the Appeal Reform Act (ARA) of 1993. The agency's
interpretation of public notice, comment, and appeal opportunity under
the ARA is outlined in the Federal Register notice for the final rule
(68 FR 33582, June 4, 2003). The agency believes that including
affected and interested individuals in project planning early in the
process is more effective than applying the additional procedures for
notice, comment, and appeal contained in the appeals rule and that
applying the provisions of the appeals rule to categorically excluded
actions is neither intended nor required by the ARA. Thus, proposed
activities that are categorically excluded are not subject to the
requirements of the appeals rule at 36 CFR 215.4(a) and 36 CFR
215.12(f).
Comment: A number of respondents raised issues related to the
possible significant cumulative impacts of projects under these
categories or the impacts of implementing such projects in combination
with other activities under other authorities. Most of the statements
were general, but some mentioned specific impacts such as those on
wildlife or water quality. Some of these respondents reiterated quotes
contained in the Federal Register notice for the proposal (68 FR 1026,
January 8, 2003) that noted that categorically excluded actions must
not individually or cumulatively have a significant effect on the human
environment.
Response: For each of the 154 timber sales considered in defining
these categories, the question of whether there were significant
cumulative effects was specifically addressed. The reviewers examined
the possibility of significant cumulative effects from these activities
and all other activities within the appropriate boundaries for
potential resource effects. For example, based on assessment of
wildlife conditions in the local habitat area, or water quality impacts
relative to a watershed, significant cumulative effects were not
observed.
There are many statutory requirements and agency policies and
guidelines that protect the environment from both individual and
cumulative environmental effects. Many of these are described in the
document ``Detailed Rationale for Categorical Exclusions'' located at
http://www.fs.fed.us/emc/hfi/rationale.pdf.
The previous use of Category 4 was limited (it was applied to only
0.03% of National Forest System land in 1998) due to restrictions in
the event of extraordinary circumstances, as well as other factors in
forest plan standards and guidelines that limit forest management
activities. These same factors are expected to influence the number of
projects in the future.
Some public concerns with regard to environmental effects, both
individual and cumulative, include those regarding wildlife populations
and water quality. Soil and water resources are protected during timber
harvest projects through implementation of State and EPA approved Best
Management Practices (BMPs) as described in a later response.
With regard to wildlife, the Forest Service is authorized by the
Endangered Species Act (ESA) to carry out programs for the conservation
of endangered and threatened species, and must ensure that any action
authorized, funded, or carried out by the agency is not likely to
jeopardize the continued existence of any endangered, threatened, or
proposed species, or result in the destruction or adverse modification
of designated critical habitat.
By regulation, the Forest Service is required to consult with the
U.S. Fish and Wildlife Service (FWS) or National Oceanic and
Atmospheric Administration (NOAA) Fisheries whenever any proposed
actions or activities may affect an endangered or threatened species or
adversely modify designated critical habitat. The Forest Service
regularly coordinates and consults with the appropriate state wildlife
agency, FWS, and NOAA Fisheries on species protection and conservation
efforts to address potential individual and cumulative impacts of
agency practices on threatened and endangered wildlife and fish species
and their habitat.
It is important to note that if a proposed project may have a
significant effect on a species listed or proposed to be listed on the
List of Endangered and Threatened Species or may have adverse effects
on designated critical habitat for these species, the action agency,
under existing agency NEPA procedures, may not use a categorical
exclusion.
Comment: A number of concerns were expressed with regard to
retention of snags, retention of downed woody material, and old growth.
These concerns related to both wildlife habitat and ecosystem structure
and function. There were also concerns related to visual impacts of the
activities covered in the proposed categories.
Response: Forest plan standards and guidelines address structural
components of wildlife habitat; for example, snag retention, coarse
woody debris left onsite, and old growth retention. They also address
visual management. All Forest Service actions within a national forest,
including
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categorically excluded actions must by statute be consistent with the
forest plan (16 U.S.C. 160-4(i)).
Comment: Several respondents asked that the agency conduct NEPA
analysis for this proposal, including a cumulative effects analysis on
the impacts of this proposed ID and other recent rulemakings.
Response: A response to this comment is found in the Regulatory
Certifications section, titled ``Environmental Impact.'' The Council on
Environmental Quality (CEQ) does not direct agencies to prepare a NEPA
analysis or document before establishing agency procedures that
supplement the CEQ regulations for implementing NEPA.
Comment: Some respondents assert that the stated requirements that
activities must be consistent with land and resource management plans
are misleading since such plans will be categorically excluded.
