Federal Register, Volume 67 Issue 164 (Friday, August 23, 2002)

[Federal Register Volume 67, Number 164 (Friday, August 23, 2002)]
[Notices]
[Pages 54622-54627]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-21075]

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DEPARTMENT OF AGRICULTURE

Forest Service

RIN 0596-AB94

Clarification of Extraordinary Circumstances for Categories of
Actions Excluded From Documentation in an Environmental Assessment or
an Environmental Impact Statement

AGENCY: Forest Service, USDA.

ACTION: Notice; adoption of final interim directive.

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SUMMARY: The Forest Service is adopting an Interim Directive to guide
employees in complying with the National Environmental Policy Act and
the Council on Environmental Quality (CEQ) regulations for certain
actions which can be categorically excluded from documentation in an
environmental assessment or an environmental impact statement. The
Interim Directive clarifies the consideration of extraordinary
circumstances as they apply to categorical exclusions. The intent of
this Interim Directive is to facilitate employees' consistent
interpretation and application of CEQ regulations and related agency
policy.

EFFECTIVE DATE: This Interim Directive No. 1909.15-2002-2 is effective
August 23, 2002.

ADDRESSES: This Interim Directive is available electronically from the
Forest Service via the World Wide Web/Internet at http://www.fs.fed.us/im/directives. Single paper copies of this Interim Directive also are
available by contacting Dave Sire, Forest Service, USDA, Ecosystem
Management Coordination Staff (Mail Stop 1104), 1400 Independence
Avenue, SW., Washington, DC 20250-1104.

FOR FURTHER INFORMATION CONTACT: Dave Sire, Ecosystem Management
Coordination Staff, 202-205-2935, or Julia Riber, Ecosystem Management
Coordination Staff, 406-329-3678.

SUPPLEMENTARY INFORMATION: On September 20, 2001, the Forest Service
published a proposed Interim Directive to Forest Service Handbook (FSH)
1909.15, Chapter 30, which would partially revise the agency's
direction on the use of categorical exclusions (66 FR 48412). The
intent of this proposed Interim Directive was to assist employees in
interpreting and complying with the National Environmental Policy Act
(NEPA) and the Council on Environmental Quality (CEQ) regulations for
certain actions which can be categorically excluded from documentation
in an environmental assessment (EA) or an environmental impact
statement (EIS). The proposed Interim Directive would have added three
new categories for special use authorizations involving administrative
changes when no changes are proposed in the authorized activities or
facilities. The proposal also included a modification of handbook text
to clarify agency policy concerning extraordinary circumstances.
Nearly 26,000 responses in the form of letters, postcards, and e-
mail messages were received during the 60-day comment period. These
comments came from private citizens, elected officials, and from groups
and individuals representing businesses, private organizations, and
Federal agencies. Responses consisted of over 800 original letters and
over 25,000 form letters.
Public comment on the Interim Directive addressed a wide range of
topics, many of which were directed at general Forest Service
management direction, particularly the management of roadless areas.
Most comments revealed a significant split in opinion on

[[Page 54623]]

the proposal. Many people opposed the proposed Interim Directive or
recommended further restriction of the use of categorical exclusions,
while many others supported the proposed Interim Directive or favored
further expansion of the use of categorical exclusions. Some
respondents agreed that existing direction concerning extraordinary
circumstances needs clarification.
Because of the volume and nature of comments received on the
proposed Interim Directive, the agency has decided to separate the
special uses categorical exclusions portion of the proposal from the
clarification of extraordinary circumstances. Accordingly, this notice
addresses only those comments received on the direction concerning
extraordinary circumstances. A separate notice will be published later
to address comments on categorical exclusions for the issuance of
certain special use authorizations.

