[Federal Register Volume 68, Number 5 (Wednesday, January 8, 2003)]
[Notices]
[Pages 1026-1030]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-311]


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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 [email protected]. 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://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]
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