National Environmental Policy Act (NEPA) Compliance
| Published date | 19 November 2020 |
| Citation | 85 FR 73620 |
| Record Number | 2020-25465 |
| Section | Rules and Regulations |
| Court | Forest Service |
Federal Register, Volume 85 Issue 224 (Thursday, November 19, 2020)
[Federal Register Volume 85, Number 224 (Thursday, November 19, 2020)]
[Rules and Regulations]
[Pages 73620-73632]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25465]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 220
RIN 0596-AD31
National Environmental Policy Act (NEPA) Compliance
AGENCY: Forest Service, USDA.
ACTION: Final rule.
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SUMMARY: The U.S. Department of Agriculture, Forest Service (Agency) is
adopting a final rule amending its National Environmental Policy Act
(NEPA) regulations. The final rule establishes new and revised
categorical exclusions (pertaining to certain special use
authorizations, infrastructure management activities, and restoration
and resilience activities) and adds the determination of NEPA adequacy
provision to the Agency's NEPA regulations. These amendments will
increase efficiency in the Agency's environmental analysis and
decision-making while meeting NEPA's requirements and fully honoring
the Agency's environmental stewardship responsibilities. Public comment
has informed and improved the final rule.
DATES: This rule is effective November 19, 2020.
ADDRESSES: Additional information is available online at https://www.fs.fed.us/emc/nepa/revisions/index.shtml.
FOR FURTHER INFORMATION CONTACT: Christine Dawe; Director, Ecosystem
Management Coordination; 406-370-8865. Individuals who use
telecommunication devices for the deaf (TDD) may call the Federal
Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m.
and 8:00 p.m., Eastern Standard Time, Monday through Friday.
SUPPLEMENTARY INFORMATION:
Background
The mission of the Forest Service is to sustain the health,
diversity, and productivity of the Nation's forests and grasslands to
meet the needs of present and future generations. The National
Environmental Policy Act (NEPA) has twin goals of requiring Federal
agencies (1) to consider the significant environmental impacts of their
proposed actions and (2) to inform the public that environmental
concerns were considered in the decision-making process. These goals
are not only complementary to the Agency's mission, but such informed
decision-making is essential to its achievement. The Agency devotes
considerable financial and personnel resources to NEPA analyses and
documentation, completing on average 1,588 categorical exclusion (CE)
determinations, 266 environmental assessments (EAs), and 39
environmental impact statements (EISs) annually (based on Fiscal Years
2014-2019). The Agency is amending its NEPA regulations as described in
this final rule to make more efficient use of those resources to
fulfill NEPA's requirements and, in turn, its mission. The final rule
is consistent with the Council on Environmental Quality's (CEQ's)
intent to ensure that Federal agencies conduct environmental reviews in
a coordinated, consistent, predictable, and timely manner, and to
reduce unnecessary burdens and delays (40 CFR 1500.1).
An increasing percentage of the Agency's resources have been spent
each year to provide for wildfire suppression, resulting in fewer
resources available for other management activities, such as
restoration. In 1995, wildland fire management funding made up 16
percent of the Forest Service's annual spending, compared to 57 percent
in 2018. Along with a shift in funding, there has also been a
corresponding shift in staff from non-fire to fire programs, with a 39
percent reduction in all non-fire personnel since 1995.
The Consolidated Appropriations Act of 2018 (2018 Omnibus Bill)
included new budget authority for fighting wildfires, in addition to
regular appropriations. While this budget stability is welcome, the
trends discussed above make it imperative that the Agency makes the
most efficient use of available funding and resources consistent with
its statutory authorities to fulfill its environmental analysis and
decision-making responsibilities.
On January 3, 2018, the Agency published an Advance Notice of
Proposed Rulemaking (ANPR) (83 FR 302) announcing its intent to revise
its NEPA procedures with the goal of increasing the efficiency of
environmental analysis. The Agency received 34,674 comments in response
to the ANPR, of which 1,229 were unique. Most of the unique comments
expressed support for the Agency's effort to identify efficiencies in
the NEPA process. The unique comments in support of the ANPR all
generally acknowledged that there is room for increased efficiency in
the Agency's NEPA process. Some of these comments expressed unqualified
support for increasing efficiency; other comments supported the
Agency's goals but included caveats that these gains should not come at
a cost to public involvement or conservation of natural resources.
On June 13, 2019, the Agency published a proposed rule (84 FR
27544) proposing revisions to its NEPA procedures. Following an initial
60-day comment period that was extended for 14 days in response to
requests from the public, the Agency received roughly 103,000 comments.
Roughly 6,200 comments were unique, individual comments; the remainder
were organized response campaign comments (form letters). A detailed
summary of
[[Page 73621]]
comments on the proposed rule and the Agency's response follows below.
After the Forest Service rulemaking process had begun, CEQ
published an advance notice of proposed rulemaking on June 20, 2018,
announcing that it was ``considering updating its implementing
regulations for the procedural provisions of the National Environmental
Policy Act'' (83 FR 28591). On January 10, 2020, after publication of
the Forest Service's proposed rule, CEQ published a proposed rule to
revise its regulations at 40 CFR parts 1500-1508 (85 FR 1684). On July
16, 2020, CEQ published a final rule revising its regulations (85 FR
43304).
The Council on Environmental Quality's revised regulations took
effect on September 14, 2020 (40 CFR 1506.13). Where existing Forest
Service NEPA procedures are inconsistent with CEQ's revised
regulations, CEQ's revised regulations shall apply, unless there is a
clear and fundamental conflict with the requirements of another statute
(40 CFR 1507.3(a)). Per CEQ's revised regulations, the Forest Service
shall develop, as necessary, proposed procedures to implement the CEQ's
revised regulations no more than 12 months after September 14, 2020,
including to eliminate any inconsistencies with CEQ's revised
regulations (40 CFR 1507.3(b)).
In light of CEQ's revised regulations, the Forest Service's final
rule is of limited scope. The Forest Service is amending its NEPA
regulations to add only the new and expanded CEs and a Determination of
NEPA Adequacy provision as described in more detail below. Other
changes to the Forest Service's NEPA regulations that were included in
the proposed rule, along with associated comments, will be reconsidered
in association with the Agency's review of its NEPA procedures as
directed by CEQ's revised regulations. These changes include, but are
not limited to, revisions to the Agency's scoping and public engagement
requirements, schedule of proposed actions, condition-based management,
classes of actions that normally require an EIS, procedures associated
with CE determinations, and use of other agency CEs.
Summary of the Final Rule
The amendments in the final rule will increase efficiency in the
Agency's environmental analysis and decision-making while meeting
NEPA's requirements and fully honoring the Agency's environmental
stewardship responsibilities. The final rule adds a Determination of
NEPA Adequacy provision, which outlines a process for determining
whether a previously completed Forest Service NEPA analysis can satisfy
NEPA's requirements for a subsequently proposed action. The final rule
also establishes six new CEs, consolidates two existing CEs into one,
and expands two existing CEs. The six new CEs include activities
related to recreation special uses, administrative sites, recreation
sites, and restoration and resilience projects, along with two CEs for
certain road management projects. Two existing CEs are consolidated
into one covering clerical modification or reauthorization of existing
special uses. The two expanded CEs cover (1) approval, modification, or
continuation of special use authorizations on up to 20 acres of NFS
lands and (2) decommissioning of both unauthorized roads and trails and
National Forest System roads and trails. These CEs are described in
greater detail in the comment responses below and in the document
titled, ``Supporting Statement: Categorical Exclusions For Certain
Special Uses, Infrastructure, and Restoration Projects,'' available at
https://www.fs.fed.us/emc/nepa/revisions/index.shtml.
Additionally, to avoid public confusion the final rule includes a
technical amendment to remove and reserve paragraph Sec. 220.6(e)(10),
which was enjoined in Sierra Club v. Bosworth, 510 F.3d 1016 (9th Cir.
2007).
The proposed rule would have reordered the content of Sec. Sec.
220.5, 220.6., and 220.7 to align with the levels of NEPA documentation
(CE, EA, EIS). The final rule does not reorder the content of these
sections.
Comments on the Proposal/Section by Section Description of the Final
Rule
General Comments
Comments expressed a wide range of opinions--both strongly for and
against--the proposed rule. Comments expressing support for the
proposed rule stated that it was a means to improve the Agency's NEPA
processes. Other comments, however, opposed various provisions of the
proposed rule, expressing concern that the revisions could: (1)
Diminish social, economic, or environmental outcomes and lead to abuse;
(2) result in inadequate environmental analysis and undermine the
Forest Service's mission; (3) reduce the opportunity for public comment
and environmental review of projects; (4) and erode public trust,
violate existing laws and regulations, and increase potential
litigation.
