[Federal Register Volume 68, Number 145 (Tuesday, July 29, 2003)]
[Notices]
[Pages 44598-44608]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-19190]



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Part III





Department of Agriculture





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Forest Service



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National Environmental Policy Act Documentation Needed for Limited 
Timber Harvest; Notice

  Federal Register / Vol. 68, No. 145 / Tuesday, July 29, 2003 / 
Notices  

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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 final interim directive.

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SUMMARY: The Forest Service gives notice of revised procedures for 
implementing the National Environmental Policy Act (NEPA) and Council 
on Environmental Quality (CEQ) regulations. These revised procedures 
are being issued by Interim Directive (ID) 1909.15-2003-2 to Forest 
Service Handbook 1909.15, Chapter 30, Section 31.2, which describes 
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.
    This ID adds three such categories of actions to the agency's NEPA 
procedures that are applicable to small timber harvesting projects: 
Category 12 allows harvest of live trees not to exceed 70 acres with no 
more than \1/2\ mile of temporary road construction; Category 13 allows 
the salvage of dead and/or dying trees not to exceed 250 acres with no 
more than \1/2\ mile of temporary road construction; and Category 14 
allows commercial and non-commercial felling and 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.

EFFECTIVE DATE: This interim directive is effective July 29, 2003.

ADDRESSES: The new Forest Service categorical exclusions are set out in 
Interim Directive (ID) 1909.15-2003-2, which is available 
electronically via the World Wide Web/Internet at http://www.fs.fed.us/im/directives. Single paper copies are available by contacting Chris 
Holmes, Forest Service, USDA, Ecosystem Management Coordination Staff 
(Mail Stop 1104), 1400 Independence Avenue, SW., Washington, DC 20250-
1104. Additional information and analysis can be found at http://www.fs.fed.us/emc/lth.

FOR FURTHER INFORMATION CONTACT: Chris Holmes, USDA Forest Service, 
Ecosystem Management Coordination Staff, (202) 205-1006. 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:

Background

    The Forest Service is responsible for managing 192 million acres in 
national forests, national grasslands, and other areas known 
collectively as the National Forest System. The Chief of the Forest 
Service, through a line organization of regional foresters, forest 
supervisors, and district rangers, manages the surface resources and, 
in some instances, the subsurface resources of those lands. The Forest 
Service, in compliance with the Council on Environmental Quality (CEQ) 
regulations at Title 40, Code of Federal Regulations, sections 1507.3 
and 1508.4 (40 CFR 1507.3, 1508.4), is authorized to identify 
categories of actions that it has found to have no individual or 
cumulatively significant effect on the human environment.
    On January 8, 2003, the Forest Service published a proposal (68 FR 
1026) to revise its directives for implementing the National 
Environmental Policy Act (NEPA) and CEQ regulations contained in Forest 
Service Handbook (FSH) 1909.15, Chapter 30, Section 31.2. This proposal 
would add three categories of actions to this section for limited 
timber harvesting. These categorical exclusions were numbered 10, 11, 
and 12. Since the publication of the proposal, the agency has added two 
new categorical exclusions for fire management activities, which were 
numbered 10 and 11 (68 FR 33814, June 5, 2003). Accordingly, these 
categorical exclusions for limited timber harvest have been renumbered 
12, 13, and 14.
    Category 12 allows harvest of live trees not to exceed 70 acres 
with no more than \1/2\ mile of temporary road construction. The 
purpose of this category is to allow low-impact silvicultural 
treatments through timber harvest. This category cannot 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 type, such as converting a timber stand to 
an open field. Category 12 does not include these types of treatments. 
Examples of projects that could be implemented under Category 12 
include thinning of overly dense stands of trees to improve the health 
and vigor of the remaining trees, and removing individual trees for 
forest products or fuelwood. Within the 70 acres, this category allows 
incidental removal of trees for temporary roads, landings, and skid 
trails as determined by the Forest Service in the timber sale contract 
specifications.
    Category 13 allows the 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 allows salvage harvest in 
areas where trees have been severely damaged by forces such as fire, 
wind, ice, insects, or disease and still have some economic value as a 
forest product. The use of Category 13 is limited to salvage of dead 
and dying trees by timber purchasers. Within the 250 acres, this 
category allows incidental removal of trees for temporary roads, 
landings, and skid trails as determined by the Forest Service in the 
timber sale contract specifications.
    Category 14 allows commercial and non-commercial felling and 
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. Within the 250 acres, this category allows 
incidental removal of trees for temporary roads, landings, and skid 
trails as determined by the Forest Service in the timber sale contract 
specifications. Noncommercial activities would not include temporary 
road construction.
    In the development of these categorical exclusions, the Forest 
Service reviewed the effects of 154 projects, with actions similar to 
those allowed in the three categories. A few of the projects reviewed 
resulted in minor soil disturbance and compaction. A few other projects 
reviewed showed that small numbers of noxious weeds or invasive plants 
entered the area where the trees had been removed. Based upon a post-
implementation field review of these projects by professional experts, 
the responsible officials found that these impacts were within forest 
plan standards and were not significant in the NEPA context (40 CFR 
1508.27).
    With the exception of one project reporting cumulative visual 
impacts, environmental effects were localized and of limited duration. 
The visual impacts of this one project were found to be cumulative with 
those of an old timber harvest visible from a scenic river. These 
visual impacts were

[[Page 44599]]

