National Environmental Policy Act: Categorical Exclusions for Soil and Water Restoration Activities, 35323-35326 [2012-14284]

Download as PDF Federal Register / Vol. 77, No. 114 / Wednesday, June 13, 2012 / Proposed Rules eliminate ambiguity, and reduce burden. 10. Protection of Children From Environmental Health Risks We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. 11. Indian Tribal Governments This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. 12. Energy Effects This proposed rule is not a ‘‘significant energy action’’ under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use because it is not a ‘‘significant regulatory action’’ under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. erowe on DSK2VPTVN1PROD with PROPOSALS-1 13. Technical Standards This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. 14. Environment We have analyzed this proposed rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321–4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves implementation of regulations within 33 CFR Part 100 that apply to organized marine events on the VerDate Mar<15>2010 13:47 Jun 12, 2012 Jkt 226001 navigable waters of the United States that may have potential for negative impact on the safety or other interest of waterway users and shore side activities in the event area. This special local regulation is necessary to provide for the safety of the general public and event participants from potential hazards associated with movement of vessels near the event area. This rule is categorically excluded from further review under paragraph 34(h) of Figure 2–1 of the Commandant Instruction. A preliminary environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule. List of Subjects in 33 CFR Part 100 Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways. For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows: PART 100—SAFETY OF LIFE ON NAVIGABLE WATERS 1. The authority citation for part 100 continues to read as follows: Authority: 33 U.S.C. 1233. 2. Add a temporary § 100.35T05–0482 to read as follows: § 100.35–T05–0482 SPECIAL LOCAL REGULATIONS FOR MARINE EVENTS, WRIGHTSVILLE CHANNEL; WRIGHTSVILLE BEACH, NC (a) Regulated area. The following location is a regulated area: All waters of the Atlantic Intracoastal Waterway within 550 yards north and south of the U.S. 74/76 Bascule Bridge, mile 283.1, latitude 34°13′06″ North, longitude 077°48′44″ West, at Wrightsville Beach, North Carolina. All coordinates reference Datum NAD 1983. (b) Definitions: (1) Coast Guard Patrol Commander means a commissioned, warrant, or petty officer of the U.S. Coast Guard who has been designated by the Commander, Coast Guard Sector North Carolina. (2) Official Patrol means any vessel assigned or approved by Commander, Coast Guard Sector North Carolina with a commissioned, warrant, or petty officer on board and displaying a Coast Guard ensign. (3) Participant means all vessels participating in the ‘‘The Crossing’’ swim event under the auspices of the Marine Event Permit issued to the event PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 35323 sponsor and approved by Commander, Coast Guard Sector North Carolina. (4) Spectator means all persons and vessels not registered with the event sponsor as participants or official patrol. (c) Special local regulations: (1) The Coast Guard Patrol Commander will control the movement of all vessels in the vicinity of the regulated area. When hailed or signaled by an official patrol vessel, a vessel approaching the regulated area shall immediately comply with the directions given. Failure to do so may result in termination of voyage and citation for failure to comply. (2) The Coast Guard Patrol Commander may terminate the event, or the operation of any support vessel participating in the event, at any time it is deemed necessary for the protection of life or property. The Coast Guard may be assisted in the patrol and enforcement of the regulated area by other Federal, State, and local agencies. (3) Vessel traffic, not involved with the event, may be allowed to transit the regulated area with the permission of the Patrol Commander. Vessels that desire passage through the regulated area shall contact the Coast Guard Patrol Commander on VHF–FM marine band radio for direction. Only participants and official patrol vessels are allowed to enter the regulated area. (4) All Coast Guard vessels enforcing the regulated area can be contacted on marine band radio VHF–FM channel 16 (156.8 MHz) and channel 22 (157.1 MHz). The Coast Guard will issue marine information broadcast on VHF– FM marine band radio announcing specific event date and times. (d) Enforcement period: This section will be enforced from 7 a.m. to 11 a.m. on September 29, 2012. Dated: May 30, 2012. A. Popiel, Captain, U.S. Coast Guard, Captain of the Port North Carolina. [FR Doc. 2012–14378 Filed 6–12–12; 8:45 am] BILLING CODE 9110–04–P DEPARTMENT OF AGRICULTURE Forest Service 36 CFR Part 220 RIN 0596–AD01 National Environmental Policy Act: Categorical Exclusions for Soil and Water Restoration Activities Forest Service, USDA. Notice of proposed rule; request for public comment. AGENCY: ACTION: E:\FR\FM\13JNP1.SGM 13JNP1 35324 Federal Register / Vol. 77, No. 114 / Wednesday, June 13, 2012 / Proposed Rules The United States Department of Agriculture, Forest Service, is proposing to supplement its National Environmental Policy Act (NEPA) regulations (36 CFR Part 220) with three new categorical exclusions for activities that restore lands negatively impacted by water control structures, natural and human caused events, and roads and trails. These categorical exclusions will allow the Forest Service to more efficiently analyze and document the potential environmental effects of soil and water restoration projects that are intended to restore the flow of waters into natural channels and floodplains by removing water control structures, such as dikes, ditches, culverts