[Federal Register Volume 68, Number 108 (Thursday, June 5, 2003)]
[Notices]
[Pages 33814-33824]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-14104]



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Part V





Department of Agriculture





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Forest Service





Department of the Interior





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National Environmental Policy Act Determination Needed for Fire 
Management Activities; Categorical Exclusions; Notice

  Federal Register / Vol. 68, No. 108 / Thursday, June 5, 2003 / 
Notices  

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DEPARTMENT OF AGRICULTURE

Forest Service

DEPARTMENT OF THE INTERIOR

RIN 0596-AB99


National Environmental Policy Act Documentation Needed for Fire 
Management Activities; Categorical Exclusions

AGENCY: Forest Service, USDA, and Department of the Interior.

ACTION: Notice of final National Environmental Policy Act implementing 
procedures.

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SUMMARY: The Department of Agriculture, Forest Service and the 
Department of the Interior give notice of revised procedures for 
implementing the National Environmental Policy Act (NEPA) and Council 
on Environmental Quality (CEQ) regulations. These final implementing 
procedures are being issued in Forest Service Handbook 1909.15, Chapter 
30, Section 31.2, and Department of the Interior Manual 516 DM, Chapter 
2, Appendix 1, which describe categorical exclusions, i.e., categories 
of actions, which do not individually or cumulatively have a 
significant effect on the human environment and therefore normally do 
not require further analysis in either an environmental assessment or 
an environmental impact statement. The revision adds two such 
categories of actions to the agencies' NEPA procedures: (1) Hazardous 
fuels reduction activities; and (2) rehabilitation activities for lands 
and infrastructure impacted by fires or fire suppression. The 
Departments reviewed the effects of over 2,500 hazardous fuel reduction 
and rehabilitation projects and concluded that these are categories of 
actions which do not individually or cumulatively have a significant 
effect on the human environment. The agencies have also conducted a 
review of peer-reviewed scientific literature identifying the effects 
of hazardous fuels reduction activities, which is available at http://www.fs.fed.us/emc/hfi. This combination of reviews give the agencies 
confidence that the categorical exclusions are appropriately defined. 
These two categorical exclusions will facilitate scientifically sound, 
efficient, and timely planning and decisionmaking for the treatment of 
hazardous fuels and rehabilitation of areas so as to reduce risks to 
communities and the environment caused by severe fires.
    The hazardous fuels reduction category will apply only to 
activities identified through a collaborative framework as described in 
``A Collaborative Approach for Reducing Wildland Fire Risks to 
Communities and the Environment 10-Year Comprehensive Strategy 
Implementation Plan'' (hereafter called 10-Year Comprehensive Strategy 
Implementation Plan). An example of the framework's structure is 
available at http://www.fireplan.gov/reports/mou/fuelstreatment.pdf. 
Moreover, these hazardous fuels reduction activities: (1) Will not be 
conducted in wilderness areas or where they would impair the 
suitability of wilderness study areas for preservation for wilderness; 
(2) will not include the use of herbicides or pesticides; (3) will not 
involve the construction of new permanent roads or other 
infrastructure; (4) will not include sales of vegetative material that 
do not have hazardous fuels reduction as their primary purpose; (5) 
will not exceed 1,000 acres for mechanical hazardous fuels reduction 
activities and will not exceed 4,500 acres for hazardous fuels 
reduction activities using fire; (6) will only be conducted in 
wildland-urban interface or in Condition Classes 2 or 3 in Fire Regime 
Groups I, II, or III, outside the wildland-urban interface.
    Activities carried out under the rehabilitation category will take 
place only after a wildfire. These activities cannot use herbicides or 
pesticides, nor include the construction of new permanent roads or 
other infrastructure, and they must be completed within three years 
following a wildland fire. Activities carried out under the 
rehabilitation categorical exclusion will not exceed 4,200 acres.
    Activities conducted under these categorical exclusions must be 
consistent with agency and Departmental procedures and with applicable 
land and resource management plans, and must comply with all applicable 
Federal, State, and Tribal laws for protection of the environment. 
These categorical exclusions will not apply where there are 
extraordinary circumstances, such as adverse effects on the following: 
threatened and endangered species or their designated critical habitat; 
wilderness areas; inventoried roadless areas; wetlands; impaired 
waters; and archaeological, cultural, or historic sites.
    In response to comments on the proposed categorical exclusions, 
several revisions were made to the original proposal: (1) Grazing 
activities for the maintenance of fuel breaks were removed from the 
hazardous fuels reduction category; (2) the hazardous fuels reduction 
category was clarified to explicitly state that a proposed action could 
only include the sale of vegetative material where the primary purpose 
of hazardous fuels reduction; (3) one of the requirements for hazardous 
fuels reduction activities was revised to state that such activities 
must be identified through a collaborative framework as described in 
the 10-Year Comprehensive Strategy Implementation Plan, rather than be 
consistent with the framework; (4) the hazardous fuels reduction 
category was modified to make the list of activities an exhaustive one 
instead of illustrative; (5)) the hazardous fuels reduction category 
was modified to limit its use to wildland-urban interface or in 
Condition Classes 2 or 3 in Fire Regime Groups I, II, or III, outside 
the wildland-urban interface; (6) hazardous fuels reduction activities 
using fire are limited to 4,500 acres; (7) mechanical hazardous fuels 
reduction activities are limited to 1,000 acres; (8) fire 
rehabilitation activities are limited to 4,200 acres; and (9) the 
definition of rehabilitation was revised to be consistent with the 
National Wildland Fire Coordinating Group interagency definition.

EFFECTIVE DATE: The categorical exclusions are effective June 5, 2003.

ADDRESSES: The new Forest Service categorical exclusions are set out in 
Interim Directive No. 1909.15-2003-1, available electronically via the 
Internet at http://www.fs.fed.us/im/directives. The new Department of 
the Interior categorical exclusions are set out in 516 DM, Chapter 2, 
Appendix 1, available electronically via the Internet at http://elips.doi.gov/table.cfm. Single paper copies are available by 
contacting Dave Sire, Forest Service, USDA, Ecosystem Management 
Coordination Staff (Mail Stop 1104), 1400 Independence Avenue, SW., 
Washington, DC 20250-1104 or Willie Taylor, Department of the Interior, 
Office of Environmental Policy and Compliance (Mail Stop 2342), 1849 C 
Street, NW., Washington, DC 20240. Additional information and analysis 
can be found at http://www.fs.fed.us/emc/hfi.

FOR FURTHER INFORMATION CONTACT: Dave Sire, USDA Forest Service, 
Ecosystem Management Coordination Staff, (202) 205-2935, or Willie 
Taylor, Department of the Interior, Office of Environmental Policy and 
Compliance, (202) 208-3891. 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: On August 22, 2002, President Bush 
established the

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Healthy Forest Initiative, directing the Department of Agriculture and 
the Interior and the Council on Environmental Quality to improve 
regulatory processes to ensure more timely decisions, greater 
efficiency, and better results in reducing the risk of catastrophic 
wildfires by restoring forest health.
    In response to this direction, the Departments of Agriculture and 
the Interior proposed two new categorical exclusions on December 16, 
2002 (67 FR 77038). The first, addressing hazardous fuels reduction 
activities, is intended to better protect lives, communities, and 
ecosystems from the risk of high-intensity wildland fire. The second, 
addressing rehabilitation activities, is intended to better restore 
natural resources and infrastructure after a fire. The supplementary 
information section of the notice published in December contains 
comprehensive background information on the need, development, and 
rationale for these categorical exclusions. The specific language for 
the proposed categories of actions are set out for comment in the 
notice was as follows:
    [sbull] Hazardous fuels reduction activities (prescribed fire, and 
mechanical or biological methods such as crushing, piling, thinning, 
pruning, cutting, chipping, mulching, grazing and mowing) when the 
activity has been identified consistent with the framework described in 
``A Collaborative Approach for Reducing Wildland Fire Risks to 
Communities and the Environment 10-Year Comprehensive Strategy 
Implementation Plan.'' Such activities:
    [sbull] Shall be conducted consistent with agency and Departmental 
procedures and land and resources management plans; and
    [sbull] Shall not be conducted in wilderness areas or impair the 
suitability of wilderness study areas for preservation as wilderness; 
and
    [sbull] Shall not include the use of herbicides or pesticides or 
the construction of new permanent roads or other new permanent 
infrastructure.
    [sbull] Activities (such as reseeding or planting, fence 
construction, culvert repair, installation of erosion control devices, 
and repair of roads and trails) necessary for the rehabilitation of 
habitat, watersheds, historical, archeological, and cultural sites and 
infrastructure impacted by wildfire and/or wildfire suppresion. Such 
activities:
    [sbull] Shall be conducted consistent with agency and Departmental 
procedures and land and resource management plans; and
    [sbull] Shall not include the use of herbicides or pesticides or 
the construction of new permanent roads or other new permanent 
infrastructure.