determined to not be significant since they still met scenery 
management objectives for the river corridor.
    Based upon their post-implementation field review of these projects 
along with past, present, and reasonably foreseeable future actions, 
the responsible officials found that the individual and cumulative 
effects of the projects reviewed were not significant in the NEPA 
context. The Forest Service, therefore, concluded that the activities 
described in the three categories do not individually or cumulatively 
have a significant effect on the human environment.
    Activities conducted under these categorical exclusions must be 
consistent with agency and Departmental procedures and with applicable 
land and resource management plans, and they must comply with all 
applicable Federal, Tribal, and State laws for protection of the 
environment. These categorical exclusions shall not apply where there 
are extraordinary circumstances, such as potentially significant 
effects on the following: Federally listed threatened or endangered 
species or designated critical habitat, species proposed for Federal 
listing or proposed critical habitat, or Forest Service sensitive 
species; floodplains, wetlands or municipal watersheds; Congressionally 
designated areas such as wilderness, wilderness study areas, or 
national recreation areas; inventoried roadless areas; research natural 
areas; American Indian and Alaska Native religious or cultural sites; 
archaeological sites, or historic properties or areas (FSH 1909.15, ch. 
30, sec. 30.3, para. 2).
    These categorical exclusions differ from those recently promulgated 
for hazardous fuels reduction and fire rehabilitation (68 FR 33814, 
June 5, 2003). While some small fuel reduction projects may fit the new 
categories 12 and 13, most fuel reduction projects done under the 
auspices of the National Fire Plan will be larger in scope than would 
be allowed under categories 12 and 13. Most projects implementing the 
National Fire Plan are larger in size, and involve a combination of 
activities such as thinning, pruning, and prescribed burning, in 
addition to timber harvest. Activities using categories 12, 13, and 14 
are limited to timber harvest and therefore have a more narrow 
application.
    A 60-day comment period was provided for the proposed interim 
directive setting out these categorical exclusions (68 FR 1026, January 
8, 2003). In addition, the Forest Service gave direct notice of the 
proposal and invited comment from national organizations and Federal 
agencies. A one-page notice was faxed to 73 interested groups. These 
groups included environmental organizations such as the Defenders of 
Wildlife, professional societies such as the American Fisheries 
Society, timber groups such as the Intermountain Forest Industry 
Association, Federal agencies such as the Environmental Protection 
Agency, and State organizations such as the Council of State 
Governments.
    Approximately 16,700 comment letters were received from 
individuals; representatives of Federal agencies; Tribes; State and 
local government agencies; environmental groups; professional 
organizations; and both commodity and non-commodity groups. The 
responses were form letters as well as unique individual letters, some 
sent electronically and others mailed as paper copy. All suggestions 
and comments have been reviewed and considered in preparation of this 
notice of the final interim directive.
    In response to comments on the proposed categorical exclusions, 
five revisions were made to the original proposal.
    In Category 12, two changes have been made. (1) The acreage 
limitation has been changed from 50 to 70. This was based on comments 
that recommended using the mean of the acreage of the projects 
reviewed, as was done for the other categories. In the proposal, the 
rationale for 50 acres was that it was a conservative adjustment to the 
mean of 70. Public comment questioned the need for this reduction. Use 
of the mean reflected the consideration by the agency that this acreage 
is well within the range of acreages in the project data used to 
support these categories. (2) Also in Category 12, the example 
concerning fuel loading formerly in paragraph b was removed. Since the 
original proposal, the Forest Service adopted Category 10 (68 FR 33824, 
June 5, 2003) that better addresses situations in which this example 
would be used. Category 10 is found in Interim Directive (ID) 1909.15-
2003-1 to Forest Service Handbook 1909.15, Chapter 30, Section 32.1.
    In Category 14, the following changes have been made: (1) The 
restriction of two tree lengths was removed for the harvesting of 
healthy adjacent trees; (2) the term ``green'' was changed to ``live, 
uninfested/uninfected trees'' for clarification; and (3) ``non-
commercial'' was added to make it clear that the category can apply to 
``cut and leave'' insect and disease control activities. The removal of 
the restriction of two tree lengths for the harvesting of healthy 
adjacent trees was done because this restriction applied primarily to 
management for control of southern pine beetle and may not be 
appropriate for outbreaks of other pests such as the sudden oak death 
pathogen, emerald ash borer, and many bark beetle species other than 
southern pine beetle. The provision for noncommercial ``cut and leave'' 
activities is appropriate for situations in which felling of trees is 
needed to reduce populations of insects, but sales of that timber would 
not be economically viable.

Comments on the Proposal

    Public comment on the proposal addressed a wide range of topics, 
many of which were directed generally at the issue of timber harvest 
and particularly salvage harvest on National Forest System lands. Many 
people supported the proposal or favored further expansion, while many 
others 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 
conclude that the categories of limited tree harvest do not have 
significant environmental effects.
    Response: These comments were in support of the proposal and need 
no specific response.
    Comment: A number of respondents felt that the Forest Service had 
not adequately demonstrated a need for the proposed timber management 
categorical exclusions (CEs). Some respondents requested that the 
agency demonstrate that the current National Environmental Policy Act 
(NEPA) process is unduly burdensome for these types of projects.
    Response: The categorical exclusions are provided as a tool to 
improve planning efficiency (40 CFR 1500.4(p) and 1500.5(k)). From 1981 
through 1998 the Forest Service categorically excluded some limited 
timber harvesting activities from documentation in an environmental 
assessment or environmental impact statement using the category found 
in Forest Service Handbook (FSH) 1909.15, section 31.2, paragraph 4 
(Category 4). Small timber sales implemented through these categorical 
exclusions provided local managers with the flexibility to respond to 
localized insect

