From: Subject: FR Doc E7-15867 Date: Sun, 26 Aug 2007 00:14:36 -0700 MIME-Version: 1.0 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Content-Location: http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/E7-15867.htm X-MimeOLE: Produced By Microsoft MimeOLE V6.00.2900.3138 FR Doc E7-15867 
[Federal Register: August 16, 2007 (Volume 72, Number 158)]
[Proposed Rules]              =20
[Page 45998-46009]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16au07-36]                        =20

=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=
=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=
=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D
-----------------------------------------------------------------------

DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 220

RIN 0596-AC49

=20
National Environmental Policy Act Procedures

AGENCY: Forest Service, USDA.

ACTION: Notice of proposed rule; request for comment.

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

SUMMARY: The Forest Service is proposing to move its National=20
Environmental Policy Act (NEPA) implementing procedures from Forest=20
Service Manual (FSM) 1950 and Forest Service Handbook (FSH) 1909.15 to=20
36 Code of Federal Regulations, part 220 (36 CFR 220). The Agency also=20
proposes to clarify existing NEPA procedures and add new procedures to=20
incorporate Council on Environmental Quality (CEQ) guidance and to=20
better align Agency NEPA procedures with Agency decision processes.
    Agency explanatory guidance interpreting CEQ and Agency procedures=20
in regulation will remain in FSH 1909.15. Agency NEPA authority,=20
objectives, policy, and responsibilities will remain in FSM 1950.
    This rule would meet 40 CFR 1507.3 by placing Agency-implementing=20
procedures in their proper regulatory position. Maintaining Agency=20
explanatory guidance in directives would facilitate timely Agency=20
responses to new ideas, new information, procedural interpretations,=20
training needs, and editorial changes to assist field units when=20
implementing the NEPA process. Finally, the proposed changes to the=20
Forest Service NEPA procedures are intended to provide an environmental=20
analysis process that fits better with modern thinking on=20
decisionmaking, collaboration, and adaptive management to meet the=20
intent of NEPA through establishing incremental alternative=20
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=20
Content Analysis Group, 1584 South 500 West, Suite 201, Woods Cross, UT=20
84010. Electronic or facsimile comments are preferred. If comments are=20
sent via U.S. Postal Service, please do not submit duplicate electronic=20
or facsimile comments. Please confine comments to the proposed move of=20
existing NEPA procedures from FSH to regulation, proposed changes to=20
existing NEPA procedures, and proposed new NEPA procedures and explain=20
the reasons for any recommended changes.
    All comments, including names and addresses when provided, are=20
placed in the record and are available for public inspection and=20
copying.

FOR FURTHER INFORMATION CONTACT: Joe Carbone, Ecosystem Management=20
Staff, (202) 205-0884, Forest Service, USDA. Individuals who use=20
telecommunication devices for the deaf (TDD) may call the Federal=20
Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8=20
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=20
require Federal agencies to adopt procedures as necessary to supplement=20
CEQ's regulations implementing the National Environmental Policy Act=20
(NEPA) and to consult with CEQ during their development and prior to=20
publication in the Federal Register. The regulation further encourages=20
agencies to publish agency explanatory guidance for CEQ's regulations=20
and agency procedures.
    In 1979, the Forest Service chose to combine its implementing=20
procedures and explanatory guidance in Agency directives (Forest=20
Service Manual 1950 and Forest Service Handbook 1909.15). The blending=20
of NEPA implementing procedures with explanatory guidance requires the=20
Forest Service to provide for public notice and comment and to consult=20
with CEQ, as required by 40 CFR1507.3, when amending any guidance for=20
explaining CEQ or Agency procedures, resulting in an increased=20
administrative burden for the Agency and CEQ.
    This proposal would meet the intent of 40 CFR 1507.3 by placing=20
Agency-implementing procedures in their proper regulatory position.=20
Placing Agency explanatory guidance in directives would facilitate=20
quicker

[[Page 45999]]

Agency responses to new ideas, new information, procedural=20
interpretations, training needs, and editorial changes.
    Since the last major update of Forest Service NEPA policy in 1992,=20
CEQ has issued guidance the Agency wishes to incorporate in its=20
regulation. The Agency also wants to incorporate several concepts that=20
are currently used, but for which there are no explicit provisions in=20
the current procedures.
    Finally, this proposal would allow for better integrating of NEPA=20
procedures and documentation into current Agency decisionmaking=20
processes, including collaborative and incremental decisionmaking.
    Almost 30 years ago, CEQ stated in its preamble to the final NEPA=20
implementing regulations (Nov. 29, 1978, 43 FR 55978) that the=20
Environmental Impact Statement (EIS) has ``tended to become an end in=20
itself, rather than a means to making better decisions. They noted=20
further; ``One serious problem with the administration of NEPA has been=20
the separation between an agency's NEPA process and its decisionmaking=20
process. In too many cases bulky EISs have been prepared and=20
transmitted but not used by the decision-maker.'' The innovation at=20
that time was a new requirement for a ``Record of Decision'' (ROD) to=20
show ``how the EIS was used in arriving at the decision.'' At that=20
time, CEQ broadened the focus from emphasis on a single document (EIS)=20
to ``emphasize the entire NEPA process, from early planning through=20
assessment and EIS preparation through decisions and provisions for=20
follow-up.'' Today, after receiving comments on a draft EIS, agencies=20
prepare a final EIS and document their decision in a ROD, tying the=20
analysis from the EIS to the final agency decision.
    Almost 20 years later, a CEQ report, ``The National Environmental=20
Policy Act--A Study of Its Effectiveness After Twenty-five Years''=20
(January 1997) stated that ``frequently NEPA takes too long and costs=20
too much, agencies make decisions before hearing from the public,=20
documents are too long and technical for many people to use'' and=20
according to Federal agency NEPA liaisons, ``the EIS process is still=20
frequently viewed as merely a compliance requirement rather than as a=20
tool to effect better decision-making. Because of this, millions of=20
dollars, years of time, and tons of paper have been spent on documents=20
that have little effect on decisionmaking.'' They point out ``some=20
citizens' groups and concerned individuals view the NEPA process as=20
largely a one-way communications track that does not use their input=20
effectively'' and ``when they are invited to a formal scoping meeting=20
to discuss a well-developed project about which they have heard little,=20
they may feel they have been invited too late in the process.''=20
Finally, the report states, ``some citizens complain that their time=20
and effort spent providing good ideas are not reflected in changes to=20
proposals.''
    A 2005 National Environmental Conflict Resolution Advisory=20
Committee (NECRAC) Report chartered by the U.S. Institute for=20
Environmental Conflict Resolution of the Morris K. Udall Foundation=20
reflected further on the state of the NEPA process 27 years after CEQ=20
published its regulations and recommended furthering the evolution of=20
making section 102 procedural requirements less an end in themselves=20
and more as a means to fulfill the policies set out in section 101. The=20
report calls for improvements in the ``traditional model for NEPA=20
implementation'' where ``agencies announce their plans, share their=20
analyses of potential impacts of a range of options, solicit public=20
comment, make decisions, deal with the fallout, if any, and move on to=20
the next project.'' This model results in agency decisions ``based on a=20
collection of views and interests'' but ``generally not a collective=20
decision.'' The report goes on to state that while not a failure, the=20
traditional model for NEPA ``does not take full advantage of the many=20
strengths of section 101.''
    The NECRAC recognized that ``Americans expect to be able to work=20
things out and make things better over time. It is not inevitable, and=20
it is clearly not desirable, that society's ability to constructively=20
address and resolve conflicts should languish or fail to adapt to=20
changing times. The current state of environmental and natural resource=20
decision-making is dominated by the traditional model, which too often=20
fails to capture the breadth and quality of the values and purposes of=20
NEPA.'' The Committee called for Federal decisionmaking that ``enables=20
interested parties'' to ``engage more effectively in the decisionmaking=20
process'' where ``interested parties are no longer merely commenters on=20
a Federal proposal, but act as partners in defining Federal plans,=20
programs, and projects.''
    The Federal Government has placed increasing emphasis on=20
``cooperating agencies'' ``cooperative conservation,''=20
``collaboration,'' and ``environmental conflict resolution.'' CEQ=20
guidance and direction on cooperating agencies and environmental=20
conflict resolution includes:
     CEQ Memorandum for Heads of Federal Agencies: Designation=20
of Non-Federal Agencies to be Cooperating Agencies in Implementing the=20
Procedural Requirements of NEPA, July 28, 1999;
     CEQ Memorandum for Heads of Federal Agencies: Cooperating=20
Agencies in Implementing the Procedural Requirements of the National=20
Environmental Policy Act, January 30, 2002; and
     CEQ & OMB Memorandum on Environmental Conflict =
Resolution,=20
28 November 2005.
    As a part of its continuing efforts to improve the implementation=20
of NEPA, CEQ issued a NEPA Task Force report in 2003 entitled=20
``Modernizing NEPA Implementation'', which included recommendations to=20
further collaboration in the NEPA process. Other Federal efforts=20
include Executive Order 13352 on Facilitation of Cooperative=20
Conservation, August 26, 2004, and Forest Service continuing emphasis=20
on collaboration in Agency planning, NEPA analysis and decisionmaking=20
(see http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=3Dl=
eavingFR.html&log=3Dlinklog&to=3Dhttp://www.partnershipresourcece=
nter.org/policy/ for a list of=20

