[Federal Register: January 8, 2003 (Volume 68, Number 5)]
[Notices]
[Page 1026-1030]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08ja03-22]
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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 proposed interim directive; request for comment.
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SUMMARY: The Forest Service gives notice of and requests comment on
proposed revisions to its directives for implementing the National
Environmental Policy Act and Council on Environmental Quality
regulations contained in Forest Service Handbook 1909.15, Chapter 30,
which addresses categorical exclusions from requirements to prepare
environmental disclosure documents. The proposal would add three
categorical exclusions to Section 31.2 that are applicable to small
timber harvesting projects. These categorical exclusions will not apply
where there are extraordinary circumstances, such as adverse effects on
threatened and endangered species or their designated critical habitat,
wilderness areas, inventoried roadless areas, wetlands, and
archeological or historic sites. The intended effect is to facilitate
the implementation of limited timber harvest projects that do not have
significant effects on the human environment. Public comment is invited
and will be considered in development of the final directive.
DATES: Comments must be received in writing by March 10, 2003.
ADDRESSES: Send written comments via the U.S Postal Service to: Limited
Timber Harvest, Forest Service--CAT, USDA, P.O. Box 221090, Salt Lake
City, Utah 84122.
Comments also may be submitted via facsimile to (801) 517-1014 or
by e-mail to limitedtimber@fs.fed.us. If comments are sent via
facsimile or e-mail, the public is requested not to send duplicate
written comments via regular mail.
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: Dave Sire, Ecosystem Management
Coordination Staff, (202) 205-0895, or Darci Birmingham, Forest and
Rangeland Management Staff, (202) 205-1759. 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:
Need for the Proposed Direction
The Council on Environmental Quality (CEQ) regulations at 40 CFR
1507.3 provide that agencies may, after notice and comment, adopt
categories of actions that do not have significant impacts on the human
environment and, consequently, do not require preparation of an
environmental assessment or an environmental impact statement. The
agency's first timber harvest related categorical exclusion, published
in 1981, broadly identified actions of limited size or magnitude. Since
1981, the agency's categorical exclusion concerning small timber
harvest activities has been revised several times to better define the
category and to add size or volume limits. The agency's most recent
revision to the timber harvest-related category occurred in 1992, when
the category's limits of 100,000 board feet or 10 acres, were expanded
to allow harvest of green timber up to 250,000 board feet and salvage
harvest of up to 1 million board feet (57 FR 43180; September 18,
1992). This 1992 revision also allowed up to one mile of low-standard
road construction.
Current Forest Service procedures for complying with and
implementing the National Environmental Policy Act (NEPA) are set out
in Forest Service Handbook (FSH) 1909.15. Chapter 30 of FSH 1909.15
establishes two types of categorical exclusions. The first, set out at
section 31.1, consists of categories of actions that are so routine and
limited that a record is not required. The second type, set out at
section 31.2, consists of categories of routine actions that require
documentation in a Decision Memo of the rationale for not preparing an
environmental assessment or an environmental impact statement. The
agency is proposing three new categorical exclusions that would fall
within this second type of categorical exclusion that requires a
Decision Memo.
[[Page 1027]]
On September 18, 1998, a lawsuit was filed against the Forest
Service arguing that the 1992 categorical exclusions were improperly
promulgated. On September 28, 1999, the United States District Court
for the Southern District of Illinois found that the categorical
exclusions were properly promulgated. However, the court found
insufficient evidence in the record to support the agency's decision to
set the volume limits in Categorical Exclusion 4 at 250,000 board feet
of merchantable wood products for timber harvest and 1 million board
feet of merchantable wood products for salvage. Accordingly, the court
declared Categorical Exclusion 4 in section 31.2 of Chapter 30 FSH
1909.15 null and void and enjoined the agency from its further use.
In an October 1, 1999, letter, the Associate Chief for Natural
Resources notified the Regional Foresters of the court's injunction and
instructed them to refrain from further use of Categorical Exclusion 4.