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and disease infestations, improve forest health through thinning, 
salvage dead and dying trees, and provide merchantable forest products. 
This category was vacated when a District Court found that there was 
insufficient evidence in the agency's administrative record to support 
its establishment. The government did not appeal the District Court's 
ruling on the case. The loss of this category has resulted in small 
timber harvests, without the potential for significant impacts, 
requiring preparation of at least an environmental assessment in order 
to proceed. This has resulted in extended timeframes and the 
expenditure of undue energy and funding to complete minor timber 
harvesting projects.
    Comment: Some respondents commented that the proposal to expand the 
number of categories was an attempt by the agency to circumvent NEPA 
compliance.
    Response: The use of categorical exclusions is not a circumvention 
of NEPA compliance. NEPA and its implementing regulations envision a 
process of disclosing significant environmental impacts of major 
Federal actions. To avoid repetitive documentation of known non-
significant effects of minor actions, the Council on Environmental 
Quality (CEQ) regulations provide a process for defining categories of 
activities whose effects are normally exempt from documentation in an 
environmental assessment or an environmental impact statement. The 
process of defining these categories is an integral part of the NEPA 
regulatory framework. In this case, the documented review of activities 
similar to those included in these categories supports the 
determination that the three categories defined here describe actions 
which do not individually or cumulatively have a significant effect on 
the human environment and meet the intent of the CEQ regulations that 
govern the establishment of categorical exclusions. The agency is 
establishing these categories because the appropriate implementation of 
NEPA requires concentrating agency analysis efforts on major Federal 
actions and not expending scarce resources analyzing agency actions 
where experience has demonstrated the insignificance of effects.
    Comment: Some respondents believed that Forest Service use of these 
categories would allow the agency to bypass important procedural steps 
for projects, such as the notification and involvement of the general 
public, State agencies, and Tribal governments prior to implementation 
of proposed projects.
    Response: As directed by CEQ regulations (40 CFR 1507.3), the 
Forest Service has developed agency policy for implementing the NEPA 
process. As noted in Chapter 10, section 11, of FSH 1909.15: ``Although 
the Council on Environmental Quality (CEQ) Regulations require scoping 
only for EIS preparation, the Forest Service has broadened the concept 
to apply to all proposed actions.'' Chapter 30, section 30.3(3), of FSH 
1909.15 further states: ``Scoping is required on all proposed actions, 
including those that would appear to be categorically excluded.'' As 
part of the scoping process for proposals potentially covered by these 
categorical exclusions, the responsible official must determine the 
extent of interest and invite the participation of affected Federal 
agencies, affected Tribes, State and local agencies, and other 
interested parties, as appropriate. The Forest Service is committed to 
fulfilling its public involvement responsibilities with all parties 
potentially interested in projects qualifying for these categorical 
exclusions. The agency is working on additional methods to broaden 
public awareness of all proposed activities undergoing any level of 
NEPA review (CEs, EAs, and EISs) through electronic Web-based 
technology. It is the line officer's responsibility to invite 
participation of all interested and affected individuals and groups and 
to do so by whatever method or technology is effective to achieve 
participation of those individuals or groups.
    Comment: Several respondents expressed concern that effects on 
Tribal governments had not been appropriately analyzed in the 
rulemaking process as required by Executive Order 13175, Consultation 
and Coordination with Indian Tribal Governments.
    Response: The Forest Service recognizes it has trust 
responsibilities towards Tribes and this responsibility includes a duty 
to consult with Tribes to obtain meaningful and timely input on agency 
actions having substantial direct impacts on Tribes. Executive Order 
13175 defines policies that have tribal implications as regulations, 
legislative comments or proposed legislation, and other policy 
statements or actions that have substantial direct effects on one or 
more Indian tribes, on the relationship between the Federal Government 
and Indian Tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian Tribes. The addition of these 
categorical exclusions to the agency's NEPA procedures is concerned 
with the level of documentation required for specific types of actions. 
As such, these policies do not have Tribal implications as defined in 
the Executive Order.
    Effects on Tribal governments may occur on specific sites where the 
categories will be used and where there are Tribal interests. Tribes 
will be contacted during the scoping process and appropriate government 
to government consultations will be conducted on those projects with 
Tribal implications even though the project may be categorically 
excluded from further analysis and documentation in an environmental 
assessment or environmental impact statement.
    Comment: Many respondents asked that the Forest Service 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 on 
Tribal consultation.
    Response: The Forest Service agrees. The level of NEPA 
documentation does not affect agency responsibility to follow other 
applicable laws, regulations, Executive orders, and policies. For 
example, categorically excluded timber sales are reviewed for their 
potential to impact waters listed as impaired by State water quality 
agencies. When appropriate, the Forest Service conducts appropriate 
consultation with Federal, State, and Tribal agencies for these 
projects. For example, agencies must also review the potential effects 
from these types of actions on threatened and endangered species and on 
designated critical habitat and consult as appropriate with the U.S. 
Fish and Wildlife Service and the National Oceanic and Atmospheric 
Administration Fisheries. Similarly, categorically excluded actions are 
reviewed for potential effects on properties protected by the National 
Historic Preservation Act, and consultation is conducted as appropriate 
with State and Tribal Historic Preservation Officers. Such 
consultations help ensure that cumulative effects across jurisdictions 
will not be significant.
    Comment: Numerous respondents commented on the role that ``special 
interest groups'' play in affecting the management of the national 
forests. Some individuals assumed that these categorical exclusions 
were dictated by industry groups and objected vigorously to commodity 
use of national forests. Others commented on the role that they

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saw environmental groups playing in the direction of national forest 
management over the past several decades, especially in reducing 
commodity production from national forests.
    Response: NEPA and its implementing regulations outline a process 
by which Federal Government decision-makers consider the potential 
environmental impacts of proposals. The NEPA process is applied to 
proposed actions that are governed by both the enabling legislation and 
the annual appropriation acts that direct agency actions. Forest 
Service management of National Forest System lands is founded in 
legislation such as the Organic Act of 1897, the Bankhead-Jones Act, 
the Multiple Use Sustained Yield Act, and the National Forest 
Management Act.
    Many comments arguing either for restriction or for expansion of 
the agency's categorical exclusion authority are based on differing 
perspectives on the appropriate uses of national forests. The agency is 
required to manage for multiple uses and to consider the environmental 
effects as required in the NEPA statute.
    These categorical exclusions will allow the Forest Service to 
improve its efficiency by reducing the delay and paperwork for proposed 
actions that, in the absence of extraordinary circumstances, do not 
individually or cumulatively have a significant impact on the human 
environment (40 CFR 1500.4(p), 1500.5(k)). In addition to complying 
with environmental statutory requirements, the proposed projects must 
be consistent with all other agency legislative and regulatory 
direction and must be consistent with land and resource management 
plans that govern activities on each national forest. Those projects 
that are appropriately categorically excluded can therefore meet goals 
of the multiple-use mission without the preparation of an environmental 
assessment or an environmental impact statement.
    Comment: Many respondents expressed opinions on the issue of 
subjecting decisions allowed under these categorical exclusions to the 
public notice, comment, and appeal process. Some respondents considered 
the public notice, comment, and appeal process as absolutely essential 
for responsive decision-making. Others felt the appeals process is 
unnecessarily burdensome and lengthy, leading to agency inability to 
conduct land management activities in a timely manner.
    Response: The agency recently completed rulemaking to revise the 
agency's administrative appeals process at 36 CFR part 215, which is 
mandated by the Appeal Reform Act (ARA) of 1993. The agency's 
interpretation of public notice, comment, and appeal opportunity under 
the ARA is outlined in the Federal Register notice for the final rule 
(68 FR 33582, June 4, 2003). The agency believes that including 
affected and interested individuals in project planning early in the 
process is more effective than applying the additional procedures for 
notice, comment, and appeal contained in the appeals rule and that 
applying the provisions of the appeals rule to categorically excluded 
actions is neither intended nor required by the ARA. Thus, proposed 
activities that are categorically excluded are not subject to the 
requirements of the appeals rule at 36 CFR 215.4(a) and 36 CFR 
215.12(f).
    Comment: A number of respondents raised issues related to the 
possible significant cumulative impacts of projects under these 
categories or the impacts of implementing such projects in combination 
with other activities under other authorities. Most of the statements 
were general, but some mentioned specific impacts such as those on 
wildlife or water quality. Some of these respondents reiterated quotes 
contained in the Federal Register notice for the proposal (68 FR 1026, 
January 8, 2003) that noted that categorically excluded actions must 
not individually or cumulatively have a significant effect on the human 
environment.
    Response: For each of the 154 timber sales considered in defining 
these categories, the question of whether there were significant 
cumulative effects was specifically addressed. The reviewers examined 
the possibility of significant cumulative effects from these activities 
and all other activities within the appropriate boundaries for 
potential resource effects. For example, based on assessment of 
wildlife conditions in the local habitat area, or water quality impacts 
relative to a watershed, significant cumulative effects were not 
observed.
    There are many statutory requirements and agency policies and 
guidelines that protect the environment from both individual and 
cumulative environmental effects. Many of these are described in the 
document ``Detailed Rationale for Categorical Exclusions'' located at 
http://www.fs.fed.us/emc/hfi/rationale.pdf.
    The previous use of Category 4 was limited (it was applied to only 
0.03% of National Forest System land in 1998) due to restrictions in 
the event of extraordinary circumstances, as well as other factors in 
forest plan standards and guidelines that limit forest management 
activities. These same factors are expected to influence the number of 
projects in the future.
    Some public concerns with regard to environmental effects, both 
individual and cumulative, include those regarding wildlife populations 
and water quality. Soil and water resources are protected during timber 
harvest projects through implementation of State and EPA approved Best 
Management Practices (BMPs) as described in a later response.
    With regard to wildlife, the Forest Service is authorized by the 
Endangered Species Act (ESA) to carry out programs for the conservation 
of endangered and threatened species, and must ensure that any action 
authorized, funded, or carried out by the agency is not likely to 
jeopardize the continued existence of any endangered, threatened, or 
proposed species, or result in the destruction or adverse modification 
of designated critical habitat.
    By regulation, the Forest Service is required to consult with the 
U.S. Fish and Wildlife Service (FWS) or National Oceanic and 
Atmospheric Administration (NOAA) Fisheries whenever any proposed 
actions or activities may affect an endangered or threatened species or 
adversely modify designated critical habitat. The Forest Service 
regularly coordinates and consults with the appropriate state wildlife 
agency, FWS, and NOAA Fisheries on species protection and conservation 
efforts to address potential individual and cumulative impacts of 
agency practices on threatened and endangered wildlife and fish species 
and their habitat.
    It is important to note that if a proposed project may have a 
significant effect on a species listed or proposed to be listed on the 
List of Endangered and Threatened Species or may have adverse effects 
on designated critical habitat for these species, the action agency, 
under existing agency NEPA procedures, may not use a categorical 
exclusion.
    Comment: A number of concerns were expressed with regard to 
retention of snags, retention of downed woody material, and old growth. 
These concerns related to both wildlife habitat and ecosystem structure 
and function. There were also concerns related to visual impacts of the 
activities covered in the proposed categories.
    Response: Forest plan standards and guidelines address structural 
components of wildlife habitat; for example, snag retention, coarse 
woody debris left onsite, and old growth retention. They also address 
visual management. All Forest Service actions within a national forest, 
including