laws and Forest Service policies related to collaboration).
    As the Forest Service integrates the NEPA process and EIS into its=20
collaborative and cooperative decisionmaking, the Agency needs an=20
option to provide EIS documentation that reflects the way this=20
interactive and incremental decisionmaking occurs. There is a need to=20
ensure that the EIS is used in ``arriving at the decision.'' In order=20
to do this, Forest Service NEPA procedures need an option to reflect a=20
more modern environmental analysis process that fits better with=20
today's collaborative processes and is used differently than the=20
traditional NEPA documentation model currently assumes. A ``one size=20
fits all'' approach to NEPA documentation has not been effective. The=20
option of providing documentation that reflects the collaborative=20
processes as described in these procedures will allow the Forest=20
Service to document the analysis that best fits the particular=20
situation. As the NECRAC Report points out, there continues to be focus=20
on preparing NEPA documents such as an EIS or environmental assessment=20
(EA) for litigation rather than to facilitate an informed decision=20
process. The proposed NEPA documentation requirements are intended to=20
enable interested parties to engage more effectively in the=20
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,=20
the EIS could evolve as the decision evolves incrementally and be=20
useful throughout the process. The EIS would then be used as a tool to=20
foster a collaborative and incremental decision-making process rather=20
than an end in itself. The record would reflect a history of how the=20
detailed statement was used in collaborative and incremental=20
decisionmaking and the final draft and final EISs would address a more=20
narrowly focused Agency action for a final decision. The responsible=20
official will make available preliminary draft and/or preliminary final=20
EISs to keep interested parties informed as the analysis progresses.=20
While the proposed regulation does not require a decision to be made=20
collaboratively, it does allow the Agency to meet the procedural=20
requirements of section 102 (2) of NEPA while fostering fulfillment of=20
the act's purpose in section 101.
    Proposed NEPA procedures to allow for better alignment of an EIS=20
with Agency decisionmaking include: (1) Allowing proposals and=20
alternative(s) to be explored and modified throughout the NEPA process=20
(36 CFR 220.2 (e)), and (2) allowing the circulation of multiple=20
preliminary detailed statement(s) without filing requirements (36 CFR=20
220.2(g)(2)).
    The intent is to use environmental information effectively by=20
multiple parties during the NEPA process rather than only at distinct=20
comment periods for a draft and final impact statement. This is to=20
allow efficient and effective use of an EIS to influence Agency=20
decisionmaking as interested parties regularly exchange and discuss=20
issues; differences; and necessary environmental, social, and economic=20
effects analyses while alternatives are explored, evaluated, and=20
modified throughout the process. The intent is to focus on a=20
deliberative public process and appropriate disclosure outlined in=20
section 102 of NEPA to promote the act's purposes.
    The Agency is also proposing to incorporate adaptive management=20
into its procedures. This would allow procedural flexibility to manage=20
natural resources in light of uncertainties.
    As Agency NEPA procedures are being moved from the Forest Service=20
Directive System to the Code of Federal Regulations, the following key=20
changes would be made:
     Clarify actions subject to NEPA by summarizing the=20
relevant CEQ regulations in one place.
     Recognize Agency obligations to take immediate emergency=20
responses and emphasize the options available for subsequent proposals=20
to address actions related to the emergency when normal NEPA processes=20
are not possible.
     Incorporate CEQ guidance language regarding what past=20
actions are ``relevant and useful'' in illuminating or predicting=20
direct and indirect effects of a proposed action when doing cumulative=20
effects analysis.
     Clarify that an alternative(s) including the proposed=20
action may be modified through an incremental process.
     Clarify that adaptive management strategies may be=20
incorporated into an alternative(s), including the proposed action.
     Incorporate CEQ guidance that states EAs need only analyze=20
the proposed action if there are no unresolved conflicts concerning=20
alterative uses of available resources.

Section-by-Section Description of Proposed Changes

    The majority of implementing procedures found in FSH 1909.15 will=20
transfer to 36 CFR part 220 and remain intact with organizational and=20
grammatical changes added to reflect regulatory requirements. Rule=20
organization, additions to current procedures, and significant changes=20
to current procedures are outlined below.
    Agency explanatory guidance interpreting CEQ regulations and this=20
rule will remain in FSH 1909.15.
    CEQ guidance memos, court cases, and Agency manual and handbook=20
direction can be reviewed at http:/=
/frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=3DleavingFR.html&l=
og=3Dlinklog&to=3Dhttp://www.fs.fed.us/emc/nepa.

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

[[Page 46001]]