Response: Forest Service NEPA procedures in FSH 1909.15 and current
land and resource management planning regulations at 36 CFR part 219 do
not presently provide a categorical exclusion for revisions or
amendments to land and resource management plans.
The Forest Service may, if it finalizes and implements its planning
rule as proposed (67 FR 72816, December 6, 2002), identify a category
of plan decisions which do not individually or cumulatively have a
significant effect on the human environment and may, therefore, be
categorically excluded from NEPA documentation in an environmental
assessment (EA) or environmental impact statement (EIS). The public
would have an opportunity to review and comment on such an amendment to
the Forest Service Handbook if such a categorical exclusion is
proposed. It should be noted that under the proposed Forest Service
planning regulations, new plans, plan revisions, and amendments
continue to require a rigorous public involvement process. Categorical
exclusions apply to the level of documentation required under CEQ's
regulations implementing NEPA (40 CFR 1500.4(p) and 1508.4). Any action
that is not consistent with an applicable land and resource management
plan standards, guidelines, goals, and objectives would require a plan
amendment. The Forest Service will continue to conduct the appropriate
level of environmental analysis and disclosure commensurate with the
significance of environmental effects, both for land and resource
management plans and for project-level planning.
Comment: Some respondents said the application of extraordinary
circumstances screens is insufficient and open to abuse. Others stated
a belief that timber harvests automatically trigger analysis and
documentation in an EA or EIS since they contain elements specifically
listed as requiring this level of documentation, including
``controversy,'' ``uncertainty,'' and ``precedent for future action''
and, as such, cannot be categorically excluded.
Response: When using these three categorical exclusions, the
responsible officials will consider, on a project-by-project basis,
whether or not any of the Forest Service extraordinary circumstances
apply. The responsible official will prepare a project file and
decision memo that will be available for public review (FSH 1909.15,
ch. 30, sec. 32.3). The decision memo contains the responsible
official's rationale for categorically excluding an action and
selecting that particular category, and includes a determination that
no extraordinary circumstances exist.
Years of experience by the Forest Service with Category 4 and
earlier categories, including both low-impact silvicultural and
sanitation/salvage projects, indicate that categories 12, 13, and 14
would not set a precedent. In addition, 32 of the projects reviewed
were documented using EAs and Findings of No Significant Impact
(FONSIs). For these projects, the FONSI indicated that the effects were
not significant. The EAs for these projects included an assessment of
the degree of the controversy about effects, uncertainty about effects,
and precedent for future action, and found them to be not significant
(40 CFR 1508.27).
Comment: One request for correction of information under the USDA
Information Quality Guidelines was received in response to the proposal
for categorical exclusions for small timber harvest. Concerns were
raised by petitioners under the Data Quality Act that ``measurement''
must be used instead of ``observation'' to comply with USDA Information
Quality Guidelines. The following is a response to that concern. Both
the request for correction, and a more detailed response to the request
than that found below, can be found at http://www.fs.fed.us/qoi.
Response: The Forest Service has evaluated the assessment of the
154 projects that provides the basis for its categorical exclusions,
and found that this assessment complies with the USDA Information
Quality Guidelines. The USDA Information Quality Guidelines, under
``Objectivity of Regulatory Information,'' include the following: ``Use
reasonably reliable and reasonably timely data and information (e.g.,
collected data such as from surveys, compiled information, and/or
expert opinion).'' The expert opinion used to generate the observations
in question is documented at http://www.fs.fed.us/emc/lth.
Specifically, the use of local expertise in resource disciplines such
as soils, hydrology, fisheries biology, and wildlife biology is
documented in the information on the study of the 154 projects. These
experts are highly trained, usually holding degrees in their
specialties at the bachelor's or master's level. They are also provided
ongoing training to assure currency in their discipline. They are
familiar with current literature relating to their specialty and local
area, as well as applicable laws, regulations, policies, and land and
resource management plan standards and guidelines required for
protection of the environment. They have field knowledge of local
conditions. The combination of this expertise, complemented by the
interdisciplinary approach used by the Forest Service in managing
environmental resources, render the specialists well qualified to make
site-specific judgments as to the effects of a particular practice in a
particular area.
In addition, where the local biologist finds that there is
potential for an effect on a federally listed species, its designated
critical habitat, or species proposed for listing, the project would be
evaluated by professionals from the U.S. Fish and Wildlife Service or
National Oceanic and Atmospheric Administration Fisheries. A
categorical exclusion would not be used if the agency determines that
the action may adversely affect listed species, species proposed for
listing, critical habitat, or proposed critical habitat.
The USDA Information Quality Guidelines, under ``Objectivity of
Regulatory Information'' also includes considerations of transparency.