Comments on the Proposal

    Almost 39,000 responses in the form of letters, postcards, faxes, 
and e-mail messages were received during the comment period. These 
comments came from private citizens, elected officials, and groups and 
individuals representing businesses, private organizations, and Federal 
agencies. Responses consisted of nearly 1,900 individual letters and 
over 37,000 form letters.
    Public comment on the proposal addressed a wide range of topics, 
many of which were directed generally at the President's Healthy Forest 
Initiative and hazardous fuels reduction. Many people supported the 
proposal or favored further expansion, while many other opposed the 
proposal or recommended further restrictions.
    Comment: Some respondents voiced general agreement with the 
proposal. Some indicated that they think current analysis and 
documentation requirements are too burdensome and that the proposal 
would provide for more efficient management. Others believed that the 
proposal had appropriate limitations on the use of the categorical 
exclusions and that the agencies had done sufficient analysis to 
include that the categories of hazardous fuels reduction activities and 
fire rehabilitation activities do not individually or cumulatively have 
significant effects. Still others agreed that the collaboration 
requirements ensure that local affected communities will be involved.
    Response: These comments were in support of the proposal and need 
no specific response. A summary of the remainder of public comments and 
the agencies' responses follows:
    Comment: Some respondents stated that the proposal is not needed 
inasmuch as current laws and policies allow sufficient action to be 
taken to lower the forest fire risk in urban-wildland interface areas. 
They stated that agency policies already provide sufficient authority 
of using categorical exclusions.
    Response: The Forest Service and the land management agencies 
within the Department of the Interior have various categorical 
exclusions for fire management in their NEPA procedures. Consequently, 
there are inconsistencies among agencies. Some agencies have the 
ability to categorically exclude some or all hazardous fuels reduction 
activities and some of or all fire rehabilitative activities while 
others cannot. For example, the U.S. Fish and Wildlife Service has 
utilized similar categories for fire management activities since 1997. 
In contrast, before the issuance of the categories set out in this 
notice, a jointly proposed Forest Service and Bureau of Land Management 
(BLM) hazardous fuels reduction activity using prescribed fire would 
have required BLM to prepare an environmental assessment, while the 
Forest Service may have categorically excluded such an action. These 
final categories provide a tool for more efficient planning of 
hazardous fuels reduction and fire rehabilitation activities. Having 
the same categories available to all of these land management agencies 
will facilitate inter-agency coordination and allow for more efficient 
planning and more timely decisions across agency jurisdictions. It will 
also provide greater consistency of practice. The addition of these 
categories, however, does not represent a substantial change for some 
agencies nor does it replace or prevent the use of existing categories 
with similar purposes. See ``Comparision of USDA Forest Service and 
Department of the Interior Agency Categorical Exclusions'' at http://www.fs.fed.us/emc./hfi.
    Comment: Some respondents stated that the proposal inappropriately 
adopts a nationwide approach over a site-specific approach and that 
certain geographical regions or areas with specific ecological 
characteristics should not be included in the category. They suggested 
that fire does not play a significant role in some areas due to high 
precipitation and humidity. Suggestions included taking the Southern 
Appalachian forests, national monuments, Eastern forests, forests in 
the Pacific Northwest, old growth, and alpine forests out of these 
categories of actions.
    Response: Data on hazardous fuels reduction and fire rehabilitation 
activities was collected from field units within the Forest Service, 
Bureau of Land Management, Bureau of Indian Affairs, Fish and Wildlife 
Service, and National Park Service, across the United States. Based on 
a review of this data, it is the professional judgment of the 
Departments that the categories of actions identified in the hazardous 
fuels reduction and fire rehabilitation categorical exclusions do not 
individually or cumulatively have significant effects on the human 
environment. The data represents a broad spectrum of hazardous fuels 
reduction activities across vegetation types, geographic regions, and 
agency jurisdictions. Indeed, it is this broad representation of 
activities that leads the

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agencies to conclude that the hazardous fuels reduction and fire 
rehabilitation categories should not be restricted to any specific 
geographic area, vegetation type, or jurisdiction. Additional 
information is available at http://www.fs.fed.us/emc/hfi. The 
categorical exclusion are provided as a tool to improve planning 
efficiency.
    The applicability of hazardous fuels reduction activities and the 
level of NEPA documentation appropriate to any given area is a matter 
for informed professional judgment on the part of the local resource 
manager. The hazardous fuels categorical exclusion has been modified to 
limit its use to areas in wildland-urban interface or in Condition 
Classes 2 or 3 in Fire Regime Groups, I, II, or III, outside the 
wildland-urban interface. Further, hazardous fuels reduction actions 
using this category will be identified through a collaborative process 
as described in ``A Collaborative Approach for Reducing Wildland Fire 
risks to communities and the Environment 10-Year Comprehensive Strategy 
Implementation Plan'' (hereafter called the 10-Year comprehensive 
Strategy implementation Plan). Therefore, if hazardous fuels reduction 
activities are not needed or appropriate, they are not likely to be 
identified through this process.
    The rehabilitation category is to be used only for rehabilitation 
of resources and infrastructure after a wildfire, so it is already 
limited to those areas impacted by wildland fire and wildfire 
suppression. Further restricting this category to certain geographic 
areas may exclude areas that, while not typically susceptible to 
wildland fire, may be subject to wildland fire because of conditions 
such as extreme drought, blow down, or insect infestation.
    Moreover, the two categories will not apply where there are 
extraordinary circumstances, such as adverse effects on the following: 
threatened and endangered species or their designated critical habitat; 
wilderness areas; inventoried roadless areas; wetlands; impaired 
waters; and archaeological, cultural, or historic sites.
    Comment: Some respondents stated that the public cannot adequately 
comment until they have reviewed the results of the required Council on 
Environmental Quality (CEQ) consultation for the proposed categorical 
exclusions.
    Response: Pursuant to regulations at 40 CFR 1505.1 and 1507.3, the 
USDA Forest Service and the Department of the Interior consulted with 
CEQ during the development of the categorical exclusions. Prior to the 
publication of these final categorical exclusions, CEQ provided written 
confirmation that amending the Forest Service and Department of the 
Interior NEPA procedures by adding the new categorical exclusions was 
in conformity with NEPA and the CEQ regulations.
    Comment: Some respondents stated that the agencies should have 
provided addresses listing where hard copies of information can be 
obtained. These respondents said that they do not have access to the 
Internet and that they have not been able to obtain information.
    Response: Two contacts and their phone numbers were provided in the 
Federal Register notice (67 FR 77038) as sources for additional 
information. Paper copies of the information were available on request 
from the two contacts.
    Comment: Some respondents questioned why the public should have to 
cite specific laws, regulations, or policies when making comments.
    Response: There was no request for the public to cite specific 
laws, regulations, or policies when making comments.
    Comment: Some respondents stated that, according to the Federal 
Register notice, instructions for applying the proposed fire management 
categorical exclusions will not be issued until after the procedures 
are finally established; thus neither the agencies nor the public can 
comment on how, where, and how often these categorical exclusions will 
be utilized.
    Response: The only instructions not yet produced are those 
providing Department of the Interior agencies guidance for the format 
and content of memos that will document the agency's use of either of 
these two categorical exclusions. Historically, requirements for 
documenting decisions concerning categorically excluded activities have 
varied across agencies within the Department of the Interior. The new 
Department of the Interior instructions will be consistent with 
existing Forest Service requirements and provide for standardized 
documentation for using the hazardous fuels reduction and fire 
rehabilitation categorical exclusions among agencies. The Forest 
Service requirements are available at http://www.fs.fed.us/im/directives/fsh/1990.15/1909.15,30.txt. The Department of Interior 
instruction can be found at http://www.doi.gov/oepc/esms. html.
    Comment: Some respondents said they believe that the proposal will 
restrict public involvement and that timber harvest for purposes other 
than hazardous fuels reduction will be categorically excluded.
    Response: The hazardous fuels reduction categorical exclusion 
explicitly states that it may only be used where the primary purpose of 
the project is hazardous fuels reduction. Moreover, it is restricted to 
activities identified through a collaborative framework as described in 
the 10-Year Comprehensive Strategy Implementation Plan. As stated in 
the 10-Year Comprehensive Strategy Implementation Plan, ``Local level 
collaboration should involve participants with direct responsibility 
for management decisions affecting public and/or private land and 
resources, fire protection responsibilities, or good working knowledge 
and interest in local resources. Participants should include Tribal 
representatives, local representatives, local representatives from 
Federal and State agencies, local governments, landowners and other 
stakeholders, and community-based groups with a demonstrated commitment 
to achieving the four goals described in the Comprehensive Strategy 10-
Year Implementation Plan (improve fire prevention and suppression, 
reduce hazardous fuels, restore fire-adapted ecosystems, and promote 
community assistance). Existing resource advisory committees, watershed 
councils, or other collaborative entities may serve to achieve 
coordination at this level. Local involvement, expected to be broadly 
representative, is a primary source of planning, project 
prioritization, and resource allocation and coordination at the local 
level.''
    This requirement supports public involvement and collaboration, and 
helps ensure a focus on reducing wildland fire risks. Through such 
collaboration, actions believed necessary to abate the risk of high-
intensity wildfire will be identified. This collaboration will, where 
appropriate, seek to address conflicts concerning alternative uses of 
resources and be used by the federal agencies to consider, as 
appropriate, reasonable alternatives to recommend courses of action. 42 
U.S.C. 4332(2)(E). The hazardous fuels reduction category will utilize 
a collaborative framework as described in the 10-Year Comprehensive 
Strategy Implementation Plan even after the ten years of the 10-Year 
Comprehensive Strategy Implementation Plan have passed. In addition, 
the use of the hazardous fuels reduction category is limited to the 
reduction of fuels in the wildland-urban interface or in Condition 
Classes 2 or 3

