FR Doc E7-15867

[Federal Register: August 16, 2007 (Volume 72, Number 158)]
[Proposed Rules]
[Page 45998-46009]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16au07-36]

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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 220

RIN 0596-AC49

National Environmental Policy Act Procedures

AGENCY: Forest Service, USDA.

ACTION: Notice of proposed rule; request for comment.

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SUMMARY: The Forest Service is proposing to move its National
Environmental Policy Act (NEPA) implementing procedures from Forest
Service Manual (FSM) 1950 and Forest Service Handbook (FSH) 1909.15 to
36 Code of Federal Regulations, part 220 (36 CFR 220). The Agency also
proposes to clarify existing NEPA procedures and add new procedures to
incorporate Council on Environmental Quality (CEQ) guidance and to
better align Agency NEPA procedures with Agency decision processes.
Agency explanatory guidance interpreting CEQ and Agency procedures
in regulation will remain in FSH 1909.15. Agency NEPA authority,
objectives, policy, and responsibilities will remain in FSM 1950.
This rule would meet 40 CFR 1507.3 by placing Agency-implementing
procedures in their proper regulatory position. Maintaining Agency
explanatory guidance in directives would facilitate timely Agency
responses to new ideas, new information, procedural interpretations,
training needs, and editorial changes to assist field units when
implementing the NEPA process. Finally, the proposed changes to the
Forest Service NEPA procedures are intended to provide an environmental
analysis process that fits better with modern thinking on
decisionmaking, collaboration, and adaptive management to meet the
intent of NEPA through establishing incremental alternative
development, and adaptive management principles.

DATES: Comments must be received in writing by October 15, 2007.

ADDRESSES: Comments concerning this notice should be sent by e-mail to
fsnepa@contentanalysisgroup.com, or by facsimile to 801-397-2601, or

via the U.S. Postal Service to: NEPA Implementation Procedures, C/O
Content Analysis Group, 1584 South 500 West, Suite 201, Woods Cross, UT
84010. Electronic or facsimile comments are preferred. If comments are
sent via U.S. Postal Service, please do not submit duplicate electronic
or facsimile comments. Please confine comments to the proposed move of
existing NEPA procedures from FSH to regulation, proposed changes to
existing NEPA procedures, and proposed new NEPA procedures and explain
the reasons for any recommended changes.
All comments, including names and addresses when provided, are
placed in the record and are available for public inspection and
copying.

FOR FURTHER INFORMATION CONTACT: Joe Carbone, Ecosystem Management
Staff, (202) 205-0884, 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 Standard Time, Monday through Friday.

SUPPLEMENTARY INFORMATION:

Background and Need for the Proposed Rule

Council on Environmental Quality (CEQ) regulations at 40 CFR 1507.3
require Federal agencies to adopt procedures as necessary to supplement
CEQ's regulations implementing the National Environmental Policy Act
(NEPA) and to consult with CEQ during their development and prior to
publication in the Federal Register. 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 Agency directives (Forest
Service Manual 1950 and Forest Service Handbook 1909.15). The blending
of NEPA implementing procedures with explanatory guidance requires the
Forest Service to provide for public notice and comment and to consult
with CEQ, as required by 40 CFR1507.3, when amending any guidance for
explaining CEQ or Agency procedures, resulting in an increased
administrative burden for the Agency and CEQ.
This proposal would meet the intent of 40 CFR 1507.3 by placing
Agency-implementing procedures in their proper regulatory position.
Placing Agency explanatory guidance in directives would facilitate
quicker

[[Page 45999]]