Intent. Paragraph (c) incorporates FSH language on the cancellation of=20
a Notice of Intent. Paragraph (d) allows for variation in content and=20
format of an EIS as long as it is consistent with CEQ regulations.=20
Paragraph (e) amends FSH language on the development of alternatives by=20
establishing that:
    (1) No specific number of alternatives is required or prescribed;
    (2) The No Action alternative may be considered through the effects=20
analysis by contrasting the impacts of the proposed action and an=20
alternative(s) with the current condition and expected future=20
condition;
    (3) As the decisionmaking/analysis process progresses an=20
alternative(s), including the proposed action, may be modified through=20
an incremental process. This enhances the collaborative decisionmaking=20
process by allowing the responsible official, interested and affected=20
persons, and agencies to make appropriate adjustments to the=20
alternative(s) as the analysis progresses; and
    (4) Adaptive management strategies may be incorporated into an=20
alternative(s), including the proposed action. Adaptive management=20
strategies would be clearly articulated and the effects of said=20
strategies analyzed in the document.
    Paragraph (f) establishes language on the documentation of=20
environmental effects related to incremental alternative development=20
and adaptive management. Paragraph (g) amends FSH language on=20
circulating and filing the draft and final EIS by including language=20
that allows for making multiple preliminary EIS(s) available to the=20
public. Paragraph (h) incorporates FSH language on the distribution of=20
the record of decision.
    Section 220.6 Categorical Exclusions. This section incorporates=20
implementing language found in chapter 30 of the FSH. The headings are=20
changed to be more explanatory but the content remains the same as the=20
current FSH. No new categorical exclusions are proposed.
    Section 220.7 Environmental Assessment (EA). This section=20
incorporates implementing language found in chapter 40 of the FSH.=20
Paragraph (a) consolidates FSH language outlining when an EA shall be=20
prepared and indicating that there is no standard document format.=20
Paragraph (b) establishes new language outlining what information shall=20
be included in an EA based on CEQ guidance; specifically an EA must=20
include: a description of the need for the project; a description of=20
the proposed action and reasonable alternative(s) that meet the=20
proposal's need for action; a brief description of analysis to=20
determine whether to prepare an EIS; and a list of Tribes, agencies,=20
and persons consulted.
    Consistent with the National Environmental Policy Act, Section=20
102(E) and 40 CFR 1501.2(c), when there are no unresolved conflicts=20
concerning alternative uses of available resources, the Agency need=20
only analyze the proposed action. While this provision is not intended=20
to limit the alternatives to be considered, it recognizes situations=20
where there are no conflicts and therefore no compelling need for=20
alternatives. A stand-alone No Action alternative is not required. The=20
environmental analysis may document consideration of a no-action=20
alternative through the effects analysis by contrasting the impacts of=20
the proposed action and any alternatives with the current condition and=20
expected future condition if the proposed action were not implemented.=20
As the decisionmaking/analysis process progresses, the alternative(s),=20
including the proposed action, may be modified through an incremental=20
process. This enhances the collaborative decisionmaking process by=20
allowing the responsible official, interested and affected persons, and=20
agencies to make appropriate adjustments to the alternative(s) as the=20
analysis progresses. The modifications made during the process should=20
be documented and available to the public and in the record. Adaptive=20
management strategies may be incorporated into an alternative(s),=20
including the proposed action. Adaptive management strategies should be=20
clearly articulated and the effects of said strategies analyzed in the=20
document. Paragraph (c) incorporates FSH language on content for a=20
Decision Notice. Paragraph (d) incorporates FSH language on=20
availability of the EA, Decision Notice, and Finding of No Significant=20
Impact.

                         Side-by-Side Comparison of Major Changes to =
Existing Procedures
-------------------------------------------------------------------------=
---------------------------------------
                   Current procedures                                    =
  Proposed procedures
-------------------------------------------------------------------------=
---------------------------------------
                                      Emergency Response [Sec.   =
220.4(b)]
-------------------------------------------------------------------------=
---------------------------------------
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.
-------------------------------------------------------------------------=
---------------------------------------
                               Cumulative Effects (Past Actions) [Sec.   =
220.4(e)]
-------------------------------------------------------------------------=
---------------------------------------
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).
-------------------------------------------------------------------------=
---------------------------------------
                          Class of Actions Normally Requiring an EIS =
[Sec.   220.5(a)]
-------------------------------------------------------------------------=
---------------------------------------
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.
-------------------------------------------------------------------------=
---------------------------------------
                                       Format for an EIS [Sec.   =
220.5(d)]
-------------------------------------------------------------------------=
---------------------------------------
Focusing on CEQ procedures                               References CEQ =
procedures.
-------------------------------------------------------------------------=
---------------------------------------

[[Page 46002]]


                              Alternative Development for an EIS [Sec.   =
220.5(e)]
-------------------------------------------------------------------------=
---------------------------------------
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.
-------------------------------------------------------------------------=
---------------------------------------
                                     Environmental Effects [Sec.   =
220.5(f)]
-------------------------------------------------------------------------=
---------------------------------------
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.
-------------------------------------------------------------------------=
---------------------------------------
                             Circulation of Preliminary EIS(s) [Sec.   =
220.5(g)(2)]
-------------------------------------------------------------------------=
---------------------------------------
Does not specifically allow circulation of preliminary   Allows for the =
circulation of preliminary detailed
 detailed statement(s).                                   statement(s).
-------------------------------------------------------------------------=
---------------------------------------
                                       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).
-------------------------------------------------------------------------=
---------------------------------------

Regulatory Certification

National Environmental Policy Act

    The proposed rule would move existing procedures for implementing=20
the National Environmental Policy Act (NEPA) from Agency handbook to 36=20
CFR part 220 and provide additional direction by regulation. The rule=20
would not directly impact the environment. The CEQ does not direct=20
agencies to prepare a NEPA analysis or document before establishing=20
agency procedures that supplement the CEQ regulations for implementing=20
NEPA. Agency NEPA procedures are procedural guidance to assist agencies=20
in the fulfillment of agency responsibilities under NEPA, but are not=20
the agency's final determination of what level of NEPA analysis is=20
required for a particular proposed action. The requirements for=20
establishing agency NEPA procedures are set forth at 40 CFR 1505.1 and=20
1507.3. The determination that establishing agency NEPA procedures does=20
not require NEPA analysis and documentation has been upheld in=20
Heartwood, Inc. v. U.S. Forest Service, 73 F. Supp. 2d 962, 972-73=20
(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=20
Executive Order 12866, Regulatory Planning and Review. It has been=20
determined that this is not an economically significant action. This=20
action to issue agency regulations will not have an annual effect of=20
$100 million or more on the economy nor adversely affect productivity,=20
competition, jobs, the environment, public health or safety, nor State=20
or local governments. This action will not interfere with an action=20
taken or planned by another agency. This action will not alter the=20
budgetary impact of entitlements, grants, user fees, or loan programs=20
or the rights and obligations of recipients of such programs. However,=20
because of the extensive interest in National Forest System (NFS)=20
planning and decision-making, this proposed rule to establish Agency=20
implementing procedures for NEPA in the Code of Federal Regulations has=20
been designated as significant and, therefore, is subject to Office of=20
Management and Budget review under E.O. 12866.
    In accordance with the Office of Management and Budget (OMB)=20
Circular A-4, ``Regulatory Analysis,'' a cost/benefit analysis was=20
conducted. The analysis compared the costs and benefits associated with=20
the current condition of having Agency implementing procedures combined=20
with Agency explanatory guidance in Forest Service Handbook (FSH) and=20
the proposed condition of having implementing direction in regulation=20
and explanatory guidance in FSH.
    Many benefits and costs associated with the proposed rule are not=20
quantifiable. Benefits, including collaborative and participatory=20
public involvement to more fully address public concerns, timely and=20
focused environmental analysis, flexibility in preparation of=20
environmental documents, and improved legal standing indicate a=20
positive effect of the new rule.
    Moving implementing NEPA procedures from the FSH to regulation is=20
expected to provide a variety of potentially beneficial effects. The=20
rule would meet 40 CFR 1507.3 by placing Agency-implementing procedures=20
in their proper regulatory position. Maintaining Agency explanatory=20
guidance in the FSH would facilitate timely Agency responses to new=20
ideas, new information, procedural interpretations, training needs, and=20
editorial changes to addresses and internet links to assist field units=20
when implementing the NEPA process. Finally, the proposed changes to=20
the Forest Service NEPA procedures are intended to provide the Forest=20
Service specific options to meet the intent of NEPA through=20
collaboration, the establishment of incremental alternative=20
development, and the use of adaptive management principles.
    Based on the context of this analysis, no one factor creates a=20
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=20
of Executive Order 13132, Federalism. The Agency has concluded that the=20
proposed rule conforms with the federalism principles set out in this=20
Executive Order; will not impose any compliance costs on the states;=20
and will not have substantial direct effects on the states or the=20
relationship between the national government and the states, or on the=20
distribution of power and responsibilities among the various levels of=20
government. Therefore, the Agency has determined that no further=20
assessment of federalism implications is necessary.