For this interim directive, the data from the 154 projects were
available to the public upon request and on the Web during the comment
period.
Comment: Some respondents questioned the size of the sample and the
procedures used in selecting the 154 projects evaluated in determining
that these categories of activities will have insignificant effects on
the human environment.
Response: The Forest Service reviewed 154 small timber sale
activities which could potentially have been included in these
categories. To identify projects for review, the Forest Service
requested field units to review a sample of timber harvests that would
have qualified under former Category 4
[[Page 44603]]
or were similar in size and scope. Field units were asked to send the
Washington Office any results from past monitoring efforts on the
effects of: (1) projects that were performed under Category 4, or (2)
projects that were done with an environmental assessment (EA) or
environmental impact statement (EIS) but fit the requirements of
Category 4, or were similar in size and scope. In the request, there
was no specific time period for the completion of projects selected.
If past monitoring data did not exist, then each forest that has
historically used timber harvest CEs, or projects that are similar in
size and scope to Category 4, were asked to monitor at least two
randomly selected CEs or projects as defined above. Monitoring was
accomplished by reviewing the site after the project was completed
based on the professional observations of resource specialists and line
officers. All monitoring results were submitted using Web-based forms
designed specifically for this monitoring effort. Both individual and
cumulative environmental effects were assessed as part of this
monitoring procedure. Where forests had only one or two projects that
met the request criteria, those projects were selected. Where forests
had more than two projects that met the request criteria, projects were
chosen using a process that was unbiased with respect to the level of
potential environmental effects. A description of how each project was
selected is available on the Web site http://www.fs.fed.us/emc/lth.
Comment: Some respondents suggested that the Forest Service monitor
categorically excluded limited timber harvest activities to ensure that
they do not have significant environmental effects.
Response: Monitoring would take place after the categories are
established and after they are used for a particular action. Monitoring
is not relied upon as a basis or rationale for establishing these
categorical exclusions. Forest land and resource management plans
already provide for monitoring of management activities to determine
compliance with applicable laws, regulations, and standards and
guidelines; effectiveness of project implementation, including any
specified mitigation measures; validation of models and assumptions
used in the planning processes; and environmental impacts. Projects
implemented under these categories will be included in these ongoing
monitoring efforts.
Comment: Some respondents suggested that, without NEPA analysis,
categorically excluded actions would not consider current scientific
information and managers would be unaware of extraordinary
circumstances that preclude the use of a categorical exclusion.
Response: The Forest Service has repeatedly conducted NEPA analyses
for timber harvest projects using the best available science. Based
upon the projects reviewed for these categorical exclusions, the agency
concluded that these analyses describe categories of actions which do
not individually or cumulatively have a significant effect on the human
environment.
Consistent with existing direction, the Forest Service must conduct
sufficient review to determine that no extraordinary circumstances
exist when using categorical exclusions (FSH 1909.15, sec. 30.3). This
determination includes appropriate surveys, use of the best available
science, appropriate consultation with Tribes, and coordination with
agencies that have regulatory responsibilities under other statutes
such as the Endangered Species Act, the National Historic Preservation
Act, Clean Water Act, and Clean Air Act.
Comment: Some respondents believed that limited timber harvesting
for salvage purposes should not be carried out at all. They said the
use of heavy equipment generates noise, air and water pollution, soil
compaction, vegetation and habitat changes, and ecosystem modifications
greater than the event causing the mortality. Still others cited
research studies (e.g., Beschta, R.L.; Frissell, C.A.; Gresswell, R.
[and others]. 1995. Wildfire and salvage logging: recommendations for
ecologically sound post-fire salvage logging and other post-fire
treatments on Federal lands in the West. Corvallis, OR: Oregon State
University) that report that there is generally no ecological need to
act, and that quick actions may create new problems. Some cited other
research studies regarding environmental impacts of timber harvesting.
Response: Ecological reasons are not the only reasons for an agency
to take action. Salvaging dead and dying timber provides commercial
forest products in support of the Forest Service's legally mandated
mission. Numerous laws, including the Multiple Use Sustained Yield Act
and the National Forest Management Act, establish the basis for
managing national forests in a manner to provide goods and services. In
addition, salvage activities, in certain situations, can reduce fire
hazard from excessive fuel buildup, or prevent the buildup of insect
populations in accumulations of dead trees that can then attack healthy
trees; e.g., the spruce beetle. Severe fires and insect infestations
can lead to reduced scenic, recreational, wildlife, and timber values
on Federal and neighboring Tribal, State, or private land. Public
comment from neighbors of Forest Service land expressed their concerns
regarding risks to their property from untreated fire or insect hazards
on neighboring Forest Service land.