Response: The Agency notes the general comments in support of or in
opposition to the rule. The Agency has carefully considered the input
from the public, other government entities, and Tribes and has made
several adjustments to the final rule to address the concerns described
above. These changes are described in more detail below and include,
for example, not moving forward with some of the proposed CEs and
adding additional limitations to other CEs. Throughout the rulemaking
process, the Agency's goal has been to develop a final rule that
enables the Agency to efficiently deliver environmental analysis to
decision-makers that is scientifically based, is of high quality, and
honors environmental stewardship responsibilities. The final rule
achieves this goal and will facilitate decision-making that fulfills
the Agency's mission of sustaining the health, diversity, and
productivity of the Nation's forests and grasslands to meet the needs
of present and future generations.
The Agency will make diligent efforts to involve the public in
implementing its NEPA procedures as required by CEQ's revised NEPA
regulations at 40 CFR 1506.6. The Agency's final rule does not address
or reduce existing Agency public involvement practices concerning CEs.
Scoping and public engagement requirements will be assessed during the
development of revised Agency NEPA procedures required by CEQ's revised
NEPA regulations. Further, the Agency will continue to comply with the
requirements of all applicable laws and regulations, such as the
National Environmental Policy Act, National Forest Management Act,
Endangered Species Act, and National Historic Preservation Act.
Comment: Some commenters suggest that there is insufficient
justification to support the need for the proposed rule as described in
the Federal Register notice or indicate, in opposing the proposed rule,
that the regulations it would amend are relied upon by the commenters
and other stakeholders.
Response: The CEQ regulations state that agencies shall reduce
excessive paperwork and delay by using CEs and, for efficiency, shall
identify CEs in their agency NEPA procedures (40 CFR 1500.4(a),
1500.5(a), and 1501.4(a)). The final rule reduces paperwork and delay
by adding the Determination of NEPA Adequacy provision and establishing
new and expanded categorical exclusions based on Agency experience and
expertise. The CEQ NEPA regulations at 40 CFR parts 1500-1508 encourage
agencies to continue to review their NEPA policies and procedures and
to revise them as
[[Page 73622]]
necessary. To the extent commenters raise concerns about reliance
rights, the Forest Service further notes that rules implementing NEPA,
such as this one and its predecessor, are purely procedural. They
simply direct the actions of public officials. They therefore do not
engender specific, reasonable, and detrimental reliance by individuals
and groups outside the government.
Comment: Commenters suggested a need to prepare an EIS to assess
the potential impacts from implementation of the proposed rule; in
particular, comments request that the Forest Service evaluate proposed
rule impacts to social, cultural, and economic conditions of affected
communities and user groups; climate change and carbon stores; scenic
integrity; National Scenic and Historic Trails; and caves and karst
resources.
Response: The CEQ regulations do not require agencies to prepare a
NEPA analysis before establishing or updating agency NEPA procedures.
See, e.g., Heartwood, Inc. v. U.S. Forest Service, 230 F.3d 947, 954-55
(7th Cir. 2000). Agency NEPA regulations establish the procedures for
fulfilling their responsibilities under NEPA but are not the Agency's
final determination of what level of NEPA analysis is required for a
particular proposed action. This rule does not authorize any activity
or commit resources to a project that may affect the environment. This
rule does not have any reasonably foreseeable impact on the
environment, nor does the rule authorize or prohibit any action that
would have any effect on the environment.
Comment: After CEQ published a notice of proposed rulemaking to
revise its regulations for implementing NEPA on January 10, 2020 (85 FR
1684), the Forest Service received a request from several organizations
that it abandon or suspend its rulemaking effort pending the outcome of
CEQ's rulemaking effort.
Response: The Forest Service has coordinated with CEQ throughout
the Forest Service's rulemaking process. Partially as a result of CEQ's
revised regulations, the Forest Service's final rule is of limited
scope and amends its regulations to add only new and expanded CEs and
the DNA provision. On November 10, 2020, CEQ issued a letter stating
that CEQ has reviewed this rule and has found it to be in conformity
with NEPA and CEQ regulations (per 40 CFR 1507.3). Where existing
Agency NEPA procedures are inconsistent with CEQ's revised regulations,
CEQ's revised regulations shall apply (see 40 CFR 1507.3(a)). As
explained above, the Forest Service will review its NEPA regulations
and initiate another rulemaking process as required by CEQ's revised
regulations.\1\
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\1\ CEQ has determined that the categorical exclusions contained
in agency NEPA procedures as of September 14, 2020, are consistent
with the new CEQ regulations. See Sec. 1507.3. The Forest Service
notes its concurrence that its existing categorical exclusions are
consistent with the 2020 CEQ NEPA regulations.
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Comment: Commenters disagreed with the discussion of costs and
benefits of the proposed rule in its accompanying Federal Register
notice and stated that the determination did not consider all potential
costs. Commenters contend that faster decision-making, especially if it
eliminates some opportunities for public input, will often result in
worse decisions. This, in turn, will increase the overall amount of
time spent on projects due to delays from litigation or re-analysis.
Comments suggest that spending more time on NEPA analysis will ensure
the analysis is of higher quality. Additionally, some commenters argue
that there are no efficiencies to be gained in completing a project
under a CE instead of an EA, and that CEs take less time only because
projects analyzed under a CE are generally of smaller size than those
analyzed in an EA.
Response: The amendments in the final rule are more limited in
scope than the Forest Service's proposed rule. The Agency has updated
the discussion of cost and benefits of the final rule consistent with
these changes (see the Executive Order 12866 section). The final rule
does not address existing Agency public involvement practices
concerning CEs.
The notion that CEs are no more efficient than EAs runs counter to
the Agency's experience that less-detailed NEPA documentation takes
less time to complete than more-detailed NEPA documentation. Indeed,
this claim by commenters similarly runs contrary to the whole design of
the NEPA regulations since their inception and continuing up through
the 2020 CEQ NEPA regulations. Specifically, there are three levels of
NEPA review, each of which requires successively more documentation and
analysis than the prior level: Determination of whether a CE applies,
completion of an EA, and completion of an EIS. See 40 CFR 1501.3(a)
(describing these three levels); see also 40 CFR 1501.4(a) (2019)
(noting how these three levels interrelate).
Nevertheless, the Agency compared the days from project initiation
to decision for the 68 sample EAs used to develop the restoration CE to
the 140 projects completed under the CE in Section 603 of the Healthy
Forests Restoration Act since its establishment. The Section 603 CE,
like the restoration CE, has a maximum project size in the thousands of
acres and covers an array of activities, including several similar
activities. Using the 68-EA sample, the median time to complete an EA
per 1000 acres was 186 days. Conversely, the median time to complete a
decision memo using the Section 603 CE per 1000 acres was 111 days.
This analysis supports the Agency's premise that CEs represent a more
timely and efficient form of NEPA compliance.
Comment: Comments suggest that the Forest Service should focus on
addressing causes of agency inefficiency in environmental decision-
making (e.g., funding, staffing, training, internal policies and
consistency, and agency culture).
Response: The Agency recognizes that factors outside of its NEPA
regulations also contribute to inefficiency in environmental analysis
and decision-making. In late 2017, the Agency announced its
Environmental Analysis and Decision-Making change effort, which intends
to reduce the time and cost of environmental analysis and decision-
making processes to produce efficient, effective, and high-quality land
management decisions. The scope of this change effort includes and
extends beyond revising the Agency's NEPA regulations. The
Environmental Analysis and Decision-Making change effort includes, for
example: A new, national NEPA training program; formation of National
Historic Preservation Act and Endangered Species Act task forces to
identify and implement efficiencies; compliance performance metrics for
leadership; production of an environmental analysis and decision-making
information library and network sharing platform; and development of a
contracting center of excellence.
Section 220.4 General Requirements (Determination of NEPA Adequacy)
Comment: Some commenters stated that use of Determinations of NEPA
Adequacy (DNAs) would curtail effective analysis and public input by
relying on non-site-specific, potentially outdated information, and
that the Bureau of Land Management (BLM) model is not appropriate for
the Agency. Commenters requested the concept be eliminated or that
additional sideboards be applied to ensure it is applied correctly.
Commenters also requested that the Forest Service provide more details
for when a previous NEPA analysis can satisfy NEPA requirements for a
subsequent action, such as geographical considerations (e.g.,
[[Page 73623]]
location, scale); temporal considerations (e.g., previous decision
date); and current and desired conditions considerations. Comments also
stated that DNAs should require public input and documentation.
Alternatively, comments expressed support for the use of DNAs to
expedite agency action by reducing redundant analyses of substantially
similar proposed actions with substantially similar impacts. Some
comments also urged that the proposed rule should more closely follow
BLM guidance and language for DNAs.
Response: Section 220.4(i) of the proposed rule added the DNA
provision, which outlines a process for determining whether a
previously completed Forest Service NEPA analysis can satisfy NEPA's
requirements for a subsequently proposed action. The proposed DNA
review process required consideration of the following factors: The
similarity between the prior decision and the proposed actions, the
adequacy of the alternatives to the proposed action, any significant
new circumstances or information since the prior decision, and the
adequacy of the impact analysis for the proposed action.