and pipes; restore lands and habitat to predisturbance conditions, to the extent practicable, by removing debris, sediment, and hazardous conditions following natural or human-caused events; and restore lands occupied by roads and trails to natural conditions. The proposed road and trail restoration category would be used for restoring lands impacted by non-system roads and trails that are no longer needed and no longer maintained. This category would not be used to make access decisions about which roads and trails are to be designated for public use. SUMMARY: Comments must be received in writing on or before August 13, 2012. DATES: Submit comments online at https://www.regulations.gov. Submit written comments by addressing them to Restoration CE Comments, P.O. Box 4208, Logan, UT 84323, or by facsimile to (801) 397–1605. Please identify your written comments by including ‘‘Categorical Exclusions’’ on the cover sheet or the first page. Electronic comments are preferred. For comments sent via U.S. Postal Service, please do not submit duplicate electronic or facsimile comments. Please confine comments to the proposed rule on Categorical Exclusion for Restoration Activities. All comments, including names and addresses, when provided, will be placed in the record and will be available for public inspection and copying. ADDRESSES: erowe on DSK2VPTVN1PROD with PROPOSALS-1 FOR FURTHER INFORMATION CONTACT: Peter Gaulke, Ecosystem Management Coordination Staff, (202) 205–1521. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at (800) 877–8339 between 8:00 a.m. and 8:00 p.m. eastern standard time, Monday through Friday. SUPPLEMENTARY INFORMATION: VerDate Mar<15>2010 13:47 Jun 12, 2012 Jkt 226001 Background and Need for the Proposed Rule In 2009, Secretary of Agriculture Tom Vilsack called for restoring forestlands to protect water resources, the climate, and terrestrial and aquatic ecosystems. The Forest Service spends significant resources on NEPA analyses and documentation for a variety of land management projects. The Agency believes that it is possible to improve the efficiency of the NEPA process to speed the pace of forest and watershed restoration, while not sacrificing sound environmental analysis. For decades, the Forest Service has implemented terrestrial and aquatic restoration projects. Some of these projects encompassed actions that promoted restoration activities related to floodplains, wetlands and watersheds, or past natural or humancaused damage. The Forest Service has found that under normal circumstances the environmental effects of some restoration activities have not been individually or cumulatively significant. The Forest Service’s experience predicting and evaluating the environmental effects of the category of activities outlined in this proposed rule has led the Agency to propose supplementing its NEPA regulations by adding three new categorical exclusions for activities that achieve soil and water restoration objectives. The Forest Service’s proposed categorically excluded actions promote hydrologic, aquatic, and landscape restoration activities. All three categorical exclusions involve activities that are intended to maintain or restore ecological functions and better align the Agency’s regulations, specifically its categorical exclusions, with the Agency’s current activities and experiences related to restoration. The restoration of lands occupied by unmaintained non-system roads and trails (National Forest System Roads and Trails are defined at 36 CFR 212.1) is important to promote hydrologic, aquatic, and watershed restoration. Activities that restore lands occupied by a road or trail may include reestablishing former drainage patterns, stabilizing slopes, restoring vegetation, blocking the entrance to the road, installing waterbars, removing culverts, removing unstable fills, pulling back road shoulders, and completely eliminating the road bed by restoring natural contours and slopes. The Forest Service experience is that the majority of issues associated with road and trail decommissioning arise from the initial decision whether to close a road or trail to public use rather than from PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 implementing individual restoration projects. The Forest Service believes it is appropriate to establish soil and water restoration categorical exclusions based on NEPA implementing regulations at 40 CFR § 1500.4(p) and 1500.5(k), which identify a categorical exclusion as a means to reduce paperwork and delays in project implementation, and the Agency’s abundance of information showing that the majority of these identified restoration actions have no significant impacts. Pursuant to CEQ’s implementing regulations at 40 CFR § 1507.3 and the November 23, 2010, CEQ guidance memorandum on ‘‘Establishing, Applying, and Revising Categorical Exclusions under the National Environmental Policy Act,’’ the Forest Service gathered information supporting establishment of these three categorical exclusions using the following four methods: (1) The Forest Service reviewed EAs that implemented actions that were entirely or partially covered under one of the proposed categorical exclusions. This review showed that these projects did not individually or cumulatively result in a significant effect on the human environment. (2) The Forest Service consulted with professional staff and experts who have experience leading interdisciplinary teams and conducting environmental analysis of project proposals, implementing restoration activities, guiding the development and execution of restoration programs, and studying the techniques, effects, and outcomes associated with soil and water restoration activities. The experience of these professional staff included persons from every Forest Service and nearly every geographic region across the United States, including Alaska. (3) The Forest Service also studied peer-reviewed scientific