National Environmental Policy Act Documentation Needed for Developing, Revising, or Amending Land Management Plans; Categorical Exclusion, 1062-1066 [05-22]

Agencies

• DEPARTMENT OF AGRICULTURE
• Forest Service

[Federal Register Volume 70, Number 3 (Wednesday, January 5, 2005)]
[Notices]
[Pages 1062-1066]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-22]



Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / 
Notices

[[Page 1062]]


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DEPARTMENT OF AGRICULTURE

Forest Service

RIN 0596-AB86


National Environmental Policy Act Documentation Needed for 
Developing, Revising, or Amending Land Management Plans; Categorical 
Exclusion

AGENCY: Forest Service, USDA.

ACTION: Notice of proposed National Environmental Policy Act 
implementing procedures; request for comment.

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SUMMARY: The Department of Agriculture, Forest Service, is requesting 
comment on a proposed revision to its procedures for implementing the 
National Environmental Policy Act (NEPA) and Council on Environmental 
Quality (CEQ) regulations. This proposed revision is being made to 
Forest Service Handbook 1909.15, Chapter 30, which describes 
categorical exclusions, that is, categories of actions that will not 
result in significant impacts on the human environment and which are 
therefore exempt from requirements to prepare further NEPA 
documentation absent extraordinary circumstances. The proposal would 
add one such category of actions to the agency's NEPA procedures for 
final decisions on proposals to develop, amend, or revise land 
management plans that are comprised of five components which are 
desired conditions, objectives, guidelines, suitability of areas, and 
special areas for a forest.
    This proposal is being published in conjunction with the final 
Forest Service planning regulations published elsewhere in this part of 
today's Federal Register. Public comment is invited and will be 
considered in development of the final procedure.

DATES: Comments must be received in writing by March 7, 2005.

ADDRESSES: Send written comments by mail to: Content Analysis Team, 
ATTN: Planning CE, USDA Forest Service, P.O. Box 22777, Salt Lake City, 
UT 84122; by facsimile to 801-517-1015; or by e-mail at 
planningce@fs.fed.us. Please note that the Forest Service will not be 
able to receive hand-delivered comments. If you intend to submit 
comments in batched e-mails from the same server, please be aware that 
electronic security safeguards on Forest Service and Department of 
Agriculture computer systems for prevention of commercial spamming may 
limit batched e-mail access. The Forest Service is interested in 
receiving all comments on this proposed rule. Therefore, please call 
(801) 517-1020 to facilitate transfer of comments in batched e-mail 
messages. Comments may also be submitted via the World Wide Web/
Internet Web site https://www.regulations.gov. Please note that all 
comments, including names and addresses when provided, will be placed 
in the record and will be available for public inspection and copying. 
The agency cannot confirm receipt of comments. Individuals wishing to 
inspect comments should call Jody Sutton at (801) 517-1023 to schedule 
an appointment.

FOR FURTHER INFORMATION CONTACT: Joe Carbone, USDA Forest Service, 
Ecosystem Management Coordination, (202) 205-0884. Individuals who use 
telecommunication devices for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 4 
p.m., Eastern Standard Time, Monday through Friday.

SUPPLEMENTARY INFORMATION:

History of Land Management Planning and NEPA Compliance

    In developing this categorical exclusion the Forest Service took 
into account the experience it has gained over the past 25 years from 
developing, amending, and revising land management plans; the 
requirements of NEPA and the National Forest Management Act (NFMA), the 
Council on Environmental Quality (CEQ) regulations, and the recognition 
by the Supreme Court in Ohio Forestry Ass'n v. Sierra Club and Norton 
v. Southern Utah Wilderness Alliance regarding the nature of plans 
themselves. The Forest Service has concluded that land management 
plans, plan revisions, or plan amendments developed under the final 
Forest Service planning rule published elsewhere today's Federal 
Register comprised of five strategic components which do not approve 
projects or activities, do not individually or cumulatively result in 
significant effects on the human environment. The intended effect of 
this categorical exclusion is to facilitate efficient planning and 
timely development, amendment, or revision of land management plans.
    The Forest Service's first planning rule published in 1979 required 
an environmental impact statement (EIS) for development of plans, 
significant amendments, and revisions. This requirement continued in 
the revised rule adopted in 1982. At the time, the Forest Service 
believed that a NEPA analysis and document prepared for a plan would 
suffice for making most project-level decisions. However, the agency 
came to understand that this approach to complying with NEPA was 
impractical, inefficient, and frequently inaccurate. Over the course of 
implementing NFMA during the past 25 years, the agency has learned that 
environmental effects of projects and activities cannot be meaningfully 
evaluated without knowledge of the specific timing and location of the 
projects and activities.
    At the time of plan approval, the Forest Service does not have 
detailed information about what projects and activities will be 
proposed over the expected 15 year life of a plan, how many projects 
will be approved, where they will be located, or how they will be 
designed. At the point of plan approval, the Forest Service can only 
speculate about the projects that may be proposed and budgeted and the 
natural events, such as fire, flood, insects, and disease that may 
occur that will make uncontemplated projects necessary or force changes 
in the projects and the effects of projects that were contemplated. 
Indeed, the Forest Service has learned that over the life of a plan it 
must deal with the unexpected and will face numerous situations where 
analyses contained in the EISs that accompanied the plan can not be 
relied upon when considering specific projects and activities.
    In the course of completing NEPA analyses and documentation on the 
first generation of NFMA plans, the Forest Service also became more 
aware of the difficulties of scale created by the size of the national 
forests and grasslands. The National Forest System includes 192 million 
acres, and individual planning units, such as the Tongass National 
Forest, may be as large as 17 million acres. These vast landscapes 
contain an enormous variety of different ecosystems which will respond 
differently to the same management practices. As the Committee of 
Scientists said on page 26 of the Committee of Scientists Report:

    Because of the wide variation in site-specific practices and 
local environmental conditions (e.g., vegetation type, topography, 
geology, and soils) across a given national forest or rangeland, the 
direct and indirect effects of management practices may not always 
be well understood or easily predicted. (Committee of Scientists 
Report, March 15, 1999, U.S. Department of Agriculture, Washington, 
DC 193 p.)

    Secretary Glickman named the Committee of Scientists (COS) on 
December 11, 1997. The charter for the COS states that the Committee's 
purpose is to provide scientific and technical advice to the Secretary 
of Agriculture and the Chief of the Forest on

[[Page 1063]]

improvements that can be made in the National Forest System Land and 
Resource Management Planning Process.
    Forest Service experience confirmed the conclusion in the COS 
report, quoted above showing that it is usually infeasible to do 
meaningful environmental analysis for a national forest as a whole that 
is sufficiently site specific to allow projects to be carried out 
without further detailed NEPA analysis after the plan has been 
approved.
    Even after completing an EIS for specific land management plans, 
the agency has found itself preparing much more extensive NEPA analysis 
and documentation for specific projects than it had anticipated when it 
adopted the 1979 and 1982 planning rules. Moreover, the extensive 
changes to conditions in the plan area that have occurred during the 
life of each plan, including unforeseen natural events such as fires 
and floods, have made it increasingly impractical to tier project-level 
NEPA analysis and documentation to the plan EIS. The requirements of 
the 1979 and 1982 planning rules that created an inefficient and 
ineffective system for complying with NEPA.
    The 2000 planning rule continued to require an EIS for plan 
development or revision notwithstanding concerns raised by the 
Committee of Scientists. The Committee of Scientists said on page 117 
of the Committee of Scientists Report:

    Perhaps the most difficult problem is that the current EA/EIS 
process assumes a one-time decision. The very essence of small-
landscape planning is an adaptive management approach, based upon 
monitoring and learning. Although small-landscape planning can more 
readily do real-time cumulative effects analysis * * *, this kind of 
analysis is difficult to integrate with a one-time decision 
approach. Developing a decision disclosure and review process that 
is ongoing and uses monitoring information to adjust or change 
treatments and activities will need to be a high priority * * *. 
(Committee of Scientists Report, March 15, 1999, U.S. Department of 
Agriculture, Washington, DC 193 p.)