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in Fire Regime Groups I, II, or III, outside the wildland-urban 
interface.
    Comment: Some respondents asked the agencies to clarify the public 
involvement process for the rehabilitation categorical exclusion.
    Response: Responsible officials will consider options for involving 
potentially interested and affected agencies, organizations, and 
persons in the analysis process, commensurate with public interest in a 
proposed action, regardless of how the analysis is documented.
    Comment: Various respondents questioned the methodology used to 
gather and interpret activity information used in the agencies' 
conclusion that the proposed category of hazardous fuels reduction 
actions do not individually or cumulatively have a significant 
environmental effect on the human environment. Some do not believe 
there is sufficient evidence for this conclusion. Others suggest 
various biases are reflected in the activities selected. Some 
respondents suggested that the time period in which the data were 
collected from field units was too short to gather accurate data.
    Response: To identify activities for review, the Forest Service 
relied on a national database implemented in October 2000. The database 
includes fuel hazard reduction and rehabilitation and stabilization 
projects accomplished in fiscal years 2001 and 2002. The Forest Service 
reviewed 100 percent of the completed projects in the database. The 
Department of the Interior, having comprehensive fuel hazard reduction 
and rehabilitation and stabilization project records dating back many 
years, chose a 100 percent sample of projects accomplished in fiscal 
year 2002 and a 10 percent random sample of projects accomplished in 
fiscal years 1998 through 2001. As the request of both the Forest 
Service and Department of the Interior, field units added additional 
hazardous fuels reduction and rehabilitation projects that had not been 
entered in their respective national databases. The information request 
was distributed to field units to verify and supplement the project 
information because that is the organizational level where project 
information would be readily available. Field units responded to 
questions about projects for which they had already reported 
accomplishments through their agency reporting systems. Field units 
responded with over 3,000 hazardous fuels reduction and fire 
rehabilitation projects. The information supplied included 30 different 
data items for each activity, including information on activity 
location and size, vegetation cover type, fuels treatment type, 
predicted environmental effects, actual environmental effects after 
activity completion, and mitigation measures. Over 2,400 of the 
projects reviewed had some form of validation of the environmental 
effects predicted, in the form of formal monitoring, forest plan 
monitoring, or personal observation. Some of these included multiple 
activities. Environmental effects included ecological, aesthetic, 
historic, cultural, economic, social, or health effects as defined in 
40 CFR 1508.8. The agencies identified some inconsistencies and missing 
information in the data provided by the field units and followed up 
with specific units for clarification.
    The agencies relied on the professional judgment of the responsible 
officials concerning the significance of environmental effects. The 
agencies believe that resource specialists and stakeholders involved in 
the design and analysis of each specific on-the-ground project were 
best qualified to identify resulting environmental effects or whether 
extraordinary circumstances were present.
    Comment: Some respondents questioned the fire statistics presented 
in the proposal. Some said that the fire statistics fail to provide 
sufficient information to make any conclusions that justify the 
proposal.
    Response: The fire statistics in the preamble to the proposal where 
drawn from the Administration's ``Healthy Forests: An Initiative for 
Wildfire Prevention and Stronger Communities'' and ``A Collaborative 
Approach for Reducing Wildland Fire Risks to Communities and the 
Environment 10-Year Comprehensive Strategy.'' Statistics for past fire 
seasons are also available from the National Interagency Fire Center at 
http://www.nifc.gov/stats. The statistics were provided to explain why 
the agencies believed the proposal was necessary and timely. These 
statistics are not a basis for evaluating the significance of the 
environmental effects of hazardous fuels reduction or rehabilitation 
activities.
    The proposal is focused on how the attendant environmental analyses 
will be documented. The CEQ regulations implementing NEPA direct 
agencies to reduce excessive paperwork by using categorical exclusions 
to define categories of actions which do not individually or 
cumulatively have a significant effect on the human environment and for 
which, therefore, neither an environmental assessment nor an 
environmental impact statement is required. The agencies believe that 
the projects they reviewed provided ample information to define the two 
categorical exclusions.
    Comment: Some respondents believe that the initiative is contrary 
to the Roadless Area Conservation Rule which prohibits road 
construction in roadless areas unless needed to protect public health 
and safety under an imminent threat of a catastrophic event that would 
cause the loss of life or property. Others say that roadless areas 
should be included in the proposed categorical exclusions.
    Response: Categorically excluded actions must be consistent with 
applicable law, regulations and policy. The Roadless Area Conservation 
Rule (36 CFR 294) prohibits certain activities in inventoried roadless 
areas. Further, Forest Service NEPA procedures continue to require an 
environmental impact statement for proposals that would substantially 
alter the undeveloped character of an inventoried roadless area of 
5,000 acres or more (FSH 1909.15, Section 20.6(3)).
    Comment: Some respondents state that the agencies should strengthen 
the proposed fire management categorical exclusions by adding a 
paragraph that specifies that they also apply in extraordinary 
circumstances in either Presidential Disaster Declaration areas, or 
areas where it is demonstrated that a high risk to human life, safety, 
property, or infrastructure exists.
    Response: The categorical exclusions are based on the agencies' 
conclusion that these are categories of actions, which do not 
individually or cumulatively have a significant effect on the human 
environment. The need for emergency actionis not justification for a 
categorical exclusion. CEQ regulations provide for procedures that 
allow action in emergencies when an environmental impact statement 
would be required (40 CFR 1506.11).
    Comment: Some respondents stated that the agencies should modify 
the initiative to specify that the proposed fire management categorical 
exclusions can be used in storm/wind damaged forest areas.
    Response: The proposed categorical exclusion for hazardous fuels 
reduction may be used in storm/wind damaged areas as long as the 
criteria in the text of the categorical exclusion are met. The agencies 
do not believe that such additional specificity is necessary.
    Comment: Some respondents suggest specific criteria to further 
define and limit the proposed categories of actions, e.g., project 
goals, outcomes, acreage limitations, the number of activities within a 
single watershed, and the types of forests for which methods apply. 
Some respondents state that the