As the Beschta et al. report points out, salvage activities can
have negative environmental impacts, depending on the condition of the
site, the harvesting system, time of the year, and many other factors.
However, practices and guidelines have been developed with regard to
soil and water protection and wildlife habitat, on appropriate sites
that will lead to no significant effects. The Forest Service agrees
with Beschta et al. that care should be taken in designing salvage
projects, as well as other timber sale projects, and the agency has an
extensive array of guidelines and procedures to prevent and mitigate
negative environmental impacts during these activities.
The fact that none of the 154 sampled projects showed significant
environmental impacts indicates that these practices are effective at
reducing or eliminating environmental impacts. As described in the
rationale for the categorical exclusion for fuels reduction projects
http://www.fs.fed.us/emc/hfi/rationale.pdf, thinning methods are used
for forest stand improvement, wildlife habitat improvement, and
hazardous fuels reduction. The body of knowledge concerning these
practices is mature. Scientific research and evaluations of project
monitoring are reflected in laws, regulations, and agency policy
related to implementation of these activities. Some of the many laws,
regulations, and policies are described in the rationale document.
One example of these environmental safeguards that apply to
proposed timber harvest projects that are described in categories 12,
13, and 14 is the protection of soil and water resources. This
protection is provided through implementation of State and EPA approved
Best Management Practices (BMPs) as well as forest plan standards and
guidelines. BMPs are site-specific design and operating criteria
intended to maintain soil productivity and water quality to State
standards. Federal agencies incorporate BMPs into project design. For
example, to minimize soil compaction, puddling, rutting, and gullying
with resultant sediment production and loss of soil productivity, the
project supervisor and/or Contracting Officer are responsible
[[Page 44604]]
for determining when the soil surface is unstable and susceptible to
damage and is then responsible for suspending or terminating
operations.
BMPs also establish practices for addressing soil and water quality
issues associated with temporary roads. BMPs are codified in regional
handbooks and provide practices for the treating and decommissioning of
roads to reduce impacts on sedimentation.
EPA states that BMPs are the primary mechanism for control of non-
point source pollution and compliance with the Clean Water Act.
Monitoring of BMP effectiveness has historically been accomplished
informally as a part of each project review. Several States also
conduct their own more extensive programs to ensure the maintenance of
water quality.
The harvesting practices used and mitigation measures implemented
in salvage projects will be decided on a site-specific basis by
technical specialists who routinely use current scientific literature
and technologies, as well as their local knowledge of the soil,
wildlife and other environmental conditions in an area. While
individual research studies are used by technical specialists to
predict environmental effects, site-specific information about
practices and local conditions is necessary to make expert judgments
about potential environmental effects of a project. In addition, the
scope and context of a specific project are considered when determining
the significance of environmental impacts of that project under NEPA
(40 CFR 1508.27).
Comment: Several respondents expressed concern over the number and
location of categorically excluded limited timber harvest activities
that could be implemented within a given area or a limited timeframe.
Some respondents raised concerns that the agency could misuse the
categories by segmenting larger projects into sizes that qualify under
the CEs. Some respondents noted that such segmentation would violate
CEQ regulations.
Response: The responsible official is required to properly identify
the characteristics of the proposed action (FSH 1909.15, ch. 10, sec.
11.2). The agency adopted the following from the CEQ regulations for
all their proposals that may undergo environmental review, including
the documentation for categorical exclusions, ``proposals or parts of
proposals which are related to each other closely enough to be, in
effect, a single course of action shall be evaluated in a single impact
statement.'' The Forest Service also adopted the CEQ definition for
determining the scope of a proposed action as defined at 40 CFR
1508.25, which discusses connected and related actions. Consequently,
segmenting a larger project into smaller projects in order to meet the
acreage requirements and be considered under these CEs is contrary to
Forest Service guidance. Agency oversight of the application of these
categories through internal reviews such as Chief's, regional, and
forest reviews, emphasizes these compliance requirements and will
prevent abuses.
Comment: Some respondents indicated they believe the Forest Service
should set limits on the volume that may be harvested under these
categories since it may be possible to exceed the volume available
under the previous Category 4 authorization.
Response: In gathering data on the 154 projects used to define the
limits of these categories, it was evident that potential environmental
impacts are better predicted using acres treated rather than the total
volume of timber removed, regardless of acreage. Harvesting a given
volume of timber from one acre is likely to have different
environmental impacts than harvesting the same volume from tens or
hundreds of acres. In addition, timber volumes are estimated in advance
of the sale, and there can be errors associated with those predictions;
an acreage limit is not as subject to the uncertainties of estimation.