Consultation and Coordination With Indian Tribal Governments

    Pursuant to Executive Order 13175 of November 6, 2000,=20
``Consultation and Coordination with Indian Tribal Governments'', the=20
Agency has assessed the impact of this proposed rule on Indian Tribal=20
governments and has determined that it does not significantly or=20
uniquely affect communities of Indian Tribal governments. The proposed=20
rule deals with requirements for NEPA analysis and has no direct effect=20
regarding the occupancy and use of NFS land.
    The Agency has also determined that this proposed rule does not=20
impose substantial direct compliance costs on Indian Tribal governments=20
or preempt Tribal law. Therefore, it has been determined that this=20
proposed rule does not have Tribal implications requiring advance=20
consultation with Indian Tribes.

No Takings Implications

    This proposed rule has been analyzed in accordance with the=20
principles and criteria contained in Executive Order 12630,=20
Governmental Actions and Interference with Constitutionally Protected=20
Property Rights, and it has been determined that the proposed rule does=20
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=20
February 7, 1996, ``Civil Justice Reform''. After adoption of this=20
proposed rule, (1) All State and local laws and regulations that=20
conflict with this rule or that would impede full implementation of=20
this rule would be preempted; (2) no retroactive effect would be given=20
to this proposed rule; and (3) the proposed rule would not require the=20
use of administrative proceedings before parties could file suit in=20
court challenging its provisions.

Unfunded Mandates

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2=20
U.S.C. 1531-1538), which the President signed into law on March 22,=20
1995, the Agency has assessed the effects of this proposed rule on=20
State, local, and Tribal governments and the private sector. This=20
proposed rule does not compel the expenditure of $100 million or more=20
by any State, local, or Tribal government or anyone in the private=20
sector. Therefore, a statement under section 202 of the act is not=20
required.

Energy Effects

    This proposed rule has been reviewed under Executive Order 13211,=20
Actions Concerning Regulations That Significantly Affect Energy Supply,=20
Distribution, or Use. It has been determined that this proposed rule=20
does not constitute a significant energy action as defined in the=20
Executive order.

Controlling Paperwork Burdens on the Public

    This proposed rule does not contain any additional record keeping=20
or reporting requirements or other information collection requirements=20
as defined in 5 CFR part 1320 that are not already required by law or=20
not already approved for use, and therefore, imposes no additional=20
paperwork burden on the public. Accordingly, the review provisions of=20
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its=20
implementing regulations at 5 CFR part 1320 do not apply.

List of Subjects in 36 CFR Part 220

    Administrative practice and procedure, Environmental policy,=20
National forests.

    Therefore, for the reasons set forth in the preamble, the Forest=20
Service proposes to add part 220 to Title 36 of the Code of Federal=20
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=20
1500-1508; 7 CFR part 1b.


Sec.  220.1  Purpose and Scope.

    (a) Purpose. This part establishes USDA Forest Service procedures=20
for compliance with the National Environmental Policy Act (NEPA) of=20
1969 (42 U.S.C. 4321 et seq.) and the Council on Environmental Quality=20
(CEQ) regulations for implementing the procedural provisions of NEPA=20
(40 CFR parts 1500-1508).
    (b) Scope. This part supplements, and is to be used in conjunction=20
with, the CEQ regulations and U.S. Department of Agriculture=20
regulations at 7 CFR part 1b.


Sec.  220.2  Applicability.

    This part applies to all organizational elements of the USDA Forest=20
Service.


Sec.  220.3  Definitions.

    The following definitions supplement terms defined at 40 CFR parts=20
1500-1508.
    Adaptive management. A system of management practices based on=20
clearly identified outcomes and monitoring to determine if management=20
actions are meeting desired outcomes; and, if not, facilitating=20
management changes that will best ensure that outcomes are met or re-
evaluated. Adaptive management recognizes that knowledge about natural=20
resource systems is sometimes uncertain.
    Decision Document. A record of decision, decision memo, or decision=20
notice.
    Decision Memo. A concise written record of the responsible=20
official's decision to implement an action categorically excluded from=20
documentation in an environmental impact statement or environmental=20
assessment. A decision memo is applicable to a prescribed set of=20
categories.
    Decision Notice. A concise written record of the responsible=20
official's decision to implement an action when an environmental=20
assessment and finding of no significant impact has been prepared.
    Environmentally Preferable Alternative. The environmentally=20
preferable alternative is the alternative that will best promote the=20
national environmental policy as expressed in NEPA's section 101.=20
Ordinarily, this means the alternative that causes the least harm to=20
the biological and physical environment; it also means the alternative=20
which best protects and preserves historic, cultural, and natural=20
resources.
    Preliminary Environmental Impact Statement. An interim=20
environmental

[[Page 46004]]

document that a responsible official may use to initiate discussion,=20
solicit comments, and inform interested parties and agency personnel=20
while proposals, alternatives, and environmental effects are explored=20
and considered prior to filing a draft or final environmental impact=20
statement. A preliminary environmental impact statement is an option=20
available for responsible officials to use and is not required.
    Reasonably Foreseeable Future Actions. Those activities not yet=20
undertaken, for which there are existing decisions, funding, or=20
identified proposals.
    Responsible Official. The Agency employee who has the authority to=20
make and implement a decision on a proposed action.


Sec.  220.4  General Requirements.