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agencies should limit the size of the proposed fire management 
categorical exclusions to 40 acres or less and within one-half mile of 
communities. Some state that the agencies should limit activity size to 
no more than 250 acres, while others suggest that the agencies should 
restrict removal for a specific activity to 250,000 board feet.
    Response: The categorical exclusions are limited to activities with 
a specific goal and outcome as suggested by some respondents. 
Accordingly, activities could include the sale of vegetative material 
only if hazardous fuels reduction is the primary purpose of the 
activity. The hazardous fuels categorical exclusion is limited to 
activities identified through a collaborative process as described in 
the 10-Year Comprehensive Strategy Implementation Plan. The 
collaborative process will identify areas that are a priority for 
treatment using the hazardous fuels reduction categorical exclusion.
    Project data was collected from five land management agencies 
across the United States. The data represents the spectrum of hazardous 
fuels reduction and fire rehabilitation projects of different sizes 
across vegetation types, geographic regions, agency jurisdictions. Not 
all projects reviewed had post activity validation of the predicted 
environmental effects. The agencies focused on an analysis of the 
acreage figures from over 2,500 hazardous fuels reduction and 
rehabilitation activities where the environmental effects were 
predicted to not be significant and where those predictions were 
validated. Hazardous fuels reduction activities using fire, ranged in 
size from less than one acre to 90,000 acres. Mechanical hazardous 
fuels reduction activities, ranged in size from less than one acre to 
11,690 acres. Fire rehabilitation activities, ranged in size from one 
acre to 39,000 acres.
    In response to requests fromore specificity of limits, the agencies 
have further constrained the hazardous fuels categorical exclusion ot 
activities within wildland-urban interface or in Condition Classes 2 or 
3 in Fire Regime Groups I, II, or III, outside the wildland-urban 
interface.
    The wildland urban interface is defined in the Forest Service and 
Department of the Interior Federal Register notice ``Urban Wildland 
Interface Communities Within the Vincinity of Federal Lands That Are at 
High Risk From Wildfire'' published January 4, 2001 (66 FR 753), as an 
``interface community'' and an ``intermix community''. For purposes of 
defining these communities, a structure is understood to be either a 
residence or a business facility, including Federal, State, and local 
government facilities. Structures do not include small improvements 
such as fences and wildlife watering devices.
    The ``interface community'' exists where structures directly abut 
wildland fuels. The wildland interface community exists where humans 
and their development meet or intermix with wildland fuel. There is a 
clear line of demarcation between residential, business, and public 
structures and wildland fuels. Wildland fuels do not generally continue 
into the developed area. The development density for an interface 
community is usually 3 or more structures per acre, with shared 
municipal services. Fire protection is generally provided by a local 
government fire department with the responsibility to protect the 
structure from both an interior fire and an advancing wildland fire. An 
alternative definition of the interface community emphasizes a 
population density of 250 or more people per square mile.
    The ``intermix community'' exists where structures are scattered 
throughout a wildland area. There is no clear line of demarcation; 
wildland fuels are continuous outside of and within the developed area. 
The development density in the intermix ranges from structures very 
close together to one structure per 40 acres. Fire protection districts 
funded by various taxing authorities normally provide life and property 
fire protection and may also have wildland fire protection 
responsibilities. An alternative definition of intermix community 
emphasizes a population density of between 28-250 people per square 
mile.
    Based on coarse scale national data, Fire Condition Classes measure 
general wildfire risk as follows:
    Condition Class 1. For the most part, fire regimes in this Fire 
Condition Class are within historical ranges. Vegetation composition 
and structure are intact. Thus, the risk of losing key ecosystem 
components from the occurrence of fire remains relatively low.
    Condition Class 2. Fire regimes on these lands have been moderately 
altered from their historical range by either increased or decreased 
fire frequency. A moderate risk of losing key ecosystem components has 
been identified on these lands.
    Fire Regime Groups are defined in the 10-Year Comprehensive 
Strategy Implementation Plan, which is available on a number of Web 
sites including http://www.fs.fed.us/emc/hfi. A fire regime is a 
generalized description of the role fire plays in an ecosystem. It is 
characterized by fire frequency, predictability, seasonality, 
intensity, duration, scale (patch size), as well as regularity or 
variability. Five combinations of fire frequency, expressed as fire 
return interval in fire severity, are defined as Groups I through V. 
Groups I and II include fire return intervals in the 0-35 year range. 
Group I includes ponderosa pine, other long needle pine species, and 
dry site Douglas-fir. Group II includes the drier grassland types, tall 
grass prairie, and some Pacific chaparral ecosystems. Groups III and IV 
include fire return intervals in the 35-100+ year range. Group III 
includes interior dry site shrub communities such as sagebrush and 
chaparral ecosystems. Group IV includes lodgepole pine and jack pine. 
Group V is the long interval (infrequent), stand replacement fire 
regime and includes temperate rain forest, boreal forest, and high 
elevation conifer species.
    In response to requests to consider acreage limitations on the 
categorical exclusions for hazardous fuel reduction and fire 
rehabilitation activities, the agencies reviewed the data to determine 
prudential limits on the scope of these categorical exclusions. 
Although the data did not establish a relationship between acres 
treated and environmental effects, the agencies have elected to limit 
the categorical exclusion for hazardous fuels reduction activities 
using fire to 4,500 acres, hazardous fuels reduction activities using 
mechanical methods up to 1,000 acres, and fire rehabilitation 
activities to 4,200 acres. These acreages are well within the range of 
the data. This responds to public concerns while maintaining the 
effectiveness of the categorical exclusions as a management tool.
    Using timber volume as a limitation, instead of acreage, does not 
reflect the size of an activity inasmuch as a small project in one part 
of the country may result in as much timber volume as a much larger 
project in another part of the country. Moreover, activities in the 
review that were identified as having significant environmental effects 
were not those of a particular activity, location, or size but were 
identified as having extraordinary circumstances, which precluded the 
use of a categorical exclusion.
    These acreage limits for the hazardous fuels reduction and fire 
rehabilitation categories differ from those in a separate Forest 
Service proposal for three categorical exclusions for limited timber 
harvest (68 FR 1026). In conducting the review for its limited timber 
harvest categories, the Forest Service selected projects that would 
have qualified

[[Page 33819]]

