[Federal Register Volume 69, Number 128 (Tuesday, July 6, 2004)]
[Notices]
[Pages 40591-40597]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-15219]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Forest Service
RIN 0596-AB73
National Environmental Policy Act Documentation Needed for
Certain Special Use Authorizations
AGENCY: Forest Service, USDA.
ACTION: Notice of issuance of final directive.
-----------------------------------------------------------------------
SUMMARY: The Forest Service is revising procedures for implementing 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 or an environmental impact statement. These final
implementing procedures will be issued in an amendment to Forest
Service Environmental Policy and Procedures Handbook (FSH) 1909.15,
Chapter 30, sections 31.12 and 31.2. This amendment creates two new
categorical exclusions for the amendment to or replacement of special
use authorizations involving administrative changes when no changes are
proposed in the authorized facilities and no increase in the scope or
intensity of authorized activities is proposed. The intent of these
categorical exclusions is to facilitate employees' consistent
interpretation and application of CEQ regulations and related agency
policy.
The Forest Service is also making technical changes to the Zero
Code Chapter and Chapters 10, 30, and 40 of FSH 1909.15. These
technical changes do not substantively change the agency's NEPA
procedures. The amendments incorporate into parent text of the agency
policy and procedures previously set forth in interim directives to
Chapter 30; reformat the Handbook; and make minor editorial changes
throughout the Handbook. The amendment to Chapter 30 revises incorrect
section codes 31.1a and 31.1b to 31.11 and 31.12 respectively.
Accordingly, references to section 31.1b in the proposal to revise the
agency's NEPA procedures (66 FR 48412) now relate to section 31.12.
EFFECTIVE DATE: These amendments Nos. 19090.15-2004-1 through 4 are
effective July 6, 2004.
ADDRESSES: These new categorical exclusions are available
electronically from the Forest Service via the World Wide Web/Internet
at http://www.fs.fed.us/im/directives. Single paper copies of these
categorical exclusions are also 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 Melissa Hearst, Lands Staff, 202-
205-1196.
SUPPLEMENTARY INFORMATION:
Summary of the Categorical Exclusions for Certain Special Use
Authorizations
A special use is defined in 36 CFR Part 251, Subpart B as ``All
uses of National Forest System lands, improvements, and resources,
except those provided for in regulations governing the disposal of
timber (part 223) and minerals (part 228) and the grazing of livestock
(part 222) * * *'' The Forest Service controls the occupancy and use of
National Forest System lands, improvements, and resources through
issuance of special use authorizations, such as permits, leases, or
easements.
It is important to note that ski areas and organizational camps are
the two types of special uses of National Forest System lands that are
not addressed by the new final categorical exclusions. Ski area permits
are addressed by an existing categorical exclusion (FSH 1909.15 sec.
31.12 para. 9). The ministerial issuance or amendment of an
organizational camp special use authorization is not subject to the
[[Page 40592]]
National Environmental Policy Act (16 U.S.C. 6231 et seq.).
In April 1997, the Forest Service completed a study of its special
uses program to identify changes needed to manage the program in a more
efficient and customer service oriented manner. The study may be viewed
at http://www.fs.fed.us/recreation/permits/final1.htm. The study
revealed a large backlog of unprocessed special use applications
involving administrative changes of ownership or control of authorized
facilities or activities, or applications for a new special use
authorization to replace an expired authorization. The study concluded
that a primary cause of this backlog is the inconsistent application
and misinterpretation of agency policy found in Forest Service Handbook
(FSH) 1909.15, Environmental Policy and Procedures Handbook, Chapter
30, which addresses categorical exclusion from documentation in an
environmental assessment (EA) or environmental impact statement (EIS).
Some units were categorically excluding administrative changes to
special use authorizations, while others preparing EAs, which
emphasized a need for clarification.
Proposed Interim Directive to Forest Service Handbook 1909.15, Chapter
30
On September 20, 2001, the Forest Service published a notice of
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 special
use authorization actions, which can be categorically excluded from
documentation in an environmental assessment or an environmental impact
statement. 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 facilities or
activities. 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 proposed 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 the proposal.
Many people opposed the proposed interim directive or recommended
further restriction of the use of categorical exclusions, both in
general and for those proposed for certain special use authorizations,
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 special use
authorizations needed clarification.