analyses, research papers, and monitoring reports about activities identified under these categorical exclusions. (4) Finally, the Forest Service reviewed categorical exclusions adopted by eight other federal agencies that cover activities that are comparable in size and scope and that are implemented under similar natural resource conditions with similar environmental impacts to those covered under the categories in this proposed rule. Based on this review, the Forest Service finds that the proposed categorical exclusions would not individually or cumulatively have significant effects on the human environment. The Agency’s finding is E:\FR\FM\13JNP1.SGM 13JNP1 Federal Register / Vol. 77, No. 114 / Wednesday, June 13, 2012 / Proposed Rules predicated on data from implementing comparable past actions; the expert judgment of the responsible officials who made the findings for the projects reviewed for this supporting statement; information from other professional staff and experts, and scientific analyses; a review and comparison of similar categorical exclusions implemented by other federal agencies; and the Forest Service’s experience implementing soil and water restoration activities and subsequent monitoring of potential associated impacts. Additional information is available at https:// www.fs.fed.us/emc/nepa/restorationCE. Implementing the Proposed Categorical Exclusion Actions relying on one of these categorical exclusions remain subject to agency requirements to conduct scoping and require a determination that there are not extraordinary circumstances that would otherwise require documentation in an EA or EIS. These proposed categorical exclusions would require a project or case file and decision memo, including, in part, a rationale for using the categorical exclusion and a finding that extraordinary circumstances do not require documentation in an EA or EIS. erowe on DSK2VPTVN1PROD with PROPOSALS-1 Regulatory Certification Environmental Impact The intent of the proposed rule is to increase administrative efficiency in connection with conducting important restoration activities on National Forest System lands while assuring that no significant environmental effects occur. The proposed amendment of Forest Service NEPA Regulations (36 CFR 220.6) concerns NEPA documentation for certain types of soil and water restoration 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 EIS; those that require preparation of an EA; 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 VerDate Mar<15>2010 13:47 Jun 12, 2012 Jkt 226001 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 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 rule has been reviewed under USDA procedures and Executive Order 12866 on regulatory planning and review. The Office of Management and Budget has determined that this is not a significant rule. The proposed rule would not have an annual effect of $100 million or more on the economy, nor would it adversely affect productivity, competition, jobs, the environment, public health or safety, or state or local government. This proposed rule would not interfere with an action taken or planned by another agency, nor would it raise new legal or policy issues. Finally, this proposed rule would not alter the budgetary impacts of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients of such programs. Regulatory Flexibility Act This proposed rule has been considered in light of the Regulatory Flexibility Act (5 U.S.C. 602 et seq.). The Agency has determined that this proposed rule would not have a significant economic impact on a substantial number of small entities as defined by the Act because the proposed rule would not impose recordkeeping requirements; it does not affect their competitive position in relation to large entities; and it would not affect their cash flow, liquidity, or ability to remain in the market. Federalism The Agency has considered this proposed rule under the requirements of Executive Order 13132, ‘‘Federalism.’’ The Agency has concluded that the proposed rule conforms with the federalism principles set out in this Executive Order; would not impose any compliance costs on the states; and would 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 PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 35325 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 proposed rule on Indian Tribal governments and has determined that it would not significantly or uniquely affect communities of Indian Tribal governments. The proposed rule deals with requirements for NEPA analysis and has no direct effect on occupancy and use of National Forest System lands. The Agency has also determined that this proposed rule would not impose substantial direct compliance costs on Indian Tribal governments or preempt Tribal law. Therefore, it has been determined that this proposed rule would not have Tribal implications requiring advance consultation with Indian Tribes. No Takings Implications This proposed 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.’’ The Agency has determined that the proposed rule would not pose the risk of a taking of protected private property. Civil Justice Reform The Agency has reviewed this proposed rule under Executive Order 12988 of February 7, 1996, ‘‘Civil Justice Reform.’’ After adoption of this proposed rule, (1) all state and local laws and regulations that conflict with this rule or that would impede full implementation of this rule would be preempted; (2) no retroactive effect would be given to this proposed rule; and (3) the proposed rule would not require the use of administrative proceedings before parties could 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 rule on state, local, and Tribal governments and the private sector. This proposed 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, a statement under section 202 of the act is not required. E:\FR\FM\13JNP1.SGM 13JNP1 35326 Federal Register / Vol. 77, No. 114 / Wednesday, June 13, 2012 / Proposed Rules Energy Effects The Agency has reviewed this proposed rule under Executive Order 13211, ‘‘Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.’’ The Agency has determined that this proposed rule does not constitute a significant energy action as defined in the Executive Order. Controlling Paperwork Burdens on the Public This proposed rule 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. List of Subjects in 36 CFR Part 220 Administrative practices and procedures, Environmental impact statements, Environmental protection, National forests, Science and technology. For the reasons set out in the preamble, the Forest Service proposes to amend part 220 of title 36 of the Code of Federal Regulations as follows: PART 220—NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) COMPLIANCE 1. The authority citation for 36 CFR 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. 2. In § 220.6, add paragraphs (e)(18), (19), and (20) categorical exclusion categories read as follows: § 220.6 Categorical exclusions. erowe on DSK2VPTVN1PROD with PROPOSALS-1 * * * * * (e) * * * (18) Restoring wetlands, streams, and riparian areas by removing, replacing, or modifying water control structures such as, but not limited to, dams, levees, dikes, ditches, culverts, pipes, valves, gates, and fencing, to allow waters to flow into natural channels and floodplains and restore natural flow regimes to the extent practicable. Examples include but are not limited to: (i) Removing, replacing, or repairing existing water control structures that are no longer functioning properly; only minimal dredging, excavation, or VerDate Mar<15>2010 13:47 Jun 12, 2012 Jkt 226001 placement of fill is required and do not involve releasing hazardous substances; (ii) Installing a newly designed culvert that replaces an existing inadequate culvert to improve aquatic organism passage or prevent resource or property damage where the road or trail maintenance level does not change; and (iii) Removing a culvert and installing a bridge to improve aquatic and/or terrestrial organism passage or prevent resource or property damage where the road or trail maintenance level does not change. (19) Removing debris and sediment following natural or human-caused disturbance events (such as floods, hurricanes, tornados, mechanical/ engineering failures, etc.) to restore uplands, wetlands, or riparian systems to pre-disturbance conditions, to the extent practicable, such that site conditions will not impede or negatively alter natural processes. Examples include but are not limited to: (i) Removing deposited debris and sediment resulting from natural or human-caused disturbance events from impacted sites using manual or mechanized equipment where minimal excavation is required; (ii) Clean-up and removal of infrastructure debris, such as, benches, tables, outhouses, concrete, culverts, and asphalt following a flood event from a stream reach and/or adjacent wetland area; (iii) Removal of downed or damaged trees that limit or reduce public access, result in potential risks to public safety, or where removal is needed to restore wildlife, or protect infrastructure; and (iv) Stabilizing stream banks and associated stabilization structures to reduce erosion through bioengineering techniques following a natural or human-caused event, including the utilization of living and nonliving plant materials in combination with natural and synthetic support materials, such as rocks, riprap, geo-textiles, for slope stabilization, erosion reduction, and vegetative establishment and establishment of appropriate plant communities (bank shaping and planting, brush mattresses, log, root wad, and boulder stabilization methods). (20) Activities that restore, rehabilitate, or stabilize lands occupied by non-National Forest System roads and 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 PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 impacts. Examples include but are not limited to: (i) Decommissioning of anon-system road to a more natural state by restoring natural contours and removing construction fills, revegetating the roadbed and removing ditches and culverts; (ii) Restoring a non-system trail by reestablishing natural drainage patterns, stabilizing slopes, reestablishing vegetation, and installing water bars; (iii) Completely eliminating the roadbed of unauthorized roads by loosening compacted soils, removing culverts, reestablishing natural drainage patterns, restoring natural contours, and restoring vegetation; and (iv) Installing boulders, logs, and berms on a non-system trail segment to promote naturally regenerated grass, shrub, and tree growth. Dated: May 11, 2012. Thomas L. Tidwell, Chief, Forest Service. [FR Doc. 2012–14284 Filed 6–12–12; 8:45 am] BILLING CODE 3410–11–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R06–OAR–2005–NM–0008; FRL– 9684–4] Approval and Promulgation of Implementation Plans; New Mexico; Minor New Source Review (NSR) Preconstruction Permitting Rule for Cotton Gins Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: EPA is proposing to approve a revision to the applicable minor New Source Review (NSR) State Implementation Plan (SIP) for New Mexico submitted by the state of New Mexico on April 25, 2005, which incorporates a new regulation related to minor NSR preconstruction permitting for particulate matter emissions from cotton ginning facilities. The submitted Cotton Gin regulation provides an alternative preconstruction process for cotton ginning facilities that will emit no more than 50 tons per year of particulate matter. The new regulation prescribes, at a minimum, best technical control equipment standards, opacity limitations, and fugitive dust management plan requirements to minimize particulate matter emissions and establishes a minimum setback distance from the gin to the property SUMMARY: E:\FR\FM\13JNP1.SGM 13JNP1