under the agency's former Categorical Exclusion 4, which allowed up to 
1 million board feet of salvage and 250,000 board feet of merchantable 
wood products. As previously discussed, volume per acre can vary 
considerably from place to place or by treatment method. However, by 
limiting timber harvests in the Forest Service's review for its limited 
timber harvest categorical exclusions to actions limited by a specified 
volume, the projects in the review were still inherently limited in 
acreage. Conversely, the activities reviewed for the hazardous fuels 
reduction and fire rehabilitation categorical exclusions were not 
constrained by a acreage or board feet limitations. Accordingly, the 
acreage limits proposed for the Forest Service's three limited timber 
harvest categorical exclusions are smaller than the acreage limits in 
these hazardous fuels and fire rehabilitation categorical exclusions. 
Since the Forest Service's limited timber harvest categorical exclusion 
data is constrained, it is not comparable to the hazardous fuels and 
fire rehabilitation categorical exclusions data.
    Comment: Some respondents stated that the initiative contradicts 
the original intent of categorical exclusions, which is to expedite 
minor, routine administrative actions. According to these respondents, 
there will be more stringent requirements for administrative actions 
such as moving and trail maintenance than for vegetation management on 
hundreds of thousands of acres of land, under this initiative.
    Response: Categorically excluded actions include those that are 
minor, routine, and administrative. Forest Service NEPA procedures do 
apply the term ``routine'' in reference to some of the actions that are 
currently categorically excluded. In addition, the categorical 
exclusions are intended to expedite actions that fit within categories 
of actions that do not individually or cumulatively have a significant 
effect on the human environment and for which, therefore, neither an EA 
nor an EIS is required. In this case, the agencies have analyzed a 
substantial body of data. As the agencies' experience with 
environmental analysis for natural resource management activities 
grows, it stands to reason that additional categorical exclusions will 
be defined.
    Comment: Some respondent said the application of extraordinary 
circumstances screens is insufficient and open to abuse. Others stated 
a belief that hazardous fuels reduction and fire rehabilitation actions 
automatically trigger the Department of the Interior's exceptions to 
categorical exclusions, including ``controversy,'' ``uncertainty,'' and 
``precedent for future action'' and, as such, cannot be categorically 
excluded.
    Response: When using these two categorical exclusions, the 
responsible officials will consider, on a project-by-project basis, 
whether or not any of the Department of the Interior's exceptions and 
Forest Service extraordinary circumstances apply. The responsible 
official will prepare a decision memo that will be available for public 
review.
    Comment: Some respondents suggested that the agencies monitor 
categorically excluded hazardous fuels and rehabilitation activities 
actions to ensure that they do not have significant environmental 
effects.
    Response: Monitoring would take place after the categories are 
established and after they are used for a particular action. Monitoring 
is not relied upon as a basis or rationale for establishing these 
categorical exclusions. Although the data established that the covered 
activities do not individually or cumulatively have a significant 
effect on the human environment, the agencies, nevertheless, recognize 
the need for a scientifically sound and consistent approach to 
environmental monitoring for both hazardous fuels reduction and 
rehabilitation actions and agree that a monitoring program should apply 
to a representative sampling of those hazardous fuels reduction and 
rehabilitation projects conducted using these new categorical 
exclusions. Therefore, guidance for the development of monitoring 
protocols, one for fuels treatments and one for rehabilitation actions, 
is being prepared. It will be peer reviewed and is scheduled for 
completion in May. Monitoring protocols will be prepared shortly 
thereafter. The agencies will monitor the effects of categorically 
excluded hazardous fuels reduction and fire rehabilitation activities 
to assess whether the categorical exclusions are being applied within 
their prescribed parameters and to confirm the agencies' assessment of 
their individual and cumulative environmental impacts.
    Comments: Some respondents suggested changing the categorical 
exclusion language to specify that the proposed fire management 
categorical exclusions will be ``guided by'' rather than ``be 
consistent with'' the 10-Year Comprehensive Strategy Implementation 
Plan. They state that failure to implement such changes will result in 
new causes for appeals and litigation due to ``inconsistency.''
    Response: The agencies have modified the proposal to limit it to 
activities identified through a collaborative framework as described in 
the 10-Year Comprehensive Strategy Implementation Plan. The change was 
made to eliminate any confusion concerning consistency.
    Comment: Some respondents stated the initiative's list of routine 
actions (e.g., reseeding and replanting) is misleading inasmuch as the 
effects from the listed actions are not comparable to the effects that 
will be created by road construction, skid trail and landing 
construction, and timber harvest. Some respondents also stated that 
phrases such as ``small combustibles,'' ``overstocked stands,'' and 
``brush thinning'' are inadequate with reference to likely timber 
harvest activities under the initiative.
    Response: Reseeding and replanting are allowed under the fire 
rehabilitation category, which does not include skid trail and landing 
construction, or timber harvest. Fuel reduction activities involving 
the sale of vegetative material are allowed under the hazardous fuels 
category only where the primary purpose of the activity is hazardous 
fuels reduction. Thinning brush and overstocked stands characterize 
common tasks allowed under the hazardous fuels reduction categorical 
exclusion. The phrase ``small combustibles'' was not used in the 
proposed or final text. The examples provided in the proposal were 
intended to illustrate a range of possible activities. The text of the 
hazardous fuels reduction categorical exclusion defines the specific 
actions for which each may be applied.
    The agencies' review of hazardous fuels reduction and fire 
rehabilitation projects encompassed the specific activities included in 
the two categorical exclusions. Hazardous fuels reduction activities 
reviewed involved broadcast burning and burning of piles, and 
mechanical treatments consisting of crushing, piling, thinning, 
pruning, cutting chipping, mulching, and mowing.
    Comment: Some respondents assert that the stated requirements that 
activities must be consistent with land and resource management plans 
is misleading since Forest Service plans will be categorically 
excluded.
    Response: Forest Service NEPA procedures do not presently provide a 
categorical exclusion for amendments to land and resource management 
plans. The Forest Service may, if it implements its proposed planning 
rule, identify a category of plan decisions which do not individually 
or cumulatively have a significant effect on the human environment and 
may, therefore, be

[[Page 33820]]

categorically excluded from NEPA documentation in an environmental 
assessment or an environmental impact statement. The public would have 
an opportunity to review and comment on such an amendment to the Forest 
Service handbook if such a categorical exclusion proposal is made.
    It should be noted that under the proposed Forest Service planning 
regulations, new plans, plan revisions, and amendments continue to 
require a rigorous public involvement process. Categorical exclusions 
apply to the level of documentation required under CEQ's regulations 
implementing NPEA ( 40 CFR 150.4(p) and 1508.4). Any action that is not 
consistent with an applicable land and resource management plan's 
standards, guidelines, goals, and objectives would require a plan 
amendment. The Forest Service will continue to conduct the appropriate 
level of environmental analysis and disclosure commensurate with the 
significance of environmental effects, for both land and resource 
management plans and project-level planning.
    Comment: Some respondents suggested that the agencies should 
clearly define such terms as ``hazardous fuels,'' ``primary purpose'' 
``ecosystem integrity,'' and ``adverse effect'' as they pertain to 
extraordinary circumstances.
    Response: ``Hazardous fuels'' consist of combustible vegetation 
(live or dead) such as grass, leaves, ground litter, plants, shrubs, 
and trees, that contribute to the threat or ignition, and high fire 
intensity and/or high rate of spread. The term ``primary purpose'' is 
not a term of art and has only the dictionary definition. Synonymous 
phrasing is that the ``main reason'' for the activity must be hazardous 
fuels reduction. ``Ecosystem integrity'' is defined in ``A 
Collaborative Approach for Reducing Wildland Fire Risks to Communities 
and the Environment 10-Year Comprehensive Strategy'' as the 
completeness of an ecosystem that at geographic and temporal scales 
maintains its characteristic diversity of biological and physical 
components, composition, structure, and function. The use of the term 
``adverse effect'' was used in conjunction with the agencies' 
descriptions of extraordinary circumstances in their NEPA procedures. 
Specific agency direction pertinent to identifying extraordinary 
circumstances may be found in Forest Service Handbook 1909.15, section 
303.3 (67 FR 54622), and Department of the Interior Manual 516 DM 2, 
Appendix 2.
    Comment: Some respondents commented that the proposal was 
misleading because it stated that the proposed hazardous fuels 
reduction categorical exclusion would not cover timber sales that do 
not have hazardous fuel reduction as their primary purpose, but then 
several pages later stated that products would be sold.
    Responses: The intent of the statement concerning timber sales was 
to point out that only timber sales with hazardous fuel reduction as 
their primary purpose could be categorically excluded under the 
proposal. The categorical exclusion for hazardous fuels reduction 
allows for the sale of vegetative material as one method for removal. 
The sale of vegetative material includes all types of products from 
plant material, including biomass, posts, poles, and sawlogs. The 
hazardous fuels reduction categorical exclusion has been edited to add 
that activities may include the sale of vegetative material if the 
primary purpose of the activity is hazardous fuels reduction.
    Comment: Some respondents suggested that, without NEPA analysis, 
categorically excluded actions would not consider the best available 
science and managers would be unaware of extraordinary circumstances 
that preclude the use of a categorical exclusion.
    Response: The agencies have repeatedly conducted NEPA analyses for 
hazardous fuels reduction and fire rehabilitation projects using the 
best available science. Based upon the projects reviewed for these 
categorical exclusions, the agencies have concluded that these 
categorical exclusions describe categories of actions which do not 
individually or cumulatively have a significant effect on the human 
environment.
    Consistent with existing direction, agencies must conduct 
sufficient review to determine that no extraordinary circumstances 
exist when using categorical exclusions. This determination includes 
appropriate surveys and analyses, using the best available science, 
attendant in appropriate consultation with Tribes and consultation with 
regulatory agencies, such as those required by the Endangered Species 
Act, the National Historic Preservation Act, Clean Water Act, and Clear 
Air Act.
    The agencies will take the additional measure of monitoring to 
determine that these categories are being appropriately used and to 
further validate the agencies' conclusions regarding environmental 
significance.
    Comment: Some respondents stated that NEPA and other environmental 
laws have served the country well for years, and the agencies should 
follow these laws in conducting fuels reduction efforts. Respondents 
suggest that if rule changes are needed, they should be made through 
Congress, not through administrative actions.
    Response: The agencies are not changing laws or regulations. The 
CEQ regulations implementing NEPA provide for three levels of 
environmental documentation: environmental impact statements; 
environmental assessments; and categorical exclusions. The agencies are 
following CEQ's regulations, which direct agencies to define 
categorical exclusions to reduce excessive paperwork. Activities 
conducted under those categories must be consistent with all applicable 
Federal, State, local, and Tribal laws and requirements imposed for 
protection of the environment.
    Comment: Some respondents indicated that there should be no 
restriction on new road construction, while others believe that no 
roads should be constructed, as the absence of roads indicates an 
activity is too far from a community. Other respondents suggested that 
up to one mile of low-standard road should be allowed, while others 
believed that roads should only be constructed in rare cases.
    Response: Hazardous fuels reduction activities and rehabilitation 
activities involving new permanent roads are not included in the 
proposed categorical exclusions. Proposals for activities that involve 
new permanent road construction would be analyzed and documented in an 
environmental assessment or an environmental impact statement.
    Comment: Some respondents suggested that any road construction 
should only be carried out following a thorough environmental analysis. 
Others indicated that culverts should not be replaced or upgraded 
without a watershed analysis.
    Response: The categorical exclusions provide only for construction 
of temporary roads. Where temporary road construction or culverts are 
being proposed, agencies must review the proposed action to ensure that 
no extraordinary circumstances exist.
    Comment: Some respondents suggested that the categorical exclusions 
should specify that temporary roads will be constructed only where the 
project ensures that they will be reclaimed/obliterated upon activity 
completion.
    Response: Whether temporary roads are needed and to what extent, 
along with how they are closed, reclaimed, and/or obliterated are 
project-specific decisions and therefore appropriately decided at the 
project level.
    Comment: Some respondents asked the agencies to clarify the role of 
grazing