    (a) Proposed actions subject to the National Environmental Policy=20
Act requirements (42 U.S.C. 4321 et seq.). A Forest Service proposal is=20
subject to the National Environmental Policy Act Requirements when all=20
of the following apply:
    (1) The Forest Service has a goal and is actively preparing to make=20
a decision on one or more alternative means of accomplishing that goal=20
(40 CFR 1508.23);
    (2) The proposed action is subject to Forest Service control and=20
responsibility (40 CFR 1508.18);
    (3) The proposed action would cause effects on the natural and=20
physical environment and the relationship of people with that=20
environment (40 CFR 1508.14) that can be meaningfully evaluated (40 CFR=20
1508.23); and
    (4) The proposed action is not statutorily exempt from the=20
requirements of section 102(2) of the National Environmental Policy=20
Act.
    (b) Emergency responses. (1) If the responsible official determines=20
that an emergency exists that makes it necessary to take emergency=20
actions before completing a NEPA analysis and documentation in=20
accordance with the provisions in Sec. Sec.  220.5 and 220.7, then=20
these provisions apply.
    (2) The responsible official may take emergency actions necessary=20
to control the immediate impacts of the emergency to mitigate harm to=20
life, property, or important resources. When taking such actions, the=20
responsible official shall take into account the probable environmental=20
consequences of the emergency action and mitigate foreseeable adverse=20
environmental effects to the extent practical.
    (3) If the responsible official determines that proposed emergency=20
actions beyond actions noted in paragraph (b)(2) of this section are=20
not likely to have significant environmental impacts, the responsible=20
official shall document that determination in an EA and FONSI prepared=20
in accordance with these regulations, unless categorically excluded=20
(Sec.  220.6). If the responsible official finds that the nature and=20
scope of the subsequent actions related to the emergency require taking=20
such proposed actions prior to completing an EA and FONSI, the=20
responsible official shall consult with the Washington Office about=20
alternative arrangements for NEPA compliance. Consultation with the=20
Washington Office must be coordinated through the appropriate Regional=20
Office.
    (4) If the responsible official determines that proposed emergency=20
actions beyond actions noted in paragraph (b)(2) of this section are=20
likely to have significant environmental impacts, then the responsible=20
official shall consult with CEQ, through the appropriate Regional=20
Office and the Washington Office, about alternative arrangements as=20
soon as possible. Alternative arrangements address the proposed actions=20
necessary to control the immediate impacts of the emergency. Other=20
proposed actions remain subject to NEPA analysis and documentation in=20
accordance with these regulations.
    (c) Agency Decisionmaking. (1) Forest Service Manual 1906 outlines=20
Agency planning and decisionmaking. Forest Service Manual 1950=20
identifies the responsible official for the NEPA process as the Agency=20
employee who has the delegated authority to make and implement a=20
decision on a proposed action.
    (2) For each Forest Service proposal (Sec.  220.4(a)), the=20
responsible official shall coordinate and integrate NEPA review and=20
relevant environmental documents with Agency decisionmaking by:
    (i) Completing the environmental document review before making a=20
decision on the proposal, consistent with 40 CFR 1506.1;
    (ii) Considering environmental documents, public and Agency=20
comments (if any) on those documents, and Agency responses to those=20
comments (40 CFR 1505.1(d));
    (iii) Including environmental documents, comments, and responses as=20
part of the administrative record (40 CFR 1505.1(c));
    (iv) Considering the alternatives analyzed in environmental=20
document(s) before rendering a decision on the proposal; and
    (v) Making a decision encompassed within the range of alternatives=20
analyzed in the environmental documents (40 CFR 1505.1(e)).
    (d) Schedule of Proposed Actions. (1) A Schedule of Proposed=20
Actions shall be published quarterly to inform interested persons where=20
to get information about proposed Forest Service actions, including the=20
status of environmental analyses.
    (2) The Schedule of Proposed Actions shall include proposals that=20
will result in Agency decision documents (Sec.  220.3).
    (3) Actions proposed and decided between scheduled publications=20
shall be identified in the next schedule.
    (4) The Schedule of Proposed Actions shall include a contact for=20
additional information on Forest Service proposals and actions.
    (e) Scoping (40 CFR 1501.7). (1) Scoping is required for all Forest=20
Service proposed actions, including those that would appear to be=20
categorically excluded from further analysis and documentation in an=20
environmental assessment or an environmental impact statement (Sec. =20
220.6).
    (2) Scoping shall be consistent with 40 CFR 1501.7. However,=20
because the nature and complexity of a proposed action determine the=20
scope and intensity of analysis, no single scoping technique is=20
required or prescribed.
    (3) The Schedule of Proposed Actions is not intended to be used as=20
the sole scoping mechanism for a proposed action.
    (f) Cumulative Effects Considerations of Past Actions (40 CFR=20
1508.7). In accordance with The Council on Environmental Quality=20
Guidance Memorandum on Consideration of Past Actions in Cumulative=20
Effects Analysis dated June 24, 2005, the analysis of cumulative=20
effects begins with consideration of the direct and indirect effects on=20
the environment that are expected or likely to result from the=20
alternative proposals for agency action. Agencies then look for present=20
effects of past actions that are, in the judgment of the agency,=20
relevant and useful because they have a significant cause-and-effect=20
relationship with the direct and indirect effects of the proposal for=20
agency action and its alternatives. CEQ regulations do not require the=20
consideration of the individual effects of all past actions to=20
determine the present effects of past actions. Once the agency has=20
identified those present effects of past actions that warrant=20
consideration, the agency assesses the extent that the effects of the=20
proposal for agency action or its alternatives will add to, modify, or=20
mitigate those effects. The final analysis documents an agency=20
assessment of the cumulative effects of the actions

[[Page 46005]]

considered (including past, present, and reasonable foreseeable future=20
actions) on the affected environment. With respect to past actions,=20
during the scoping process and subsequent preparation of the analysis,=20
the agency must determine what information regarding past actions is=20
useful and relevant to the required analysis of cumulative effects.=20
Cataloging past actions and specific information about the direct and=20
indirect effects of their design and implementation could in some=20
contexts be useful to predict the cumulative effects of the proposal.=20
The CEQ regulations, however, do not require agencies to catalogue or=20
exhaustively list and analyze all individual past actions. Simply=20
because information about past actions may be available or obtained=20
with reasonable effort does not mean that it is relevant and necessary=20
to inform decisionmaking.
    (g) Classified information (40 CFR 1507.3(c)). To the extent=20
practicable, the responsible official shall segregate any information=20
classified in accordance with Executive order or statute. The=20
responsible official shall maintain the confidentiality of such=20
information in a manner required for the information involved. Such=20
information may not be included in any publicly disclosed documents. If=20
such material cannot be reasonably segregated, or if segregation would=20
leave essentially meaningless material, the responsible official must=20
withhold the entire analysis document from the public; however, the=20
responsible official shall otherwise prepare the analysis documentation=20
in accordance with applicable regulations.
    (h) Incorporation by Reference. Consistent with 40 CFR 1502.21,=20
material may be incorporated by reference into any environmental or=20
decision document. This material must be reasonably available to the=20
public and its contents briefly described in the environmental or=20
decision document.
    (i) Applicants. The responsible official shall make policies or=20
staff available to advise potential applicants of studies or other=20
information foreseeably required for acceptance of their applications.=20
For situations involving an applicant, the responsible official should=20
initiate the NEPA process upon acceptance of an application in=20
accordance with 36 CFR 251.54(g).


Sec.  220.5  Environmental Impact Statements.