Agencies

[Federal Register Volume 77, Number 114 (Wednesday, June 13, 2012)]
[Proposed Rules]
[Pages 35323-35326]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-14284]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 220

RIN 0596-AD01


National Environmental Policy Act: Categorical Exclusions for 
Soil and Water Restoration Activities

AGENCY: Forest Service, USDA.

ACTION: Notice of proposed rule; request for public comment.

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[[Page 35324]]

SUMMARY: The United States Department of Agriculture, Forest Service, 
is proposing to supplement its National Environmental Policy Act (NEPA) 
regulations (36 CFR Part 220) with three new categorical exclusions for 
activities that restore lands negatively impacted by water control 
structures, natural and human caused events, and roads and trails. 
These categorical exclusions will allow the Forest Service to more 
efficiently analyze and document the potential environmental effects of 
soil and water restoration projects that are intended to restore the 
flow of waters into natural channels and floodplains by removing water 
control structures, such as dikes, ditches, culverts and pipes; restore 
lands and habitat to pre-disturbance conditions, to the extent 
practicable, by removing debris, sediment, and hazardous conditions 
following natural or human-caused events; and restore lands occupied by 
roads and trails to natural conditions.
    The proposed road and trail restoration category would be used for 
restoring lands impacted by non-system roads and trails that are no 
longer needed and no longer maintained. This category would not be used 
to make access decisions about which roads and trails are to be 
designated for public use.

DATES: Comments must be received in writing on or before August 13, 
2012.

ADDRESSES: Submit comments online at https://www.regulations.gov. Submit 
written comments by addressing them to Restoration CE Comments, P.O. 
Box 4208, Logan, UT 84323, or by facsimile to (801) 397-1605. Please 
identify your written comments by including ``Categorical Exclusions'' 
on the cover sheet or the first page. Electronic comments are 
preferred. For comments sent via U.S. Postal Service, please do not 
submit duplicate electronic or facsimile comments. Please confine 
comments to the proposed rule on Categorical Exclusion for Restoration 
Activities.
    All comments, including names and addresses, when provided, will be 
placed in the record and will be available for public inspection and 
copying.