The final rule retains and clarifies the DNA provision at Sec.
220.4(j). A DNA documents the responsible official's review and
determination whether a NEPA analysis prepared for a prior activity can
satisfy NEPA's requirements for a new proposed action that is
substantially the same. For example, approval of a special use permit
for a commercial fishing derby at a lake on NFS lands could rely on
NEPA documentation prepared for the same or similar event the year
before. If the elements outlined at Sec. 220.4(j)(1) are not met for
the proposed action currently under consideration, the DNA provision
should not be used.
The Forest Service has modelled its DNA regulation after provisions
of the BLM's NEPA procedures and is consistent with CEQ's NEPA
regulations (40 CFR 1500.4(p), 1501.12, 1502.9(d)(4), and 1506.3).
CEQ's regulations require elimination of duplication, encourage
incorporation by reference, allow reevaluation of prior NEPA analyses,
and allow adoption of other agencies' NEPA documentation. BLM uses DNAs
in association with previously prepared BLM NEPA documents. The Forest
Service intends the use of DNAs to be in line with BLM's practice and
will operate as essentially an ``internal adoption'' mechanism to be
used when a new proposed action is substantially the same as an
alternative analyzed in a prior Forest Service NEPA document.
The BLM's DNA mechanism also allows officials to use DNAs to
document that no supplementation of an EIS or EA is required. However,
the Forest Service will continue to use its Supplemental Information
Reports (see FSH 1909.15, sec. 18) to assess new information and
changed circumstances rather than use DNAs for such purposes consistent
with 40 CFR 1502.9(d)(4).
As requested by some commenters, the final rule revises Sec.
220.4(j) to more closely align with language from the Department of the
Interior and the BLM. However, Sec. 220.4(j)(1)(i) uses
``substantially the same'' instead of the BLM's use of ``essentially
similar'' to describe the required relationship of the new proposed
action to the previously analyzed proposed action. This change aligns
with CEQ's related adoption provision, 40 CFR 1506.3, as described
above.
The final rule also clarifies that, in order to use a DNA, the
responsible official must determine that each of the elements set out
at Sec. 220.4(j)(1) are met. In addition, the final rule clarifies at
Sec. 220.4(j)(2) that proposed actions undergoing a DNA review shall
be included on the Schedule of Proposed Actions; be subject to scoping;
be subject to administrative review processes that were applicable to
the prior decision; and include issuance of a new decision document.
Section 220.6 Categorical Exclusions
Comment: Commenters expressed both general support and opposition
to the use or expansion of CEs, as described in the proposed rule.
Those in favor stated the new CEs will help the Agency conduct its NEPA
review of projects in a more timely and efficient manner, supported the
analysis done to substantiate the proposed CEs, and expressed
confidence that responsible officials will use CEs appropriately. Those
in opposition believed that the proposed CEs involved actions that
would or could have significant effects, maintained that many or all
proposed actions should undergo detailed analysis and public
involvement, or that responsible officials would have too much
discretion under the proposed CEs.
Response: The Agency has noted the comments providing general
support or opposition. Comments specific to a certain CE are addressed
below in additional responses. Administratively established CEs are a
valid form of NEPA review. The CEQ regulations direct that for
efficiency, agencies shall identify in their agency NEPA procedures
categories of actions that normally do not have a significant effect on
the human environment, and therefore do not require preparation of an
environmental assessment or environmental impact statement (40 CFR
1501.4).
The Forest Service is establishing new CEs in the final rule
pursuant to CEQ's implementing regulations at 40 CFR 1507.3. On
November 10, 2020, CEQ issued a letter stating that CEQ has reviewed
this rule and has found it to be in conformity with NEPA and CEQ
regulations (per 40 CFR 1507.3). The Forest Service has prepared a
supporting statement for the CEs that outlines the process the Forest
Service followed to substantiate the establishment of the CEs. This
document is titled, ``Supporting Statement: Categorical Exclusions For
Certain Special Uses, Infrastructure, and Restoration Projects,'' and
is available at https://www.fs.fed.us/emc/nepa/revisions/index.shtml.
Specific responses to comments raised on the supporting statements are
also addressed in later sections of this notice.
Categorical exclusions provide an efficient tool to complete the
NEPA environmental review process for proposals that normally do not
require EAs or EISs. The use of CEs can reduce paperwork and delay, so
that EAs or EISs are targeted toward proposed actions where significant
environmental impacts are uncertain or anticipated.
Consistent with CEQ regulations, the application of non-statutory
Forest Service CEs is limited by ``extraordinary circumstances,'' in
which a normally excluded action may have a significant effect (40 CFR
1501.4). Activities conducted under Agency CEs must be consistent with
Agency procedures and must comply with all applicable Federal and State
laws for protecting the environment. Management direction set forth in
Forest Service land management plans also provides important
parameters. Land management plans help ensure that potential
environmental effects have been taken into account through the
consistency requirement set forth in the National Forest Management Act
and USDA's implementing regulations (16 U.S.C. 1604(i); 36 CFR 219.15)
directing projects and activities be consistent with plan direction or
be accounted for through project-specific amendments.
Listing a category of actions as able to be categorically excluded
in the agency's NEPA regulations does not constitute a final conclusive
determination regarding the appropriate level of NEPA review for a
specific proposed action. Listing a category of actions creates an
initial presumption
[[Page 73624]]
that a CE, rather than an EA or an EIS, is normally appropriate to
support approval of the listed actions. The extraordinary circumstances
review, interdisciplinary process, or public input can result in the
determination to prepare an EA or an EIS.
The Forest Service made several modifications to the final rule
regarding CEs as a result of public comment. The proposed CEs for
converting unauthorized roads and trails to National Forest System
roads and trails, as presented in the proposed rule at Sec.
220.5(e)(23) and (25), were not carried forward in the final rule due
to public concerns about whether establishment of those CEs could
encourage the creation of unauthorized roads and trails. Additionally,
the final rule includes modifications to the restoration CE (Sec.
220.6(e)(25)); the roads CEs (Sec. 220.6(e)(23) and (24)); and the
special uses CEs (Sec. 220.6(d)(11) and (12) and Sec. 220.6(e)(3)).
Specific changes made to the CEs are discussed further in the responses
to comments below and the Supporting Statement.
Comment: Some commenters asked the Forest Service to review all
existing CEs and consider increasing their limits. Other commenters
suggested the Forest Service is required to review all CEs for their
potential for significant effects before proposing additional CEs.
Response: The Agency has exercised its discretion in defining the
scope of the current rulemaking process and in electing to pursue
additional CEs for special uses, infrastructure, and restoration
consistent with its program needs. The Agency believes these program
areas present the best opportunities for increasing efficiency in the
Agency's NEPA procedures in furtherance of producing efficient,
effective, and high-quality land management decisions that will timely
accomplish work on the ground consistent with its statutory mission and
authorities and be more responsive to the public. Focused consideration
on establishing CEs for individual program activities is consistent
with past agency practice to develop CEs (see, e.g., Oil and Gas
Activities (72 FR 7391), Special Use Authorizations (69 FR 40591), Soil
and Water Restoration Activities (78 FR 56153); Limited Timber Harvest
(68 FR 44598)).
Comment: Beyond the additional and modified CEs identified in the
proposed rule, commenters also asked that the Forest Service
incorporate new CEs for a variety of activities, including grazing- and
range-related activities, vegetation management plans and vegetation
management activities, watershed and other research projects, land
exchanges, and mineral exploration.
Response: The Agency appreciates the public interest expressed in
identifying additional opportunities for CEs. While the Agency has
elected to maintain the rulemaking's focus on special uses,
infrastructure, and restoration, this does not preclude the agency from
examining additional opportunities for improvement through additional
reviews. For example, the Forest Service recently announced in the
Spring 2020 Unified Agenda of Regulatory and Deregulatory Actions its
intent to update its CE for rangeland management improvement projects
at Sec. 220.6(e)(9) to incorporate modern range management practices
(see https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202004&RIN=0596-AD46).
Comments on New and Revised CEs Not Requiring Documentation in a
Project or Case File and Decision Memo
Comment: Many comments expressed support for the CE in paragraph
(d)(11) of the proposed rule, along with the Agency's goals to expedite
processing of special use authorizations and reduce confusion in
implementation of existing CEs in paragraphs (d)(10) and (e)(15). Some
commenters requested limiting this CE to recreation special uses,
requiring documentation in a decision memo, requiring public
involvement, or adding additional examples of actions that would be
covered by the CE.
Response: The final rule consolidates two similar existing CEs
regarding special use authorizations into a new category at Sec.