    (a) Classes of Actions Normally Requiring Environmental Impact=20
Statements--
    (1) Class 1: Proposals to carry out or to approve aerial=20
application of chemical pesticides on an operational basis. Examples=20
include:
    (i) Applying chemical insecticides by helicopter on an area=20
infested with spruce budworm to prevent serious resource loss.
    (ii) Authorizing the application of herbicides by helicopter on a=20
major utility corridor to control unwanted vegetation.
    (iii) Applying herbicides by fixed-wing aircraft on an area to=20
release trees from competing vegetation.
    (2) Class 2: Proposals that would substantially alter the=20
undeveloped character of an inventoried roadless area of 5,000 acres or=20
more (FSH 1909.12). Examples include:
    (i) Constructing roads and harvesting timber in a 56,000-acre=20
inventoried roadless area where the proposed road and harvest units=20
impact 3,000 acres in only one part of the roadless area.
    (ii) Constructing or reconstructing water reservoir facilities in a=20
5,000-acre unroaded area where flow regimens may be substantially=20
altered.
    (iii) Approving a plan of operations for a mine which would cause=20
considerable surface disturbance over 700 acres in a 10,000 acre=20
roadless area.
    (3) Class 3: Other proposals to take major Federal actions that may=20
significantly affect the quality of the human environment. Examples=20
include:
    (i) Approving the use of 1,500 acres of National Forest System land=20
to construct and operate an all-season recreation resort complex.
    (ii) Authorizing the Bureau of Land Management to offer the sale of=20
leases for oil and natural gas resources from beneath 400,000 acres of=20
National Forest System lands that have historically demonstrated a=20
relatively high potential for discovery and development of oil and=20
natural gas.
    (iii) Approving the construction and operation of an international=20
gas pipeline beneath a previously undeveloped 30-mile long, 1,000-foot=20
wide corridor within an ecologically sensitive area of National Forest=20
System land.
    (b) Notice of Intent. A notice of intent shall be prepared and=20
published in the Federal Register as soon as practicable after deciding=20
that an environmental impact statement will be prepared. In addition to=20
the requirements of 40 CFR 1508.22, notices of intent must include the=20
following:
    (1) Title of the responsible official(s);
    (2) Any permits or licenses required to implement the proposed=20
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=20
Federal Register if, after publication of the notice of intent or=20
notice of availability, an environmental impact statement is no longer=20
necessary. A withdrawal notice must refer to the date and page number=20
of the previously published notice.
    (d) Environmental Impact Statement Format and Content. The=20
responsible official may use any environmental impact statement format=20
and design as long as the statement is in accordance with 40 CFR=20
1502.10.
    (e) Alternative(s). The environmental impact statement shall=20
document the examination of reasonable alternatives to the proposed=20
action. Reasonable alternatives should meet the purpose and need and=20
address one or more significant issues (40 CFR 1501.7) related to the=20
proposed action. Since an alternative may be developed to address more=20
than one significant issue, no specific number of alternatives is=20
required or prescribed. In addition to the requirements at 40 CFR=20
1502.14 the responsible official has an option to use the following=20
procedures to develop and analyze alternatives.
    (1) The effects of the no-action alternative may be documented by=20
contrasting the current condition and expected future condition should=20
the proposed action not be undertaken with the impacts of the proposed=20
action and any reasonable alternatives.
    (2) To facilitate collaborative processes and sound decisions, the=20
responsible official may collaborate with interested parties to modify=20
the proposed action and alternative(s) under consideration prior to=20
issuing a draft environmental impact statement. In such cases, the=20
responsible official may consider the incremental changes as=20
alternatives considered. The documentation of these incremental changes=20
to a proposed action or alternatives may be incorporated by reference=20
in accordance with 40 CFR 1502.21 rather than duplicating the=20
description and analysis in the statement.
    (3) A proposed action or alternative(s) may include adaptive=20
management strategies allowing for adjustment of the action during=20
implementation. If the adjustments to an action are clearly articulated=20
and pre-specified in the description of the alternative and fully=20
analyzed, then the action may be adjusted during implementation without=20
the need for further analysis. Adaptive management includes a=20
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=20
consequences requirements at 40 CFR 1502.16, the EIS must include the=20
impacts considered during any incremental alternative development=20
process and the environmental effects of any adaptive management=20
strategy.
    (g) Circulating and Filing Draft and Final Environmental Impact=20
Statements. (1) The draft and final EISs shall be filed with the=20
Environmental Protection Agency's Office of Federal Activities in=20
Washington, DC (40 CFR 1506.9).
    (2) If preliminary drafts are prepared the responsible official=20
shall make those multiple preliminary draft and preliminary final EISs=20
available to those interested and affected persons and agencies for=20
comment; however, requirements at 40 CFR 1506.10 and 40 CFR 1502.19=20
shall only apply to the last draft and final EIS.
    (3) When the responsible official determines that an extension of=20
the review period on a draft EIS is appropriate, notice shall be given=20
in the same manner used for inviting comments (40 CFR 1503.1) on the=20
draft.
    (h) Distribution of the Record of Decision. The responsible=20
official shall notify interested or affected parties of the=20
availability of the record of decision as soon as practical after=20
signing.


Sec.  220.6  Categorical Exclusions.