FOR FURTHER INFORMATION CONTACT: Peter Gaulke, Ecosystem Management 
Coordination Staff, (202) 205-1521. Individuals who use 
telecommunication devices for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at (800) 877-8339 between 8:00 a.m. 
and 8:00 p.m. eastern standard time, Monday through Friday.

SUPPLEMENTARY INFORMATION:

Background and Need for the Proposed Rule

    In 2009, Secretary of Agriculture Tom Vilsack called for restoring 
forestlands to protect water resources, the climate, and terrestrial 
and aquatic ecosystems. The Forest Service spends significant resources 
on NEPA analyses and documentation for a variety of land management 
projects. The Agency believes that it is possible to improve the 
efficiency of the NEPA process to speed the pace of forest and 
watershed restoration, while not sacrificing sound environmental 
analysis.
    For decades, the Forest Service has implemented terrestrial and 
aquatic restoration projects. Some of these projects encompassed 
actions that promoted restoration activities related to floodplains, 
wetlands and watersheds, or past natural or human-caused damage. The 
Forest Service has found that under normal circumstances the 
environmental effects of some restoration activities have not been 
individually or cumulatively significant. The Forest Service's 
experience predicting and evaluating the environmental effects of the 
category of activities outlined in this proposed rule has led the 
Agency to propose supplementing its NEPA regulations by adding three 
new categorical exclusions for activities that achieve soil and water 
restoration objectives.
    The Forest Service's proposed categorically excluded actions 
promote hydrologic, aquatic, and landscape restoration activities. All 
three categorical exclusions involve activities that are intended to 
maintain or restore ecological functions and better align the Agency's 
regulations, specifically its categorical exclusions, with the Agency's 
current activities and experiences related to restoration.
    The restoration of lands occupied by unmaintained non-system roads 
and trails (National Forest System Roads and Trails are defined at 36 
CFR 212.1) is important to promote hydrologic, aquatic, and watershed 
restoration. Activities that restore lands occupied by a road or trail 
may include reestablishing former drainage patterns, stabilizing 
slopes, restoring vegetation, blocking the entrance to the road, 
installing waterbars, removing culverts, removing unstable fills, 
pulling back road shoulders, and completely eliminating the road bed by 
restoring natural contours and slopes. The Forest Service experience is 
that the majority of issues associated with road and trail 
decommissioning arise from the initial decision whether to close a road 
or trail to public use rather than from implementing individual 
restoration projects.
    The Forest Service believes it is appropriate to establish soil and 
water restoration categorical exclusions based on NEPA implementing 
regulations at 40 CFR Sec.  1500.4(p) and 1500.5(k), which identify a 
categorical exclusion as a means to reduce paperwork and delays in 
project implementation, and the Agency's abundance of information 
showing that the majority of these identified restoration actions have 
no significant impacts.
    Pursuant to CEQ's implementing regulations at 40 CFR Sec.  1507.3 
and the November 23, 2010, CEQ guidance memorandum on ``Establishing, 
Applying, and Revising Categorical Exclusions under the National 
Environmental Policy Act,'' the Forest Service gathered information 
supporting establishment of these three categorical exclusions using 
the following four methods:
    (1) The Forest Service reviewed EAs that implemented actions that 
were entirely or partially covered under one of the proposed 
categorical exclusions. This review showed that these projects did not 
individually or cumulatively result in a significant effect on the 
human environment.
    (2) The Forest Service consulted with professional staff and 
experts who have experience leading interdisciplinary teams and 
conducting environmental analysis of project proposals, implementing 
restoration activities, guiding the development and execution of 
restoration programs, and studying the techniques, effects, and 
outcomes associated with soil and water restoration activities. The 
experience of these professional staff included persons from every 
Forest Service and nearly every geographic region across the United 
States, including Alaska.
    (3) The Forest Service also studied peer-reviewed scientific 
analyses, research papers, and monitoring reports about activities 
identified under these categorical exclusions.
    (4) Finally, the Forest Service reviewed categorical exclusions 
adopted by eight other federal agencies that cover activities that are 
comparable in size and scope and that are implemented under similar 
natural resource conditions with similar environmental impacts to those 
covered under the categories in this proposed rule.
    Based on this review, the Forest Service finds that the proposed 
categorical exclusions would not individually or cumulatively have 
significant effects on the human environment. The Agency's finding is