[[Page 44602]]

categorically excluded actions must by statute be consistent with the 
forest plan (16 U.S.C. 160-4(i)).
    Comment: Several respondents asked that the agency conduct NEPA 
analysis for this proposal, including a cumulative effects analysis on 
the impacts of this proposed ID and other recent rulemakings.
    Response: A response to this comment is found in the Regulatory 
Certifications section, titled ``Environmental Impact.'' The Council on 
Environmental Quality (CEQ) does not direct agencies to prepare a NEPA 
analysis or document before establishing agency procedures that 
supplement the CEQ regulations for implementing NEPA.
    Comment: Some respondents assert that the stated requirements that 
activities must be consistent with land and resource management plans 
are misleading since such plans will be categorically excluded.
    Response: Forest Service NEPA procedures in FSH 1909.15 and current 
land and resource management planning regulations at 36 CFR part 219 do 
not presently provide a categorical exclusion for revisions or 
amendments to land and resource management plans.
    The Forest Service may, if it finalizes and implements its planning 
rule as proposed (67 FR 72816, December 6, 2002), identify a category 
of plan decisions which do not individually or cumulatively have a 
significant effect on the human environment and may, therefore, be 
categorically excluded from NEPA documentation in an environmental 
assessment (EA) or environmental impact statement (EIS). The public 
would have an opportunity to review and comment on such an amendment to 
the Forest Service Handbook if such a categorical exclusion is 
proposed. 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 NEPA (40 CFR 1500.4(p) and 1508.4). Any action 
that is not consistent with an applicable land and resource management 
plan 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, both for land and resource 
management plans and for project-level planning.
    Comment: Some respondents said the application of extraordinary 
circumstances screens is insufficient and open to abuse. Others stated 
a belief that timber harvests automatically trigger analysis and 
documentation in an EA or EIS since they contain elements specifically 
listed as requiring this level of documentation, including 
``controversy,'' ``uncertainty,'' and ``precedent for future action'' 
and, as such, cannot be categorically excluded.
    Response: When using these three categorical exclusions, the 
responsible officials will consider, on a project-by-project basis, 
whether or not any of the Forest Service extraordinary circumstances 
apply. The responsible official will prepare a project file and 
decision memo that will be available for public review (FSH 1909.15, 
ch. 30, sec. 32.3). The decision memo contains the responsible 
official's rationale for categorically excluding an action and 
selecting that particular category, and includes a determination that 
no extraordinary circumstances exist.
    Years of experience by the Forest Service with Category 4 and 
earlier categories, including both low-impact silvicultural and 
sanitation/salvage projects, indicate that categories 12, 13, and 14 
would not set a precedent. In addition, 32 of the projects reviewed 
were documented using EAs and Findings of No Significant Impact 
(FONSIs). For these projects, the FONSI indicated that the effects were 
not significant. The EAs for these projects included an assessment of 
the degree of the controversy about effects, uncertainty about effects, 
and precedent for future action, and found them to be not significant 
(40 CFR 1508.27).
    Comment: One request for correction of information under the USDA 
Information Quality Guidelines was received in response to the proposal 
for categorical exclusions for small timber harvest. Concerns were 
raised by petitioners under the Data Quality Act that ``measurement'' 
must be used instead of ``observation'' to comply with USDA Information 
Quality Guidelines. The following is a response to that concern. Both 
the request for correction, and a more detailed response to the request 
than that found below, can be found at http://www.fs.fed.us/qoi.
    Response: The Forest Service has evaluated the assessment of the 
154 projects that provides the basis for its categorical exclusions, 
and found that this assessment complies with the USDA Information 
Quality Guidelines. The USDA Information Quality Guidelines, under 
``Objectivity of Regulatory Information,'' include the following: ``Use 
reasonably reliable and reasonably timely data and information (e.g., 
collected data such as from surveys, compiled information, and/or 
expert opinion).'' The expert opinion used to generate the observations 
in question is documented at http://www.fs.fed.us/emc/lth. 
Specifically, the use of local expertise in resource disciplines such 
as soils, hydrology, fisheries biology, and wildlife biology is 
documented in the information on the study of the 154 projects. These 
experts are highly trained, usually holding degrees in their 
specialties at the bachelor's or master's level. They are also provided 
ongoing training to assure currency in their discipline. They are 
familiar with current literature relating to their specialty and local 
area, as well as applicable laws, regulations, policies, and land and 
resource management plan standards and guidelines required for 
protection of the environment. They have field knowledge of local 
conditions. The combination of this expertise, complemented by the 
interdisciplinary approach used by the Forest Service in managing 
environmental resources, render the specialists well qualified to make 
site-specific judgments as to the effects of a particular practice in a 
particular area.
    In addition, where the local biologist finds that there is 
potential for an effect on a federally listed species, its designated 
critical habitat, or species proposed for listing, the project would be 
evaluated by professionals from the U.S. Fish and Wildlife Service or 
National Oceanic and Atmospheric Administration Fisheries. A 
categorical exclusion would not be used if the agency determines that 
the action may adversely affect listed species, species proposed for 
listing, critical habitat, or proposed critical habitat.
    The USDA Information Quality Guidelines, under ``Objectivity of 
Regulatory Information'' also includes considerations of transparency. 
For this interim directive, the data from the 154 projects were 
available to the public upon request and on the Web during the comment 
period.
    Comment: Some respondents questioned the size of the sample and the 
procedures used in selecting the 154 projects evaluated in determining 
that these categories of activities will have insignificant effects on 
the human environment.
    Response: The Forest Service reviewed 154 small timber sale 
activities which could potentially have been included in these 
categories. To identify projects for review, the Forest Service 
requested field units to review a sample of timber harvests that would 
have qualified under former Category 4