The agency has recently issued Interim Directive No. 1909.15-2002-1 to
formally notify employees to discontinue use of Categorical Exclusion 4
in Forest Service Handbook 1909.15, Environmental Policy and
Procedures.
Most timber harvest projects that were originally excluded under
Categorical Exclusion 4 were subsequently reconsidered, analyzed, and
documented in environmental assessments. However, field offices
reported that the level of documentation and analysis required for
these environmental assessments forced agency personnel to extend
timeframes and expend undue energy and funding in order to complete
minor harvesting projects.
In response to field concerns during the fall of 2001, the
Associate Deputy Chief for the National Forest System requested field
units to monitor selected timber harvests that would have qualified
under former Categorical Exclusion 4. In response, field units
collected data on 154 randomly selected timber harvests. The review's
objective was to determine if these harvests did or did not have
significant effects on the human environment. The review concluded that
none of the 154 projects had a significant effect on the human
environment.
Based on this review and the agency's extensive experience with
small timber harvest projects, the Forest Service proposes to add three
new categorical exclusions to its Environmental Policy and Procedures
Handbook (FSH 1909.15). These categories would appear in section 31.2,
Categories of Actions for Which a Project or Case File and Decision
Memo Are Required, and would provide specific, narrow categorical
exclusions for limited timber harvest. For each of the proposed
categories, examples of potential actions that fit the category are
provided. These examples are intended to be illustrative only and are
not intended to be either constraining or all-inclusive.
It is important to note that the proposed categorical exclusions
are not intended to replace the former Categorical Exclusion 4. They
are limited by size and are more specific about the types of harvest
methods, when compared to the agency's former Categorical Exclusion 4.
The proposed categorical exclusions are, therefore, much more limited
in scope than the former Categorical Exclusion 4.
Description of Proposed New Categorical Exclusions
The first new proposed categorical exclusion (Categorical Exclusion
10) would allow harvest of live trees not to exceed 50 acres with no
more than \1/2\ mile of temporary road construction. This category
could not 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, such as converting a
timber stand to an open field. Proposed Categorical Exclusion 10 would
not include these types of treatments. This category would allow
incidental removal of trees for temporary roads, landings, and skid
trails. It would allow low-impact silvicultural treatments by timber
purchasers.
Examples of projects that could be implemented under proposed
Categorical Exclusion 10 are removal of individual trees to reduce
fuels adjacent to a residential area and removal of scattered trees to
improve the health and vigor of a remaining stand.
The next category that the agency proposes (Categorical Exclusion
11) would allow 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 would permit salvage harvest in areas where trees
have been severly damaged by forces such as fire, wind, ice, insects,
or disease and still have some economic value as a forest product.
Categorical Exclusion 11 would be limited to salvage of dead and
dying trees by timber purchasers and may also allow incidental removal
of green trees for temporary roads, landings, and skid trails.
The final new category (Categorical Exclusion 12) proposed by the
Forest Service would allow 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. This category may
allow incidental removal of green trees for temporary roads, landings,
and skid trails.
In all three proposed categories, trees could be sold as sawlogs,
fuelwood, or specialty products.
Rationale for the Proposal
The scope of the proposed new categories is consistent with the
scope of the 154 projects examined in the 2001 review, each of which
had no significant environmental effects. Consequently, the level of
effects associated with these proposed new categories would also be
below the level of significant environmental effects. Green tree
harvests monitored in the 2001 review averaged 70 acres in size while
sanitation and salvage harvests averaged 253 acres in size. Having
reconsidered the basis for establishing categorical exclusions for
small timber harvests, the Forest Service now believes that acreage is
a more useful measure of project magnitude than timber volume. Acreage
is easily delineated and quantified when developing a proposal, while
estimating timber volume within a given acreage may vary considerably
based on statistical samples, merchantability standards, and condition
of the timber.