[[Page 35325]]

predicated on data from implementing comparable past actions; the 
expert judgment of the responsible officials who made the findings for 
the projects reviewed for this supporting statement; information from 
other professional staff and experts, and scientific analyses; a review 
and comparison of similar categorical exclusions implemented by other 
federal agencies; and the Forest Service's experience implementing soil 
and water restoration activities and subsequent monitoring of potential 
associated impacts. Additional information is available at https://www.fs.fed.us/emc/nepa/restorationCE.

Implementing the Proposed Categorical Exclusion

    Actions relying on one of these categorical exclusions remain 
subject to agency requirements to conduct scoping and require a 
determination that there are not extraordinary circumstances that would 
otherwise require documentation in an EA or EIS. These proposed 
categorical exclusions would require a project or case file and 
decision memo, including, in part, a rationale for using the 
categorical exclusion and a finding that extraordinary circumstances do 
not require documentation in an EA or EIS.

Regulatory Certification

Environmental Impact

    The intent of the proposed rule is to increase administrative 
efficiency in connection with conducting important restoration 
activities on National Forest System lands while assuring that no 
significant environmental effects occur. The proposed amendment of 
Forest Service NEPA Regulations (36 CFR 220.6) concerns NEPA 
documentation for certain types of soil and water restoration 
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 EIS; those that require 
preparation of an EA; 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 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 rule has been reviewed under USDA procedures and 
Executive Order 12866 on regulatory planning and review. The Office of 
Management and Budget has determined that this is not a significant 
rule. The proposed rule would not have an annual effect of $100 million 
or more on the economy, nor would it adversely affect productivity, 
competition, jobs, the environment, public health or safety, or state 
or local government. This proposed rule would not interfere with an 
action taken or planned by another agency, nor would it raise new legal 
or policy issues. Finally, this proposed rule would not alter the 
budgetary impacts of entitlements, grants, user fees, or loan programs, 
or the rights and obligations of recipients of such programs.

Regulatory Flexibility Act

    This proposed rule has been considered in light of the Regulatory 
Flexibility Act (5 U.S.C. 602 et seq.). The Agency has determined that 
this proposed rule would not have a significant economic impact on a 
substantial number of small entities as defined by the Act because the 
proposed rule would not impose recordkeeping requirements; it does not 
affect their competitive position in relation to large entities; and it 
would not affect their cash flow, liquidity, or ability to remain in 
the market.

Federalism

    The Agency has considered this proposed rule under the requirements 
of Executive Order 13132, ``Federalism.'' The Agency has concluded that 
the proposed rule conforms with the federalism principles set out in 
this Executive Order; would not impose any compliance costs on the 
states; and would 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 proposed rule on Indian Tribal 
governments and has determined that it would not significantly or 
uniquely affect communities of Indian Tribal governments. The proposed 
rule deals with requirements for NEPA analysis and has no direct effect 
on occupancy and use of National Forest System lands. The Agency has 
also determined that this proposed rule would not impose substantial 
direct compliance costs on Indian Tribal governments or preempt Tribal 
law. Therefore, it has been determined that this proposed rule would 
not have Tribal implications requiring advance consultation with Indian 
Tribes.

No Takings Implications

    This proposed 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.'' The Agency has determined that the proposed rule 
would not pose the risk of a taking of protected private property.

Civil Justice Reform

    The Agency has reviewed this proposed rule under Executive Order 
12988 of February 7, 1996, ``Civil Justice Reform.'' After adoption of 
this proposed rule, (1) all state and local laws and regulations that 
conflict with this rule or that would impede full implementation of 
this rule would be preempted; (2) no retroactive effect would be given 
to this proposed rule; and (3) the proposed rule would not require the 
use of administrative proceedings before parties could 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 rule on 
state, local, and Tribal governments and the private sector. This 
proposed 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, a statement under section 202 of the act is not 
required.