Finally, acreage limits are easier to control and administer in the
field and easier to describe to the public. It is possible that
individual projects would exceed the volume limitations in the previous
Category 4. The data from the 154 surveyed projects support the finding
that there will be no significant environmental impacts from
implementing actions within these acreage limitations.
Comment: Some respondents would prefer to see the acreage
limitation of the categories decreased while others would like to see
them increased.
Response: To determine the potential impacts of limited timber
harvesting activities, data were gathered from 154 timber sales that
could possibly have been included in one of the proposed categories.
None of the projects evaluated had significant impacts on the human
environment. Rather than setting the acreage limits at the limits of
the range evaluated, the Forest Service believes it is prudent and
conservative not to exceed the mean of acres treated under each of the
proposed categories. In the original proposal, the acreage limit of 50
for Category 12 was reduced from the actual mean of 70. Public comment
questioned the need for this reduction. Use of the mean reflected the
consideration by the agency that the acreage is well within the range
of acreages in the project data used to support these categories.
Comment: Some respondents indicated that there should be no
restriction on new road construction, while others believed that no
roads should be constructed, as the absence of roads indicates an
activity is too far from a community. Other respondents suggested that
up to \1/2\ mile of low-standard road should be allowed, while others
believed that roads should be constructed only in rare cases.
Response: In accordance with 36 CFR 212.1, new road construction is
defined as an activity that results in the addition of forest
classified or temporary road miles. Timber harvest activities involving
the addition of forest classified road miles are not included in the
proposed categorical exclusions. Proposals for timber harvest
activities that involve new classified road construction would be
analyzed and documented in an EA or EIS. As defined in 36 CFR 212.1,
temporary roads are roads that are authorized by contract, permit,
lease, other written authorization, or emergency operation, are not
intended to be part of the Forest Service transportation system, and
are not necessary for long-term resource management. A total of 35 of
the 154 timber sales reviewed required temporary road construction. No
significant effects were found in reviewing these projects. The average
length of temporary road construction for these 35 sales was \1/2\
mile. The agency elected to use this average \1/2\ mile temporary road
length as a limit for its limited timber harvest categorical
exclusions.
All temporary roads constructed for timber harvest projects that
qualify for categories 12, 13, and 14, will be conducted under the
terms of the timber sale contract. Temporary road construction
authorized under timber sale contracts must be consistent with
environmental quality standards and must consider minimizing impacts on
land and resources, in accordance with 36 CFR 223.30 and 36 CFR 223.38.
In accordance with 36 CFR 223.37, temporary roads are treated to
reestablish vegetative cover as necessary to minimize erosion. Such
treatment shall be designed to reestablish vegetative cover as soon as
practicable. Therefore, any potential environmental effects are short-
term. Non-commercial ``cut and leave'' activities are the only
activities that may qualify under these categories that would not
involve a timber sale contract. Noncommercial
[[Page 44605]]
activities would not include temporary road construction.
Comment: Some respondents suggested that any road construction
should be carried out only following a thorough environmental analysis.
Others indicated that culverts should not be replaced or upgraded
without a watershed analysis.
Response: These categorical exclusions provide only for
construction of temporary roads and do not propose adding additional
road miles to the National Forest System. Where use of these proposed
categorical exclusions involving no more than \1/2\ mile of temporary
road construction, with or without culverts, is being proposed, the
responsible official must review the proposed action to ensure that the
temporary road construction is consistent with environmental quality
standards (36 CFR 223.30) which include minimizing increases in soil
erosion and providing favorable conditions of water flow and quality.
The responsible official must also determine that no extraordinary
circumstances exist, and document those findings in a decision memo
(FSH 1909.15, ch. 30, secs. 30.3 and 32.3).
Comment: Some respondents suggested that the categorical exclusions
should specify that temporary roads will be constructed only where the
roads will be reclaimed/obliterated upon activity completion.
Response: As defined in 36 CFR 212.1, temporary roads are roads
that are authorized by contract, permit, lease, other written
authorization, or emergency operation, are not intended to be part of
the Forest Service transportation system, and are not necessary for
long-term resource management. In accordance with 36 CFR 223.37, upon
completion of the timber sale contract, the purchaser is required to
treat temporary roads constructed or used during the authorized
activity. This involves the reestablishment of vegetative cover on the
roadway and other areas in order to minimize erosion from the disturbed
area. Once the authorized timber sale contract is completed, the
temporary road becomes unneeded as described in 36 CFR 212.5(b)2 and
should be decommissioned or considered for other uses such as trails.