    (a) General. A proposed action may be categorically excluded from=20
further analysis and documentation in an EIS or EA only if there are no=20
extraordinary circumstances related to the proposed action and if:
    (1) The proposed action is within one of the categories established=20
by the Secretary at 7 CFR part 1b.3; or
    (2) The proposed action is within a category listed in section=20
220.6(d)(e).
    (b) Resource conditions. (1) Resource conditions that should be=20
considered in determining whether extraordinary circumstances related=20
to a proposed action warrant further analysis and documentation in an=20
EA or an EIS are:
    (i) Federally listed threatened or endangered species or designated=20
critical habitat, species proposed for Federal listing or proposed=20
critical habitat, or Forest Service sensitive species.
    (ii) Flood plains, wetlands, or municipal watersheds.
    (iii) Congressionally designated areas, such as wilderness,=20
wilderness study areas, or national recreation areas.
    (iv) Inventoried roadless areas.
    (v) Research natural areas.
    (vi) American Indians and Alaska Native religious or cultural=20
sites.
    (vii) Archaeological sites, or historic properties or areas.
    (2) The mere presence of one or more of these resource conditions=20
does not preclude use of a categorical exclusion (CE). It is the=20
existence of a cause-effect relationship between a proposed action and=20
the potential effect on these resource conditions and if such a=20
relationship exists, the degree of the potential effect of a proposed=20
action on these resource conditions that determines whether=20
extraordinary circumstances exist.
    (c) Scoping. If the responsible official determines, based on=20
scoping, that it is uncertain whether the proposed action may have a=20
significant effect on the environment, prepare an EA. If the=20
responsible official determines, based on scoping, that the proposed=20
action may have a significant environmental effect, prepare an EIS.
    (d) Categories of actions for which a project or case file and=20
decision memo are not required. A supporting record and a decision memo=20
are not required, but at the discretion of the responsible official,=20
may be prepared for the following categories:
    (1) Orders issued pursuant to 36 CFR part 261--Prohibitions to=20
provide short-term resource protection or to protect public health and=20
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=20
administrative procedures, program processes, or instructions. Examples=20
include but are not limited to:
    (i) Adjusting special use or recreation fees using an existing=20
formula.
    (ii) Proposing a technical or scientific method or procedure for=20
screening effects of emissions on air quality related values in Class I=20
wildernesses.
    (iii) Proposing a policy to defer payments on certain permits or=20
contracts to reduce the risk of default.
    (iv) Proposing changes in contract terms and conditions or terms=20
and conditions of special use authorizations.
    (v) Establishing a Service-wide process for responding to offers to=20
exchange land and for agreeing on land values.
    (vi) Establishing procedures for amending or revising forest land=20
and resource management plans.
    (3) Repair and maintenance of administrative sites. Examples=20
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=20
control.
    (4) Repair and maintenance of roads, trails, and landline=20
boundaries. Examples include but are not limited to:
    (i) Authorizing a user to grade, resurface, and clean the culverts=20
of an established National Forest System road.
    (ii) Grading a road and clearing the roadside of brush without the=20
use of herbicides.
    (iii) Resurfacing a road to its original condition.
    (iv) Pruning vegetation and cleaning culverts along a trail and=20
grooming the surface of the trail.
    (v) Surveying, painting, and posting landline boundaries.
    (5) Repair and maintenance of recreation sites and facilities.=20
Examples include but are not limited to:
    (i) Applying registered herbicides to control poison ivy on=20
infested sites in a campground.
    (ii) Applying registered insecticides by compressed air sprayer to=20
control insects at a recreation site complex.
    (iii) Repaving a parking lot.
    (iv) Applying registered pesticides for rodent or vegetation=20
control.
    (6) Acquisition of land or interest in land. Examples include but=20
are not limited to:
    (i) Accepting the donation of lands or interests in land to the=20
National Forest System.
    (ii) Purchasing fee, conservation easement, reserved interest deed,=20
or other interests in lands.
    (7) Sale or exchange of land or interest in land and resources=20
where resulting land uses remain essentially the same. Examples include=20
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=20
State agency, local government, or other non-Federal party (individual=20
or organization) with similar resource management objectives and=20
practices.
    (iii) Authorizing the Bureau of Land Management to issue leases on=20
producing wells when mineral rights revert to the United States from=20
private ownership and there is no change in activity.
    (iv) Exchange of administrative sites involving other than National=20
Forest System lands.
    (8) Approval, modification, or continuation of minor, short-term (1=20
year or less) special uses of National Forest System lands. Examples=20
include but are not limited to:
    (i) Approving, on an annual basis, the intermittent use and=20
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=20
under the National Forest Ski Area Permit Act of 1986 (16 U.S.C. 497b)=20
for an existing ski area when such issuance is a purely ministerial=20
action to account for administrative changes, such as a change in=20
ownership of ski area improvements, expiration of the current permit,=20
or a change in the statutory authority applicable to the current=20
permit. Examples of actions in this category include, but are not=20
limited to:
    (i) Issuing a permit to a new owner of ski area improvements within=20
an existing ski area with no changes to the master development plan,=20
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=20
the holder of the previous permit where the holder is not requesting=20
any changes to the master development plan, including changes to the=20
facilities or activities.
    (iii) Issuing a new permit under the National Forest Ski Area=20
Permit Act of 1986 to the holder of a permit issued under the Term=20
Permit and Organic Acts, where there are no changes in the type or=20
scope of activities authorized and no other changes in the master=20
development plan.
    (10) Amendment to or replacement of an existing special use=20
authorization that involves only administrative changes and does not=20
involve changes in the authorized facilities or increase in the scope=20
or intensity of authorized activities, or extensions to the term of=20
authorization, when the applicant or holder is in full compliance with=20
the terms and conditions of the special use authorization. Examples=20
include but are not limited to:
    (i) Amending a special use authorization to reflect administrative=20
changes such as adjustment to the land use fees, inclusion of non-
discretionary environmental standards or updating a special use=20
authorization to bring it into conformance with current laws or=20
regulations (for example, new monitoring required by water quality=20
standards).
    (ii) Issuance of a new special use authorization to reflect=20
administrative changes such as, a change of ownership or control of=20
previously authorized facilities or activities, or conversion of the=20
existing special use authorization to a new type of special use=20
authorization (for example, converting a permit to a lease or=20
easement).
    (e) Categories of actions for which a project or case file and=20
decision memo are required. A supporting record is required and the=20
decision to proceed must be documented in a decision memo for the=20
categories of action in paragraphs (e)(1) through (e)16 of this=20
section. As a minimum, the project or case file should include any=20
records prepared, such as: the names of interested and affected people,=20
groups, and agencies contacted; the determination that no extraordinary=20
circumstances exist; a copy of the decision memo; and a list of the=20
people notified of the decision.
    (1) Construction and reconstruction of trails. Examples include but=20
are not limited to:
    (i) Constructing or reconstructing a trail to a scenic overlook.
    (ii) Reconstructing an existing trail to allow use by handicapped=20
individuals.
    (2) Additional construction or reconstruction of existing telephone=20
or utility lines in a designated corridor. Examples include but are not=20
limited to:
    (i) Replacing an underground cable trunk and adding additional=20
phone lines.
    (ii) Reconstructing a power line by replacing poles and wires.
    (3) Approval, modification, or continuation of minor special uses=20
of National Forest System lands that require less than five contiguous=20
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=20
filming of staged or natural events or studies of natural or cultural=20
history.
    (iv) Approving the use of land for a 40-foot utility corridor that=20
crosses one mile of a National Forest.
    (v) Approving the installation of a driveway, mailbox, or other=20
facilities incidental to use of a residence.
    (vi) Approving an additional telecommunication use at a site=20
already used for such purposes.
    (vii) Approving the removal of mineral materials from an existing=20
community pit or common-use area.
    (viii) Approving the continued use of land where such use has not=20
changed since authorized and no changes in the physical environment or=20
facilities are proposed.
    (4) Reserved.
    (5) Regeneration of an area to native tree species, including site=20
preparation that does not involve the use of herbicides or result in=20
vegetation type conversion. Examples include but are not limited to:
    (i) Planting seedlings of superior trees in a progeny test site to=20
evaluate genetic worth.
    (ii) Planting trees or mechanical seed dispersal of native tree=20
species following a fire, flood, or landslide.
    (6) Timber stand and/or wildlife habitat improvement activities=20
that do not include the use of herbicides or do not require more than=20
one mile of low standard road construction. Examples include but are=20
not limited to:
    (i) Girdling trees to create snags.
    (ii) Thinning or brush control to improve growth or to reduce fire=20
hazard including the opening of an existing road to a dense timber=20
stand.
    (iii) Prescribed burning to control understory hardwoods in stands=20
of southern pine.
    (iv) Prescribed burning to reduce natural fuel build-up and improve=20
plant vigor.
    (7) Modification or maintenance of stream or lake aquatic habitat=20
improvement structures using native materials or normal practices.=20
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=20
dam.
    (8) Short-term (1 year or less) mineral, energy, or geophysical=20
investigations and their incidental support activities that may require=20
cross-country travel by vehicles and equipment, construction of less=20
than one mile of low standard road, or use and minor repair of existing=20
roads. Examples include but are not limited to:
    (i) Authorizing geophysical investigations which use existing roads=20
that may require incidental repair to reach sites for drilling core=20
holes, temperature gradient holes, or seismic shot holes.
    (ii) Gathering geophysical data using shot hole, vibroseis, or=20
surface charge methods.
    (iii) Trenching to obtain evidence of mineralization.
    (iv) Clearing vegetation for sight paths or from areas used for=20
investigation or support facilities.
    (v) Redesigning or rearranging surface facilities within an=20
approved site.
    (vi) Approving interim and final site restoration measures.
    (vii) Approving a plan for exploration which authorizes repair of=20
an existing road and the construction of one-third mile of temporary=20
road; clearing vegetation from an acre of land for trenches, drill=20
pads, or support facilities.
    (9) Implementation or modification of minor management practices to=20
improve

[[Page 46008]]