Because of the volume and nature of comments received on the
proposed interim directive, the agency separated the special use
authorization categorical exclusions portion of the proposal from the
clarification of extraordinary circumstances. On August 23, 2001, the
Forest Service published a final interim directive to Forest Service
Handbook (FSH) 1909.15, Chapter 30, which revised and clarified the
agency's direction on extraordinary circumstances (67 FR 54622).
Accordingly, this notice addresses only those comments received on the
proposed categorical exclusions for certain special use authorization
actions.
The proposed additions to the Handbook were intended to provide
clear direction to agency personnel regarding certain types of special
use authorization actions that the agency has concluded do not
individually or cumulatively have a significant effect on the human
environment, and therefore, may be categorically excluded from
documentation in an EA or EIS. The proposed additions to sections 31.1b
(now coded 31.12) and 31.2 included the following:
Section 31.1b Categories Established by the Chief
Two new categories of actions were proposed to be added to this
section:
10. Amendment to an existing special use authorization during its
term, involving no change in the authorized use and occupancy other
than administrative changes. Examples include but are not limited to:
a. Amending a special use authorization to reflect administrative
changes, such as changes to the land use rental fee or conversion to a
new type of special use authorization for a particular occupancy or use
(for example, converting a permit to a lease or easement).
b. Amending a special use authorization to include nondiscretionary
environmental standards or updating a special use authorization to
bring it into conformance with current laws or regulations (for
example, new water quality standards that require monitoring).
11. Change in ownership of authorized improvements during the term
of an existing special use authorization, involving no change in the
authorized use and occupancy of National Forest System lands other than
administrative changes. Examples include but are not limited to
issuance of a new special use authorization to a new owner of the
authorized improvements, when there is no change to the authorized use
and occupancy.
Section 31.2 Categories of Actions for Which a Project or Case File and
Decision Memo Are Required
One new category was proposed to be added to this section:
10. Issuance of a new special use authorization to the holder of an
existing special use authorization when:
a. The existing special use authorization terminates at the end of
its term;
b. The holder is in full compliance with the terms and conditions
of the terminating special use authorization; and
c. There would be no change in the physical environment or
facilities or the scope or intensity of the operations.
Based on further study and review of the comments received, the
proposed special use authorization categorical exclusions have been
revised and are printed in their entirety at the end of this notice.
Comments on the Need for the Proposed Interim Directive
Comment: Many respondents commented that there is no need for the
proposed changes. Some respondents said that proposed actions can be
analyzed with a concise EA, if necessary and, therefore, there is no
need to create additional categorical exclusions. 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. Conversely, other
respondents supported the proposed
[[Page 40593]]
categories and some advocated that the agency should make greater use
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
is not justified for those actions that qualify for categorical
exclusion. Categorical exclusions are a legitimate tool for reducing
excessive paperwork and to avoid allocating resources where they are
not needed, thereby allowing the agency to devote more resources to
environmental analysis and documentation for those requests for new
special use authorizations that may have significant effects.
Therefore, the agency will proceed with issuance of the categorical
exclusions.
Comment: The preamble for the proposed categorical exclusions
referred to a backlog of unprocessed special use authorizations
resulting from inconsistent application of agency policy. One
respondent commented that a backlog exists not due to inconsistent
application of policy by the agency, but rather because demand is
growing for special use authorizations.
Response: While it is true that there has been some increase in
demand for new special use authorizations for new facilities or
activities, the categorical exclusions make no changes to how the
agency deals with new uses proposed on National Forest System lands. As
identified in the preamble to the proposed categorical exclusions (66
FR 48412), the 1997 study determined that much of the backlog of
applications was associated with proposed administrative actions
related to ongoing or expiring special use authorizations.
Comment: Some respondents stated there was a real need for this
proposal because uncertainty caused by not knowing whether or when an
ongoing authorization was going to be replaced with a new authorization
causes extreme financial and emotional hardship. They suggested that
issuance of a new special use authorization to replace an existing
authorization prior to its expiration will increase certainty and not
disrupt ongoing uses and management of facilities and activities.