Previous Direction

Forest Service Handbook 1909.15, Chapter 30, includes direction for
consideration of extraordinary circumstances when Responsible Officials
are contemplating categorical exclusion of a proposed action from
further analysis and documentation in an EA or EIS.
Prior to this present action, direction on extraordinary
circumstances was last revised in 1992. At section 30.5, extraordinary
circumstances were defined as conditions associated with a normally
excluded action that are identified during scoping as potentially
having effects which may significantly affect the environment. At
section 30.3, paragraph 2, extraordinary circumstances were described
as including, but not limited to the presence of, the following: steep
slopes or highly erosive soils; threatened or endangered species or
their critical habitat; flood plains, wetlands, or municipal
watersheds; Congressionally designated areas such as wilderness,
wilderness study areas, or national recreation areas; inventoried
roadless areas; research natural areas; and Native American religious
or cultural sites, archeological sites, or historic properties or
areas. Paragraph 3 of section 30.3 stated that scoping is required on
all proposed actions, including those that would appear to be
categorically excluded. Moreover, this paragraph provided that if
scoping indicated that extraordinary circumstances are present and it
was uncertain that the proposed action may have a significant effect on
the environment, then personnel must prepare an EA. If scoping
indicated that the proposed action may have a significant environmental
effect, an EIS would be prepared.

Summary of the Proposed Clarification of Extraordinary Circumstances

Public and employee confusion has risen with regard to the 1992
direction on the application of a categorical exclusion to a proposed
action when a listed resource condition is present. The proposed
revisions to Handbook sections 30.3 and 30.5 were intended to clarify
the agency's intent that the presence of a listed resource condition in
section 30.3, paragraph 2 does not automatically preclude use of a
categorical exclusion. The proposed revisions to sections 30.3 and 30.5
included the following:
Section 30.3, paragraph 1b. References were made to the
definition of extraordinary circumstances in section 30.5 and policy in
paragraph 2 of section 30.3. Extraordinary circumstances were qualified
as instances that could result in significant environmental effect.
Section 30.3, paragraph 2. Extraordinary circumstances
were qualified, stating that extraordinary circumstances occur when a
proposed action would have a significant effect on the resource
conditions set out in paragraphs 2a through 2g. The proposal went on to
state that the Responsible Official may issue a categorical exclusion
even when one or more of the resources conditions listed in paragraphs
2a through 2g are present, but only if the official determines on a
case-by-case basis that the proposed action would not have a
significant effect on the listed resource conditions.
Section 30.3, paragraph 3. Two sentences were removed,
which described when to prepare an EA and when to prepare an EIS.
Section 30.3, paragraph 4. A sentence was added to the
paragraph reminding readers to consider the need to evaluate new
information or changed circumstances if implementing an action that has
already been analyzed and documented.
Section 30.5. Extraordinary circumstances were defined as
instances where a proposed action normally excluded from documentation
in a EA or EIS is identified as having a significant effect on resource
conditions set out in section 30.3, paragraphs 2a through 2g.
In response to comment on the proposed Interim Directive, published
September 20, 2001, the agency has further refined the Interim
Directive as described in the following summary of comments.

Comments on the Need for the Interim Directive

Comment: Many respondents believe that there is no need for the
proposed changes. They believe that proposed actions can be analyzed
with a concise EA if necessary and, therefore, there is no need to
clarify the definition of extraordinary circumstances. Others expressed
strong disapproval of the agency's use of categorical exclusions
altogether and recommended either further restricting their use or a
complete elimination of categorical exclusions.
Response: The CEQ regulations (40 CFR 1500.4(p)) encourage the
appropriate use of categorical exclusions to reduce paperwork and
unnecessary delays. The agency believes that its use of categorical
exclusions has been and continues to be appropriate. The agency further
believes that the time and expense required by even the most concise
EA's is not justified for those actions that qualify for categorical
exclusion. Therefore, the agency remains committed to issuance of an
Interim Directive.
Comment: Many respondents believe Forest Service direction
contained in the 1992 definition (57 FR 43180) of extraordinary
circumstances clearly prohibits the use of a categorical exclusion
whenever the action takes place in the presence of the resource
conditions listed in paragraph 2 of section 30.3 and, therefore, there
is no need for clarification.
Response: The Forest Service does not agree. The agency has long
held in administrative appeal reviews and in litigation that the mere
presence of these resource conditions does not necessarily preclude use
of categorical exclusions. Since 1992, handbook direction has focused
on the effects of a proposed action in determining if a categorical
exclusion is appropriate. As stated in section 30.3, paragraph 3 as
adopted in 1992, if uncertainty exists over the significance of
environmental effects, a categorical exclusion would not be
appropriate.