[[Page 44603]]

or were similar in size and scope. Field units were asked to send the 
Washington Office any results from past monitoring efforts on the 
effects of: (1) projects that were performed under Category 4, or (2) 
projects that were done with an environmental assessment (EA) or 
environmental impact statement (EIS) but fit the requirements of 
Category 4, or were similar in size and scope. In the request, there 
was no specific time period for the completion of projects selected.
    If past monitoring data did not exist, then each forest that has 
historically used timber harvest CEs, or projects that are similar in 
size and scope to Category 4, were asked to monitor at least two 
randomly selected CEs or projects as defined above. Monitoring was 
accomplished by reviewing the site after the project was completed 
based on the professional observations of resource specialists and line 
officers. All monitoring results were submitted using Web-based forms 
designed specifically for this monitoring effort. Both individual and 
cumulative environmental effects were assessed as part of this 
monitoring procedure. Where forests had only one or two projects that 
met the request criteria, those projects were selected. Where forests 
had more than two projects that met the request criteria, projects were 
chosen using a process that was unbiased with respect to the level of 
potential environmental effects. A description of how each project was 
selected is available on the Web site http://www.fs.fed.us/emc/lth.
    Comment: Some respondents suggested that the Forest Service monitor 
categorically excluded limited timber harvest activities 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. Forest land and resource management plans 
already provide for monitoring of management activities to determine 
compliance with applicable laws, regulations, and standards and 
guidelines; effectiveness of project implementation, including any 
specified mitigation measures; validation of models and assumptions 
used in the planning processes; and environmental impacts. Projects 
implemented under these categories will be included in these ongoing 
monitoring efforts.
    Comment: Some respondents suggested that, without NEPA analysis, 
categorically excluded actions would not consider current scientific 
information and managers would be unaware of extraordinary 
circumstances that preclude the use of a categorical exclusion.
    Response: The Forest Service has repeatedly conducted NEPA analyses 
for timber harvest projects using the best available science. Based 
upon the projects reviewed for these categorical exclusions, the agency 
concluded that these analyses describe categories of actions which do 
not individually or cumulatively have a significant effect on the human 
environment.
    Consistent with existing direction, the Forest Service must conduct 
sufficient review to determine that no extraordinary circumstances 
exist when using categorical exclusions (FSH 1909.15, sec. 30.3). This 
determination includes appropriate surveys, use of the best available 
science, appropriate consultation with Tribes, and coordination with 
agencies that have regulatory responsibilities under other statutes 
such as the Endangered Species Act, the National Historic Preservation 
Act, Clean Water Act, and Clean Air Act.
    Comment: Some respondents believed that limited timber harvesting 
for salvage purposes should not be carried out at all. They said the 
use of heavy equipment generates noise, air and water pollution, soil 
compaction, vegetation and habitat changes, and ecosystem modifications 
greater than the event causing the mortality. Still others cited 
research studies (e.g., Beschta, R.L.; Frissell, C.A.; Gresswell, R. 
[and others]. 1995. Wildfire and salvage logging: recommendations for 
ecologically sound post-fire salvage logging and other post-fire 
treatments on Federal lands in the West. Corvallis, OR: Oregon State 
University) that report that there is generally no ecological need to 
act, and that quick actions may create new problems. Some cited other 
research studies regarding environmental impacts of timber harvesting.
    Response: Ecological reasons are not the only reasons for an agency 
to take action. Salvaging dead and dying timber provides commercial 
forest products in support of the Forest Service's legally mandated 
mission. Numerous laws, including the Multiple Use Sustained Yield Act 
and the National Forest Management Act, establish the basis for 
managing national forests in a manner to provide goods and services. In 
addition, salvage activities, in certain situations, can reduce fire 
hazard from excessive fuel buildup, or prevent the buildup of insect 
populations in accumulations of dead trees that can then attack healthy 
trees; e.g., the spruce beetle. Severe fires and insect infestations 
can lead to reduced scenic, recreational, wildlife, and timber values 
on Federal and neighboring Tribal, State, or private land. Public 
comment from neighbors of Forest Service land expressed their concerns 
regarding risks to their property from untreated fire or insect hazards 
on neighboring Forest Service land.
    As the Beschta et al. report points out, salvage activities can 
have negative environmental impacts, depending on the condition of the 
site, the harvesting system, time of the year, and many other factors. 
However, practices and guidelines have been developed with regard to 
soil and water protection and wildlife habitat, on appropriate sites 
that will lead to no significant effects. The Forest Service agrees 
with Beschta et al. that care should be taken in designing salvage 
projects, as well as other timber sale projects, and the agency has an 
extensive array of guidelines and procedures to prevent and mitigate 
negative environmental impacts during these activities.
    The fact that none of the 154 sampled projects showed significant 
environmental impacts indicates that these practices are effective at 
reducing or eliminating environmental impacts. As described in the 
rationale for the categorical exclusion for fuels reduction projects 
http://www.fs.fed.us/emc/hfi/rationale.pdf, thinning methods are used 
for forest stand improvement, wildlife habitat improvement, and 
hazardous fuels reduction. The body of knowledge concerning these 
practices is mature. Scientific research and evaluations of project 
monitoring are reflected in laws, regulations, and agency policy 
related to implementation of these activities. Some of the many laws, 
regulations, and policies are described in the rationale document.
    One example of these environmental safeguards that apply to 
proposed timber harvest projects that are described in categories 12, 
13, and 14 is the protection of soil and water resources. This 
protection is provided through implementation of State and EPA approved 
Best Management Practices (BMPs) as well as forest plan standards and 
guidelines. BMPs are site-specific design and operating criteria 
intended to maintain soil productivity and water quality to State 
standards. Federal agencies incorporate BMPs into project design. For 
example, to minimize soil compaction, puddling, rutting, and gullying 
with resultant sediment production and loss of soil productivity, the 
project supervisor and/or Contracting Officer are responsible