Agency responses to new ideas, new information, procedural
interpretations, training needs, and editorial changes.
Since the last major update of Forest Service NEPA policy in 1992,
CEQ has issued guidance the Agency wishes to incorporate in its
regulation. The Agency also wants to incorporate several concepts that
are currently used, but for which there are no explicit provisions in
the current procedures.
Finally, this proposal would allow for better integrating of NEPA
procedures and documentation into current Agency decisionmaking
processes, including collaborative and incremental decisionmaking.
Almost 30 years ago, CEQ stated in its preamble to the final NEPA
implementing regulations (Nov. 29, 1978, 43 FR 55978) that the
Environmental Impact Statement (EIS) has ``tended to become an end in
itself, rather than a means to making better decisions. They noted
further; ``One serious problem with the administration of NEPA has been
the separation between an agency's NEPA process and its decisionmaking
process. In too many cases bulky EISs have been prepared and
transmitted but not used by the decision-maker.'' The innovation at
that time was a new requirement for a ``Record of Decision'' (ROD) to
show ``how the EIS was used in arriving at the decision.'' At that
time, CEQ broadened the focus from emphasis on a single document (EIS)
to ``emphasize the entire NEPA process, from early planning through
assessment and EIS preparation through decisions and provisions for
follow-up.'' Today, after receiving comments on a draft EIS, agencies
prepare a final EIS and document their decision in a ROD, tying the
analysis from the EIS to the final agency decision.
Almost 20 years later, a CEQ report, ``The National Environmental
Policy Act--A Study of Its Effectiveness After Twenty-five Years''
(January 1997) stated that ``frequently NEPA takes too long and costs
too much, agencies make decisions before hearing from the public,
documents are too long and technical for many people to use'' and
according to Federal agency NEPA liaisons, ``the EIS process is still
frequently viewed as merely a compliance requirement rather than as a
tool to effect better decision-making. Because of this, millions of
dollars, years of time, and tons of paper have been spent on documents
that have little effect on decisionmaking.'' They point out ``some
citizens' groups and concerned individuals view the NEPA process as
largely a one-way communications track that does not use their input
effectively'' and ``when they are invited to a formal scoping meeting
to discuss a well-developed project about which they have heard little,
they may feel they have been invited too late in the process.''
Finally, the report states, ``some citizens complain that their time
and effort spent providing good ideas are not reflected in changes to
proposals.''
A 2005 National Environmental Conflict Resolution Advisory
Committee (NECRAC) Report chartered by the U.S. Institute for
Environmental Conflict Resolution of the Morris K. Udall Foundation
reflected further on the state of the NEPA process 27 years after CEQ
published its regulations and recommended furthering the evolution of
making section 102 procedural requirements less an end in themselves
and more as a means to fulfill the policies set out in section 101. The
report calls for improvements in the ``traditional model for NEPA
implementation'' where ``agencies announce their plans, share their
analyses of potential impacts of a range of options, solicit public
comment, make decisions, deal with the fallout, if any, and move on to
the next project.'' This model results in agency decisions ``based on a
collection of views and interests'' but ``generally not a collective
decision.'' The report goes on to state that while not a failure, the
traditional model for NEPA ``does not take full advantage of the many
strengths of section 101.''
The NECRAC recognized that ``Americans expect to be able to work
things out and make things better over time. It is not inevitable, and
it is clearly not desirable, that society's ability to constructively
address and resolve conflicts should languish or fail to adapt to
changing times. The current state of environmental and natural resource
decision-making is dominated by the traditional model, which too often
fails to capture the breadth and quality of the values and purposes of
NEPA.'' The Committee called for Federal decisionmaking that ``enables
interested parties'' to ``engage more effectively in the decisionmaking
process'' where ``interested parties are no longer merely commenters on
a Federal proposal, but act as partners in defining Federal plans,
programs, and projects.''
The Federal Government has placed increasing emphasis on
``cooperating agencies'' ``cooperative conservation,''
``collaboration,'' and ``environmental conflict resolution.'' CEQ
guidance and direction on cooperating agencies and environmental
conflict resolution includes:
CEQ Memorandum for Heads of Federal Agencies: Designation
of Non-Federal Agencies to be Cooperating Agencies in Implementing the
Procedural Requirements of NEPA, July 28, 1999;
CEQ Memorandum for Heads of Federal Agencies: Cooperating
Agencies in Implementing the Procedural Requirements of the National
Environmental Policy Act, January 30, 2002; and
CEQ & OMB Memorandum on Environmental Conflict Resolution,
28 November 2005.
As a part of its continuing efforts to improve the implementation
of NEPA, CEQ issued a NEPA Task Force report in 2003 entitled
``Modernizing NEPA Implementation'', which included recommendations to
further collaboration in the NEPA process. Other Federal efforts
include Executive Order 13352 on Facilitation of Cooperative
Conservation, August 26, 2004, and Forest Service continuing emphasis
on collaboration in Agency planning, NEPA analysis and decisionmaking
(see http://www.partnershipresourcecenter.org/policy/ for a list of

laws and Forest Service policies related to collaboration).
As the Forest Service integrates the NEPA process and EIS into its
collaborative and cooperative decisionmaking, the Agency needs an
option to provide EIS documentation that reflects the way this
interactive and incremental decisionmaking occurs. There is a need to
ensure that the EIS is used in ``arriving at the decision.'' In order
to do this, Forest Service NEPA procedures need an option to reflect a
more modern environmental analysis process that fits better with
today's collaborative processes and is used differently than the
traditional NEPA documentation model currently assumes. A ``one size
fits all'' approach to NEPA documentation has not been effective. The
option of providing documentation that reflects the collaborative
processes as described in these procedures will allow the Forest
Service to document the analysis that best fits the particular
situation. As the NECRAC Report points out, there continues to be focus
on preparing NEPA documents such as an EIS or environmental assessment
(EA) for litigation rather than to facilitate an informed decision
process. The proposed NEPA documentation requirements are intended to
enable interested parties to engage more effectively in the
decisionmaking process rather than merely as