Decommissioning roads involves restoring roads to a more natural
state. Activities used to decommission a road include, but are not
limited to, the following: reestablishing former drainage patterns,
stabilizing slopes, restoring vegetation, blocking the entrance to a
road, installing water bars, removing culverts, reestablishing
drainage-ways, removing unstable fills, pulling back road shoulders and
scattering slash on the roadbed, completely eliminating the roadbed by
restoring natural contours and slopes, or other methods designed to
meet the specific conditions associated with the unneeded road. How
temporary roads are decommissioned is a project-specific decision and
therefore appropriately decided at the project level (36 CFR 212 and
FSM 7703.2). The decision to convert a temporary road to another use
would entail a new decision that requires additional NEPA review.
Comment: Some respondents stated that the Forest Service should
comply with Executive Order 12866, Regulatory Planning and Review, by
assessing the economic costs and benefits of the initiative.
Respondents say that this assessment should include the non-market
costs of the initiative to landowners, businesses, communities, water
quality, recreation, scenery, non-traditional forest products, and
game.
Response: In compliance with Executive Order 12866, the Forest
Service has prepared a cost-benefit analysis and has determined that
these categorical exclusions will not have an annual effect of $100
million or more on the economy or adversely affect productivity,
competition, jobs, the environment, public health or safety, or State,
Tribal, or local governments. The economic effect expected to result
from this action is a reduction in the administrative burden of
preparing unnecessary environmental assessments and findings of no
significant impact, and benefits to the environment and nearby
communities as a result of limited timber harvesting to improve forest
health and salvage merchantable forest products. The agency estimated
an annual savings of $6.4 million that would otherwise be spent on
environmental assessments.
Comment: Several respondents requested clarification of the harvest
treatments which could be implemented under Category 12. Some of these
respondents indicated too much flexibility was provided to the local
manager under uneven-aged techniques. Others believed the limitation on
even-aged management treatments should be removed.
Response: The Forest Service Manual (FSM) 2470.5 contains the
definitions of silvicultural practices on National Forest System lands.
An uneven-aged system is defined at FSM 2470.5 as: ``A silvicultural
system involving manipulation of a forest to simultaneously maintain:
a. Continuous high-forest cover; b. Recurring regeneration of desirable
species; c. Orderly growth and development of trees through a range of
diameter or age classes to provide a sustained yield of forest
products.'' Individual tree selection and group selection are the two
recognized uneven-aged cutting systems. FSM 2470.5 defines group
selection cutting with the groups (openings to regenerate shade-
intolerant species) as usually no more than 2 acres in size. Additional
instructions may also exist in the forest plans developed for each
unit. Timber harvesting activities must be consistent with the
objectives of site-specific prescriptions approved by certified
silviculturists (FSM 2478.03 (5)). Professional forestry standards and
agency oversight ensure uneven-aged techniques are properly prescribed
and implemented, including acreage limitations on opening sizes.
Uneven-aged systems (individual tree selection and group selection)
maintain the canopy of a forest stand and therefore have relatively
little effect on the structural and aesthetic properties of stands.
Even-aged regeneration harvests, such as clearcutting, seed tree, and
shelterwoods, were excluded from use in Category 12. Because the
cutting operations involved in Category 12 retain the canopy of the
forest, adequate regeneration of tree species is not a concern.
However, because projects using this category will use the timber sale
contract, they are subject to 36 CFR 223.30 (c). This requires the
approving officer to ensure that each timber sale contract, permit, or
other authorized form of National Forest timber disposal includes, as
appropriate, requirements for regeneration of timber as may be made
necessary by harvesting operations.
Comment: Some respondents disputed the need for Category 13 because
of the importance of dead and dying trees to the forest ecosystem.
Response: Dead and dying material is an important component of a
healthy forest ecosystem. Forest plan standards for snag density
(standing dead trees) and cavity habitat will be met when salvage
activities take place.
Comment: Some respondents indicated that regeneration harvesting
using both even-aged and uneven-aged silvicultural systems should be
allowed under Category 13.
Response: Category 13 addresses salvage harvesting. The Society of
American Foresters Dictionary of Forestry defines salvage cutting as
``the removal of dead trees or trees damaged or dying because of
injurious agents other than competition to recover economic value that
would otherwise be lost.'' As such, salvage harvesting is not
[[Page 44606]]
oriented to any specific silvicultural system.
Comment: Several respondents requested clarification of Category
14. Some of these respondents believed the language in the draft notice
is excessively permissive while others believed it is too restrictive
in terms of the acreage needed to deal with forest health problems.