[[Page 44604]]

for determining when the soil surface is unstable and susceptible to 
damage and is then responsible for suspending or terminating 
operations.
    BMPs also establish practices for addressing soil and water quality 
issues associated with temporary roads. BMPs are codified in regional 
handbooks and provide practices for the treating and decommissioning of 
roads to reduce impacts on sedimentation.
    EPA states that BMPs are the primary mechanism for control of non-
point source pollution and compliance with the Clean Water Act. 
Monitoring of BMP effectiveness has historically been accomplished 
informally as a part of each project review. Several States also 
conduct their own more extensive programs to ensure the maintenance of 
water quality.
    The harvesting practices used and mitigation measures implemented 
in salvage projects will be decided on a site-specific basis by 
technical specialists who routinely use current scientific literature 
and technologies, as well as their local knowledge of the soil, 
wildlife and other environmental conditions in an area. While 
individual research studies are used by technical specialists to 
predict environmental effects, site-specific information about 
practices and local conditions is necessary to make expert judgments 
about potential environmental effects of a project. In addition, the 
scope and context of a specific project are considered when determining 
the significance of environmental impacts of that project under NEPA 
(40 CFR 1508.27).
    Comment: Several respondents expressed concern over the number and 
location of categorically excluded limited timber harvest activities 
that could be implemented within a given area or a limited timeframe. 
Some respondents raised concerns that the agency could misuse the 
categories by segmenting larger projects into sizes that qualify under 
the CEs. Some respondents noted that such segmentation would violate 
CEQ regulations.
    Response: The responsible official is required to properly identify 
the characteristics of the proposed action (FSH 1909.15, ch. 10, sec. 
11.2). The agency adopted the following from the CEQ regulations for 
all their proposals that may undergo environmental review, including 
the documentation for categorical exclusions, ``proposals or parts of 
proposals which are related to each other closely enough to be, in 
effect, a single course of action shall be evaluated in a single impact 
statement.'' The Forest Service also adopted the CEQ definition for 
determining the scope of a proposed action as defined at 40 CFR 
1508.25, which discusses connected and related actions. Consequently, 
segmenting a larger project into smaller projects in order to meet the 
acreage requirements and be considered under these CEs is contrary to 
Forest Service guidance. Agency oversight of the application of these 
categories through internal reviews such as Chief's, regional, and 
forest reviews, emphasizes these compliance requirements and will 
prevent abuses.
    Comment: Some respondents indicated they believe the Forest Service 
should set limits on the volume that may be harvested under these 
categories since it may be possible to exceed the volume available 
under the previous Category 4 authorization.
    Response: In gathering data on the 154 projects used to define the 
limits of these categories, it was evident that potential environmental 
impacts are better predicted using acres treated rather than the total 
volume of timber removed, regardless of acreage. Harvesting a given 
volume of timber from one acre is likely to have different 
environmental impacts than harvesting the same volume from tens or 
hundreds of acres. In addition, timber volumes are estimated in advance 
of the sale, and there can be errors associated with those predictions; 
an acreage limit is not as subject to the uncertainties of estimation. 
Finally, acreage limits are easier to control and administer in the 
field and easier to describe to the public. It is possible that 
individual projects would exceed the volume limitations in the previous 
Category 4. The data from the 154 surveyed projects support the finding 
that there will be no significant environmental impacts from 
implementing actions within these acreage limitations.
    Comment: Some respondents would prefer to see the acreage 
limitation of the categories decreased while others would like to see 
them increased.
    Response: To determine the potential impacts of limited timber 
harvesting activities, data were gathered from 154 timber sales that 
could possibly have been included in one of the proposed categories. 
None of the projects evaluated had significant impacts on the human 
environment. Rather than setting the acreage limits at the limits of 
the range evaluated, the Forest Service believes it is prudent and 
conservative not to exceed the mean of acres treated under each of the 
proposed categories. In the original proposal, the acreage limit of 50 
for Category 12 was reduced from the actual mean of 70. Public comment 
questioned the need for this reduction. Use of the mean reflected the 
consideration by the agency that the acreage is well within the range 
of acreages in the project data used to support these categories.
    Comment: Some respondents indicated that there should be no 
restriction on new road construction, while others believed 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 \1/2\ mile of low-standard road should be allowed, while others 
believed that roads should be constructed only in rare cases.
    Response: In accordance with 36 CFR 212.1, new road construction is 
defined as an activity that results in the addition of forest 
classified or temporary road miles. Timber harvest activities involving 
the addition of forest classified road miles are not included in the 
proposed categorical exclusions. Proposals for timber harvest 
activities that involve new classified road construction would be 
analyzed and documented in an EA or EIS. As defined in 36 CFR 212.1, 
temporary roads are roads that are authorized by contract, permit, 
lease, other written authorization, or emergency operation, are not 
intended to be part of the Forest Service transportation system, and 
are not necessary for long-term resource management. A total of 35 of 
the 154 timber sales reviewed required temporary road construction. No 
significant effects were found in reviewing these projects. The average 
length of temporary road construction for these 35 sales was \1/2\ 
mile. The agency elected to use this average \1/2\ mile temporary road 
length as a limit for its limited timber harvest categorical 
exclusions.
    All temporary roads constructed for timber harvest projects that 
qualify for categories 12, 13, and 14, will be conducted under the 
terms of the timber sale contract. Temporary road construction 
authorized under timber sale contracts must be consistent with 
environmental quality standards and must consider minimizing impacts on 
land and resources, in accordance with 36 CFR 223.30 and 36 CFR 223.38. 
In accordance with 36 CFR 223.37, temporary roads are treated to 
reestablish vegetative cover as necessary to minimize erosion. Such 
treatment shall be designed to reestablish vegetative cover as soon as 
practicable. Therefore, any potential environmental effects are short-
term. Non-commercial ``cut and leave'' activities are the only 
activities that may qualify under these categories that would not 
involve a timber sale contract. Noncommercial