Comments on Compliance With Law and Regulation

Comment: Citing various court rulings over the use of categorical
exclusions when extraordinary circumstances exist, some respondents
claimed that the proposed Interim Directive would violate CEQ
regulations for implementing NEPA. They claim that it is inappropriate
to use categorical exclusions when extraordinary circumstances are
present.
Response: The proposal that was issued for comment in September of

[[Page 54624]]

2001, described paragraphs 2a through 2g as resource conditions and
attempted to clarify that it is the degree of the potential effect of a
proposed action on those resource conditions that determines the
existence of extraordinary circumstances. In response to comment,
chapter 30.3, paragraph 3 has been further modified in the final policy
to emphasize that it is the uncertainty over significance of the
effects of a proposed action that requires preparation of an EA.
Paragraph 2 in section 30.3 lists resource conditions that should be
considered in determining whether extraordinary circumstances related
to the proposed action warrant additional analysis and documentation in
an EA or EIS. The list of resource conditions in paragraph 2 does not
preclude consideration of other factors or conditions that the
Responsible Official may deem appropriate. Paragraph 2 has also been
modified to emphasize that it is the degree of the potential effect of
a proposed action on those resource conditions that determines the
existence of extraordinary circumstances. This direction is consistent
with CEQ regulations requiring that agencies provide for extraordinary
circumstances.
Comment: Some respondents believe that the proposed Interim
Directive would change the type of activities that may occur within the
habitat of threatened and endangered species and that the Forest
Service should formally consult with the U.S. Fish and Wildlife Service
on this proposal as required by the Endangered Species Act.
Response: The agency has determined that this revision itself will
have no effect on threatened or endangered species or their habitat.
The proposed Interim Directive will not change the types of activities
that may occur within the habitat of threatened and endangered species.
Therefore, consultation with the U.S. Fish and Wildlife Service is not
required. Any categorically excluded actions proposed within the
habitat of threatened or endangered species are still subject to the
consultation requirements of the Endangered Species Act.
Comment: Some respondents believe that the proposed Interim
Directive would change the types of activities that may occur on
American Indian or Alaska Native religious or cultural sites and that
the Forest Service should consult with Tribes on this proposal as
required by the National Historic Preservation Act and implementing
regulations.
Response: The Forest Service wants to reassure these respondents
that the Interim Directive would not change the types of activities it
may authorize on or near American Indian and Alaska Native religious or
cultural sites. The Interim Directive only clarifies agency policy
regarding extraordinary circumstances, which has no effect on religious
or cultural sites. Therefore, consultation with Tribes is not required
for the promulgation of this Interim Directive.
Comment: Some respondents feel that the proposed change to the
Forest Service Handbook section on extraordinary circumstances would
change the assumption upon which all the categories listed in chapter
30 were created, specifically, how the use of each category of actions
would be constrained by extraordinary circumstances. Therefore,
respondents believe that additional effects analysis is now necessary
to reassess whether each category of actions does or does not
individually or cumulatively have a significant effect on the
environment in compliance with the CEQ regulations on categorical
exclusions.
Response: The Interim Directive merely clarifies current policy
concerning extraordinary circumstances. This Interim Directive does not
change the assumptions upon which the categories of actions listed in
chapter 30 were created. Therefore, the agency's conclusion that the
categories of actions listed in chapter 30 have no individually or
cumulatively significant environmental impacts remains unchanged.

Comments on Public Participation

Comment: A considerable amount of comment revolved around the
Interim Directive's effect on the public's role in decisionmaking. Many
respondents are concerned that the proposal would increase the use of
categorical exclusions and thereby decrease the public's opportunity
for involvement and oversight of the management of National Forest
System lands. Other respondents think that scoping is not warranted for
actions that may be categorically excluded.
Response: Forest Service direction requires scoping for all
proposed actions subject to NEPA (FSH 1909.15, section 11). Through
scoping, the Forest Service identifies any important issues, identifies
interested and affected persons, and determines the extent of analysis
and documentation that will be necessary for the Responsible Official
to make an informed decision on a proposed action. One integral part of
this scoping process is determining the appropriate level of public
participation. Forest Service Handbook 1909.15, section 11, directs the
Responsible Official to consider options for involving potentially
interested and affected agencies, organizations, and persons in the
analysis process commensurate with public interest in the proposed
action, regardless of the type of documentation used.
Comment: Respondents were also concerned that more decisions will
be made through a categorical exclusion and, consequently, fewer
decisions will be appealable.
Response: As previously noted, the purpose of this Interim
Directive is to clarify existing NEPA procedures, not to broaden the
use of categorical exclusions. Additionally, appeal of decisions is
addressed in the regulations at 36 CFR part 215, not in the agency's
NEPA procedures. In a separate effort, the agency is currently
reviewing the appeal regulations. If the agency proposes any changes to
the appeal regulations, the public will be provided with notice and an
opportunity to comment.