    In addition to concern about timely and accurate disclosure of 
environmental effects, the agency's experience with planning has 
demonstrated the need to clarify what plans, in fact, actually do. 
Neither the 1982 nor the 2000 planning rule clearly described or 
contrasted the differences between the effects of plans and the effects 
of projects and activities. This has been confusing to the public and 
agency employees. Plan components have not been applied or interpreted 
consistently throughout the agency, and often have been characterized 
as final decisions or actions, rather than guidance for projects and 
activities over time.
    The new 2004 planning rule (published elsewhere in today's Federal 
Register) clarifies that plans will generally be strategic rather than 
prescriptive in nature. Plans will have five principal components--
desired conditions, objectives, guidelines, suitability of areas and 
special areas. These five components set aspirational goals and general 
guidance for land management. They provide flexibility in 
implementation based on changing conditions. They do not result in 
specific on-the-ground action.
    Desired conditions are the social, economic, and ecological 
attributes toward which management of the land and resources of the 
plan area is to be directed. Desired conditions are long-term in nature 
and aspirational, but are neither commitments nor final decisions 
approving projects and activities.
    Objectives are concise projections of intended outcomes of projects 
and activities to contribute to maintenance or achievement of desired 
conditions. Objectives are measurable and time-specific and, like 
desired conditions, are aspirational, but are neither commitments nor 
final decisions approving projects and activities.
    Guidelines provide information and guidance for the design of 
projects and activities to help achieve objectives and desired 
conditions. Guidelines are not commitments or final decisions approving 
projects and activities.
    Suitability of areas is the identification of the general 
suitability of an area in an NFS unit for a variety of uses. The 
identification of an area as generally suitable for a use or uses is 
neither a commitment nor a decision approving activities and uses.
    Special areas are areas within the National Forest System 
designated because of their unique or special characteristics. The 
Responsible Official in approving a plan, plan amendment, or plan 
revision may designate special areas such as botanical areas or 
significant caves. Such designations are not final decisions approving 
projects and activities. Plans also may recognize special areas 
designated by statute or through a separate administrative process.
    While plans will identify the general suitability of lands for 
various uses, they typically will not result in final decisions on 
suitable uses with accompanying environmental effects. Such decisions 
will occur, if appropriate, at the time of project approval. Plan 
objectives, guidelines, suitable uses, and special area identifications 
will be designed to inform and guide projects and activities, so they 
will more effectively help to achieve the desired conditions.
    Decisions approving actions with environmental effects that can be 
meaningfully evaluated typically will be made when projects or 
activities are designed and approved. In essence, a plan simply is a 
description of a vision for the future that, coupled with evaluation, 
provides a starting point for project and activity NEPA analysis. 
Therefore, approval of a plan, plan amendment, or plan revision 
typically will not have environmental effects that can be meaningfully 
evaluated at the time of the plan decision.
    The formulation of plans under the final rule as strategic rather 
than prescriptive is further evident in the five components of plans 
under the final rule. As described above, none of the five components 
is intended to directly dictate on the ground decisions that have 
impacts on the environment. Rather, they provide for project and 
activity decisions.

Statutory and Regulatory Direction and Case Law

    NFMA requires the Secretary of Agriculture to determine how to 
comply with NEPA during the course of NFMA planning. Section 106 (g)(1) 
of NFMA directs the Secretary to specify in land management regulations 
procedures to insure that plans are prepared in accordance with NEPA, 
including direction on when and for what plans an EIS is required (16 
U.S.C. 1604 (g)(1)). The CEQ regulations direct Federal agencies to 
adopt procedures that designate major decision points for the agency's 
principal programs likely to have a significant effect on the human 
environment and to assure that the NEPA process corresponds with them 
(40 CFR 1505.1(b)).
    Under NEPA and the CEQ regulations, an EIS is required for every 
report or recommendation on proposals for legislation and other major 
Federal actions significantly affecting the quality of the human 
environment (16 U.S.C. 4321 et seq., 40 CFR 1502.3). The CEQ 
regulations explain that a ``proposal'' that can trigger the 
requirement for an EIS exists ``at that stage in the development of an 
action when an agency subject to the Act has a goal and is actively 
preparing to make a decision on one or more alternative means of 
accomplishing that goal and the effects can be meaningfully evaluated'' 
(40 CFR 1508.23).
    CEQ regulations explain that ``Federal actions'' generally tend to 
fall within