[[Page 44605]]

activities would not include temporary road construction.
    Comment: Some respondents suggested that any road construction 
should be carried out only following a thorough environmental analysis. 
Others indicated that culverts should not be replaced or upgraded 
without a watershed analysis.
    Response: These categorical exclusions provide only for 
construction of temporary roads and do not propose adding additional 
road miles to the National Forest System. Where use of these proposed 
categorical exclusions involving no more than \1/2\ mile of temporary 
road construction, with or without culverts, is being proposed, the 
responsible official must review the proposed action to ensure that the 
temporary road construction is consistent with environmental quality 
standards (36 CFR 223.30) which include minimizing increases in soil 
erosion and providing favorable conditions of water flow and quality. 
The responsible official must also determine that no extraordinary 
circumstances exist, and document those findings in a decision memo 
(FSH 1909.15, ch. 30, secs. 30.3 and 32.3).
    Comment: Some respondents suggested that the categorical exclusions 
should specify that temporary roads will be constructed only where the 
roads will be reclaimed/obliterated upon activity completion.
    Response: As defined in 36 CFR 212.1, temporary roads are roads 
that are authorized by contract, permit, lease, other written 
authorization, or emergency operation, are not intended to be part of 
the Forest Service transportation system, and are not necessary for 
long-term resource management. In accordance with 36 CFR 223.37, upon 
completion of the timber sale contract, the purchaser is required to 
treat temporary roads constructed or used during the authorized 
activity. This involves the reestablishment of vegetative cover on the 
roadway and other areas in order to minimize erosion from the disturbed 
area. Once the authorized timber sale contract is completed, the 
temporary road becomes unneeded as described in 36 CFR 212.5(b)2 and 
should be decommissioned or considered for other uses such as trails.
    Decommissioning roads involves restoring roads to a more natural 
state. Activities used to decommission a road include, but are not 
limited to, the following: reestablishing former drainage patterns, 
stabilizing slopes, restoring vegetation, blocking the entrance to a 
road, installing water bars, removing culverts, reestablishing 
drainage-ways, removing unstable fills, pulling back road shoulders and 
scattering slash on the roadbed, completely eliminating the roadbed by 
restoring natural contours and slopes, or other methods designed to 
meet the specific conditions associated with the unneeded road. How 
temporary roads are decommissioned is a project-specific decision and 
therefore appropriately decided at the project level (36 CFR 212 and 
FSM 7703.2). The decision to convert a temporary road to another use 
would entail a new decision that requires additional NEPA review.
    Comment: Some respondents stated that the Forest Service should 
comply with Executive Order 12866, Regulatory Planning and Review, 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 Forest 
Service has prepared a cost-benefit analysis and has 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 limited timber harvesting to improve forest 
health and salvage merchantable forest products. The agency estimated 
an annual savings of $6.4 million that would otherwise be spent on 
environmental assessments.
    Comment: Several respondents requested clarification of the harvest 
treatments which could be implemented under Category 12. Some of these 
respondents indicated too much flexibility was provided to the local 
manager under uneven-aged techniques. Others believed the limitation on 
even-aged management treatments should be removed.
    Response: The Forest Service Manual (FSM) 2470.5 contains the 
definitions of silvicultural practices on National Forest System lands. 
An uneven-aged system is defined at FSM 2470.5 as: ``A silvicultural 
system involving manipulation of a forest to simultaneously maintain: 
a. Continuous high-forest cover; b. Recurring regeneration of desirable 
species; c. Orderly growth and development of trees through a range of 
diameter or age classes to provide a sustained yield of forest 
products.'' Individual tree selection and group selection are the two 
recognized uneven-aged cutting systems. FSM 2470.5 defines group 
selection cutting with the groups (openings to regenerate shade-
intolerant species) as usually no more than 2 acres in size. Additional 
instructions may also exist in the forest plans developed for each 
unit. Timber harvesting activities must be consistent with the 
objectives of site-specific prescriptions approved by certified 
silviculturists (FSM 2478.03 (5)). Professional forestry standards and 
agency oversight ensure uneven-aged techniques are properly prescribed 
and implemented, including acreage limitations on opening sizes.
    Uneven-aged systems (individual tree selection and group selection) 
maintain the canopy of a forest stand and therefore have relatively 
little effect on the structural and aesthetic properties of stands. 
Even-aged regeneration harvests, such as clearcutting, seed tree, and 
shelterwoods, were excluded from use in Category 12. Because the 
cutting operations involved in Category 12 retain the canopy of the 
forest, adequate regeneration of tree species is not a concern. 
However, because projects using this category will use the timber sale 
contract, they are subject to 36 CFR 223.30 (c). This requires the 
approving officer to ensure that each timber sale contract, permit, or 
other authorized form of National Forest timber disposal includes, as 
appropriate, requirements for regeneration of timber as may be made 
necessary by harvesting operations.
    Comment: Some respondents disputed the need for Category 13 because 
of the importance of dead and dying trees to the forest ecosystem.
    Response: Dead and dying material is an important component of a 
healthy forest ecosystem. Forest plan standards for snag density 
(standing dead trees) and cavity habitat will be met when salvage 
activities take place.
    Comment: Some respondents indicated that regeneration harvesting 
using both even-aged and uneven-aged silvicultural systems should be 
allowed under Category 13.
    Response: Category 13 addresses salvage harvesting. The Society of 
American Foresters Dictionary of Forestry defines salvage cutting as 
``the removal of dead trees or trees damaged or dying because of 
injurious agents other than competition to recover economic value that 
would otherwise be lost.'' As such, salvage harvesting is not