[[Page 33821]]

in the proposal. Other respondents suggest that the agencies should not 
allow grazing to be categorically excluded as a fuels reduction 
technique because grazing removes grasses, allowing woody vegetation to 
invade, which contributes to hotter, more intense fires.
    Response: The grazing activity included in the proposed hazardous 
fuels reduction categorical exclusion, as the sole biological method, 
was intended to be limited to livestock grazing to maintain fuelbreaks. 
Subsequent review determined that only four of the projects reviewed 
involved livestock grazing for fuelbreak maintenance. While some 
agencies have effectively used livestock grazing to maintain fuelbreaks 
in certain circumstances without significant environmental effects, the 
agencies believe they have not gathered sufficient data for its 
inclusion in this categorical exclusion. The agencies will continue to 
review the effects of this type of activity. Therefore, the hazardous 
fuels reduction categorical exclusion has been modified to remove 
``biological'' and ``grazing'' from the list of included activities.
    Comment: Some respondents stated that some prescribed burns have 
resulted in unanticipated effects such as burns too cool/hot to meet 
objectives and increases in noxious weeds/non-target grasses.
    Response: The agencies' review of hazardous fuels reduction and 
fire rehabilitation projects found 11 cases where the actual results 
were other than what was predicted. These cases reported that 
prescribed fires burned either cooler or hotter than anticipated. 
Cooler than expected burns resulted in less fuel being consumed by 
fire, and, therefore, not completely achieving the project's fuel 
reduction objective. Hotter than expected burns resulted in increased 
scorch of tree crowns and more tree mortality than predicted. In some 
instances undesirable grass species occupied the site after treatment. 
In each of these cases, however, the unanticipated effects were found 
not to be significant.
    Comment: Some respondents asked that the categorical exclusion for 
rehabilitation be modified to include, but not be limited to, specific 
suggested activities such as fire and safety hazard tree removal, 
natural or mechanical soil rehabilitation, and rehabilitation of 
recreation sites.
    Response: The rehabilitation categorical exclusion does not include 
removal of fire and safety hazard trees. Removal of fire hazards is 
addressed in the hazardous fuels reduction categorical exclusion. 
Safety hazard trees associated with roads, trails, recreation 
facilities, and administrative sites may be removed as part of routine 
maintenance of those facilities. Most agencies already categorically 
exclude these maintenance activities from further analysis and 
documentation in an environmental assessment or environmental impact 
statement. Post-fire soil rehabilitation, either natural or mechanical, 
and recreation site rehabilitation are included in the category of 
actions described in the rehabilitation categorical exclusion. The list 
of examples is not exhaustive.
    Comment: Some respondents indicated a belief that the proposal for 
rehabilitation is unnecessary as existing legal frameworks provide for 
emergency fire rehabilitation.
    Response: In January 2003, the Wildland Fire Leadership Council, a 
cooperative, interagency organization dedicated to achieving consistent 
implementation of the goals, actions, and policies in the National Fire 
Plan and the Federal Wildland Fire Management Policy, identified three 
types of fire recovery activities: Emergency stabilization; 
rehabilitation; and restoration. Emergency stabilization is defined as 
planned actions within one year of a wildland fire to stabilize and 
prevent unacceptable degradation to natural and cultural resources, to 
minimize threats to life or property resulting from the effects of a 
fire, or to repair/replace/construct physical improvements necessary to 
prevent degradation of land or resources. The rehabilitation 
categorical exclusion does not cover emergency stabilization. The 
Wildland Fire Leadership Council defines rehabilitation as ``Post-fire 
efforts (<3 years) to repair or improve lands unlikely to recover to a 
management approved condition from wildland fire damage, or to repair 
or replace minor facilities damaged by fire.'' The Wildland Fire 
Leadership Council defines restoration as the continuation of 
rehabilitation beyond three years. The rehabilitation categorical 
exclusion has been edited to be consistent with the Wildland Fire 
Leadership Council's definition of rehabilitation. The scope of fire 
rehabilitation activities allowed under the proposed categorical 
exclusion has not changed as a result of this new definition. What has 
changed is the time limit of three years for completion of those 
activities and a size limit of 4,200 acres.
    Comment: Some respondents believe that rehabilitation activities 
should require an environmental impact statement. Others believe that 
these activities should not be carried out at all. They say the use of 
heavy equipment generates noise, air and water pollution, soil 
compaction, vegetation and habitat changes, and ecosystem modifications 
greater than those which follow fires. Still others cite research 
studies (e.g., Beschta, et al., 1995) that report that there is 
generally no ecological need to act, and that quick actions may create 
new problems.
    Response: The agencies have repeatedly conducted NEPA analyses for 
fire rehabilitation projects using the best available science. Based 
upon approximately 300 fire rehabilitation projects reviewed, the 
agencies have concluded that the category of activities described do 
not individually or cumulatively have a significant effect on the human 
environment. When using the rehabilitation categorical exclusion, 
agencies must review the proposed action to ascertain whether 
extraordinary circumstances exist.
    While the Beschta report focused on salvage logging, there are also 
statements on rehabilitation practices in the report. This report 
questions, in general, the effectiveness of installation of hard 
structures and their siting on the landscape. This report also 
criticizes introduction of non-native species. Situations such as steep 
slopes, drinking water protection, and threats of invasive species may 
influence the need to act in local situations. Years of research since 
the Beschta report have informed current choices of technologies. The 
utility of fire rehabilitation practices chosen and the need for these 
practices will be decided on a site-specific basis using current 
knowledge and technologies. Thus, the projects selected, based on local 
scientific expertise, will both meet the environmental protection goals 
for the projects and have no potential to individually or cumulatively 
have a significant effect on the human environment.
    Comment: Some respondents requested that herbicide use be allowed 
under the fire rehabilitation categorical exclusion, while others 
oppose herbicide use and even want an explicit prohibition against 
herbicide use on future activities that follow categorically excluded 
actions.
    Response: the agencies will continue to review and analyze new 
information on the effects of herbicides used for hazardous fuel 
reduction. At the present time, the agencies have elected to not 
include actions involving herbicide use.
    Comment: Some respondents are concerned that 30 days was 
insufficient time to review the proposed categorical exclusions along 
with the other proposals. Others criticized the release