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several categories. Although these categories include adoption of 
formal agency plans within the definition of ``Federal action'', not 
all Federal actions are major Federal actions. As applied to the final 
rule, land management plans under the 2004 planning rule, as evidenced 
by their five components, are strategic and aspirational in nature and 
generally will not include decisions with on-the-ground effects that 
can be meaningfully evaluated and thus generally will not be ``major 
Federal actions.'' During plan development, amendment or revision, the 
agency generally is not at the stage in National Forest planning of 
proposing actions to accomplish the goals in land management plans. 
Proposals for actions with effects that can be meaningfully evaluated, 
and which may be significant, generally are made at the project and 
activity stage. While a plan expresses desired conditions, goals, and 
objectives, the Forest Service does not actively prepare to make a 
decision on an action aimed at achieving desired conditions, goals, or 
objectives except in extraordinary circumstances, such as when the 
agency proposes projects and activities in connection with the plan 
adoption or revision. Thus, the decision to adopt, amend, or revise a 
plan is typically not the point in the decisionmaking process at which 
the agency is proposing an action likely to have a significant effect 
on the human environment.
    The approach in this final rule is consistent with the nature of 
Forest Service land management plans acknowledged in Ohio Forestry 
Ass'n v. Sierra Club, 523 U.S. 726 (1998). In Ohio Forestry, the 
Supreme Court held that the timber management provisions of land 
management plans are tools for further agency planning and guide, but 
do not direct, future management. When considering the role of land 
management plans with respect to timber harvesting, the Supreme Court 
explained that:

    Although the Plan sets logging goals, selects the areas of the 
forest that are suited to timber production, and determines which 
``probable methods of timber harvest'' are appropriate, it does not 
itself authorize the cutting of any trees. Before the Forest Service 
can permit the logging, it must: (a) Propose a specific area in 
which logging will take place and the harvesting methods to be used; 
(b) ensure that the project is consistent with the Plan; (c) provide 
those affected by proposed logging notice and an opportunity to be 
heard; (d) conduct an environmental analysis pursuant to the 
National Environmental Policy Act of 1969, to evaluate the effects 
of the specific project and to contemplate alternatives; and (e) 
subsequently make a final decision to permit logging, which affected 
persons may challenge in an administrative appeals process and in 
court.

    The Supreme Court repeated its characterization of analogous plan 
decisions as strategic without any immediate on the ground impact in 
the recent SUWA decision: Norton v. Southern Utah Wilderness Alliance, 
124 S. Ct. 2373, 2382 (2004). The Supreme Court again observed that 
``land use plans are a preliminary step in the overall process of 
managing public lands--`designed to guide and control future management 
actions and the development of subsequent, more detailed and limited 
scope plans for resources and uses.' '' In addition, ``a land use plan 
is not ordinarily the medium for affirmative decisions that implement 
the agency's `project[ion]s' '' (542 U.S. 13 (2004)).
    Under the Final Rule, plans will continue to be strategic in 
nature, as described by the Supreme Court in Ohio Forestry and SUWA. As 
described above, the five elements of a plan under the planning rule do 
not authorize site-specific decisions, but rather characterize general 
future conditions and guidance for such decisions. Only in 
extraordinary circumstances will project and activity decisions be 
implemented at the time of a plan adoption or amendment.
    In accordance with NFMA, NEPA, and the CEQ regulations, the final 
planning rule at 36 CFR part 219 et seq. will ensure that Forest 
Service NEPA analysis and documentation will be timed to coincide with 
meaningful stages in agency planning and decisionmaking. The planning 
rule emphasizes the clear distinction between the adoption or amendment 
of a plan with projects and activities having on-the-ground 
environmental effects. In the planning rule, the Department clarifies 
the nature of National Forest land management plans, and based on the 
nature of plans, specifies which plans, plan amendments and plan 
revisions may be categorically excluded from NEPA documentation and 
which may require an EIS or an EA.
    Land management plans are strategic and aspirational in nature, a 
reality reinforced by the final planning rule. Absent extraordinary 
circumstances, plans under the new planning rule will not contain final 
decisions that approve projects and activities. Desired conditions and 
objectives are not commitments or final decisions approving projects 
and activities in the plan area. Guidelines, which are intended to 
provide guidance for project design and implementation, have no 
influence until they are applied in a project or activity and are not 
commitments or decisions approving projects and activities. The 
identification of an area as generally suitable for a use is not a 
commitment or decision approving projects and activities. Any proposed 
use in an area identified as suitable for that use must be considered 
under agency NEPA procedures at the time of a project decision. Special 
areas may be designated by statute or through plan development, plan 
amendment, or plan revision or a separate administrative process under 
NEPA and other applicable laws.
    When a project or activity is proposed in connection with a plan 
adoption, the agency will look at whether the project or activity 
itself warrants further nepa analysis. Some proposed projects may 
themselves fall within another categorical exclusion. In other 
instances, the agency will examine the effect of the project on 
resource conditions, as it would in considering any other project, in 
deciding whether an EA or EIS is appropriate.
    In summary, none of these plan components is permanent or final, in 
that all are subject to reconsideration and change through plan 
amendment or plan revision at any time and all provide flexibility to 
respond to on-the-ground conditions and changing circumstances. Should 
a Responsible Official nevertheless choose to include projects or 
activities within the context of a plan, plan revision, or plan 
amendment, extraordinary circumstances may be present such that an EIS 
or an EA may be required.