[[Page 44606]]

oriented to any specific silvicultural system.
    Comment: Several respondents requested clarification of Category 
14. Some of these respondents believed the language in the draft notice 
is excessively permissive while others believed it is too restrictive 
in terms of the acreage needed to deal with forest health problems.
    Response: This category has been changed to clarify that it will 
apply to both infested/infected trees and adjacent live uninfested/
uninfected trees whose removal is determined necessary to control the 
spread of insects or disease. In addition, the restriction of two tree 
lengths was removed for the harvesting of healthy adjacent trees, 
because this restriction applied primarily to management for control of 
southern pine beetle and may not be appropriate for outbreaks of other 
pests such as the sudden oak death pathogen, emerald ash borer, and 
many bark beetle species other than southern pine beetle. This provides 
the local manager with latitude when responding to rapidly expanding 
insect or disease situations. The manager, in turn, relies upon advice 
from professional forest entomologists and pathologists when 
determining the appropriate treatment. Another clarification is that 
noncommercial treatments, such as ``cut and leave,'' for example, used 
for treatment of southern pine beetle, are covered by this category.
    The projects reviewed support both salvage and sanitation 
operations as cutting trees in these categories have the same kind of 
environmental impacts. For both Category 13 and 14, regeneration of 
tree species will follow 36 CFR 223.30 (c), as described above for 
Category 12. Other restoration activities will be governed by site-
specific restoration objectives and forest plan standards and 
guidelines.
    Concerns over misuse of this category to allow more trees than 
those necessary to protect forest health to be harvested can be 
addressed through agency oversight on the application of this category.

Conclusion

    The USDA Forest Service finds 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 agency's finding is first predicated on the reasoned 
expert judgment of the responsible officials who made the original 
findings and determinations in the timber harvest projects reviewed; 
the resource specialists who validated the predicted effects of the 
reviewed activities through monitoring or personal observation of the 
actual effects; and, finally, the agency's belief that the profile of 
past small-scale timber harvest activities represents the agency's past 
practices and is indicative of the agency's future activities.
    These categorical exclusions will 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.
    The text of the proposed categorical exclusions is set out at the 
end of this notice.

Regulatory Certifications

Environmental Impact

    This final interim directive adds direction for three categorical 
exclusions to Forest Service Handbook (FSH) 1909.15 for guiding field 
employees regarding procedural requirements for National Environmental 
Policy Act (NEPA) documentation for tree harvest activities. The 
Council on Environmental Quality (CEQ) 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 normally require preparation of an environmental impact statement; 
those that require preparation of an environmental assessment; and 
those that are categorically excluded from documentation in an 
environmental impact statement or environmental assessment (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 employees 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 Forest Service has provided an opportunity for public review and 
has consulted with the CEQ during the development of these categorical 
exclusions. The determination that establishing categorical exclusions 
does not require NEPA analysis and documentation has been upheld in 
Heartwood, Inc. v. U.S. Forest Service, 73 F. Supp. 2d 962, 972-73 
(S.D. Ill. 1999), aff'd, 230 F.3d 947, 954-55 (7th Cir. 2000).

Regulatory Impact

    The categorical exclusions in this final interim directive 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 the 
categorical exclusions in this interim directive at both the proposed 
and final stages.
    This action to add three categorical exclusions to the Forest 
Service's 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. The economic analysis conducted to 
support this action estimates that it would result in quantifiable 
annual cost savings to the agency of approximately $6.4 million due to 
the reduced analyses that would be required for projects covered by 
these categorical exclusions. The economic analysis is available at 
http://www.fs.fed.us/emc/lth. 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. This action may, 
however, interfere with an action taken or planned by another agency or 
raise new legal or policy issues.
    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.
    The agency believes small businesses in general may benefit from a 
potential increase in small timber harvest opportunities as a result of 
these new categories. Although the Forest Service finds this increase 
difficult to quantify, it believes that more timber harvest 
opportunities may be available when using a categorical exclusion 
rather than an environmental assessment, resulting in an increase in 
the amount of timber

[[Page 44607]]

volume available for small businesses and local mills. It is expected 
that there would be equal access to economic opportunities to 
businesses through timber sale contracts, stewardship contracts, and 
other contracting instruments. Additionally some of these sales are 
expected to be set aside for small business under the agency's small 
business timber set-aside program.

Federalism

    The Forest Service has considered the categorical exclusions in 
this final interim directive under the requirements of Executive Order 
13132, Federalism, and has 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 
agency has determined that no further assessment of federalism 
implications is necessary.

Consultation and Coordination With Indian Tribal Governments

    The categorical exclusions in this final interim directive 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

    The categorical exclusions in this final interim directive 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 the categorical exclusions in this final interim directive 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 agency has assessed the effects of the categorical exclusions 
in this final interim directive 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

    The categorical exclusions in this final interim directive 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

    The categorical exclusions in this final interim directive 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: July 23, 2003.
Sally Collins,
Associate Chief.

Text of Final Interim Directive Setting Out Three New Categorical 
Exclusions

    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 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 the World Wide Web/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 new categorical 
exclusions that are established as paragraphs 12, 13, and 14 in 
section 31.2, the introductory text of section 31.2 (identified by 
italics) follows:]
    31.2--Categories of Actions 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.
* * * * *
    12. Harvest of live trees not to exceed 70 acres, requiring no 
more than \1/2\ mile of temporary road construction. Do not use this 
category for even-aged regeneration harvest or vegetation type 
conversion. The proposed action may include incidental removal of 
trees for landings, skid trails, and road clearing. Examples include 
but are not limited to:
    a. Removal of individual trees for sawlogs, specialty products, 
or fuelwood.
    b. Commercial thinning of overstocked stands to achieve the 
desired stocking level to increase health and vigor.
    13. Salvage of dead and/or dying trees not to exceed 250 acres, 
requiring no more than \1/2\ mile of temporary road construction. 
The proposed action may include incidental removal of live or dead 
trees for landings, skid trails, and road clearing.
    Examples include but are not limited to:
    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.
    14. Commercial and non-commercial sanitation harvest of trees to 
control insects or disease not to exceed 250 acres, requiring no 
more than \1/2\ mile of temporary road construction, including 
removal of infested/infected trees and adjacent live uninfested/
uninfected trees as determined necessary to control the spread of 
insects or disease. The proposed action may include incidental 
removal of live or dead trees for landings, skid trails, and road 
clearing. Examples include but are not limited to:
    a. Felling and harvest of trees infested with southern pine 
beetles and immediately adjacent uninfested trees to control 
expanding spot infestations.
    b. Removal and/or destruction of infested trees affected by a 
new exotic insect or disease, such as emerald ash borer, Asian

[[Page 44608]]

longhorned beetle, and sudden oak death pathogen.

[FR Doc. 03-19190 Filed 7-28-03; 8:45 am]
BILLING CODE 3410-11-P