Response: The Forest Service agrees. The proposed categorical
exclusion at section 31.2, paragraph 10 addressed issuing new special
use authorizations when an existing special use authorization
terminates at the end of its term. However, administratively, it would
be more efficient to issue the new special use authorization before it
expires. Therefore, this categorical exclusion has been modified to
address existing special use authorizations that are due to expire, as
well as those that have expired, when there is no change to the
authorized facilities or in the scope or intensity of the authorized
activity, when the applicant or holder is in full compliance with the
terms and conditions of the authorization, and the only changes are
administrative.
Due to the development of other agency categorical exclusions, the
proposed categorical exclusion originally identified as paragraph 10 of
section 31.2 is now paragraph 15 of section 31.2.
Comments on Compliance With Law and Regulation
Comment: Many respondents believed the proposed categorical
exclusions did not comply with the CEQ NEPA regulations because special
use authorizations are used for a broad array of activities including
actions that may have the potential for significant effects.
Response: The CEQ regulations define categorical exclusion as a
``category of actions which do not individually or cumulatively have a
significant effect on human environment * * *'' (40 CFR 1508.4). The
proposed categories of actions described specific administrative
actions to existing special use authorizations that would involve no
change in the authorized facilities or activities other than
administrative changes. In other words, the categorical exclusion is
designed to cover situations where administrative actions would not
cause an individually or cumulatively significant effect on the human
environment.
Discussions and follow-up took place with special use authorization
specialists and environmental policy compliance specialists throughout
the Forest Service regarding their experience with special use
authorizations of all kinds, in all types of forests, over many years.
The specialists involved represent over 800 years of combined
experience in Forest Service special uses administration and
environmental compliance. They reviewed and discussed the environmental
effects of special use authorizations individually and cumulatively
over time, of administrative changes, and of the extension of the term
or time period of the occupancy and use in situations when the
occupancy and use is conducted in accordance with the terms and
conditions of the authorization. After that review, they concluded that
the activities described in the final categorical exclusions do not
have individual or cumulative significant effects. In those few
situations where the potential for significant environmental effects
arose, they concluded that the scoping and/or review of extraordinary
circumstances in accordance with direction in FSH 1909.15, Section 30.3
resulted in preparation of either an EA or an EIS.
Comment: Some respondents believe that the proposed categorical
exclusions did not comply with the CEQ regulations. Their reason was
that when considering all of the actions that the Forest Service
authorizes through special use authorizations, these actions may have
cumulative effects.
Response: The actions that the agency is categorically excluding
are specific administrative actions that do not result in significant
effects on the environment. As described above, the agency has
determined they do not have individually or cumulatively significant
effects, and therefore, these categorical exclusions meet the CEQ
regulations' definition of categorical exclusions.
Comment: Some respondents stated that many special use
authorizations have never undergone NEPA analysis even though the
authorizations may have resulted in significant impacts to the human
environment. Respondents believed that using a categorical exclusion to
amend a current authorization or to issue a new authorization to
replace an existing special use authorization, which had not been
analyzed under NEPA would not comply with the CEQ regulations.
Response: While it is true that there are some existing special use
authorizations that were issued without undergoing a NEPA analysis,
this situation occurred generally when the authorization was issued
prior to enactment of NEPA and subsequent guidance. Categorical
exclusions in paragraph 10 of section 32.12 and paragraph 15 of section
31.2 are for administrative actions that do not change the facilities
nor increase the level of activity. The previously noted review of all
types of special use authorizations, including those special use
authorizations that have not previously been reviewed through the NEPA
process, demonstrated that existing special uses in compliance with
their authorizations have not had significant environmental effects.
Agency experience shows that under the conditions described in the text
of the categorical exclusions at the end of this notice, issuing or
amending special use authorizations does not individually or
[[Page 40594]]
cumulatively have significant effects, and are therefore in compliance
with the CEQ regulations. The agency reviewed the proposed categorical
exclusions and considered them in conjunction with the recently
clarified NEPA procedures concerning extraordinary circumstances (67 FR
54622). The agency review determined its recently clarified NEPA
procedures concerning extraordinary circumstances would identify any
potentially significant effects on the human environment and the Forest
Service would, therefore, preclude use of the categorical exclusions at
paragraph 10 of section 32.12 and paragraph 15 of section 31.2 and
would assure preparation of the appropriate level of NEPA analysis and
documentation.