Comments on Impacts

Comment: Many of the respondents who were opposed to the proposed
Interim Directive feel that any increase in the use of categorical
exclusions represents a reduction in environmental review and the use
of science in decisionmaking. As a result, they feel that the proposed
Interim Directive could result in adverse impacts to National Forest
System lands and resources, including roadless areas, wilderness areas,
national recreation areas, threatened and endangered species, American
Indian sacred sites, and archeological sites.
Response: Categorical exclusions are to be used for routine actions
that have been found by the agency through repeated environmental
review to have no significant environmental effects either individually
or cumulatively. Final direction in paragraph 2 of section 30.3 now
requires consideration of whether extraordinary circumstances related
to a proposed action warrant further analysis and documentation in an
EA or EIS. Final direction in paragraph 3 of section 30.3 emphasizes
that an EA is the appropriate form of documentation when the
significance of effects is uncertain.
Additionally, the Forest Service is required to comply with all
applicable laws, regulations, and policies for every action it
undertakes on National Forest System lands. Therefore, all actions,
even those that are excluded from documentation in an EA or an EIS,
must comply with laws and regulations governing the protection of
resources,

[[Page 54625]]

such as roadless areas, wilderness, national recreation areas,
threatened and endangered species, American Indian sacred sites, and
archeological sites.

Comments on the Interim Directive

Comment: Some respondents questioned how long the Interim Directive
(ID) would be in effect or under what circumstances it would terminate.
Response: As was stated in the preamble for the proposed directives
published in the September 20, 2001, Federal Register (66 FR 48412),
the changes are being made through an ID only for administrative
efficiency. The agency is proposing modifications to other parts of
this chapter; for example, the agency has proposed to add three new
categories for certain special use authorizations. Additionally,
previously issued IDs need to be incorporated into Chapter 30. In
accordance with its policies on directive issuances the agency has
chosen to issue this clarification of extraordinary circumstances as an
ID. The agency will give notice when Chapter 30 is amended to
incorporate these IDs.