With regard to road construction that would fall within these new
categorical exclusions, it is important to note that only temporary
road construction would be permitted. As defined in Forest Service
Manual 7705, temporary roads are not intended to be a part of the
forest transportation system and are not necessary for long-term
resource management. The Forest Service anticipates that only a small
percentage of projects would require any temporary road construction.
The 2001 review data indicates that for each project that would have
qualified under Categorical Exclusion 4 an average of \1/2\ mile of
temporary road was built. Therefore, the agency has selected \1/2\ mile
as the upper limit of temporary road construction.
These categorical exclusions will not apply where there are
extraordinary circumstances, such as adverse effects on threatened and
endangered species or their designated critical habitat,
[[Page 1028]]
wilderness areas, inventoried roadless areas, wetlands, and
archeological or historic sites.
It is important to note that categorical exclusions do not absolve
Responsible Officials from scoping. The CEQ regulations at 40 CFR
1501.7 define scoping as a process for determining the scope of issues
to be addressed and for identifying significant issues to be documented
in an environmental impact statement. The Forest Service conducts
scoping on all proposed actions, including those covered by categorical
exclusions. Guidance to Forest Service employees on scoping is set out
in Chapter 10 of FSH 1909.15. As provided in Chapter 10, part of
scoping may involve inviting participation from interested and affected
agencies and citizens. Furthermore, FSH 1909.15, section 11 states that
in determining whether a proposed action can be categorically excluded,
the Responsible Official must consider the following: (1) The nature of
the proposal; (2) preliminary issues; (3) interested and affected
agencies, organizations, and individuals, and; (4) the extent of
existing documentation.
Categorical exclusions also do not absolve the Responsible Official
from conducting appropriate consultations with Federal and State
regulatory agencies such as those required by the Endangered Species
Act and the National Historic Preservation Act.
One important consideration in the development of any category for
limited timber harvest is cumulative effects. The CEQ regulations state
that categorically excluded actions must not individually or
cumulatively have a significant effect on the human environment (40 CFR
1508.4). The agency's 2001 review of 154 small timber harvests did not
show any instance where projects similar in scope and limits to the
three categories proposed in this notice resulted in significant
cumulative effects on the human environment.
The quantity and geographic extent of actions that might be
implemented under these three proposed categorical exclusions are not
anticipated to change much from historic levels. Slightly over 300
projects were implemented using Categorical Exclusion 4 in 1998, the
last year it was in effect. These projects involved approximately 8,200
acres of green tree harvest and approximately 41,100 acres of salvage,
representing less than .03% of the 192 million acres of National Forest
System lands on the continental United States and Alaska.
It is also important to note that any timber harvest performed
using the proposed categorical exclusions must meet all applicable
Federal, State, and local laws, as well as land and resource management
plan standards and guidelines. It is the combination of these standards
and guidelines, the limited scope of the proposed categorical
exclusions, the results of the 2001 review, and the agency's long
experience dealing with low-impact silvicultural treatments that leads
the agency to conclude that implementation of the proposed categories
would not result in cumulatively significant effects on the human
environment.
While some small fuel reduction projects may fit the proposed
categorical exclusions, most fuel reduction projects applying the
principles of the National Fire Plan will be larger in scope, both in
size and types of activities than would be allowed under the proposed
categories. Similarly, most projects implementing the National Fire
Plan involve a combination of activities such as thinning, pruning, and
prescribed burning, which would take them beyond the scope of these
proposed categorical exclusions.
The agency's categorical exclusions for small timber harvest
projects have evolved since 1981 when the Forest Service NEPA
procedures in FSH 1909.15, chapter 30, first provided for categorical
exclusion of actions of limited size or magnitude, which included some
timber sales. A categorical exclusion was added to chapter 30 in the
1985 review of NEPA procedures to provide for ``[l]ow-impact
silvicultural activities that are limited in size and duration and that
primarily use existing roads and facilities, such as firewood sales,
salvage, thinning, and small harvest cuts * * * '' From 1987 through
1992, the agency conducted small timber harvest projects through a
categorical exclusion which allowed salvage, thinning, and harvest cuts
to less than 100,000 board feet or less than 10 acres. As previously
noted, in 1992, a revised category (Categorical Exclusion 4) was
established, allowing up to 1 million board feet of salvage and 250,000
board feet of merchantable wood products.