allotment condition or animal distribution when an allotment management=20
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=20
maintain forage condition.
    (10) Hazardous fuels reduction activities using prescribed fire,=20
not to exceed 4,500 acres; and mechanical methods for crushing, piling,=20
thinning, pruning, cutting, chipping, mulching, and mowing, not to=20
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,=20
outside the wildland-urban interface.
    (ii) Shall be identified through a collaborative framework as=20
described in ``A Collaborative Approach for Reducing Wildland Fire=20
Risks to Communities and Environment 10-Year Comprehensive Strategy=20
Implementation Plan'';
    (iii) Shall be conducted consistent with Agency and Departmental=20
procedures and applicable land and resource management plans;
    (iv) Shall not be conducted in wilderness areas or impair the=20
suitability of wilderness study areas for preservation as wilderness;=20
and
    (v) Shall not include the use of herbicides or pesticides or the=20
construction of new permanent roads or other new permanent=20
infrastructure; and may include the sale of vegetative material if the=20
primary purpose of the activity is hazardous fuels reduction.
    (11) Post-fire rehabilitation activities, not to exceed 4,200 acres=20
(such as tree planting, fence replacement, habitat restoration,=20
heritage site restoration, repair of roads and trails, and repair of=20
damage to minor facilities such as campgrounds), to repair or improve=20
lands unlikely to recover to a management approved condition from=20
wildland fire damage, or to repair or replace minor facilities damaged=20
by fire. Such activities:
    (i) Shall be conducted consistent with Agency and Departmental=20
procedures and applicable land and resource management plans;
    (ii) Shall not include the use of herbicides or pesticides or the=20
construction of new permanent roads or other new permanent=20
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=20
more than \1/2\ mile of temporary road construction. Do not use this=20
category for even-aged regeneration harvest or vegetation type=20
conversion. The proposed action may include incidental removal of trees=20
for landings, skid trails, and road clearing. Examples include but are=20
not limited to:
    (i) Removal of individual trees for sawlogs, specialty products, or=20
fuelwood.
    (ii) Commercial thinning of overstocked stands to achieve the=20
desired stocking level to increase health and vigor.
    (13) Salvage of dead and/or dying trees not to exceed 250 acres,=20
requiring no more than \1/2\ mile of temporary road construction. The=20
proposed action may include incidental removal of live or dead trees=20
for landings, skid trails, and road clearing. Examples include but are=20
not limited to:
    (i) Harvest of a portion of a stand damaged by a wind or ice event=20
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=20
control insects or disease not to exceed 250 acres, requiring no more=20
than \1/2\ mile of temporary road construction, including removal of=20
infested/infected trees and adjacent live uninfested/uninfected trees=20
as determined necessary to control the spread of insects or disease.=20
The proposed action may include incidental removal of live or dead=20
trees for landings, skid trails, and road clearing. Examples include=20
but are not limited to:
    (i) Felling and harvest of trees infested with southern pine=20
beetles and immediately adjacent uninfested trees to control expanding=20
spot infestations.
    (ii) Removal and/or destruction of infested trees affected by a new=20
exotic insect or disease, such as emerald ash borer, Asian long horned=20
beetle, and sudden oak death pathogen.
    (15) Issuance of a new special use authorization for a new term to=20
replace an existing or expired special use authorization when the only=20
changes are administrative, there are not changes to the authorized=20
facilities or increases in the scope or intensity of authorized=20
activities, and the applicant or holder is in full compliance with the=20
terms and conditions of the special use authorization.
    (16) Land management plans, plan amendments, and plan revisions=20
developed in accordance with 36 CFR 219.1 through 219.16 that provide=20
broad guidance and information for project and activity decisionmaking=20
in a National Forest System unit. Proposals for actions that approve=20
projects and activities, or that command anyone to refrain from=20
undertaking projects and activities, or that grant, withhold or modify=20
contracts, permits or other formal legal instruments, are outside the=20
scope of this category and shall be considered separately under Forest=20
Service NEPA procedures.
    (17) Approval of a Surface Use Plan of Operations for oil and=20
natural gas exploration and initial development activities, associated=20
with or adjacent to a new oil and/or gas field or area, so long as the=20
approval will not authorize activities in excess of any of the=20
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=20
utilities disturbance.
    (iv) Four drill sites.
    (f) Decision Memos. The responsible official shall notify=20
interested or affected parties of the availability of the decision memo=20
as soon as practical after signing. While sections may be combined or=20
rearranged in the interest of clarity and brevity, decision memos must=20
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=20
unit, county, and State.
    (2) Decision to be implemented and the reasons for categorically=20
excluding the proposed action. Including:
    (i) The category of the proposed action.
    (ii) The rationale for using the category and, if more than one=20
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=20
persons contacted.
    (4) Findings required by other laws such as, but not limited to=20
findings of consistency with the forest land and resource management=20
plan as required by the National Forest Management Act; or a public=20
interest determination (36 CFR 254.3(c)).
    (5) The date when the responsible official intends to implement the=20
decision and any conditions related to implementation.
    (6) Whether the decision is subject to review or appeal, the=20
applicable regulations, and when and where to file a request for review=20
or appeal.
    (7) Name, address, and phone number of a contact person who can=20
supply further information about the decision.
    (8) The responsible official's signature and date when the decision=20
is made.

[[Page 46009]]

Sec.  220.7  Environmental Assessment.

    (a) Environment Assessment. An environmental assessment (EA) shall=20
be prepared for proposals as described in 220.4(a) that are not=20
categorically excluded from documentation (Sec.  220.6) and for which=20
the need of an EIS has not been determined (Sec.  220.5). An EA may be=20
prepared in any format useful to facilitate planning, decisionmaking,=20
and public disclosure as long as the requirements of this paragraph are=20
met. The EA may incorporate by reference information that is reasonably=20
available to the public.
    (b) An EA must include the following:
    (1) Need for the proposal. The EA must briefly describe the need=20
for the project.
    (2) Proposed action and alternative(s). The EA shall briefly=20
describe the proposed action and alternative(s) that meet the need for=20
action. No specific number of alternatives is required or prescribed.
    (i) When there are no unresolved conflicts concerning alternative=20
uses of available resources (NEPA, section 102(2)(E)), the EA need only=20
analyze the proposed action and proceed without consideration of=20
additional alternatives.
    (ii) The EA may document consideration of a no-action alternative=20
through the effects analysis by contrasting the impacts of the proposed=20
action and any alternative(s) with the current condition and expected=20
future condition if the proposed action were not implemented.
    (iii) The description of the proposal and alternative(s) may=20
include a brief description of modifications and incremental design=20
features developed through the analysis process to develop the range of=20
alternatives considered.
    (iv) A proposed action or alternative(s) may include adaptive=20
management strategies allowing for adjustment of the action during=20
implementation. If the adjustments to an action are clearly articulated=20
and pre-specified in the description of the alternative and fully=20
analyzed, then the action may be adjusted during implementation without=20
the need for further analysis. Adaptive management includes a=20
monitoring component, approved adaptive actions that may be taken, and=20
environmental effects analysis for the adaptive actions approved.
    (3) Environmental Impacts of the Proposed Action and=20
Alternative(s). The EA:
    (i) Shall briefly provide sufficient evidence and analysis,=20
including the environmental impacts of the proposed action and=20
alternative(s), to determine whether to prepare either an EIS or a=20
finding of no significant impact (40 CFR 1508.9).
    (ii) Shall disclose the environmental effects of any adaptive=20
management strategy.
    (iii) Shall describe impacts in terms of context and intensity as=20
described in the definition of ``significantly'' at 40 CFR 1508.27.
    (iv) May discuss the impact(s) (direct, indirect, and cumulative)=20
of alternatives together in a comparative description or describe the=20
impacts of each alternative separately.
    (v) May incorporate by reference data, inventories, other=20
information and analyses.
    (4) Agencies and Persons Consulted.
    (c) Decision Notice. If an EA and finding of no significant impact=20
(40 CFR 1508.13) have been prepared, the responsible official must=20
document a decision to proceed with an action in a decision notice=20
unless law or regulation requires another form of decision=20
documentation. Decision notices must document the conclusions drawn and=20
the decision(s) made based on the supporting record, including the EA=20
and finding of no significant impact. While sections may be combined or=20
rearranged in the interest of clarity and brevity, decision notices=20
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=20
the decision at the time of decision. The responsible official must:
    (i) Cite the supporting record or analysis document that contains=20
the information used to support the findings;
    (ii) Incorporate by reference the finding of no significant impact=20
if not included with the decision notice; and
    (iii) Describe how the decision is consistent with applicable laws=20
and regulations.
    (5) Implementation date. The responsible official must identify the=20
decision's expected implementation date.
    (6) Administrative review or appeal opportunities. The responsible=20
official must state whether the decision is subject to administrative=20
review or appeal, cite the applicable regulations, and indicate when=20
and where to file a request for review or appeal.
    (7) Contact person. The responsible official must identify the=20
name, address, and phone number of a contact person who can supply=20
additional information.
    (8) Signature and Date. The responsible official must sign and date=20
the decision notice.
    (d) Notification. The responsible official shall notify interested=20
or affected parties of the availability of the EA, finding of no=20
significant impact and decision notice, as soon as practicable after=20
each document is signed.

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

BILLING CODE 3410-11-P