220.6(d)(11). The Forest Service agrees that consolidation of CEs at
Sec. Sec. 220.6(d)(10) (covering amendment to or replacement of an
existing special use authorization) and (e)(15) (covering issuance of a
new special use authorization for a new term to replace an existing or
expired special use authorization) of the existing regulations will
reduce confusion and increase efficiency in use of the CE for special
use authorizations. The Forest Service has extensive experience using
these CEs. A review of use of the CE at Sec. 220.6(e)(15) from fiscal
years 2012-2016 demonstrates that responsible officials have been
relying on this CE appropriately, well within its constraints. From
fiscal years 2012 through 2016, category (e)(15) was used 1,584 times
(roughly 317 times per year). A review of these projects indicated that
the CE is being used as intended and within its limiting factors.
Because the new, consolidated CE is limited to actions to replace an
existing authorization where there are no changes to the authorized
facilities or increases in the scope or magnitude of the authorized
activities, the Agency has determined that documentation with a
decision memo or project file is not required. An applicant or holder
also must continue to comply with the terms and conditions of the
existing special use authorization.
Some of the examples of actions covered by the CE have been
clarified, but the list of examples for the category is not intended to
be exhaustive, and additional examples have not been incorporated into
the final rule. Outdated terms such as ``electric transmission line''
and ``powerline,'' which were used during development of the proposed
rule, have been replaced with ``powerline facility'' to match recent
revisions to the Agency's special use regulations (36 CFR part 251).
Additional examples requested by commenters covering changes to the
terms and conditions of an authorization that require Forest Service
approval have not been added to the final rule because these examples
are outside the scope of the existing and consolidated CEs. The CE in
paragraph (d)(11) has also not been limited to recreation special uses
as requested by some commenters. The existing CEs encompass both
recreation and non-recreation special uses; limiting the consolidated
CE to recreation special uses would undercut the Agency's efficiency
goals.
Comment: Some commenters expressed support for the new CE at Sec.
220.5(d)(12) of the proposed rule because it will increase NEPA
efficiency related to recreation special use permits. Additionally,
some commenters agreed that issuance of an outfitting and guiding
permit where the use supported by the outfitter and guide is already
allowed in the area should not have significant environmental effects
and would be appropriate to cover under a CE. Many commenters requested
that the final rule limit this CE to recreation special uses, provide
further clarification on where activities covered by the CE could
occur, and provide additional examples of activities covered by the CE.
Some commenters also requested that the CE require a decision memo or
interpreted the language related to land management plan consistency in
the proposed CE to mean that a NEPA analysis would not occur. Some
commenters more generally opposed issuance of special use permits being
analyzed under a CE and that issuance of special use permits should
always be subject to a higher level of environmental review and public
input.
Response: The final rule retains this CE at Sec. 220.6(d)(12) and
makes some
[[Page 73625]]
edits to the language used in the proposed rule. The final rule
clarifies that the CE in paragraph (d)(12) is limited to recreation
special uses. The final rule also revises the CE to clarify that it is
limited to recreation special uses that occur on existing roads or
trails, in existing facilities, at existing recreation sites, or in
areas where the activities supported by recreation special uses are
allowed. The intent of the CE is to facilitate issuance of recreation
special use permits where the activities supported by those permits are
already occurring or allowed on a noncommercial basis. In general,
there is no difference in environmental impacts between recreational
activities conducted by the general public and recreational activities
led by an outfitter and guide. As a result, the final rule retains this
CE under those administrative categories that do not require
documentation in a decision memo. Agency proposed actions that rely on
this CE, like all of the agency's proposed actions subject to NEPA,
must be consistent with the land management plan and all other laws,
regulations, and policies. This includes compliance with the Endangered
Species Act, Clean Water Act, and National Historic Preservation Act.
Comments on New and Expanded CEs Requiring Documentation in a Project
or Case File and Decision Memo
Comment: Some commenters opposed the proposed rule's expansion of
the existing special use authorization CE at Sec. 220.6(e)(3) from 5
to 20 acres, on the grounds that this change would quadruple the
existing acreage subject to the CE, which would result in significant
effects. Some commenters stated that the rationale for expanding the CE
was insufficient. Tribes and Tribal organizations expressed concern
that this CE could adversely affect sacred and cultural sites. Several
commenters supported expansion of the CE.
Response: At Sec. 220.6(e)(3), the final rule retains the
expansion of the CE from 5 to 20 acres and retains the removal of the
words ``contiguous'' and ``minor.'' These words were removed in the
proposed rule to improve clarity and reduce confusion for Agency
personnel in determining when the CE can be used. The final rule also
modifies the list of examples for this CE to add clarity and reduce
redundancy with other CEs. For example, subparagraph (vii) of the
former version of the CE (``[a]pproving the continued use of land where
such use has not changed and no change in the physical environment or
facilities are proposed'') largely was redundant with the two existing
CEs now consolidated at Sec. 220.6(d)(11). The types of activities
covered under the expanded CE are very similar to those covered under
the existing CE. The final supporting statement provides additional
information justifying the Agency's conclusion that expanding the CE
from 5 to 20 acres will not result in significant impacts. The Agency
reviewed 62 EAs, findings of no significant impact, and decision
notices for proposed actions like those that would be covered by this
CE. The average acreage authorized by these decisions was 41.9 acres.
The modest expansion to 20 acres is well below this figure. Based on
the agency's history with using the existing CE and the information
presented in the supporting statement, the Forest Service has
determined that the expansion of the CE is justified.
The Forest Service recognizes the importance of consultation and
coordination with Tribes consistent with E.O. 13175, which imposes
requirements independent of compliance with NEPA. The Forest Service
also will continue to ensure that Tribal consultation occurs on
individual projects as required by Agency policy. Additionally,
American Indian and Alaska Native religious or cultural sites and
archaeological sites or historic properties or areas will be considered
as part of the extraordinary circumstances review applicable to all
CEs. See 36 CFR 220.6(b)(vi), (vii).
Comment: Some commenters opposed expansion of the existing CE at
Sec. 220.6(e)(20) because they believed that such an expansion would
allow for closure of roads and trails without any public involvement.
Other commenters requested notice, coordination, and consultation with
county and local governments and raised concerns about compliance with
the National Historic Preservation Act. Some commenters requested
additional information regarding use of this CE in relation to the
Forest Service's travel management rule at 36 CFR part 212. Other
commenters expressed support for the expansion of the CE and agreed
with the Agency's finding that the actions and environmental impacts
for restoration of lands occupied by a NFS road or NFS trail are
generally the same as when restoration occurs for lands occupied by an
unauthorized road or unauthorized trail.
Response: The final rule retains the proposed rule's expansion of
this CE at Sec. 220.6(e)(20) to include decommissioning of NFS roads
and NFS trails, as well as unauthorized roads and trails. The inclusion
of NFS roads and NFS trails in the CE will help accomplish restoration
objectives on national forests and grasslands, address road and trail
maintenance backlogs, and help the Agency maintain compliance with
long-standing policies that require decommissioning of unneeded roads
and trails. Regardless of whether the activity undertaken is the
restoration of lands occupied by an NFS road or NFS trail or
unauthorized road or trail, the actions and environmental impacts are
generally the same and not significant.
Proposed actions covered by this CE would be developed in
compliance with the travel analysis process and the travel management
rule. The Agency uses travel analysis to identify the minimum road
system, including unneeded NFS roads and NFS trails. Travel analysis is
a dynamic, interdisciplinary, science-based process that examines
ecological, social, cultural, and economic concerns. Information from
the travel analysis process is used to inform future travel management
decisions at the project level. In particular, travel management
decisions identify whether a route needs to be added or removed, if an
NFS trail or NFS road needs to be constructed, or if a route needs to
be decommissioned.
Prior to determining if an NFS road or NFS trail could be
decommissioned using this CE, the NFS road or NFS trail would need to
be identified as unneeded and eligible for decommissioning through the
travel analysis and travel management processes. Appropriate compliance
with the requirements of the National Historic Preservation Act is
independent of compliance with NEPA, and not dependent on whether a CE,
EA, or EIS is prepared for the latter.
This CE will not be used to make access decisions about which roads
and trails are to be designated open for public use, or which will be
closed from public use. This CE will allow the Forest Service to
restore, rehabilitate, or stabilize lands more efficiently where public
access is not currently permitted, e.g., for roads and trails that are
already closed. This approach is consistent with the initial
development and establishment of this CE (see 78 FR 56157).
Comment: Some commenters supported the proposed rule's new CE
regarding administrative sites because it would add efficiency to their
overall management and help the Agency address deferred maintenance of
administrative facilities. Some commenters stated that the CE was
written too broadly. Other commenters stated that the CE overlaps with
an existing CE that does not require a
[[Page 73626]]
decision memo and that this CE would result in unnecessary work and
documentation.