Comments on Public Participation
Comment: A considerable amount of comment revolved around the
proposed categorical exclusions' effect on the public 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: The Forest Service will continue to conduct 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 appropriate level
of public involvement and the appropriate level of environmental
analysis and documentation. When the Forest Service contemplates
categorically excluded a proposed action, scoping is used to help
determine whether any extraordinary circumstances exist. An 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. ``Scoping is required on all proposed actions,
including those that would appear to be categorically excluded.'' (FSH
1909.15, section 30.3).
Comment: Respondents were also concerned that more decisions will
be made through a categorical exclusion and, consequently, fewer
decisions will be appealable.
Response: The two new categories being established are limited to
amendment to or issuance to replace special use authorizations
involving administrative changes or where there are no changes in the
authorized facilities or increase in the scope or intensity of
authorized activities. In the agency's experience, authorizations
involving administrative adjustments or continuance of ongoing
activities are less likely to be appealed than new actions. The actions
covered by these categories are comparable to the types of activities
that have been excluded from appeal in the agency's implementing
regulations since enactment of the Appeal Reform Act (ARA). The ARA
does not require that all actions by the Forest Service, regardless of
their scope, be subject to appeal. To the contrary, Congress has
delegated the responsibility for delineating which projects should be
subject to appeal, and which should not. The agency's interpretation
and implementation of the ARA is outlined in the Federal Register
notice establishing the final rule (68 FR 33582, June 4, 2003). As
previously noted, the agency will continue to conduct scoping for all
proposed actions subject to NEPA and the responsible official will
consider the appropriate level of public involvement commensurate with
the level of public interest in a proposed action. The agency believes
that including affected and interested individuals in project planning
early in the process is more effective than applying the additional
appeal procedures.
However, decisions to amend current special use authorizations that
are addressed by these new final categorical exclusions may be subject
to appeal by parties who hold a special use authorization (36 CFR Part
251 Subpart C). The appeal process in Subpart C is a structured,
grievance oriented procedure that provides the elements of due process
fundamental to resolving issues arising from a business or legal
relationship between the Forest Service and an eligible appellant.
Comments on Impacts
Comment: Some respondents who were opposed to the proposed
categorical exclusions 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
categorical exclusions 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 archaeological sites.
Response: Categorical exclusions are to be used for routine actions
that have been found by the agency through experience and environmental
review to have no significant environmental effects either individually
or cumulatively (40 CFR 1508.4). On August 23, 2002, the Forest Service
published a final interim directive to Forest Service Handbook (FSH)
1909.15, Chapter 30, which provided direction regarding how actions,
which may be categorically excluded, should be considered to determine
if they warrant further analysis and documentation in an EA or EIS (67
FR 54622). Agency NEPA procedures require that all proposed actions to
be categorically excluded from documentation in an EA or EIS must be
reviewed for extraordinary circumstances, which includes appropriate
surveys and analyses, using the best available science, attendant in
appropriate consultation with Tribes and consultation with regulatory
agencies, such as those required by the Endangered Species Act, the
National Historic Preservation Act, Clean Water Act, and Clear Air Act.
Accordingly, these categorical exclusions do not apply where there are
extraordinary circumstances, such as adverse effects on the following:
threatened and endangered species or their designated critical habitat;
wilderness areas; inventoried roadless areas; wetlands; impaired
waters; national recreation areas; and archaeological, cultural, or
historic sites. Pursuant to 36 CFR 251.64, new special use
authorizations to replace existing authorizations must comply with
Federal and State laws and regulations and must be consistent with land
management plan goals and objectives, and where appropriate, standards
and guidelines set out in the plan.
Comment: Some respondents stated that they view the NEPA review
process when an authorization expires as an opportunity to consider new
information, which may bear on the environmental impact of an existing
use or occupancy, and an opportunity to assess the impact of an
authorization holder's facilities and/or activities. Respondents
believed there would be less opportunity and inclination to evaluate
these authorized facilities and activities under the proposed
categorical exclusions. Provisions for the changes of ownership drew
similar comments.