The Proposed Categorical Exclusion

    The CEQ regulations (40 CFR parts 1500-1508) require that each 
agency establish specific criteria for and identification of three 
types of actions: (1) Those that normally require preparation of an 
environmental impact statement (EIS); (2) those that normally require 
the preparation of an environmental assessment (EA); and (3) those that 
normally do not require either an EA or EIS because they ``do not 
individually or cumulatively have a significant effect on the human 
environment'' (40 CFR 1508.4). Actions qualifying for this third type 
of action are defined as categorical exclusions because they do not 
individually or cumulatively have a significant impact on the human 
environment; therefore, neither an environmental assessment nor an 
environmental impact statement is required (40 CFR 1508.4).
    A categorical exclusion is not an exemption from the requirements 
of

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NEPA. Categorical exclusions are an essential part of NEPA that provide 
a categorical determination that certain actions do not result in 
significant impacts, eliminating the need for individual analyses and 
lengthier documentation for those actions.
    CEQ regulations at 40 CFR 1500.4(p), 1507.3 and 1508.4 direct 
agencies to use categorical exclusions to define categories of actions 
which do not individually or cumulatively have a significant effect on 
the human environment and do not require the preparation of an 
environmental assessment or an environmental impact statement, thereby 
reducing excessive paperwork. Current Forest Service procedures for 
complying with and implementing NEPA are set out in Forest Service 
Handbook (FSH) 1909.15. Categorical exclusions are set forth in chapter 
30 of the FSH. The categorical exclusion proposed in this notice would 
require four changes in the chapter 30.
    1. A category would be added to section 31.2 that would allow 
development, amendment, and revision of plan components, or portions 
thereof, to be categorically excluded unless extraordinary 
circumstances exist.
    2. A paragraph would be added to section 30.3 to define the 
extraordinary circumstances pertinent to the new category. It would 
specify that the inclusion of a project or activity decision in a plan 
component may constitute an extraordinary circumstance.
    3. A paragraph would be added to section 30.3 to clarify that the 
extensive public participation requirements in the land management 
planning regulations at 36 CFR 219.9 are sufficient to satisfy the 
scoping requirements currently included in section 30.3.
    4. A paragraph would be added to section 30.2 to clarify that the 
plan approval document required by the land management planning 
regulations at 36 CFR 219.7(c) is sufficient to satisfy the decision 
memo requirements of chapter 30.
    The Department emphasizes that project or activity decisions are 
generally not appropriate for inclusion in a plan level document. 
Rather, experience has shown that including project and activity 
decisionmaking in planning has actually delayed the planning and 
project and activity processes without improving natural resource 
management or public participation. Thus, by sharpening the distinction 
between planning and project and activity decisions, the Department 
expects both better planning decisions and more useful and timely 
environmental analysis for project and activity decisionmaking.

Regulatory Certifications

Environmental Impact

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

Regulatory Impact

    This proposed categorical exclusion has been reviewed under USDA 
procedures and Executive Order 12866, Regulatory Planning and Review. 
It has been determined that this is not an economically 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. Finally, this action 
will not alter the budgetary impact of entitlements, grants, user fees, 
or loan programs or the rights and obligations of recipients of such 
programs.
    Moreover, the proposed categorical exclusion has been considered in 
light of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and it 
is hereby certified that the proposed categorical exclusion will not 
have a significant economic impact on a substantial number of small 
entities as defined by the act because it will not impose record-
keeping requirements on them; it will not affect their competitive 
position in relation to large entities; and will not affect their cash 
flow, liquidity, or ability to remain in the market.

Federalism

    The agency has considered this proposed categorical exclusion under 
the requirements of Executive Order 13132, Federalism, and has 
concluded that it 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.