Response: At Sec. 220.6(e)(21), the final rule adopts the proposed
rule's CE regarding administrative sites. The existing CE for repair
and maintenance of administrative sites at 36 CFR 220.6(d)(3) of the
final rule is unaffected by the new CE at 36 CFR 220.6(e)(21). The
existing CE was established on September 18, 1992 (57 FR 43180), and
the Federal Register notice for the final rule states that the CE is
intended for routine repair and maintenance. Current Forest Service
directives define ``maintenance'' as ``an activity that entails
preserving, insofar as practical, the original condition of Forest
Service-owned buildings and related facilities'' (Forest Service
Handbook (FSH) 7309.11, Zero Code). Repair is defined as ``the
refurbishment or replacement of existing facility components with the
same kind of materials for the purpose of maintaining the original
condition and function while returning the facility to a sound state''
(FSH 7309.11, Zero Code).
The new CE in paragraph (e)(21) allows activities beyond routine
repair and maintenance at existing administrative sites. Many of the
Forest Service's administrative facilities need reconstruction or major
repair, could be decommissioned, or may be subject to disposal. The new
CE will increase NEPA efficiency associated with improving existing
facilities to provide for both employee and public safety and
decommissioning or disposing of administrative facilities to reduce the
Agency's footprint. The CE in the final rule is limited to activities
within an existing administrative site as defined in section 502(1) of
Public Law 109-54 (119 Stat. 559; 16 U.S.C. 580d note). Proposed
actions covered by this CE will also be subject to established Agency
processes for facilities management, including facility master
planning.
Comment: Several commenters expressed opposition to the proposed
rule's recreation sites CE at Sec. 220.5(e)(22) on the grounds that it
is too broad, that the actions covered could result in significant
effects, and that changes to recreation sites should require public
input and review. Some commenters argued that certain activities
covered under this CE should require analysis under an EA or EIS to
ensure consideration of social needs through analysis of multiple
alternatives.
Response: The final rule retains the new recreation site CE at
Sec. 220.6(e)(22). The Forest Service provides access to roughly
29,700 recreation sites. This CE will increase efficiency in NEPA
compliance for proposed actions to improve existing recreation sites
that are in decline or pose safety or resource concerns.
The CE is limited to existing recreation sites and covers
construction, reconstruction, decommissioning, or disposal of
buildings, infrastructure, or existing improvements, including
infrastructure or improvements that are adjacent or connected to an
existing recreation site and provide access or utilities for that site.
The CE does not cover development of new recreation sites. The CE would
be used alongside other established Agency processes for recreation and
facilities planning.
CEQ regulations define a CE as a category of actions that the
agency has determined normally do not have a significant effect on the
human environment. CEQ regulations further explain that social effects
are not intended by themselves to require preparation of an EIS (40 CFR
1502.16(b)). However, social needs are considered during the recreation
site planning process and development of a recreation site design
narrative, which precede development of a specific proposed action for
which this CE potentially would apply. Additionally, as noted above,
this CE is limited to activities at existing recreation sites and does
not encompass development of new recreation sites.
During development of this CE, the Forest Service reviewed
previously analyzed projects that focused on recreation management and
evaluated similar CEs in use by other agencies that manage public
recreation sites and facilities. The Agency has determined that the
activities covered by this CE will not result in significant effects.
Further information and rationale are provided in the supporting
statement.
Comment: Comments on the proposed rule's road construction CE at
Sec. 220.5(e)(24) were mixed. Those commenters in favor of the CE
highlighted the beneficial effects of increasing access and public
safety and addressing the Agency's backlog of road reconstruction and
rehabilitation. Some of these commenters requested that the CE not have
any mileage limitation. Other commenters supported certain road-related
activities, such as realignment and culvert and bridge rehabilitation,
but only if those activities benefitted fish and aquatic species.
Some commenters stated that the activities covered by the road
construction CE would cause erosion and sedimentation and impacts on
water quality and aquatic habitats, Commenters also stated that
including construction of new roads in a CE would hamper the Agency's
ability to maintain its existing roads. Some of these commenters
requested reducing the mileage limits for all road activities.
More generally, commenters requested that the Agency clarify public
involvement associated with projects that would be supported by this
CE, coordination with state agencies, the CE's relation to travel
management, the meaning of terms of like ``open'' and ``close'' in this
context and the difference between the proposed CE and the existing CE
for repair and maintenance of roads.
Response: The proposed rule included a CE for construction or
realignment of up to 5 miles of NFS roads, reconstruction of up to 10
miles of NFS roads and associated parking areas, opening or closing an
NFS road, and culvert or bridge rehabilitation or replacement along NFS
roads. The inclusion of two mileage limits with a single list of
examples created confusion. As a result, the final rule divides the
proposed rule's roads CE into two separate CEs at Sec. Sec.
220.6(e)(23) and (24). Each of these CEs applies only to NFS roads. The
CE in paragraph (e)(23) covers up to 8 miles of certain road management
activities and cannot be used for construction and realignment. The CE
in paragraph (e)(24) covers road construction and realignment on up to
2 miles of NFS roads and associated parking areas.
The reduced road mileages in these two CEs are the result of
consideration of public comment and additional review conducted by the
Agency. As the Agency developed these two CEs, it narrowed the focus of
its analysis of previously completed projects from broad, general
project purposes to more specific project activities. Specifically, the
Agency conducted an additional search of its NEPA database for
previously completed projects to define appropriate mileage limitations
for each of the CEs. This additional analysis is described in greater
detail in the supporting statement.
Also based on additional review and analysis and in response to
public comments, the Agency removed the example of opening or closing a
road. Additionally, the Agency removed references to culvert
rehabilitation and replacement because those activities are covered
under the existing CE at 36 CFR 220.6(e)(18) of the final rule. The
data used to establish these CEs is included in the supporting
statement.
The Forest Service has an existing CE at 36 CFR 220.6(d)(4) of the
final rule for
[[Page 73627]]
repair and maintenance of roads, trails, and landline boundaries. That
CE is intended to be used for routine maintenance of NFS roads and
includes no mileage limit and no requirement for documentation in a
decision memo. The new CEs established in the final rule cover NFS road
management activities that go beyond routine repair and maintenance but
have been demonstrated by the Agency's experience not to have
significant effects.
In addition to adhering to the mileage limitations, determining
that extraordinary circumstances do not exist, and requiring
documentation in a decision memo, the responsible official incorporates
design features as a standard operating procedure to avoid or minimize
resource impacts. Examples of design features that are routinely
incorporated are listed in the supporting statement. Design features to
prevent impacts from erosion and sedimentation may include requiring
road locations to be reviewed by an Agency watershed specialist,
requiring erosion control measures in accordance with state department
of transportation requirements, or minimizing erosion and removing
sediment by capturing and filtering runoff before it leaves the project
limits. Additional examples of design features have been added to the
supporting statement.
All proposed actions covered under the CEs in paragraphs (e)(23)
and (24) must be consistent with applicable travel management
decisions. The travel management rule at 36 CFR part 212, subpart A,
was promulgated in 2005 and established requirements for administration
of the forest transportation system. The Forest Service uses travel
analysis to identify the minimum road system. Travel analysis is a
dynamic, interdisciplinary, science-based process that examines
ecological, cultural, social, and economic concerns. Information from
the travel analysis process is used to inform future travel management
decisions at the project level. Travel analysis is used to identify
whether a road needs to be added to the forest transportation system or
decommissioned.
The CEs do not apply to decisions to add roads to the forest
transportation system. Rather, once the Agency has determined that a
road needs to be constructed during the travel management decision
process, a CE could be used to comply with NEPA for the actual road
construction. As explained above, the final rule does not address or
reduce existing Agency public involvement practices concerning CEs.
Restoration and Resilience CE Comments
Comment: The Agency received many comments covering a wide range of
topics related to the restoration CE included in the proposed rule at
Sec. 220.5(e)(26). Some commenters supported the establishment of a
restoration CE to help the Agency expedite activities to restore
National Forest System lands and increase forest and grassland
resilience. Other comments opposed the proposed restoration and
resilience CE on general grounds or opposed specific elements of the
CE.
Response: The Agency notes the general support or opposition
regarding the restoration and resilience CE. The final rule retains a
modified version of the CE covering restoration and resilience
activities at Sec. 220.5(d)(25). Specific comments and the resulting
modifications from the proposed rule are addressed below.
Comment: Several comments on the proposed restoration and
resilience CE concerned its scope or included activities. Some
commenters requested that clearer examples be provided and that the
Agency focus on practices instead of outcomes. Some supportive
commenters requested removal of the limitation that commercial and non-
commercial harvest activities be allowed only in conjunction with
another restoration activity.
Some commenters expressed the general sentiment that the CE is too
broad and needs narrowing definitions and limitations. Other commenters
stated that the CE would allow activities not focused on restoration.
Some commenters requested that either timber harvest generally, or
salvage harvest in particular, should be prohibited because such
activities are not always associated with restoration or scientific
literature did not support such treatments use for restoration or
resilience purposes.