[[Page 33822]]

of the proposal during the Christmas holidays.
    Response: The agencies extended the comment period through January 
31, 2003.
    Comment: Some respondents expressed frustration with e-mail errors 
near the comment period deadline.
    Response: The office receiving e-mail comments notes that many e-
mail comments were received during the final days of the comment 
period. The office receiving the e-mail comments analyzed e-mail server 
performance. No problems were identified.
    Comment: Some respondents said they do not believe that the 
agencies should block e-mail originating from a third party e-mail 
generator. These respondents said that such e-mail generators are 
important to groups interested in the environment and that such 
blocking prevents voices from being heard.
    Response: The Forest Service regrets any difficulty experienced in 
submitting comments. The Forest Service is committed to electronic 
government and is a participant in the Regulations.gov project, which 
will allow third-party e-mail generators to submit electronic comments. 
In the meantime, the Forest Service has provided maintainers of public 
comment web pages with a simple procedure that they can use to keep 
their messages from being blocked by the Forest Service's spam filter. 
For more information please contact Sandra Watts, (703) 605-4695.
    Comment: Some respondents stated that agencies should accept and 
consider all comments and not just those deemed to be ``original and 
substantive.''
    Response: The agencies agree and accepted and considered all 
comments. Each comment was considered on its own merits.
    Comment: Some respondents said that the 10-Year Comprehensive 
Strategy Implementation Plan should have been included with the 
proposal.
    Response: The 10-Year Comprehensive Strategy Implementation Plan is 
available on a number of Web sites including http://www.fs.fed.us/emc/hfi. In addition, two contacts were provided in the Federal Register 
notice for additional information. These contacts were available to 
provide more information on this strategy.
    Comment: Some respondents expressed a desire for public hearings to 
record testimony.
    Response: The agencies believe that the public comment opportunity 
provided was the most efficient means of gathering public input for a 
proposal of this nature and that public hearings were not necessary.
    Comment: Some respondents wanted the agencies to specify which 
implementation tasks within the 10-Year Comprehensive Strategy 
Implementation Plan are addressed by the proposed fire management 
categorical exclusions.
    Response: The categorical exclusions contribute to the 
implementation task, ``Assess state and federal regulatory process 
governing projects and activities done in conformance with the 10-Year 
Comprehensive Strategy and Implementation Plan and identify measures to 
improve timely decision-making.'' This task is under ``Goal Two--Reduce 
Hazardous Fuels.''
    Comment: Some respondents suggested that the agencies should 
provide opportunities for public involvement on the initiative 
following the release of the report from the General Accounting Office 
on the relationship between administrative appeals and fuels reduction 
activities.
    Response: Because of controversy over whether appeals and 
litigation have delayed implementation of Forest Service hazardous 
fuels reduction activities, the General Accounting Office was requested 
to provide information to Congress on the number of decisions involving 
hazardous fuels reduction activities, the number of these decisions 
appealed or litigated, and the acreages affected. The agencies did not 
believe that this information would be helpful in defining these 
categorical exclusions, nor aid the public in commenting on the 
agencies' proposal.
    Comment: Many respondents asked that the agencies adhere to various 
laws, executive orders, and agency policies such as: the Endangered 
Species Act, Clean Air Act, Clean Water Act, National Forest Management 
Act, Migratory Bird Treaty Act, National Historic Preservation Act, 
Forest Service Transportation System Management Policy, Northwest 
Forest Plan, the Grizzly Bear Recovery Plan, and executive orders on 
management of floodplains and wetlands, and Tribal consultation.
    Response: The agencies agree. The level of NEPA consideration does 
not affect agency responsibility to follow applicable laws, 
regulations, executive orders, and policies. For example, categorically 
excluded hazardous fuels reduction and fire rehabilitation actions are 
reviewed for their potential to impact waters listed as impaired by 
State water quality agencies and for compliance with smoke management 
plans. When appropriate, the Forest Service and the Department of the 
Interior agencies conduct appropriate consultation with Federal, State, 
and Tribal agencies for hazardous fuels and fire rehabilitation 
actions. For example, agencies must consult with Tribal governments 
when an action may have Tribal implications, even though it may be 
categorically excluded from further analysis and documentation in an 
environmental assessment or environmental impact statement. Agencies 
must also review the potential effects from these types of actions on 
threatened and endangered species and designated critical habitat and 
consult as appropriate with the U.S. Fish and Wildlife Service and the 
National Oceanic and Atmospheric Administration (NOAA), Fisheries. 
Similarly, categorically excluded actions are reviewed for potential 
effects on properties protected by the National Historic Preservation 
Act along with appropriate consultation with State and Tribal Historic 
Preservation Officers. Such consultations help ensure that cumulative 
effects across jurisdictions will not be significant.
    Comment: Some respondents stated that rehabilitation work should 
only be carried out in areas already consumed by fires.
    Response: The agencies agree. The proposed and final categorical 
exclusion for rehabilitation activities state that it is for 
rehabilitation of habitat, watersheds, historical, archaeological, and 
cultural sites and infrastructure damaged by wildfire and/or wildfire 
suppression.
    Comment: Some respondents said that agencies should follow the 10-
Year Comprehensive Strategy Implementation Plan and that additional 
laws or regulations are not needed.
    Response: The categorical exclusions are prepared in conformity 
with the law (NEPA) and CEQ regulations. They contribute to the 
implementation task under the 10-Year Comprehensive Strategy 
Implementation Plan's ``Goal Two--Reduce Hazardous Fuels,'' which says, 
``Assess state and federal regulatory process governing projects and 
activities done in conformance with the 10-Year Comprehensive Strategy 
and Implementation Plan and identify measures to improve timely 
decision-making.'' In addition, the hazardous fuels reduction 
categorical exclusion will apply only to activities identified through 
a collaborative framework as described in the 10-Year Comprehensive 
Strategy Implementation Plan.
    Comment: Some respondents asked that the agencies work 
collaboratively with Federal and State agencies in developing proposed 
activities and

[[Page 33823]]

determining effects on wildlife resources prior to approval of specific 
activities.
    Response: Hazardous fuels reduction activities will be identified 
collaboratively with governments and stakeholders, through a 
collaborative framework as described in 10-Year Comprehensive Strategy 
Implementation Plan.
    Comment: Many respondents offered suggestions about Forest Service 
and Department of the Interior management and funding, where and how to 
focus hazardous fuels reduction efforts, the efficacy of various 
hazardous fuels treatments and post-fire rehabilitation measures, 
technologies for utilization of small-diameter trees, alternative fiber 
sources, fire suppression tactics, land acquisition, multiple-use, the 
President's Healthy Forests Initiative, and the 10-Year Comprehensive 
Strategy Implementation Plan.
    Response: Respondents offered many creative and original 
suggestions that addressed issues beyond the proposal. The agencies 
provided these comments to appropriate personnel for their 
consideration.
    Comment: Some respondents stated that the agencies should comply 
with Executive Order 12866 by assessing the economic costs and benefits 
of the initiative. Respondents say that this assessment should include 
the non-market costs of the initiative to landowners, businesses, 
communities, water quality, recreation, scenery, non-traditional forest 
products, and game.
    Response: In compliance with Executive Order 12866, the agencies 
have determined that these categorical exclusions will not have an 
annual effect of $100 million or more on the economy or adversely 
affect productivity, competition, jobs, the environment, public health 
or safety, or State, Tribal, or local governments. The economic effect 
expected to result from this action is a reduction in the 
administrative burden of preparing unnecessary environmental 
assessments and findings of no significant impact, and benefits to the 
environment and nearby communities as a result of expeditious fuel 
reduction and post-fire rehabilitation activities. These benefits were 
not quantified due to the level of uncertainty associated with the 
amount of time saving and the number of projects that would use these 
categorical exclusions.