Comments on Section 30.3 Policy

Comment: Many respondents contend that the proposed Interim
Directive does not comply with the definition of categorical exclusion
contained in the CEQ regulations and, therefore, violates NEPA. They
were concerned that the proposed language would eliminate the
possibility of ever doing an EA for an action listed in the categories.
They feared that instead the proposed Interim Directive would lead to a
situation where an internal review could be used to determine whether
the project may have a significant effect on the environment, which
would be in direct conflict with the CEQ establishment of the EA as the
appropriate method of determining if a project may have significant
effects.
Response: The agency agrees that the language in both the preamble
and the proposed directive could be interpreted to bypass the EA
process. Therefore, the agency has modified the text in the final
Interim Directive to address these concerns. The proposed language and
the confusion that resulted from it led to a great many of the concerns
voiced by those who were opposed to the proposal. The agency agrees
with the numerous respondents who indicated that if there is a question
regarding whether environmental effects may be significant, a
categorical exclusion would not be appropriate. In response, the final
policy reinstates the language of paragraph 3, which states that it is
the uncertainty over significance of the effects of a proposed action
that requires preparation of an EA. The proposed Interim Directive at
30.3, paragraph 2, stated that extraordinary circumstances occur when a
proposed action would have a significant effect on a set of listed
resource conditions. Paragraph 2 now identifies a list of resource
conditions that, if present, require the Responsible Official to
consider whether extraordinary circumstances related to a proposed
action warrant analysis in an EA or EIS. Paragraph 2 also states that
the mere presence of these resources does not preclude use of a
categorical exclusion. In response to contentions that the definition
of extraordinary circumstances is not consistent with the CEQ
regulations, the final policy does not contain a definition of
extraordinary circumstances. The CEQ regulations direct agencies not to
paraphrase the regulations, but to supplement them. The agency sees
little value in expanding on CEQ's use of the term ``extraordinary
circumstances''. The agency's final policy, therefore, relies on the
context in which CEQ uses the term and provides for extraordinary
circumstances as directed by the CEQ regulations at 40 CFR 1508.4.
Comment: Some respondents objected to the concept that a
Responsible Official can make a case-by-case analysis of whether a
proposed action has extraordinary circumstances and, therefore, whether
or not it can be excluded from documentation in an EA or EIS. They did
not think this complies with CEQ regulatory requirements for an agency
to develop specific criteria and classes of actions for categorical
exclusions.
Response: The CEQ regulations at 40 CFR 1507.3 direct agencies to
include specific criteria for and identification of those typical
classes of actions that normally do not require either an EA or EIS.
Those categories of actions are identified along with appropriate
criteria for their use in handbook sections 31.1b and 31.2. The agency
believes that an appropriate evaluation of the potential effects of a
proposed action can and should be made by the Responsible Official
prior to the placement of the proposed action in a category for
exclusion. The text in paragraphs 2 and 3 of section 30.3 have been
modified to emphasize that the Responsible Official determines whether
or not extraordinary circumstances exist, and further, when it is
appropriate to prepare an EA or an EIS.
Comment: A few respondents suggested that the directive should
include clear guidelines by which a Responsible Official can determine
when the use of a categorical exclusion is appropriate. Other
respondents stated that Forest Service officials have the expertise to
assess the relationship between the proposed action and extraordinary
circumstances and, therefore, it is appropriate for them to determine
the level of NEPA analysis necessary for a proposed action.
Response: Forest Service Handbook, section 11.6, directs
Responsible Officials to determine the appropriate level of analysis
and documentation based upon the nature of the proposed action;
preliminary issues associated with the proposed action; interested and
affected agencies, organizations, and individuals; and the extent of
existing available documentation. The list of resource conditions (sec.
30.3, para. 2) that require consideration of whether extraordinary
circumstances related to the proposed action warrant analysis in an EA
or EIS provide sufficient guidance for Responsible Officials to
determine the appropriate level of analysis and documentation for a
proposed action.
Comment: A few respondents commented that the terms ``steep
slopes'' and ``highly erosive soils'' were ambiguous and out of date.
Response: The agency agrees that these terms could be subjective
and has removed them from paragraph 2 in the final policy.
Comment: The addition of proposed and sensitive species to the list
of resource conditions for extraordinary circumstances elicited
paradoxical responses from respondents. Those generally favoring the
overall new language for extraordinary circumstances opposed this
specific change, while those generally opposed to the overall new
language for extraordinary circumstances endorsed this part of the
Interim Directive.
Response: Paragraph 3 of the final Interim Directive emphasizes
that the Responsible Official must determine, based on scoping, whether
uncertainty exists over the significance of effects of a proposed
action. Additionally, paragraph 2 now indicates that the occurrence of
sensitive species requires consideration of whether extraordinary
circumstances related to the proposed action warrant analysis in an EA
or EIS. Together these two paragraphs address the concerns of both
those in favor and those who opposed the proposal.
Comment: One respondent suggested defining the term ``sensitive''
in the Interim Directive so that it is not open to interpretation.

[[Page 54626]]