Response: This category has been changed to clarify that it will
apply to both infested/infected trees and adjacent live uninfested/
uninfected trees whose removal is determined necessary to control the
spread of insects or disease. In addition, the restriction of two tree
lengths was removed for the harvesting of healthy adjacent trees,
because this restriction applied primarily to management for control of
southern pine beetle and may not be appropriate for outbreaks of other
pests such as the sudden oak death pathogen, emerald ash borer, and
many bark beetle species other than southern pine beetle. This provides
the local manager with latitude when responding to rapidly expanding
insect or disease situations. The manager, in turn, relies upon advice
from professional forest entomologists and pathologists when
determining the appropriate treatment. Another clarification is that
noncommercial treatments, such as ``cut and leave,'' for example, used
for treatment of southern pine beetle, are covered by this category.
The projects reviewed support both salvage and sanitation
operations as cutting trees in these categories have the same kind of
environmental impacts. For both Category 13 and 14, regeneration of
tree species will follow 36 CFR 223.30 (c), as described above for
Category 12. Other restoration activities will be governed by site-
specific restoration objectives and forest plan standards and
guidelines.
Concerns over misuse of this category to allow more trees than
those necessary to protect forest health to be harvested can be
addressed through agency oversight on the application of this category.
Conclusion
The USDA Forest Service finds that the categories of action defined
in the categorical exclusions presented at the end of this notice do
not individually or cumulatively have a significant effect on the human
environment. The agency's finding is first predicated on the reasoned
expert judgment of the responsible officials who made the original
findings and determinations in the timber harvest projects reviewed;
the resource specialists who validated the predicted effects of the
reviewed activities through monitoring or personal observation of the
actual effects; and, finally, the agency's belief that the profile of
past small-scale timber harvest activities represents the agency's past
practices and is indicative of the agency's future activities.
These categorical exclusions will permit timely response to small
timber harvest requests and to forest health problems involving small
areas of National Forest System land. Additionally, they would conserve
limited agency funds.
The text of the proposed categorical exclusions is set out at the
end of this notice.
Regulatory Certifications
Environmental Impact
This final interim directive adds direction for three categorical
exclusions to Forest Service Handbook (FSH) 1909.15 for guiding field
employees regarding procedural requirements for National Environmental
Policy Act (NEPA) documentation for tree harvest activities. The
Council on Environmental Quality (CEQ) does not direct agencies to
prepare a NEPA analysis or document before establishing agency
procedures that supplement the CEQ regulations for implementing NEPA.
Agencies are required to adopt NEPA procedures that establish specific
criteria for, and identification of, three classes of actions: those
that normally require preparation of an environmental impact statement;
those that require preparation of an environmental assessment; and
those that are categorically excluded from documentation in an
environmental impact statement or environmental assessment (40 CFR
1507.3(b)). Categorical exclusions are one part of those agency
procedures and, therefore, establishing categorical exclusions does not
require preparation of a NEPA analysis or document. Agency NEPA
procedures are internal procedural guidance to assist employees 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 requirements for establishing
agency NEPA procedures are set forth at 40 CFR 1505.1 and 1507.3, and
the Forest Service has provided an opportunity for public review and
has consulted with the CEQ during the development of these categorical
exclusions. The determination that establishing categorical exclusions
does not require NEPA analysis and documentation has been upheld in
Heartwood, Inc. v. U.S. Forest Service, 73 F. Supp. 2d 962, 972-73
(S.D. Ill. 1999), aff'd, 230 F.3d 947, 954-55 (7th Cir. 2000).
Regulatory Impact
The categorical exclusions in this final interim directive have
been reviewed under Departmental procedures and Executive Order 12866
on Regulatory Planning and Review. The Office of Management and Budget
(OMB) has determined that this is a significant regulatory action as
defined by Executive Order 12866. Accordingly, this action is subject
to OMB review under Executive Order 12866 and OMB has reviewed the
categorical exclusions in this interim directive at both the proposed
and final stages.
This action to add three categorical exclusions to the Forest
Service's NEPA procedures will not have an annual effect of $100
million or more on the economy or adversely affect productivity,
competition, jobs, the environment, public health or safety, or State,
Tribal, or local governments. The economic analysis conducted to
support this action estimates that it would result in quantifiable
annual cost savings to the agency of approximately $6.4 million due to
the reduced analyses that would be required for projects covered by
these categorical exclusions. The economic analysis is available at
http://www.fs.fed.us/emc/lth. 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. This action may,
however, interfere with an action taken or planned by another agency or
raise new legal or policy issues.