[[Page 46000]]

commenters on proposals and documents.
Rather than a document to be used only for a final Agency decision,
the EIS could evolve as the decision evolves incrementally and be
useful throughout the process. The EIS would then be used as a tool to
foster a collaborative and incremental decision-making process rather
than an end in itself. The record would reflect a history of how the
detailed statement was used in collaborative and incremental
decisionmaking and the final draft and final EISs would address a more
narrowly focused Agency action for a final decision. The responsible
official will make available preliminary draft and/or preliminary final
EISs to keep interested parties informed as the analysis progresses.
While the proposed regulation does not require a decision to be made
collaboratively, it does allow the Agency to meet the procedural
requirements of section 102 (2) of NEPA while fostering fulfillment of
the act's purpose in section 101.
Proposed NEPA procedures to allow for better alignment of an EIS
with Agency decisionmaking include: (1) Allowing proposals and
alternative(s) to be explored and modified throughout the NEPA process
(36 CFR 220.2 (e)), and (2) allowing the circulation of multiple
preliminary detailed statement(s) without filing requirements (36 CFR
220.2(g)(2)).
The intent is to use environmental information effectively by
multiple parties during the NEPA process rather than only at distinct
comment periods for a draft and final impact statement. This is to
allow efficient and effective use of an EIS to influence Agency
decisionmaking as interested parties regularly exchange and discuss
issues; differences; and necessary environmental, social, and economic
effects analyses while alternatives are explored, evaluated, and
modified throughout the process. The intent is to focus on a
deliberative public process and appropriate disclosure outlined in
section 102 of NEPA to promote the act's purposes.
The Agency is also proposing to incorporate adaptive management
into its procedures. This would allow procedural flexibility to manage
natural resources in light of uncertainties.
As Agency NEPA procedures are being moved from the Forest Service
Directive System to the Code of Federal Regulations, the following key
changes would be made:
Clarify actions subject to NEPA by summarizing the
relevant CEQ regulations in one place.
Recognize Agency 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'' in illuminating or predicting
direct and indirect effects of a proposed action when doing 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 EAs need only analyze
the proposed action if there are no unresolved conflicts concerning
alterative uses of available resources.

Section-by-Section Description of Proposed Changes

The majority of implementing procedures found in FSH 1909.15 will
transfer to 36 CFR part 220 and remain intact with organizational and
grammatical changes added to reflect regulatory requirements. Rule
organization, additions to current procedures, and significant changes
to current procedures are outlined below.
Agency explanatory guidance interpreting CEQ regulations and this
rule will remain in FSH 1909.15.
CEQ guidance memos, court cases, and Agency manual and handbook
direction can be reviewed at http://www.fs.fed.us/emc/nepa.

Section 220.1 Purpose and Scope. This section outlines the intent
of the rule and identifies to which authority the rule is subject.
Section 220.2 Applicability. This section establishes that all
Agency organizational elements are subject to the rule.
Section 220.3 Definitions. This section incorporates from FSH
1909.15 definitions for Decision Document, Decision Memo, Decision
Notice, Environmentally Preferable Alternative, and adds definitions
for Adaptive Management, Preliminary Environmental Impact Statements,
Reasonably Foreseeable Future Actions, and Responsible Official.
Section 220.4 General Requirements. This section establishes
procedures that apply to NEPA documents. Paragraph (a) Sets forth which
Agency actions are subject to NEPA requirements by compiling pertinent
sections from CEQ regulations in one place. Paragraph (b) clarifies
expectations for Agency NEPA compliance in the case of emergencies.
This section clarifies that responsible officials can take immediate
actions in response to the immediate effects of emergencies necessary
to mitigate harm to life, property, or important resources without
complying with the procedural requirements of NEPA, the CEQ
regulations, or these proposed regulations. Furthermore, responsible
officials can take urgent actions to respond to the immediate effects
of an emergency when there is not sufficient time to comply with the
procedural requirements of NEPA, the CEQ regulations, or these proposed
regulations by consulting with the Washington Office (and CEQ in cases
where the response action is expected to have significant environmental
impacts) about alternative arrangements. Paragraph (c) states how the
NEPA process is to be integrated with Agency decisionmaking. Paragraph
(d) incorporates FSH language for the Schedule of Proposed Actions.
Paragraph (e) incorporates FSH language on scoping and further states
that a Schedule of Proposed Actions is not intended to be used as the
sole scoping mechanism for a proposed action. Paragraph (f)
consolidates and amends FSH language by incorporating CEQ guidance of
June 24, 2005, which clarifies what past actions should be considered
in a cumulative effects analysis. Paragraph (g) establishes language on
the management of classified information. Paragraph (h) establishes
language on incorporation by reference; and (i) clarifies situations
involving applicants.
Section 220.5 Environmental Impact Statements (EIS). This section
incorporates language from chapter 20 of the FSH. Paragraph (a) lays
the foundation for which Agency actions with significant environmental
effects normally require the preparation of an EIS. Existing FSH
language, establishing specific classes of actions requiring an EIS
would be moved to the rule with the exception of the present category
for EISs required by law or regulation. This category is not needed as
there are no laws or regulations presently requiring an EIS for a
specific class of actions and if there are any in the future, such laws
and regulations would apply regardless of this rule. Also, the rule
lists classes of actions that ``normally'' require an EIS rather than
the current language requiring an EIS. The change is consistent with
the CEQ regulations at 40 CFR 1507.3(b)(2)(i). Paragraph (b)
incorporates FSH language on the development and content of a Notice of