Response: Following the public comment period, the Forest Service
convened a group of Agency scientists to review the body of literature
submitted in public comments specific to the proposed restoration CE.
This review, combined with input from other Agency subject matter
experts in the watershed, wildlife, and forest management program
areas, resulted in changes to the restoration CE in the final rule.
In the final rule, the Agency has narrowed the scope of the
category of permissible activities. The final rule requires all
activities conducted under the CE have a primary purpose of meeting
restoration objectives or increasing forest and grassland resilience.
``Primary purpose'' is a well understood operational term both within
the Agency and by the public. This adjustment is responsive to concerns
that the category focus on outcomes, as well as concerns regarding the
use of certain tools that may be used to achieve restoration and
resilience goals.
The primary purpose requirement is further amplified in paragraph
(ii)(B), which limits qualifying thinning and harvesting activities to
those designed to achieve ecological restoration or resilience
objectives. Permissible projects may generate secondary or ancillary
multiple use benefits other than restoration and resilience. Such is
the nature of multiple use management. However, restoration and
resilience must be the project's primary objective. Because the final
rule adopts a primary purpose requirement, the final rule removes the
provision that would have required commercial or non-commercial timber
harvest activities to be carried out in combination with at least one
additional restoration activity.
The Agency will rely on its standard definition of restoration in
applying the category. (Restoration is ``the process of assisting the
recovery of an ecosystem that has been degraded, damaged, or destroyed.
Ecological restoration focuses on reestablishing the composition,
structure, pattern, and ecological processes necessary to facilitate
terrestrial and aquatic ecosystems sustainability, resilience, and
health under current and future conditions. Functional restoration
focuses on the underlying processes that may be degraded, regardless of
the structural condition of the ecosystem.'' (FSH 1909.12 and 36 CFR
219.19)).
The final rule clarifies the list of activities to meet restoration
and resilience objectives at paragraph (i). These include stream
restoration, aquatic organism passage rehabilitation, or erosion
control; invasive species control and reestablishment of native
species; prescribed burning; reforestation; road and/or trail
decommissioning (system and non-system); pruning; vegetation thinning;
and timber harvesting. The restoration CE allows timber harvest because
timber harvest is a general term that encompasses removal of trees for
a variety of purposes. The restoration CE requires harvest activities
to be designed to achieve ecological restoration objectives. The CE
will not be available for projects designed primarily to achieve
economic returns. The
[[Page 73628]]
commercial sale of timber harvested via use of the CE is permissible,
but as discussed above, only where commercial value is a secondary or
ancillary benefit to the primary restoration activity.
Similarly, the Agency has added a limitation to the vegetation
thinning and timber harvesting activities provision disallowing salvage
harvesting under the restoration and resilience CE. The Agency defines
salvage harvest as the removal of dead trees or damaged or dying trees
due to injurious agents other than competition, to recover value that
would otherwise be lost (FSM 2470). The effects of salvage harvest and
its relation to restoration and resilience depend on a variety of
factors. The exclusion of salvage harvest from the restoration CE does
not mean that salvage harvest cannot be used to achieve restoration or
resilience objectives in other contexts or under other categorical
exclusions (see, for example, the existing salvage harvest CE at Sec.
220.6(e)(13)). Nor does it imply that the effects of salvage harvest
are significant under NEPA.
Comment: Some commenters supported the acreage limits in the
proposed restoration CE. Other commenters argued that the acreage
limits in the proposed restoration CE would allow for potentially
significant effects, questioned their basis, or argued that the
supporting statement did not demonstrate that allowing 4,200 acres of
commercial or noncommercial harvest would not result in significant
effects. Still other commenters requested removing express acreage
limits entirely or expanding the acreage limit for all listed
activities to 7,300 acres.
Response: The proposed restoration CE would have allowed activities
to improve ecosystem health, resilience, and other watershed conditions
on up to 7,300 acres. If commercial/non-commercial timber harvest
activities were proposed, those aspects of the project were not to
exceed 4,200 of the 7,300 acres.
The Agency reviewed information submitted in public comments,
conducted a science review, and reviewed the original project data on
which the limitations in the proposed rule were based. Based on that
review, the final rule's restoration CE at Sec. 220.6(e)(25) allows
activities to improve ecosystem health, resilience, and other watershed
conditions on up to 2,800 acres. This revision is described in more
detail below in the discussion of the supporting statement for the CE.
In general, the 2,800-acre limitation better accounts for the effects
of outliers in the sampled EA data set, better reflects the average
size of projects from the sampled EAs, and also aligns with average
acreages of specific activities in the sampled EA data set for which
some commenters had concerns regarding the degree of impacts (such as
commercial timber harvest).
Comment: Some commenters supported establishment of the proposed CE
and the analysis set forth in the supporting statement associated with
the proposed rule and stated that the Agency had provided a strong
rationale for the CE. Other commenters questioned the findings that the
CE will not result in significant adverse impacts, stating that the
supporting statement was insufficient and not supported by science or
other benchmarks. Some of these commenters questioned the adequacy of
the monitoring information presented, disagreed with reliance on forest
plan standards and best management practices to prevent significant
effects, questioned how agency experts or cited research papers were
used to develop the CE, and argued that the Agency's analysis of
sampled EAs did not support the size of the restoration CE in the
proposed rule.
Response: The Agency has carefully considered all comments
submitted concerning the proposed restoration and resilience CE and
made adjustments that refine the terms and parameters for the category.
The agency has revised its supporting statement to include more details
related to the acreage data and monitoring information. The Agency has
revised its acreage calculations to address sampled EAs in order to
account for projects with multiple activities occurring per acre. The
revised calculations more accurately reflect a net project acreage
versus gross total activity acres. The supporting statement now
includes a table clearly identifying the source of the acreage data.
The appendix of previously implemented projects has also been updated
to demonstrate how acreages were calculated.
In response to public comment, the supporting statement for the
final rule now includes additional discussion of the project
development process and the interactions between proposal development,
responsible official engagement, best management practices, design
features, extraordinary circumstances, and forest plan compliance. The
supporting statement also includes examples of design features that are
typically incorporated into a proposed action for activities covered
under the CE. The supporting statement also includes additional
information related to monitoring and how professional experts were
engaged in the development of the CE.
Comment: Some commenters requested that a public participation or
collaboration element should be added to the restoration CE.
Response: The Agency has added a collaboration requirement to the
restoration CE at Sec. 220.6(e)(25)(ii)(A): ``Projects shall be
developed through a collaborative process that includes multiple
interested persons representing diverse interests.'' The Agency has had
success working with various types of collaborative processes. This
requirement is intended to be flexible, accommodate a variety of
collaborative approaches, and does not require convening a formal
collaborative group.
Comment: The Forest Service received a variety of comments
regarding the road limitations in the proposed restoration and
resilience CE. Comments included suggestions to increase the road
mileages for construction of permanent and temporary roads, removing
road construction from the CE, and questioning why the road mileage
limitations for the restoration CE differed from those in the CE
proposed rule's road construction CE at 36 CFR 220.5(e)(24).
Response: In the final rule, Sec. 220.6(e)(25) includes adjusted
road mileage limitations and addressed reconstruction within the
framework of construction limits. The restoration CE allows
construction and reconstruction of permanent roads up to 0.5 miles; and
construction of temporary roads up to 2.5 miles. The restoration and
resilience CE requires all temporary roads to be decommissioned no
later than 3 years after the date the project is completed. The final
rule also clarifies that the category allows repair and maintenance of
NFS roads and trails to prevent or address resource impacts.
Some commenters were confused about the road limitations of the CE
and how they compare to the limitations of other CEs. A frequent
comparison was the limitation of construction of permanent roads of 0.5
miles when the proposed rule also included a proposed CE that would
allow five miles of permanent road construction.
The proposed rule's use of different road mileage limitations
reflected the purpose of the individual CE and the agency's experience
in managing those activities categories. These two CEs were developed
independently based on different supporting data and have different
focuses. The restoration and resilience CE was developed with a focus
on activities that improve overall ecosystem health and restore
national
[[Page 73629]]
forests and grasslands. The roads management CE was developed with a
focus on road management activities to address access issues and
resource impacts; it has a narrower scope than the restoration CE. In
the final rule the road management CE was also modified, and the
mileage limitations have been lowered to 2 miles for permanent road
construction.
Forest Service CEs are independently established, as has been the
case with historical agency practice concerning development and use of
CEs. The activities covered by, or limitations in, a particular CE do
not constrain or limit the operation of any other CE. Likewise, more
than one CE may apply to an activity. Integrated, multiple-use
management activities, which are designed to accomplish management
goals that often cross administrative program boundaries, can fit
within multiple CEs.
Regulatory Certifications
National Environmental Policy Act
The final rule amends agency regulations for implementing NEPA.