Response: Generally, the agency avoids defining terms that are
already defined in other places within its directive system. Almost all
of the terms used in the definition of extraordinary circumstances are
defined in other places in the Forest Service Handbook or Manual. In
this case, the terms ``endangered, threatened, and sensitive species''
and ``designated and proposed critical habitat'' are already defined in
Forest Service Manual (FSM) 2670. Sensitive species are defined in FSM
2670 as those plant and animal species identified by a Regional
Forester for which population viability is a concern.
Comment: Many respondents feel it is inappropriate to use
categorical exclusions in some specific areas such as roadless areas,
wilderness areas, and municipal watersheds. They point out that, under
the proposed interpretation of extraordinary circumstances, the agency
could now perform logging, mining, and the construction of roads and
motorized trails and utility lines in these areas without the
documentation and analysis required by an EA or an EIS.
Response: The agency has responded to this fear by revising
proposed paragraphs 2 and 3. Paragraph 3 emphasizes that the
Responsible Official must determine, based on scoping whether
uncertainty exists over the significance of effects of a proposed
action. Paragraph 2 now indicates that occurrence of specific areas
such as roadless areas, wilderness areas, and municipal watersheds
requires consideration of whether extraordinary circumstances related
to the proposed action warrant analysis in an EA or EIS.
Comment: One respondent suggested that the American Indian and
Alaska Native religious or cultural sites should be a separate
extraordinary circumstance rather than combined with archeological and
historic properties or areas.
Response: Paragraph 2 in the final policy separates American Indian
and Alaska Native religious or cultural sites from historic properties.
Comment: One respondent objected to the Forest Service proposal to
remove the sentences in section 30.3, paragraph 3 that refer to when it
is appropriate to document an analysis with an EA or an EIS instead of
categorically excluding a proposed action.
Response: After careful consideration, the agency has determined
that the direction is clearer if the sentences on EA's and EIS's are
included and, therefore, has reinstated them.
Comment: One respondent felt that the language in section 30.3,
paragraph 4 regarding when new information triggers additional NEPA
analysis was not clear.
Response: After careful review, paragraph 4 has been removed. It
may have had purpose during early implementation of NEPA, but it merely
repeats direction already contained in Chapter 10, section 18.

Comments on Section 30.5 Definitions

Comment: One respondent was concerned that the new definition of
extraordinary circumstances in section 30.5 omitted the phrase ``during
scoping''. He felt that phrase was needed in the definition to make it
clear that scoping is an important step in determining which projects
may be categorically excluded.
Response: The agency shares that concern and has responded by
putting these references to scoping back into paragraph 3. The first of
these sentences states that if the Responsible Official determines,
based on scoping that it is uncertain whether the proposed action may
have a significant effect on the environment, an EA must be prepared.
The definition of extraordinary circumstances has been removed in the
final policy. The agency's final policy relies on the context in which
CEQ uses the term and provides for extraordinary circumstances in
paragraph 2, as directed by the CEQ regulations at 40 CFR 1508.4.

Environmental Impact

Comment: Some respondents stated that because the Interim Directive
addresses extraordinary circumstances, the Forest Service must prepare
an environmental assessment or an environmental impact statement on the
proposed Interim Directive to comply with NEPA.
Response: Forest Service Handbook 1909.15, section 31.1b (57 FR
43180), excludes from documentation in an environmental assessment or
environmental impact statement ``rules, regulations, or policies to
establish Service-wide administrative procedures, program processes, or
instructions.'' This Interim Directive to FSH 1909.15 falls within this
category of actions. The handbook by definition (Forest Service Manual
Chapter 1110; 36 CFR 200.4) sets out procedures and technical
instructions for complying with CEQ's regulations. Although the
proposed clarification directly addresses extraordinary circumstances,
it merely provides guidance and does not compel any activities to
occur. Therefore, regardless of the interpretation of the agency's 1992
policy, the agency has found that there are no extraordinary
circumstances related to this Interim Directive that would result in a
significant environmental effect. The procedural and technical nature
of the proposed change, and the finding that no extraordinary
circumstances exist, lead the agency to conclude that preparation of
environmental impact statement or environmental assessment is not
required for this Interim Directive. In addition, pursuant to 40 CFR
1505.1 and 1507.3, the agency has consulted with the Council on
Environmental Quality (CEQ) to ensure full compliance with the purposes
and provisions of NEPA and the CEQ implementing regulations.