[[Page 46001]]

Intent. Paragraph (c) incorporates FSH language on the cancellation of
a Notice of Intent. Paragraph (d) allows for variation in content and
format of an EIS as long as it is consistent with CEQ regulations.
Paragraph (e) amends FSH language on the development of alternatives by
establishing that:
(1) No specific number of alternatives is required or prescribed;
(2) The No Action alternative may be considered through the effects
analysis by contrasting the impacts of the proposed action and an
alternative(s) with the current condition and expected future
condition;
(3) As the decisionmaking/analysis process progresses an
alternative(s), including the proposed action, may be modified through
an incremental process. This enhances the collaborative decisionmaking
process by allowing the responsible official, interested and affected
persons, and agencies to make appropriate adjustments to the
alternative(s) as the analysis progresses; and
(4) Adaptive management strategies may be incorporated into an
alternative(s), including the proposed action. Adaptive management
strategies would be clearly articulated and the effects of said
strategies analyzed in the document.
Paragraph (f) establishes language on the documentation of
environmental effects related to incremental alternative development
and adaptive management. Paragraph (g) amends FSH language on
circulating and filing the draft and final EIS by including language
that allows for making multiple preliminary EIS(s) available to the
public. Paragraph (h) incorporates FSH language on the distribution of
the record of decision.
Section 220.6 Categorical Exclusions. This section incorporates
implementing language found in chapter 30 of the FSH. The headings are
changed to be more explanatory but the content remains the same as the
current FSH. No new categorical exclusions are proposed.
Section 220.7 Environmental Assessment (EA). This section
incorporates implementing language found in chapter 40 of the FSH.
Paragraph (a) consolidates FSH language outlining when an EA shall be
prepared and indicating that there is no standard document format.
Paragraph (b) establishes new language outlining what information shall
be included in an EA based on CEQ guidance; specifically an EA must
include: a description of the need for the project; a description of
the proposed action and reasonable alternative(s) that meet the
proposal's need for action; a brief description of analysis to
determine whether to prepare an EIS; and a list of Tribes, agencies,
and persons consulted.
Consistent with the National Environmental Policy Act, Section
102(E) and 40 CFR 1501.2(c), when there are no unresolved conflicts
concerning alternative uses of available resources, the Agency need
only analyze the proposed action. While this provision is not intended
to limit the alternatives to be considered, it recognizes situations
where there are no conflicts and therefore no compelling need for
alternatives. A stand-alone No Action alternative is not required. The
environmental analysis may document consideration of a no-action
alternative through the effects analysis by contrasting the impacts of
the proposed action and any alternatives with the current condition and
expected future condition if the proposed action were not implemented.
As the decisionmaking/analysis process progresses, the alternative(s),
including the proposed action, may be modified through an incremental
process. This enhances the collaborative decisionmaking process by
allowing the responsible official, interested and affected persons, and
agencies to make appropriate adjustments to the alternative(s) as the
analysis progresses. The modifications made during the process should
be documented and available to the public and in the record. Adaptive
management strategies may be incorporated into an alternative(s),
including the proposed action. Adaptive management strategies should be
clearly articulated and the effects of said strategies analyzed in the
document. Paragraph (c) incorporates FSH language on content for a
Decision Notice. Paragraph (d) incorporates FSH language on
availability of the EA, Decision Notice, and Finding of No Significant
Impact.