In 1993, the Forest Service issued regulations at 36 CFR part 215
(58 FR 58910) which stated that, with the exception of Categorical
Exclusion 4, all other categorically excluded actions are not subject
to notice, comment, and administrative appeal. The agency believed that
public interest in timber harvest activities of the magnitude allowed
under Categorical Exclusion 4 warranted providing opportunities for
administrative appeal. Because of their limited scope, activities
subject to the remaining categorical exclusions were not made
appealable under 36 CFR part 215.
The categorical exclusions being proposed in this notice are
limited by size and the type of activity allowed. Additionally, a
review of timber harvests categorically excluded in 1998 shows that 15%
of these projects were appealed. Six percent of the projects that were
appealed (one percent of the total number of projects) were sent back
to the Responsible Official for additional analysis and documentation.
Consequently, the agency concludes that timber sales within the limits
of Categorical Exclusion 4 are not as controversial as originally
contemplated during promulgation of the agency's appeal regulations at
36 CFR part 215. Therefore, the proposed new categorical exclusions
would fall under 36 CFR 215.8, Decisions Not Subject to Appeal,
paragraph (a)(4).
Conclusion
Based upon an analysis of field data, the agency proposes three new
categorical exclusions for limited timber harvest. Actions identified
in the proposed categories are limited in scope, would not have
significant impacts on the human environment, and would not require
preparation of an environmental assessment or an environmental impact
statement.
These categorical exclusions would 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.
These proposed categorical exclusions would be implemented through
the issuance of an interim directive to FSH 1909.15, Environmental
Policy and Procedures Handbook, Chapter 30. Although an interim
directive (ID) expires in 18 months from its issue date, the
establishment of these three new categorical exclusions is intended to
be a permanent revision. The agency is issuing an interim directive
solely for administrative efficiency. The text of the final interim
directive along with other interim directives will be incorporated into
a revision of the entire Chapter 30 sometime in the next year or so.
Public comment is invited on this proposal and will be considered
in adopting a final policy.
The text of the proposed categorical exclusions is set out at the
end of this notice.
Environmental Impact
These proposed revisions to Forest Service Handbook 1909.15 would
add direction to field employees regarding
[[Page 1029]]
requirements for NEPA documentation. FSH 1909.15, section 31.1b (57 FR
43180) excludes from documentation in an environmental assessment or
environmental impact statement ``rules, regulations, or policies to
establish Service-wide administrative procedures, program processes, or
instructions.'' The agency's preliminary assessment is that this
proposed interim directive falls within this category of actions and
that no extraordinary circumstances exist that would require
preparation of an environmental impact statement or environmental
assessment. A final determination will be made upon adoption of the
final interim directive. In addition, pursuant to 40 CFR 1505.1 and
1507.3, the agency is consulting with the Council on Environmental
Quality to ensure full compliance with the purposes and provisions of
NEPA and the CEQ implementing regulations.
Regulatory Impact
This proposed interim directive has been reviewed under USDA
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, OMB has reviewed this proposed interim directive.
The primary economic effects of the proposed categorical exclusions
for limited timber harvest are changes in costs of conducting
environmental analysis and preparing NEPA documents. The proposed
categorical exclusions would reduce agency administrative costs by
reducing the analysis and documentation requirements for small timber
harvest projects. An analysis of costs and benefits compared the cost
of documenting categorical exclusions to that of preparing
environmental assessments. Using the number of small timber harvest
activities categorically excluded in 1998, the last year such actions
could be categorically excluded, savings were averaged over a ten-year
period. Based on this approach, the average annual cost savings of the
proposed categorical exclusions are estimated to be $6 million compared
with continued use of environmental assessments for small timber
harvest projects. The application of these Categorical Exclusions would
have no quantifiable effect on the government's timber sale receipts.