Forest Service NEPA procedures assist 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. This rule would not authorize any activity
or commit resources to a project that may affect the environment. This
rule does not have any reasonably foreseeable impact on the
environment, nor does the rule authorize or prohibit any action that
would have any effect on the environment. The CEQ set forth the
requirements for establishing agency NEPA procedures in its regulations
at 40 CFR 1507.3. The CEQ regulations do not require agencies to
prepare a NEPA analysis before establishing or updating agency NEPA
procedures. The determination that establishing agency NEPA procedures
does not require NEPA analysis and documentation has been upheld in
Heartwood, Inc. v. U.S. Forest Service, 230 F.3d 947, 954-55 (7th Cir.
2000).
Energy Effects
The final rule has been reviewed under Executive Order 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. It has been determined that the final rule does
not constitute a significant energy action as defined in the Executive
Order.
Consultation and Coordination With Indian Tribal Governments
The Forest Service considered this final rule in compliance with
E.O. 13175, Consultation and Coordination with Indian Tribal
Governments. On June 13, 2019, the agency initiated a 120-day
consultation period. This period was extended an additional 26 days,
based on requests from some Tribes. The Forest Service also considered
input from Tribes received after this period. Twenty-eight federally
and non-federally recognized Tribes submitted written comments and/or
participated in regional tribal meetings.
While some Tribes expressed support for the proposed rule, many
Tribes expressed concern over how the rule would impact the Agency's
responsibility to consult with Tribes on federal actions. Specifically,
many were concerned that the proposed rule's addition of CEs and
elimination of the scoping requirement for CEs and EAs would reduce
opportunities for tribal engagement.
In response, the Forest Service maintains and reiterates its
commitment to ensuring that Tribal consultation occurs for individual
projects as appropriate pursuant to Forest Service Manual 1560 and
Forest Service Handbook 1509.13. This regulatory revision makes no
change to Tribal consultation. Further as discussed above, the final
rule is of limited scope and amends the Forest Service NEPA regulations
to include only new and expanded CEs and the DNA provision. Projects
and activities supported by environmental assessments remain subject to
project-level pre-decisional administrative review process
(``objections'' process) at 36 CFR part 218, which requires notice and
a designated opportunity for comments.
The Agency acknowledges that it shares a government-to-government
relationship with Tribes that differs from its relationship with the
general public. The final rule does not change the Forest Service's
Tribal consultation obligations.
Executive Order 12866
This rule has been reviewed under USDA procedures and Executive
Order (E.O.) 12866 issued September 30, 1993, on regulatory planning
and review. The Office of Management and Budget (OMB) has determined
that this is a significant rule as defined by E.O. 12866 and therefore
subject to interagency review.
A more timely and efficient process will reduce administrative
costs. There are many benefits and costs associated with the rule;
however, they are not quantifiable with available data. Benefits (or
cost reductions) derived from timely and focused environmental
analysis, flexibility in preparation of environmental documents, and
improved decision-making indicate a positive net benefit of the rule.
The direct benefits of the rule are, therefore, reduced costs and time
spent on environmental analysis.
For example, by implementing the Determination of NEPA Adequacy
(DNA) provision, the Agency anticipates reductions in time and cost as
a result of reducing redundant analyses. These efficiencies may reduce
total Agency costs and decision-making time. These concepts, however,
will take some time to become well established and widely used;
potential benefits will occur over time.
The rule also establishes 5 new CEs that require a decision memo.
Focusing on the new CEs, the Agency assumes for the purpose of this
analysis, based on average use of its existing CEs, that each new CE
may be used an average of 1 to 30 times per year. Under these
assumptions, the rule may potentially result in 5 to 150 decision memos
per year being completed in lieu of a decision notice.
From Fiscal Years 2014 to 2019, the Agency's average annual
environmental analysis workload included approximately 1,588 CE
determinations and 266 EAs. This six-year span includes the most recent
data available. The average time to decision for CEs was 204 days and
for EAs was 707 days. As a result, the Agency may complete NEPA
analysis on proposed actions using the new CEs an average of 1 to 17
months earlier, per proposed action. In practice, these figures will
vary dependent upon the proposed action and the particular CE being
applied.
The Forest Service has combined and modified some existing CEs with
this rulemaking to reduce confusion and better capture Agency proposed
actions that do not normally have significant environmental effects.
This, in turn, allows for timelier decision-making. Specifically,
combining CEs at Sec. 220.6(d)(10) (not requiring a decision memo) and
Sec. 220.6(e)(15) (requiring a decision memo) of the existing
regulations, which both covered administrative actions on special use
permits, eliminates confusion among Agency staff over which CE applies
and reduces administrative workload by not requiring a decision memo.
Expanding the acreage of special uses on which the existing CE at Sec.
220.6(e)(3) can be applied from 5 acres to 20 acres, as well as
expanding the roads and trails on
[[Page 73630]]
which the existing CE at Sec. 220.6(e)(20) can be applied, are
practical, common sense changes that increase Agency NEPA efficiency.
While CEs replace the more costly use of EAs, several factors
contribute to the determination of the most appropriate form of NEPA
analysis. In general, qualifying projects that in the past would have
been analyzed under an EA may now rely upon the new CEs, but
responsible officials retain discretion to use another form of NEPA
analysis.
DNAs will further reduce the number of EAs undertaken each year, as
Agency staff make use of this tool rather than defaulting to preparing
a second EA. However, the Agency expects that use of the DNA provision
will be modest at least in the first several years of its
establishment.
The Agency anticipates use of DNAs and of the new CEs to slowly
increase over time, taking into account time for adoption across the
agency as has been observed during implementation of new CEs, statutory
categorical exclusions and exceptions over the course of the past
several years.
Executive Order 13771
The final rule has been reviewed in accordance with E.O. 13771 on
reducing regulation and controlling regulatory costs and is considered
an E.O. deregulatory action. The impacts of the final rule are as
discussed above.
Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
the Office of Information and Regulatory Affairs designated this rule
as not a `major rule', as defined by 5 U.S.C. 804(2).
Regulatory Flexibility Act
The Regulatory Flexibility Act, as amended by the Small Business
Regulatory Enforcement Fairness Act of 1996, and Executive Order 13272
require an agency to prepare a regulatory flexibility analysis of a
rule if the rule is subject to notice and comment under the
Administrative Procedure Act. The final rule directly affects only the
Forest Service. Forest Service NEPA procedures assist in the
fulfillment of agency responsibilities under NEPA; the final rule does
not impose any requirements on small entities. While small entities
represent some applicants for special use authorizations that would now
be covered by the CEs at Sec. Sec. 220.6(d)(11) and (12) and
220.6(e)(3), this is a negligible indirect effect only to certain small
entities. Not all applicants are small entities and, moreover, the
timing of a special use authorization depends on several factors beyond
NEPA compliance, including compliance with other laws and incomplete
information provided by the applicant. Therefore, the USDA Under
Secretary for Natural Resources and Environment certifies that the rule
will not have a significant economic impact on a substantial number of
small entities.
Federalism
The Agency has considered this final rule under the requirements of
Executive Order 13132, Federalism. The Agency has concluded that the
rule 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 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.
No Takings Implications
This rule 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 rule does not pose the risk of a taking of
protected private property.
Civil Justice Reform
This final rule has been reviewed under E.O. 12988, Civil Justice
Reform. Under the final rule, (1) all State and local laws and
regulations that conflict with this final rule or impede its full
implementation will be preempted; (2) no retroactive effect is given to
this final rule; and (3) the rule will not require the use of
administrative proceedings before parties could file suit in court
challenging its provisions.
Unfunded Mandates Reform Act
Pursuant to Title II of the Unfunded Mandates Reform Act (UMRA) of
1995 (2 U.S.C. 1531-1538), the Agency has assessed the effects of the
final rule on State, local, and Tribal governments, and the private
sector. This final rule would not compel the expenditure of $100
million or more by any State, local, or Tribal government, or anyone in
the private sector. Therefore, this final rule is not subject to the
requirements of section 202 and 205 of the UMRA.
Controlling Paperwork and Burdens on the Public
This final rule does not contain any additional recordkeeping or
reporting requirements or other information collection requirements as
defined in 5 CFR part 1320 that are not already required by law, or are
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.
List of Subjects in 36 CFR Part 220
Administrative practices and procedures, Environmental impact
statements, Environmental protection, National forests, Science and
technology.
Therefore, for the reasons set forth in the preamble, part 220 of
title 36 of the Code of Federal Regulations is amended as follows:
PART 220--NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) COMPLIANCE
0
1. The authority citation for part 220 continues to read as follows:
Authority: 42 U.S.C. 4321 et seq.; E.O. 11514; 40 CFR parts
1500-1508; 7 CFR part 1b.
0
2. Amend Sec. 220.4 by adding paragraph (j) to read as follows:
Sec. 220.4 General requirements.