Side-by-Side Comparison of Major Changes to Existing Procedures
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Current procedures Proposed procedures
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Emergency Response [Sec. 220.4(b)]
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Quotes CEQ regulation (1506.11) and directs Agency Clarifies responsibilities for initial actions related
official to call the Washington Office for other than to an emergency as well as proposals to address
fire suppression. subsequent actions related to emergencies beyond
initial response.
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Cumulative Effects (Past Actions) [Sec. 220.4(e)]
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Paraphrases CEQ definition of cumulative impacts and References CEQ guidance explaining that a past action
states that consideration must be given to past must be ``relevant and useful'' in illuminating or
actions. predicting direct and indirect effects of a proposed
action. (CEQ Memo, 6/24/05).
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Class of Actions Normally Requiring an EIS [Sec. 220.5(a)]
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Identifies four classes: proposed actions where an EIS Existing classes of actions requiring an EIS are now
is required by law or regulation; proposals to carry listed as ``normally'' requiring an EIS. Existing
out or approve aerial application of chemical class for EISs required by law or regulation is no
pesticides; proposals that would substantially alter longer included as there are no specific classes of
the undeveloped character of an inventoried roadless actions that are currently required by law to prepare
area; and proposals for major Federal actions that may an EIS.
significantly affect the quality of the human
environment.
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Format for an EIS [Sec. 220.5(d)]
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Focusing on CEQ procedures References CEQ procedures.
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[[Page 46002]]

Alternative Development for an EIS [Sec. 220.5(e)]
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Paraphrases CEQ regulations Provides an option that alternative(s) and the proposed
action may be modified through an incremental process
that must be documented and available in the record.
Alternative(s) may include an adaptive management
strategy that is clearly articulated, analyzed, and
pre-specified.
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Environmental Effects [Sec. 220.5(f)]
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Paraphrases CEQ regulations and is prescriptive on what References CEQ requirements and describes that the
to consider.. responsible official must disclose any effects
considered during the incremental development of an
alternative(s) or adaptive management strategy.
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Circulation of Preliminary EIS(s) [Sec. 220.5(g)(2)]
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Does not specifically allow circulation of preliminary Allows for the circulation of preliminary detailed
detailed statement(s). statement(s).
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Content for an EA [Sec. 220.7(b)]
----------------------------------------------------------------------------------------------------------------
Quotes CEQ regulation at 40 CFR 1508.9(b) Clarifies that when no unresolved conflicts concerning
alternative uses of available resources exist the
Agency need only analyze the proposed action. An
alternative(s), including the proposed action may be
modified through an incremental process. Adaptive
management strategies may be incorporated into an
alternative(s). (CEQ memos September 8, 2005, and
December 9, 2002).
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Regulatory Certification

National Environmental Policy Act

The proposed rule would move existing procedures for implementing
the National Environmental Policy Act (NEPA) from Agency handbook to 36
CFR part 220 and provide additional direction by regulation. The rule
would not directly impact the environment. The CEQ does not direct
agencies to prepare a NEPA analysis or document before establishing
agency procedures that supplement the CEQ regulations for implementing
NEPA. 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. The requirements for
establishing agency NEPA procedures are set forth at 40 CFR 1505.1 and
1507.3. 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, 73 F. Supp. 2d 962, 972-73
(S.D. III. 1999), aff'd 230 F.3d 947. 954-55 (7th Cir. 2000).

Regulatory Impact

This proposed rule has been reviewed under USDA procedures and
Executive Order 12866, Regulatory Planning and Review. 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 proposed rule to establish Agency
implementing procedures for NEPA in the Code of Federal Regulations has
been designated as significant and, therefore, is subject to Office of
Management and Budget review under E.O. 12866.
In accordance with the Office of Management and Budget (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
the proposed condition of having implementing direction in regulation
and explanatory guidance in FSH.
Many benefits and costs associated with the proposed 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. The
rule would meet 40 CFR 1507.3 by placing Agency-implementing procedures
in their proper regulatory position. 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 proposed 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

[[Page 46003]]

potential for visible improvements in the Agency's NEPA program.

Federalism

The Agency has considered this proposed rule under the requirements
of Executive Order 13132, Federalism. The Agency has concluded that the
proposed rule 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 proposed rule on Indian Tribal
governments and has determined that it does not significantly or
uniquely affect communities of Indian Tribal governments. The proposed
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 proposed rule does not
impose substantial direct compliance costs on Indian Tribal governments
or preempt Tribal law. Therefore, it has been determined that this
proposed rule does not have Tribal implications requiring advance
consultation with Indian Tribes.

No Takings Implications

This proposed 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 proposed rule does
not pose the risk of a taking of protected private property.

Civil Justice Reform

This proposed rule has been reviewed under Executive Order 12988 of
February 7, 1996, ``Civil Justice Reform''. After adoption of this
proposed 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 proposed rule; and (3) the proposed 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 proposed rule on
State, local, and Tribal governments and the private sector. This
proposed 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 proposed 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 proposed rule
does not constitute a significant energy action as defined in the
Executive order.