[[Page 35326]]

Energy Effects

    The Agency has reviewed this proposed rule under Executive Order 
13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use.'' The Agency has determined that 
this proposed rule does not constitute a significant energy action as 
defined in the Executive Order.

Controlling Paperwork Burdens on the Public

    This proposed rule 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.

List of Subjects in 36 CFR Part 220

    Administrative practices and procedures, Environmental impact 
statements, Environmental protection, National forests, Science and 
technology.

    For the reasons set out in the preamble, the Forest Service 
proposes to amend part 220 of title 36 of the Code of Federal 
Regulations as follows:

PART 220--NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) COMPLIANCE

    1. The authority citation for 36 CFR 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.

    2. In Sec.  220.6, add paragraphs (e)(18), (19), and (20) 
categorical exclusion categories read as follows:


Sec.  220.6  Categorical exclusions.

* * * * *
    (e) * * *
    (18) Restoring wetlands, streams, and riparian areas by removing, 
replacing, or modifying water control structures such as, but not 
limited to, dams, levees, dikes, ditches, culverts, pipes, valves, 
gates, and fencing, to allow waters to flow into natural channels and 
floodplains and restore natural flow regimes to the extent practicable. 
Examples include but are not limited to:
    (i) Removing, replacing, or repairing existing water control 
structures that are no longer functioning properly; only minimal 
dredging, excavation, or placement of fill is required and do not 
involve releasing hazardous substances;
    (ii) Installing a newly designed culvert that replaces an existing 
inadequate culvert to improve aquatic organism passage or prevent 
resource or property damage where the road or trail maintenance level 
does not change; and
    (iii) Removing a culvert and installing a bridge to improve aquatic 
and/or terrestrial organism passage or prevent resource or property 
damage where the road or trail maintenance level does not change.
    (19) Removing debris and sediment following natural or human-caused 
disturbance events (such as floods, hurricanes, tornados, mechanical/
engineering failures, etc.) to restore uplands, wetlands, or riparian 
systems to pre-disturbance conditions, to the extent practicable, such 
that site conditions will not impede or negatively alter natural 
processes. Examples include but are not limited to:
    (i) Removing deposited debris and sediment resulting from natural 
or human-caused disturbance events from impacted sites using manual or 
mechanized equipment where minimal excavation is required;
    (ii) Clean-up and removal of infrastructure debris, such as, 
benches, tables, outhouses, concrete, culverts, and asphalt following a 
flood event from a stream reach and/or adjacent wetland area;
    (iii) Removal of downed or damaged trees that limit or reduce 
public access, result in potential risks to public safety, or where 
removal is needed to restore wildlife, or protect infrastructure; and
    (iv) Stabilizing stream banks and associated stabilization 
structures to reduce erosion through bioengineering techniques 
following a natural or human-caused event, including the utilization of 
living and nonliving plant materials in combination with natural and 
synthetic support materials, such as rocks, riprap, geo-textiles, for 
slope stabilization, erosion reduction, and vegetative establishment 
and establishment of appropriate plant communities (bank shaping and 
planting, brush mattresses, log, root wad, and boulder stabilization 
methods).
    (20) Activities that restore, rehabilitate, or stabilize lands 
occupied by non-National Forest System roads and 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 of anon-system road to a more natural state by 
restoring natural contours and removing construction fills, 
revegetating the roadbed and removing ditches and culverts;
    (ii) Restoring a non-system trail by reestablishing natural 
drainage patterns, stabilizing slopes, reestablishing vegetation, and 
installing water bars;
    (iii) Completely eliminating the roadbed of unauthorized roads by 
loosening compacted soils, removing culverts, reestablishing natural 
drainage patterns, restoring natural contours, and restoring 
vegetation; and
    (iv) Installing boulders, logs, and berms on a non-system trail 
segment to promote naturally regenerated grass, shrub, and tree growth.

    Dated: May 11, 2012.
Thomas L. Tidwell,
Chief, Forest Service.
[FR Doc. 2012-14284 Filed 6-12-12; 8:45 am]
BILLING CODE 3410-11-P
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