Response: The agency's procedures pursuant to NEPA require scoping
on all proposed actions, including those that would appear to be
categorically
[[Page 40595]]
excluded (FSH 1909.15, section 11). This scoping includes consulting
with experts and other agencies familiar with such actions and their
direct, indirect, and cumulative effects. Using the information
obtained through scoping, the Responsible Official then determines if
the proposed action can be categorically excluded from documentation in
an EIS or an EA or, alternatively, determines the type of document that
should be prepared. Moreover, Forest Service regulations (36 CFR Part
251, subpart B) and policies (Forest Service Manual (FSM) 2700 and FSH
2709.11) governing special uses already require the agency to consider
if significant new information or circumstances have developed prior to
amending a special use authorization, or prior to replacing an existing
authorization. These regulations and policies also specify that, if new
significant information or circumstances have developed, then the
appropriate environmental analysis must be completed and accompany the
decision before an authorization can be amended or issued anew.
Comments on the Interim Nature of the Directive
Comment: Some respondents questioned why the proposed categorical
exclusions were being issued as an interim directive and how long it
would be in effect or under what circumstances it would terminate.
Response: As was stated in the preamble for the proposed interim
directive published in the September 20, 2001, Federal Register (66 FR
48412), the changes were proposed to be made through an interim
directive for administrative efficiency. In further consideration, and
in response to this comment, the final categorical exclusions are not
issued as an interim directive but rather are incorporated directly
into the text of Forest Service Handbook (FSH) 1909.15, Chapter 30.
Comments on the Categories
Comment: Some respondents commented that not all special use
authorization holders have equal impacts on the human environment, and
therefore, the agency should not assume that a change in legal
ownership does not trigger a NEPA analysis.
Response: All authorization holders, regardless of their legal
status (e.g., partnership, individual, nonprofit organization,
corporation) are responsible for complying with the applicable laws,
regulations, and terms and conditions of the special use authorization.
By regulation (36 CFR Part 251, Subpart B) and policy (FSM 2700 and FSH
2709.1), applicants for and holders of special use authorizations must
be able to demonstrate that they have the technical and financial
capability to undertake the use in compliance with the terms and
conditions of the authorization. It is this demonstrated evidence of
technical and financial capability, and not merely the status of
ownership, which has a bearing on the applicant or holder
qualifications, which the authorized officer must consider prior to
amending or issuing a special use authorization. To highlight this
requirement, and in response to this comment, the phrase ``and the
applicant or holder is in full compliance with the terms and conditions
of the special use authorization'' was added to the final categorical
exclusions.
Consequently, a change in ownership or control of authorized
facilities and activities during the term of an existing special use
authorization, involving no increase in the authorized facilities or
scope or intensity of authorized activities on National Forest System
lands (i.e., the activity takes place in the same or smaller geographic
area and the amount of the use does not increase), is an example of an
administrative change that typically results in no significant effect
on the human environment. These were among the types of special use
authorizations examined by agency experts and determined to have no
significant effects on the human environment, either individually or
cumulatively.
Comment: Some respondents were confused by the language in the
categorical exclusion proposed for paragraph 11 of section 31.1b
because it referred to a change in ownership of ``authorized
improvements.'' The respondents were concerned that this did not
address situations where there was a change in ownership of uses, such
as an outfitting business where there are no physical improvements on
National Forest System lands.
Response: Based on respondents' concerns, the final categories do
not use the phrase ``authorized improvements.'' The categorical
exclusions now use the terms ``authorized facilities'' and ``increases
in the scope or intensity of authorized activities'' to encompass both
situations.
Comment: One respondent stated that the Forest Service must define
the term ``administrative change'' to clarify that it refers only to
clerical changes with no substantive changes to the terms of the
authorization.They were concerned that it could be interpreted any
number of ways. Another respondent asked the Forest Service to clarify
terms used in the proposed categorical exclusions. The respondent
suggested that the proposed categorical exclusions would not meet
agency intent to facilitate consistent interpretation of policy.