Controlling Paperwork Burdens on the Public

This proposed rule does 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, 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 practice and procedure, Environmental policy,
National forests.

Therefore, for the reasons set forth in the preamble, the Forest
Service proposes to add part 220 to Title 36 of the Code of Federal
Regulations 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 statements.
220.6 Categorical exclusions.
220.7 Environmental assessment.

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 USDA Forest Service 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 1500-1508).
(b) Scope. This part supplements, and is to be used in conjunction
with, the CEQ regulations and U.S. Department of Agriculture
regulations at 7 CFR part 1b.

Sec. 220.2 Applicability.

This part applies to all organizational elements of the USDA Forest
Service.

Sec. 220.3 Definitions.

The following definitions supplement terms defined at 40 CFR parts
1500-1508.
Adaptive management. A system of management practices based on
clearly identified outcomes and monitoring to determine if management
actions are meeting desired outcomes; and, if not, facilitating
management changes that will best ensure that outcomes are met or re-
evaluated. Adaptive management recognizes that knowledge about natural
resource systems is sometimes uncertain.
Decision Document. A record of decision, decision memo, or decision
notice.
Decision Memo. A concise written record of the responsible
official's decision to implement an action categorically excluded from
documentation in an environmental impact statement or environmental
assessment. A decision memo is applicable to a prescribed set of
categories.
Decision Notice. A concise written record of the responsible
official's decision to implement an action when an environmental
assessment and finding of no significant impact has 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.
Ordinarily, this means the alternative that causes the least harm to
the biological and physical environment; it also means the alternative
which best protects and preserves historic, cultural, and natural
resources.
Preliminary Environmental Impact Statement. An interim
environmental

[[Page 46004]]

document that a responsible official may use to initiate discussion,
solicit comments, and inform interested parties and agency personnel
while proposals, alternatives, and environmental effects are explored
and considered prior to filing a draft or final environmental impact
statement. A preliminary environmental impact statement is an option
available for responsible officials to use and is not required.
Reasonably Foreseeable Future Actions. Those activities not yet
undertaken, for which there are existing decisions, funding, or
identified proposals.
Responsible Official. The Agency employee who has the authority to
make and implement a decision on a proposed action.

Sec. 220.4 General Requirements.

(a) Proposed actions subject to the National Environmental Policy
Act requirements (42 U.S.C. 4321 et seq.). A Forest Service proposal is
subject to the National Environmental Policy Act 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
(40 CFR 1508.23);
(2) The proposed action is subject to Forest Service control and
responsibility (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 (40 CFR 1508.14) that can be meaningfully evaluated (40 CFR
1508.23); and
(4) The proposed action is not statutorily exempt from the
requirements of section 102(2) of the National Environmental Policy
Act.
(b) Emergency responses. (1) If the responsible official determines
that an emergency exists that makes it necessary to take emergency
actions before completing a NEPA analysis and documentation in
accordance with the provisions in Sec. Sec. 220.5 and 220.7, then
these provisions apply.
(2) 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. 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.
(3) If the responsible official determines that proposed emergency
actions beyond actions noted in paragraph (b)(2) of this section are
not likely to have significant environmental impacts, the responsible
official shall document that determination in an EA and FONSI prepared
in accordance with these regulations, unless categorically excluded
(Sec. 220.6). If the responsible official finds that the nature and
scope of the subsequent actions related to the emergency require taking
such proposed actions prior to completing an EA and FONSI, the
responsible official shall consult with the Washington Office about
alternative arrangements for NEPA compliance. Consultation with the
Washington Office must be coordinated through the appropriate Regional
Office.
(4) If the responsible official determines that proposed emergency
actions beyond actions noted in paragraph (b)(2) of this section 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 as
soon as possible. Alternative arrangements address the proposed actions
necessary to control the immediate impacts of the emergency. Other
proposed actions remain subject to NEPA analysis and documentation in
accordance with these regulations.
(c) Agency Decisionmaking. (1) Forest Service Manual 1906 outlines
Agency planning and decisionmaking. Forest Service Manual 1950
identifies the responsible official for the NEPA process as the Agency
employee who has the delegated authority to make and implement a
decision on a proposed action.
(2) 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:
(i) Completing the environmental document review before making a
decision on the proposal, consistent with 40 CFR 1506.1;
(ii) Considering environmental documents, public and Agency
comments (if any) on those documents, and Agency responses to those
comments (40 CFR 1505.1(d));
(iii) Including environmental documents, comments, and responses as
part of the administrative record (40 CFR 1505.1(c));
(iv) Considering the alternatives analyzed in environmental
document(s) before rendering a decision on the proposal; and
(v) Making a decision encompassed within the range of alternatives
analyzed in the environmental documents (40 CFR 1505.1(e)).
(d) Schedule of Proposed Actions. (1) A Schedule of Proposed
Actions shall be published quarterly to inform interested persons where
to get information about proposed Forest Service actions, including the
status of environmental analyses.
(2) The Schedule of Proposed Actions shall include proposals that
will result in Agency decision documents (Sec. 220.3).
(3) Actions proposed and decided between scheduled publications
shall be identified in the next schedule.
(4) The Schedule of Proposed Actions shall include a contact for
additional information on Forest Service proposals and actions.
(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
environmental assessment or an environmental impact statement (Sec.
220.6).
(2) Scoping shall be consistent with 40 CFR 1501.7. However,
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 Schedule of Proposed Actions is not intended to be used as
the sole scoping mechanism for a proposed action.
(f) Cumulative Effects Considerations of Past Actions (40 CFR
1508.7). 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