The analysis of costs and benefits was performed in accordance with
the direction in OMB Guidelines to Standardize Measures of Costs and
Benefits and the Format of Accounting Statements (Office of Management
and Budget Memorandum 00-08).
This proposed interim directive has been considered in light of the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and it has been
determined that it would not have a significant economic impact on a
substantial number of small entities as defined by the act because it
would not impose recordkeeping requirements on them; it would not
affect their competitive position in relation to large entities; and it
would 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 sale opportunities as a result of
the proposed interim directive. Although the Forest Service finds this
increase difficult to quantify, it believes that more small sales may
be prepared when using a categorical exclusion rather than an
environmental assessment, resulting in an increase in the number of
sales available for small businesses and local mills. The Forest
Service assumes that all qualified potential purchasers would,
consistent with the rules at 36 CFR part 223 for advertising, awarding,
and administering sales, have equal opportunity to accrue benefits from
any increase in sale opportunities. Additionally, some of these sales
are likely to be set aside for small businesses under the agency's
small business timber sale set-aside program.
A civil rights impact analysis was prepared for the proposed
interim directive. No adverse effects are identified for groups of
people who fall within the scope of Civil Rights legislation or the
Executive Order on Environmental Justice (E.O. 12898), although some
potential beneficial impacts have been noted.
Federalism
The agency has considered this proposed interim directive under the
requirements of Executive Order 13132 on Federalism and has made an
assessment that the proposed interim directive conforms with the
federalism principles set out in this Executive order; would not impose
any compliance costs on the States; and would 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 at this time.
Consultation and Coordination With Indian Tribal Governments
This proposed interim directive does not have tribal implications
as defined by Executive Order 13175 on Consultation and Coordination
with Indian Tribal Governments and, therefore, advance consultation
with tribes is not required.
No Takings Implications
This proposed interim directive has been analyzed in accordance
with the principles and criteria contained in Executive Order 12630 on
Governmental Actions and Interference with Constitutionally Protected
Property Rights, and it has been determined that the proposed interim
directive does not pose the risk of a taking of Constitutionally
protected private property.
Energy Effects
This proposed interim directive has been reviewed under Executive
Order 13211 on Actions Concerning Regulations that Significantly Affect
Energy Supply, Distribution, or Use. It has been determined that this
proposed interim directive does not constitute a significant energy
action as defined in the Executive order.
Controlling Paperwork Burdens on the Public
This proposed interim directive does not contain any additional
recordkeeping or reporting requirements associated with the timber
harvest program or other information collection requirements as defined
in 5 CFR part 1320. 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: December 30, 2002.
Dale N. Bosworth,
Chief.
Text of Proposed Interim Directive
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 proposed 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
[[Page 1030]]
the Internet at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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 proposed new
categorical exclusions that would be established as paragraphs 10,
11, and 12 in section 31.2, the introductory text of section 31.2
(identified by italics) follows:
31.2--Categories of Action 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.
* * * * *
10. Harvest of live trees not to exceed 50 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. Harvest of trees to reduce the fuel loading in an overstocked
stand adjacent to a residential area and construction of a short
temporary road to access the stand.
c. Commercial thinning of overstocked stands to achieve the
desired stocking level to increase health and vigor.
11. 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 green 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.
12. 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 green trees up to two tree lengths away if
determined necessary to control the spread of insects or disease.
The proposed action may include incidental removal of green 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 green trees to control expanding
infestations.
b. Harvest of green trees infested with mountain pine beetle and
trees already killed by beetles.
[FR Doc. 03-311 Filed 1-7-03; 8:45 am]
BILLING CODE 3410-11-P
[FR Doc. 02-30683 Filed 12-5-02; 8:45 am]
BILLING CODE 3410-11-C
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