Resonse: One final categorical exclusions contains examples of what
is meant by the term ``administrative changes.'' Specifically, the
categorical exclusion in paragraph 10 of section 31.12 includes ``* * *
administrative changes such as adjustment to the land use fees,
inclusion of non-discretionary environmental standards or updating a
special use authorization to bring it into conformance with current
laws or regulations (for example, new monitoring required by water
quality standards.)'' In clarifying the term ``administrative change,''
the agency realized that the categorical exclusions proposed for
paragraphs 10 and 11 of section 31.1b were very similar in that they
addressed administrative changes which occur within the term of an
existing authorization. The agency chose to combine the two proposed
categorical exclusions (paragraphs 10 and 11 of section 31.1b) and
their examples into one category in paragraph 10 of section 31.12
(formerly coded 31.1b) for clarity, and to reduce redundancy. In
combining these two categories, the two examples under the proposed
categorical exclusion in paragraph 10 were combined into one and a
second example was added to illustrate the originally proposed
categorical exclusion in paragraph 11. The words ``extensions to the
term of authorized'' were added to the phrase ``does not involve
changes in the authorized facilities or increases in the scope or
intensity of authorized activities'' to clarify that the term of the
authorization cannot change under the categorical exclusion in
paragraph 10 of section 31.12. The word ``changes'' appeared twice in
the same sentence in the proposed section 31.1b example, so in the
second instance where the word ``change'' appears, it was replaced with
``adjustment'' for readability. In this same example, the word
``rental'' was found to be redundant and was also deleted to be
consistent with agency special uses policy language.
In responding to this comment it became apparent that the proposed
categories used different terminology to describe the same condition
under which the categories could be used. The requirement for one
category was, ``no change in the use or occupancy'' while the other
category required ``no change in the physical environment or facilities
or the scope or intensity of operations.'' The two phrases, while
worded differently, had the same intent.
[[Page 40596]]
Therefore, the categories have been reworded for consistency. Both
final categories now utilize the phrase ``does not involve changes in
the authorized facilities or increases in the scope or intensity of
authorized activities.''
In another editorial clarification, the conditions enumerated in
the categorical exclusion proposed for paragraph 10 of section 31.2
were combined and incorporated into the final categorical exclusion in
paragraph 15. In so doing, the phrase ``authorization [that] expires at
the end of its term'' was replaced with ``expired.'' The words ``for a
new term'' were added to replace ``at the end of the term'' for
readability and clarity. The words ``applicant or'' were added before
``holder'' to recognize that in the case of an expired permit there
would be an applicant but no holder.
These edits do not change the substance of the proposed categorical
exclusions, but rather improve their clarity and readability.
Regulatory Certifications
Environmental Impact
These categorical exclusions add direction to guide field employees
in the USDA Forest Service regarding procedural requirements for
National Environmental Policy Act (NEPA) documentation for
administration of special use authorizations. The Council on
Environmental Quality does not direct agencies to prepare a NEPA
analysis or document before establishing agency procedures that
supplement the CEQ regulations for implementing NEPA. Agencies are
required to adopt NEPA procedures that establish specific criteria for,
and identification of, three classes of actions; those that require
preparation of an environmental impact statement; those that require
preparation of an environmental assessment; and those that are
categorically excluded from further NEPA review (40 CFR 1507.3(b)).
Categorical exclusions are part of those agency procedures, and
therefore establishing categorical exclusions does not require
preparation of a NEPA analysis or document. Agency NEPA procedures are
internal procedural guidance to assist agencies in the fulfillment of
agency responsibilities under NEPA, but are not the agency's final
determination of what level of NEPA analysis is required for a
particular proposed action. The requirements for establishing agency
NEPA procedures are set forth at 40 CFR 1505.1 and 1507.3, and the USDA
Forest Service has provided an opportunity for public review and has
consulted with the Council on Environmental Quality during the
development of these categorical exclusions. Furthermore, 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. III. 1999),
aff'd, 230 F.3d 947, 954-55 (7th Cir. 2000).
Regulatory Impact
These final categorical exclusions have 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 issue 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 categorical exclusions have been considered in
light of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and it
is hereby certified that the final categorical exclusions will not have
a significant economic impact on a substantial number of small entities
as defined by the act because they will not impose recordkeeping
requirements on them; they will not affect their competitive position
in relation to large entities; and 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 these final categorical exclusions under
the requirements of Executive Order 13132, Federalism, and has
concluded that the final categorical exclusions 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.
Moreover, these final categorical exclusions do not have tribal
implications as defined by Executive Order 13175, Consultation and
Coordination with Indian Tribal Governments, and therefore advance
consultation with tribes was not required.