Conclusion

    The USDA Forest Service and the Department of the Interior find 
that the categories of action defined in the categorical exclusions 
presented at the end of this notice do not individually or cumulatively 
have a significant effect on the human environment. The agencies' 
findings is first predicated on the reasoned expert judgment of the 
responsible officials who made the original findings and determinations 
in the hazardous fuels and fire rehabilitation projects reviewed; the 
resource specialists who validated the predicted effects of the 
reviewed activities through monitoring or personal observation of the 
actual effects; synthesis of peer-reviewed scientific publications; and 
finally, the agencies' belief that the profile of the past hazardous 
fuels reduction and fire rehabilitation activities represents the 
agencies' past practices and is indicative of the agencies' future 
activities.

Regulatory Certifications

Environmental Impact

    These categorical exclusions add direction to guide field employees 
in the USDA Forest Service and the Department of the Interior regarding 
procedural requirements for National Environmental Policy Act (NEPA) 
documentation for fire management activities. The Council on 
Environmental Quality does not direct agencies to prepare a NEPA 
analysis or document before establishing agency procedures that 
supplement the CEQ regulations for implementing NEPA. Agencies are 
required to adopt NEPA procedures that establish specific criteria for, 
and identification of, three classes of actions: Those that require 
preparation of an environmental impact statement; those that require 
preparation of an environmental assessment; and those that are 
categorically excluded from further NEPA review (40 CFR 1507.3(b)). 
Categorical exclusions are one part of those agency procedures, and 
therefore establishing categorical exclusions does not require 
preparation of a NEPA analysis or document. Agency NEPA procedures are 
internal procedural guidance to assist agencies in the fulfillment of 
agency responsibilities under NEPA, but are not the agency's final 
determination of what level of NEPA analysis is required for a 
particular proposed action. The requirements for establishing agency 
NEPA procedures are set forth at 40 CFR 1505.1 and 1507.3, and the USDA 
Forest Service and the Department of the Interior have provided an 
opportunity for public review and have consulted with the Council on 
Environmental Quality during the development of these categorical 
exclusions. The determination that establishing categorical exclusions 
do not require NEPA analysis and documentation has been upheld in 
Heartwood, Inc. v. U.S. Forest Service, 73 F. Supp. 2d 962, 972-73 
(S.D. Ill.1999), aff'd, 230 F.3d 947, 954-55 (7th Cir. 2000).

Regulatory Impact

    These categorical exclusions have been reviewed under Departmental 
procedures and Executive Order 12866 on Regulatory Planning and Review. 
The Office of Management and Budget (OMB) has determined that this is a 
significant regulatory action as defined by Executive Order 12866. 
Accordingly, this action is subject to OMB review under Executive Order 
12866 and OMB has reviewed these categorical exclusions at both the 
proposed and final stages.
    This action to add two categorical exclusions to the agencies' NEPA 
procedures will not have an annual effect of $100 million or more on 
the economy or adversely affect productivity, competition, jobs, the 
environment, public health or safety, or State, Tribal, or local 
governments. This action may interfere with an action taken or planned 
by another agency or raise new legal or policy issues. Finally, this 
action will not alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
of such programs.
    Moreover, this action has been considered in light of the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and it is hereby 
certified that the categorical exclusions will not have a significant 
economic impact on a substantial number of small entities as defined by 
the act because it will not impose record-keeping requirements on them; 
it will not affect their competitive position in relation to large 
entities; and it will not affect their cash flow, liquidity, or ability 
to remain in the market.

Federalism

    The agencies have considered these categorical exclusions under the 
requirements of Executive Order 13132, Federalism, and have concluded 
that they conform with the federalism principles set out in this 
Executive Order; will not impose any compliance costs on the States; 
and will not have substantial direct effects on the States or the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. Therefore, the agencies have determined that no further 
assessment of federalism implications is necessary.

[[Page 33824]]

Consultation and Coordination With Indian Tribal Governments

    These categorical exclusions do not have tribal implications as 
defined by Executive Order 13175, Consultation and Coordination with 
Indian Tribal Governments, and therefore advance consultation with 
Tribes is not required.

No Takings Implications

    These categorical exclusions have been analyzed in accordance with 
the principles and criteria contained in Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights, and it has been determined that the proposed 
categorical exclusions do not pose the risk of a taking of 
Constitutionally protected private property.

Civil Justice Reform

    In accordance with Executive Order 12988, it has been determined 
that these categorical exclusions do not unduly burden the judicial 
system and that they meet the requirements of sections 3(a) and 3(b)(2) 
of the Order.

Unfunded Mandates

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), which the President signed into law on March 22, 
1995, the agencies have assessed the effects of these categorical 
exclusions on State, local, and Tribal governments and the private 
sector. These categorical exclusions do not compel the expenditure of 
$100 million or more by any State, local, or Tribal government or 
anyone in the private sector. Therefore, a statement under section 202 
of the act is not required.

Energy Effects

    These categorical exclusions have been reviewed under Executive 
Order 13211, Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use. It has been determined that these 
categorical exclusions do not constitute a significant energy action as 
defined in the Executive Order.

Controlling Paperwork Burdens on the Public

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

    Dated: May 29, 2003.

    For the Forest Service, U.S. Department of Agriculture.
Sally D. Collins,
Associate Chief.
    Dated: May 29, 2003.

    For the U.S. Department of the Interior:
P. Lynn Scarlett,
Assistant Secretary--Policy, Management, and Budget.

Categorical Exclusions

    Note: The USDA Forest Service and the Department of the Interior 
have issued the categorical exclusions in their respective NEPA 
procedures. The categorical exclusions appear in Forest Service 
Handbook (FSH) 1909.15, Environmental Policy and Procedures, ID 
1909.15-2003-1, and Department of the Interior Manual 516 DM, 
Chapter 2, Appendix 1, Departmental Categorical Exclusions. 
Reviewers who wish to view the entire chapter 30 of FSH 1909.15 may 
obtain a copy electronically from the USDA Forest Service directives 
page on the World Wide Web at http://www.fs.fed.us/im/directives/. 
Reviewers who wish to view the Department of the Interior Manual 516 
DM may obtain a copy electronically from the Department of the 
Interior page at http://elips.doi.gov/table.cfm.

    Following is the text of the two categorical exclusions:
    [sbull] Hazardous fuels reduction activities using prescribed fire 
not to exceed 4,500 acres, and mechanical methods for crushing, piling, 
thinning, pruning, cutting, chipping, mulching, and mowing, not to 
exceed 1,000 acres. Such activities:
    [sbull] Shall be limited to areas (1) in wildland-urban interface 
and (2) Condition Classes 2 or 3 in Fire Regime Groups I, II, or III, 
outside the wildland-urban interface;
    [sbull] Shall be identified through a collaborative framework as 
described in ``A Collaborative Approach for Reducing Wildland Fire 
Risks to Communities and the Environment 10-Year Comprehensive Strategy 
Implementation Plan;''
    [sbull] Shall be conducted consistent with agency and Departmental 
procedures and applicable land and resource management plans;
    [sbull] Shall not be conducted in wilderness areas or impair the 
suitability of wilderness study areas for preservation as wilderness;
    [sbull] Shall not include the use of herbicides or pesticides or 
the construction of new permanent roads or other new permanent 
infrastructure; and may include the sale of vegetative material if the 
primary purpose of the activity is hazardous fuels reduction.
    [sbull] Post-fire rehabilitation activities not to exceed 4,200 
acres (such as tree planting, fence replacement, habitat restoration, 
heritage site restoration, repair of roads and trails, and repair of 
damage to minor facilities such as campgrounds) to repair or improve 
lands unlikely to recover to a management approved condition from 
wildland fire damage, or to repair or replace minor facilities damaged 
by fire. Such activities:
    [sbull] Shall be conducted consistent with agency and Departmental 
procedures and applicable land and resource management plans;
    [sbull] Shall not include the use of herbicides or pesticides or 
the construction of new permanent roads or other new permanent 
infrastructure; and
    [sbull] Shall be completed within three years following a wildland 
fire.
[FR Doc. 03-14104 Filed 6-2-03; 12:53 pm]
BILLING CODE 3410-11-M; 4310-70-M