* * * * *
(j) Determination of NEPA Adequacy (DNA). (1) An existing
environmental analysis prepared pursuant to NEPA and the Council on
Environmental Quality regulations may be used in its entirety for a new
proposed action if the Responsible Official determines that the
existing NEPA analysis adequately assesses the environmental effects of
the proposed action and reasonable alternatives. The responsible
official must determine and document that each of the following
elements is met:
(i) The new proposed action is substantially the same as a
previously analyzed proposed action or alternative analyzed in detail
in the existing NEPA analysis.
(ii) The range of alternatives analyzed in the existing NEPA
document(s) is appropriate with respect to the new proposed action.
(iii) Any new information or circumstances relevant to
environmental concerns would not substantially change the analysis in
an existing NEPA document(s).
[[Page 73631]]
(iv) The environmental effects that would result from
implementation of the new proposed action are similar to those analyzed
in the existing NEPA document(s).
(2) A DNA for a new proposed action shall be included in the
project record for the new proposed action. Proposed actions undergoing
a DNA review shall:
(i) Be included on the SOPA;
(ii) Be subject to scoping;
(iii) Be subject to pre-decisional administrative review, if
applicable; and
(iv) Include issuance of a new decision document (decision memo,
decision notice, or record of decision) when approved.
0
3. Amend Sec. 220.6 by:
0
a. Removing and reserving paragraph (d)(10);
0
b. Adding paragraphs (d)(11) and (12);
0
c. Removing ``through (17)'' and adding ``through (25)'' in its place
in paragraph (e) introductory text;
0
d. Revising paragraph (e)(3);
0
e. Removing and reserving paragraphs (e)(10) and (15);
0
f. Revising paragraph (e)(20); and
0
g. Adding paragraphs (e)(21) through (25).
The additions and revisions read as follows:
Sec. 220.6 Categorical exclusions.
* * * * *
(d) * * *
(11) Issuance of a new special use authorization to replace an
existing or expired special use authorization, when such issuance is to
account only for administrative changes, such as a change in ownership
of authorized improvements or expiration of the current authorization,
and where there are no changes to the authorized facilities or
increases in the scope or magnitude of authorized activities. The
applicant or holder must be in compliance with all the terms and
conditions of the existing or expired special use authorization.
Subject to the foregoing conditions, examples include but are not
limited to:
(i) Issuing a new authorization to replace a powerline facility
authorization that is at the end of its term;
(ii) Issuing a new permit to replace an expired permit for a road
that continues to be used as access to non-NFS lands; and
(iii) Converting a transitional priority use outfitting and guiding
permit to a priority use outfitting and guiding permit.
(12) Issuance of a new authorization or amendment of an existing
authorization for recreation special uses that occur on existing roads
or trails, in existing facilities, in existing recreation sites, or in
areas where such activities are allowed. Subject to the foregoing
condition, examples include but are not limited to:
(i) Issuance of an outfitting and guiding permit for mountain
biking on NFS trails that are not closed to mountain biking;
(ii) Issuance of a permit to host a competitive motorcycle event;
(iii) Issuance of an outfitting and guiding permit for backcountry
skiing;
(iv) Issuance of a permit for a one-time use of existing facilities
for other recreational events; and
(v) Issuance of a campground concession permit for an existing
campground that has previously been operated by the Forest Service.
(e) * * *
(3) Approval, modification, or continuation of special uses that
require less than 20 acres of NFS lands. Subject to the preceding
condition, examples include but are not limited to:
(i) Approving the construction of a meteorological sampling site;
(ii) Approving the use of land for a one-time group event;
(iii) Approving the construction of temporary facilities for
filming of staged or natural events or studies of natural or cultural
history;
(iv) Approving the use of land for a utility corridor that crosses
a national forest;
(v) Approving the installation of a driveway or other facilities
incidental to use of a private residence; and
(vi) Approving new or additional communication facilities,
associated improvements, or communication uses at a site already
identified as available for these purposes.
* * * * *
(20) Activities that restore, rehabilitate, or stabilize lands
occupied by roads and trails, including unauthorized roads and trails
and National Forest System roads and National Forest System trails, to
a more natural condition that may include removing, replacing, or
modifying drainage structures and ditches, reestablishing vegetation,
reshaping natural contours and slopes, reestablishing drainage-ways, or
other activities that would restore site productivity and reduce
environmental impacts. Examples include but are not limited to:
(i) Decommissioning a road to a more natural state by restoring
natural contours and removing construction fills, loosening compacted
soils, revegetating the roadbed and removing ditches and culverts to
reestablish natural drainage patterns;
(ii) Restoring a trail to a natural state by reestablishing natural
drainage patterns, stabilizing slopes, reestablishing vegetation, and
installing water bars; and
(iii) Installing boulders, logs, and berms on a road segment to
promote naturally regenerated grass, shrub, and tree growth.
(21) Construction, reconstruction, decommissioning, relocation, or
disposal of buildings, infrastructure, or other improvements at an
existing administrative site, as that term is defined in section 502(1)
of Public Law 109-54 (119 Stat. 559; 16 U.S.C. 580d note). Examples
include but are not limited to:
(i) Relocating an administrative facility to another existing
administrative site;
(ii) Construction, reconstruction, or expansion of an office, a
warehouse, a lab, a greenhouse, or a fire-fighting facility;
(iii) Surface or underground installation or decommissioning of
water or waste disposal system infrastructure;
(iv) Disposal of an administrative building; and
(v) Construction or reconstruction of communications
infrastructure.
(22) Construction, reconstruction, decommissioning, or disposal of
buildings, infrastructure, or improvements at an existing recreation
site, including infrastructure or improvements that are adjacent or
connected to an existing recreation site and provide access or
utilities for that site. Recreation sites include but are not limited
to campgrounds and camping areas, picnic areas, day use areas, fishing
sites, interpretive sites, visitor centers, trailheads, ski areas, and
observation sites. Activities within this category are intended to
apply to facilities located at recreation sites managed by the Forest
Service and those managed by concessioners under a special use
authorization. Examples include but are not limited to:
(i) Constructing, reconstructing, or expanding a toilet or shower
facility;
(ii) Constructing or reconstructing a fishing pier, wildlife
viewing platform, dock, or other constructed feature at a recreation
site;
(iii) Installing or reconstructing a water or waste disposal
system;
(iv) Constructing or reconstructing campsites;
(v) Disposal of facilities at a recreation site;
(vi) Constructing or reconstructing a boat landing;
(vii) Replacing a chair lift at a ski area;
(viii) Constructing or reconstructing a parking area or trailhead;
and
[[Page 73632]]
(ix) Reconstructing or expanding a recreation rental cabin.
(23) Road management activities on up to 8 miles of NFS roads and
associated parking areas. Activities under this category cannot include
construction or realignment. Examples include but are not limited to:
(i) Rehabilitating an NFS road or parking area where management
activities go beyond repair and maintenance;
(ii) Shoulder-widening or other safety improvements within the
right-of-way for an NFS road; and
(iii) Replacing a bridge along an NFS road.
(24) Construction and realignment of up to 2 miles of NFS roads and
associated parking areas. Examples include but are not limited to:
(i) Constructing an NFS road to improve access to a trailhead or
parking area;
(ii) Rerouting an NFS road to minimize resource impacts; and
(iii) Improving or upgrading the surface of an NFS road to expand
its capacity.
(25) Forest and grassland management activities with a primary
purpose of meeting restoration objectives or increasing resilience.
Activities to improve ecosystem health, resilience, and other watershed
and habitat conditions may not exceed 2,800 acres.
(i) Activities to meet restoration and resilience objectives may
include, but are not limited to:
(A) Stream restoration, aquatic organism passage rehabilitation, or
erosion control;
(B) Invasive species control and reestablishment of native species;
(C) Prescribed burning;
(D) Reforestation;
(E) Road and/or trail decommissioning (system and non-system);
(F) Pruning;
(G) Vegetation thinning; and
(H) Timber harvesting.
(ii) The following requirements or limitations apply to this
category:
(A) Projects shall be developed or refined through a collaborative
process that includes multiple interested persons representing diverse
interests;
(B) Vegetation thinning or timber harvesting activities shall be
designed to achieve ecological restoration objectives, but shall not
include salvage harvesting as defined in Agency policy; and
(C) Construction and reconstruction of permanent roads is limited
to 0.5 miles. Construction of temporary roads is limited to 2.5 miles,
and all temporary roads shall be decommissioned no later than 3 years
after the date the project is completed. Projects may include repair
and maintenance of NFS roads and trails to prevent or address resource
impacts; repair and maintenance of NFS roads and trails is not subject
to the above mileage limits.
* * * * *
James E. Hubbard,
Under Secretary, Natural Resources and Environment.
[FR Doc. 2020-25465 Filed 11-18-20; 8:45 am]
BILLING CODE 3411-15-P