No Takings Implications
These final categorical exclusions have been analyzed in accordance
with the principles and criteria contained in Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights, and it has been determined that the final categorical
exclusions do not pose the risk of a taking of private property.
Civil Justice Reform
These final categorical exclusions have been reviewed under
Executive Order 12988, Civil Justice Reform. After adoption of this
policy as final, (1) all State and local laws and regulations that
conflict with these final categorical exclusions or that would impede
their full implementation will be preempted; (2) no retroactive effects
would be given to this final policy; and (3) this final policy would
not require administrative proceedings before parties may file suit in
court challenging their 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 these final categorical
exclusions on State, local, and tribal governments and the private
sector. These final categorical exclusions do not compel the
expenditure of $100 million or more by any State, local, or tribal
government or anyone in the private sector. Therefore, a statement
under section 202 of the act is not required.
Energy Effects
These final categorical exclusions have been reviewed under
Executive Order 13211, Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use. It has been
determined that these final categorical exclusions do not constitute a
significant energy action as defined in the Executive order.
Controlling Paperwork Burdens on the Public
These final categorical exclusions do not contain any additional
record-
[[Page 40597]]
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.
Conclusion
Having considered the comments received, the Forest Service is
adopting procedures that clarify direction regarding administrative
changes to special use authorizations where there are no changes in the
authorized facilities or increases in the scope or intensity of
authorized activities by creating two new categories of actions that
can be excluded from documentation in an EA or an EIS. This change is
being implemented through amendment to FSH 1909.15, Environmental
Policy and Procedures Handbook, Chapter 30, which is effective upon
publication of this notice in the Federal Register.
Dated: June 29, 2004.
Tom L. Thompson,
Acting Chief.
Text of Final 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. This direction will be used by Forest Service employees
charged with project planning and environmental analysis when
appropriate. Selected headings and existing text are provided to
assist the reader in placing the revised direction in context. Paper
and electronic copies of these categorical exclusions and the entire
chapter 30 of FSH 1909.15 are available as set out in the ADDRESS
section at the beginning of this notice.
To provide context for understanding the new categorical
exclusions that are established as paragraph 10 in section 31.12 and
paragraph 15 in section 31.2, the introductory text of each section
follows (in italics):
FSH 1909.15--Environmental Policy and Procedures Handbook
Chapter 30--Categorical Exclusion From Documentation
Chapter 31.12--Categories Established by the Chief
The following categories of routine administrative, maintenance,
and other actions normally do not individually or cumulatively have
a significant effect on the quality of the Human environment (sec.
05) and, therefore, may be categorically excluded from documentation
in an EIS or an EA unless scoping indicates extraordinary
circumstances (sec. 30.3) exists:
10. Amendment to or replacement of an existing special use
authorization that involves only administrative changes and does not
involve changes in the authorized facilities or increases in the
scope or intensity of authorized activities, or extensions to the
term of authorization, when the applicant or holder is in full
compliance with the terms and conditions of the special use
authorization. Examples include but are not limited to:
a. Amending a special use authorization to reflect
administrative changes, such as adjustment to the land use fees,
inclusion of non-discretionary environmental standards or updating a
special use authorization to bring it into conformance with current
laws or regulations (for example, new monitoring required by water
quality standards).
b. Issuance of a new special use authorization to reflect
administrative changes, such as a change of ownership or control of
previously authorized facilities or activities, or conversion of the
existing special use authorization to a new type of special use
authorization (for example, converting a permit to a lease or
easement).
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: the names
of interested and affected people, groups, and agencies contacted;
the determination that no extraordinary circumstances exist; a copy
of the decision memo (sec. 05); and a list of the people notified of
the decision. Maintain a project or case file and prepare a decision
memo for routine, proposed actions within any of the following
categories:
15. Issuance of a new special use authorization for a new term
to replace an existing or expired special use authorization when the
only changes are administrative, there are no changes to the
authorized facilities or increases in the scope or intensity of
authorized activities, and the applicant or holder is in full
compliance with the terms and conditions of the special use
authorization.
[FR Doc. 04-15219 Filed 7-2-04; 8:45 am]
BILLING CODE 3410-11-M