Regulatory Impact

This final Interim Directive has been reviewed under USDA
procedures and Executive Order 12866, Regulatory Planning and Review.
It has been determined that this is not a significant action. This
action to clarify agency direction will not have an annual effect of
$100 million or more on the economy nor adversely affect productivity,
competition, jobs, the environment, public health or safety, nor State
or local governments. This action will not interfere with an action
taken or planned by another agency nor 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. Accordingly, this action is
not subject to Office of Management and Budget review under Executive
Order 12866.
Moreover, the final Interim Directive has been considered in light
of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and it is
hereby certified that the final Interim Directive 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 and Consultation and Coordination With Indian Tribal
Governments

The agency has considered this final Interim Directive under the
requirements of Executive Order 13132, Federalism, and has concluded
that the final Interim Directive conforms 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

[[Page 54627]]

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.
Moreover, this final Interim Directive does not have tribal
implications as defined by Executive Order 13175, Consultation and
Coordination with Indian Tribal Governments, and therefore advance
consultation with tribes was not required.

No Takings Implications

This final Interim Directive has 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 final Interim
Directive does not pose the risk of a taking of Constitutionally
protected private property.

Civil Justice Reform Act

This final Interim Directive has been reviewed under Executive
Order 12988, Civil Justice Reform. It, (1) Preempts all State and local
laws and regulations that are in conflict with this proposed Interim
Directive or which would impede its full implementation; (2) has no
retroactive effects; and (3) does not require administrative
proceedings before parties may file suit in court challenging its
provisions.

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 this interim final
directive on State, local, and tribal governments and the private
sector. This interim final directive does 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

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

Controlling Paperwork Burdens on the Public

This final Interim Directive does 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,
imposes 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.

Conclusion

Having considered the comments received, the Forest Service is
adopting an Interim Directive that clarifies direction regarding
consideration of extraordinary circumstances for categories of actions
that can be excluded from documentation in an EA or an EIS. This change
is being implemented through the issuance of an Interim Directive to
FSH 1909.15, Environmental Policy and Procedures Handbook, Chapter 30.
Although an Interim Directive (ID) expires in 18 months from its issue
date, the clarification of extraordinary circumstances is intended to
be a permanent revision. The text of this Interim Directive, along with
other Interim Directives, will be incorporated into a revision of the
entire Chapter 30 soon.

Dated: August 13, 2002.
Sally Collins,
Associate Chief.

Text of Final Interim Directive

Note: The Forest Service organizes its directive system by
alphanumeric 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 project planning and environmental analysis.
Selected headings and existing text are provided to assist the
reader in placing the revised direction in context. Paper and
electronic copies of this Interim Directive and the entire chapter
30 of FSH 1909.15 are available as set out in the ADDRESSES section
at the beginning of this notice.

FSH 1909.15--Environmental Policy and Procedures Handbook

Chapter 30--Categorical Exclusion From Documentation

30.3 Policy.

1. A proposed action may be categorically excluded from further
analysis and documentation in an environmental impact statement (EIS)
or environmental assessment (EA) only if there are no extraordinary
circumstances related to the proposed action and if:
a. The proposed action is within one of the categories in the
Department of Agriculture (USDA) NEPA policies and procedures in 7 CFR
part 1b, or
b. The proposed action is within a category listed in section 31.1b
or 31.2.
2. Resource conditions that should be considered in determining
whether extraordinary circumstances related to the proposed action
warrant further analysis and documentation in an EA or an EIS are:
a. Federally listed threatened or endangered species or designated
critical habitat, species proposed for Federal listing or proposed
critical habitat, or Forest Service sensitive species;
b. Flood plains, wetlands, or municipal watersheds.
c. Congressionally designated areas, such as wilderness, wilderness
study areas, or national recreation areas.
d. Inventoried roadless areas.
e. Research natural areas.
f. American Indian and Alaska Native religious or cultural sites.
g. Archaeological sites, or historic properties or areas.
The mere presence of one or more of these resource conditions does
not preclude use of a categorical exclusion. It is the degree of the
potential effect of a proposed action on these resource conditions that
determines whether extraordinary circumstances exist.
3. Scoping is required on all proposed actions, including those
that would appear to be categorically excluded. If the Responsible
Official determines, based on scoping, that it is uncertain whether the
proposed action may have a significant effect on the environment,
prepare an EA (ch. 40). If the Responsible Official determines, based
on scoping, that the proposed action may have a significant
environmental effect, prepare an EIS (ch. 20).
(Direction in paragraph 4 is removed.)

[FR Doc. 02-21075 Filed 8-22-02; 8:45 am]
BILLING CODE 3410-11-P