[[Page 46005]]

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.
(g) Classified information (40 CFR 1507.3(c)). To the extent
practicable, the responsible official shall segregate any information
classified in accordance with 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 accordance with applicable regulations.
(h) Incorporation by Reference. Consistent with 40 CFR 1502.21,
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.
(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.
For situations involving an applicant, the responsible official should
initiate the NEPA process upon acceptance of an application in
accordance with 36 CFR 251.54(g).

Sec. 220.5 Environmental Impact Statements.

(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:
(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 of 5,000 acres or
more (FSH 1909.12). Examples include:
(i) Constructing roads and harvesting timber in a 56,000-acre
inventoried roadless area where the proposed road and harvest units
impact 3,000 acres in only one part of the roadless area.
(ii) Constructing or reconstructing water reservoir facilities in a
5,000-acre unroaded area where flow regimens may be substantially
altered.
(iii) Approving a plan of operations for a mine which would cause
considerable surface disturbance over 700 acres in a 10,000 acre
roadless area.
(3) Class 3: Other proposals to take major Federal actions that may
significantly affect the quality of the human environment. Examples
include:
(i) Approving the use of 1,500 acres of National Forest System land
to construct and operate an all-season recreation resort complex.
(ii) Authorizing the Bureau of Land Management to offer the sale of
leases for oil and natural gas resources from beneath 400,000 acres of
National Forest System lands that have historically demonstrated a
relatively high potential for discovery and development of oil and
natural gas.
(iii) Approving the construction and operation of an international
gas pipeline beneath a previously undeveloped 30-mile long, 1,000-foot
wide corridor within an ecologically sensitive area of National Forest
System land.
(b) Notice of Intent. A notice of intent shall be prepared and
published in the Federal Register as soon as practicable after deciding
that an environmental impact statement will be prepared. In addition to
the requirements of 40 CFR 1508.22, notices of intent must 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 environmental impact statement is no longer
necessary. A withdrawal notice must refer to the date and page number
of the previously published notice.
(d) Environmental Impact Statement Format and Content. The
responsible official may use any environmental impact statement format
and design as long as the statement is in accordance with 40 CFR
1502.10.
(e) Alternative(s). The environmental impact statement shall
document the examination of reasonable alternatives to the proposed
action. Reasonable alternatives should meet the purpose and need and
address one or more significant issues (40 CFR 1501.7) 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. In addition to the requirements at 40 CFR
1502.14 the responsible official has an option to use the following
procedures to develop and analyze alternatives.
(1) The effects of the no-action alternative may be documented by
contrasting the current condition and expected future condition should
the proposed action not be undertaken with the impacts of the proposed
action and any reasonable alternatives.
(2) To facilitate collaborative processes and sound decisions, the
responsible official may collaborate with interested parties to modify
the proposed action and alternative(s) under consideration prior to
issuing a draft environmental impact statement. 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 may be incorporated by reference
in accordance with 40 CFR 1502.21 rather than duplicating the
description and analysis in the statement.
(3) A proposed action or alternative(s) may include adaptive
management strategies allowing for adjustment of the action during
implementation. If the adjustments to an action are clearly articulated
and pre-specified in the description of the alternative and fully
analyzed, then the action may be adjusted during implementation without
the need for further analysis. Adaptive management includes a
monitoring component, approved adaptive actions that may be taken, and