Moreover, this action has been considered in light of the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and it is hereby
certified that the categorical exclusions will not have a significant
economic impact on a substantial number of small entities as defined by
the act because it will not impose record-keeping requirements on them;
it will not affect their competitive position in relation to large
entities; and it will not affect their cash flow, liquidity, or ability
to remain in the market.
The agency believes small businesses in general may benefit from a
potential increase in small timber harvest opportunities as a result of
these new categories. Although the Forest Service finds this increase
difficult to quantify, it believes that more timber harvest
opportunities may be available when using a categorical exclusion
rather than an environmental assessment, resulting in an increase in
the amount of timber
[[Page 44607]]
volume available for small businesses and local mills. It is expected
that there would be equal access to economic opportunities to
businesses through timber sale contracts, stewardship contracts, and
other contracting instruments. Additionally some of these sales are
expected to be set aside for small business under the agency's small
business timber set-aside program.
Federalism
The Forest Service has considered the categorical exclusions in
this final interim directive under the requirements of Executive Order
13132, Federalism, and has concluded that they conform 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
The categorical exclusions in this final interim directive do not
have Tribal implications as defined by Executive Order 13175,
Consultation and Coordination with Indian Tribal Governments, and
therefore advance consultation with Tribes is not required.
No Takings Implications
The categorical exclusions in this final interim directive have
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 proposed categorical exclusions do not pose the risk of a
taking of Constitutionally protected private property.
Civil Justice Reform
In accordance with Executive Order 12988, it has been determined
that the categorical exclusions in this final interim directive do not
unduly burden the judicial system and that they meet the requirements
of sections 3(a) and 3(b)(2) of the order.
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 the categorical exclusions
in this final interim directive on State, local, and Tribal governments
and the private sector. These categorical exclusions do 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
The categorical exclusions in this final interim directive have
been reviewed under Executive Order 13211, Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use. It has been determined that these categorical exclusions do not
constitute a significant energy action as defined in the Executive
order.
Controlling Paperwork Burdens on the Public
The categorical exclusions in this final interim directive do not
contain any additional record keeping 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, impose 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.
Dated: July 23, 2003.
Sally Collins,
Associate Chief.
Text of Final Interim Directive Setting Out Three New Categorical
Exclusions
Note: The Forest Service organizes its directive system by
alpha-numeric codes and subject headings. Only those sections of the
Forest Service Handbook (FSH) 1909.15, Environmental Policy and
Procedures Handbook, affected by this policy are included in this
notice. The intended audience for this direction is Forest Service
employees charged with planning and administering small timber
harvest projects. Selected headings and existing text are included
to assist the reader in placing the interim directive in context.
Reviewers who wish to view the entire chapter 30 of FSH 1909.15 may
obtain a copy from the address shown earlier in this notice and from
the Forest Service home page on the World Wide Web/Internet at
http://www.fs.fed.us/im/directives/fsh/1909.15/1909.15,30.txt.
FSH 1909.15--Environmental Policy and Procedures Handbook Chapter 30--
Categorical Exclusion From Documentation
[To provide context for understanding the new categorical
exclusions that are established as paragraphs 12, 13, and 14 in
section 31.2, the introductory text of section 31.2 (identified by
italics) follows:]
31.2--Categories of Actions for Which a Project or Case File and
Decision Memo Are Required.
Routine, proposed actions within any of the following categories
may be excluded from documentation in an EIS or an EA; however, a
project or case file is required and the decision to proceed must be
documented in a decision memo (sec. 32). As a minimum, the project
or case file should include any records prepared, such as (1) the
names of interested and affected people, groups, and agencies
contacted; (2) the determination that no extraordinary circumstances
exist; (3) a copy of the decision memo (sec. 30.5 (2)); (4) a list
of the people notified of the decision; (5) a copy of the notice
required by 36 CFR part 217, or any other notice used to inform
interested and affected persons of the decision to proceed with or
to implement an action that has been categorically excluded.
Maintain a project or case file and prepare a decision memo for
routine, proposed actions within any of the following categories.
* * * * *
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:
a. Removal of individual trees for sawlogs, specialty products,
or fuelwood.
b. 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:
a. 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.
b. 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:
a. Felling and harvest of trees infested with southern pine
beetles and immediately adjacent uninfested trees to control
expanding spot infestations.
b. Removal and/or destruction of infested trees affected by a
new exotic insect or disease, such as emerald ash borer, Asian
[[Page 44608]]
longhorned beetle, and sudden oak death pathogen.
[FR Doc. 03-19190 Filed 7-28-03; 8:45 am]
BILLING CODE 3410-11-P