Consultation and Coordination With Indian Tribal Governments

    Pursuant to Executive Order 13175 of November 6, 2000, 
``Consultation and Coordination with Indian Tribal Governments,'' the 
agency has assessed the impact of this categorical exclusion on Indian 
tribal governments and has determined that the categorical exclusion 
does not significantly or uniquely affect communities of Indian tribal 
governments. The categorical exclusion deals with requirements for 
National Environmental Policy Act (NEPA) documentation for land 
management planning activities and, as such, has no direct effect 
regarding the occupancy and use of NFS land.
    The agency has also determined that this categorical exclusion does 
not impose substantial direct compliance cost on Indian tribal 
governments. This categorical exclusion does not mandate tribal 
participation in NFS planning. Rather, the agency planning rule, with 
which this categorical exclusion is associated, imposes an obligation 
on Forest Service officials to consult early with tribal governments 
and to work

[[Page 1066]]

cooperatively with them where planning issues affect tribal interests.

No Takings Implications

    This proposed categorical exclusion 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 proposed 
categorical exclusion does not pose the risk of a taking of 
Constitutionally protected private property.

Civil Justice Reform

    This categorical exclusion has been reviewed under Executive Order 
12988 of February 7, 1996, ``Civil Justice Reform.'' The agency has not 
identified any State or local laws or regulations that are in conflict 
with this regulation or that would impede full implementation of this 
categorical exclusion. Nevertheless, in the event that such a conflict 
was to be identified, the categorical exclusion would preempt State or 
local laws or regulations found to be in conflict. However, in that 
case, (1) no retroactive effect would be given to this categorical 
exclusion; and (2) the categorical exclusion does not require the use 
of administrative proceedings before parties may file suit in court 
challenging its provisions.

Unfunded Mandates

    Pursuant to title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), which the President signed into law on March 22, 
1995, the agency has assessed the effects of this proposed categorical 
exclusion on State, local, and tribal governments and the private 
sector. This proposed categorical exclusion does not compel the 
expenditure of $100 million or more by any State, local, or tribal 
government or anyone in the private sector. Therefore, a statement 
under section 202 of the act is not required.

Energy Effects

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

Controlling Paperwork Burdens on the Public

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

    Dated: December 22, 2004.
Dale N. Bosworth,
Chief.


    Note: The Forest Service organizes its directive system by 
alphanumeric codes and subject headings. Only those sections of the 
Forest Service Handbook that are the subject of this notice are set 
out here. Reviewers wishing to review the entire chapter 30 may 
obtain a copy electronically from the Forest Service's directives 
Web site on the World Wide Web/Internet at https://www.fs.fed.us/im/
directives/.

Forest Service Handbook

1909.15--Environmental Policy and Procedures Handbook

Chapter 30--Categorical Exclusion From Documentation

* * * * *

30.3--Policy

    Redesignate existing paragraphs 3 and 4 as paragraphs 4 and 6 
and add new paragraphs 3 and 5 as follows:
* * * * *
    3. Development, revision, or amendment of land management plans 
or components, or portions thereof, that propose projects or 
activities may constitute an extraordinary circumstance. The degree 
of the effect of the project or activity on resource conditions, 
rather than the mere presence of resource conditions, determines 
whether further analysis and documentation in an EA or EIS is 
required.
* * * * *
    5. If the proposed action is approval of a land management plan, 
plan amendment, or plan revision, the public participation 
requirements of 36 CFR 219.9 satisfy the scoping requirement of 
paragraph 4 of this section.
* * * * *

31.2--Categories of Actions for Which a Project or Case File and 
Decision Memo Are Required

    Add a new paragraph 16 as follows:
* * * * *
    16. Development, revision, or amendment of land management plan 
components, or portions thereof, pursuant to 36 CFR part 219 et 
seq., except where extraordinary circumstances exist as defined in 
section 30.3 paragraph 3.
* * * * *

32.2--Decision Memo Required

    Add the following as a third unnumbered paragraph:
* * * * *
    If the proposed action is approval of a land management plan, 
plan amendment, or plan revision, the plan approval document 
required by 36 CFR 219.7(c) satisfies the decision memo requirements 
of this chapter.
* * * * *
[FR Doc. 05-22 Filed 1-4-05; 8:45 am]
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