[[Page 46006]]

environmental effects analysis for the adaptive actions approved.
(f) Environmental Effects. In addition to the environmental
consequences requirements at 40 CFR 1502.16, the EIS must include the
impacts considered during any incremental alternative development
process and the environmental effects of any adaptive management
strategy.
(g) 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 (40 CFR 1506.9).
(2) If preliminary drafts are prepared the responsible official
shall make those multiple preliminary draft and preliminary final EISs
available to those interested and affected persons and agencies for
comment; however, requirements at 40 CFR 1506.10 and 40 CFR 1502.19
shall only apply to the last draft and final EIS.
(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 (40 CFR 1503.1) on the
draft.
(h) 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 section
220.6(d)(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.
(ii) Flood plains, wetlands, or municipal watersheds.
(iii) Congressionally designated areas, such as wilderness,
wilderness study areas, or national recreation areas.
(iv) Inventoried roadless areas.
(v) Research natural areas.
(vi) American Indians and Alaska Native religious or cultural
sites.
(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.
(ii) Closing an area during a period of extreme fire danger.
(2) Rules, regulations, or policies to establish Service-wide
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 Service-wide process for responding to offers to
exchange land and for agreeing on land values.
(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.
(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 National Forest System 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.
(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.
(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
National Forest System.
(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 National Forest System 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.
(iv) Exchange of administrative sites involving other than National
Forest System lands.
(8) Approval, modification, or continuation of minor, short-term (1
year or less) special uses of National Forest System 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.

[[Page 46007]]

(ii) Approving the use of National Forest System land for apiaries.
(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 of actions in this category 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.
(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).
(ii) Issuance of a new special use authorization to reflect
administrative changes such as, a change of ownership or control of
previously authorized 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 (e)16 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.
(1) Construction and reconstruction of trails. Examples include but
are not limited to:
(i) Constructing or reconstructing a trail to a scenic overlook.
(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.
(ii) Reconstructing a power line by replacing poles and wires.
(3) Approval, modification, or continuation of minor special uses
of National Forest System 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.
(viii) Approving the continued use of land where such use has not
changed since authorized and no changes 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.
(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
one 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.
(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.
(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 one 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.
(vii) Approving a plan for exploration which authorizes repair of
an existing road and the construction of one-third 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

[[Page 46008]]

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.
(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:
(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.
(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.
(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.
(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 219.1 through 219.16 that provide
broad guidance and information for project and activity decisionmaking
in a National Forest System 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.
(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.
(8) The responsible official's signature and date when the decision
is made.

[[Page 46009]]

Sec. 220.7 Environmental Assessment.

(a) Environment Assessment. An environmental assessment (EA) shall
be prepared for proposals as described in 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 this paragraph 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 range of
alternatives considered.
(iv) A proposed action or alternative(s) may include adaptive
management strategies allowing for adjustment of the action during
implementation. If the adjustments to an action are clearly articulated
and pre-specified in the description of the alternative and fully
analyzed, then the action may be adjusted during implementation without
the need for further analysis. Adaptive management includes a
monitoring component, approved adaptive actions that may be taken, and
environmental effects analysis for the adaptive actions approved.
(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
finding of no significant impact (40 CFR 1508.9).
(ii) Shall disclose the environmental effects of any adaptive
management strategy.
(iii) Shall describe impacts in terms of context and intensity as
described in the definition of ``significantly'' at 40 CFR 1508.27.
(iv) May discuss the impact(s) (direct, indirect, and cumulative)
of alternatives together in a comparative description or describe the
impacts of each alternative separately.
(v) May incorporate by reference data, inventories, other
information and analyses.
(4) Agencies and Persons Consulted.
(c) Decision Notice. If an EA and finding of no significant impact
(40 CFR 1508.13) 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. Decision notices must document the conclusions drawn and
the decision(s) made based on the supporting record, including the EA
and finding of no significant impact. While sections may be combined or
rearranged in the interest of clarity and brevity, decision notices
must include the following content:
(1) A heading, which must identify:
(i) Title of document,
(ii) Agency and administrative unit,
(iii) Title of the project,
(iv) Location of the action, including county, and State;
(2) Decision and rationale.
(3) Brief summary of public involvement.
(4) Findings required by other laws and regulations applicable to
the decision at the time of decision. The responsible official must:
(i) Cite the supporting record or analysis document that contains
the information used to support the findings;
(ii) Incorporate by reference the finding of no significant impact
if not included with the decision notice; and
(iii) Describe how the decision is consistent with applicable laws
and regulations.
(5) Implementation date. The responsible official must identify the
decision's expected implementation date.
(6) Administrative review or appeal opportunities. The responsible
official must state whether the decision is subject to administrative
review or appeal, cite the applicable regulations, and indicate when
and where to file a request for review or appeal.
(7) Contact person. The responsible official must identify the
name, address, and phone number of a contact person who can supply
additional information.
(8) Signature and Date. The responsible official must sign and date
the decision notice.
(d) Notification. The responsible official shall notify interested
or affected parties of the availability of the EA, finding of no
significant impact and decision notice, as soon as practicable after
each document is signed.

Dated: August 8, 2007.
Sally Collins,
Associate Chief.
[FR Doc. E7-15867 Filed 8-15-07; 8:45 am]

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