National Environmental Policy Act (NEPA) Compliance, 27544-27559 [2019-12195]

Agencies

• DEPARTMENT OF AGRICULTURE
• Forest Service

[Federal Register Volume 84, Number 114 (Thursday, June 13, 2019)]
[Proposed Rules]
[Pages 27544-27559]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-12195]


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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: Proposed rule.

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SUMMARY: The U.S. Department of Agriculture, Forest Service (Agency) is 
proposing revisions to its National Environmental Policy Act (NEPA) 
regulations. The Agency proposes these revisions to increase efficiency 
in its environmental analysis while meeting NEPA's requirements and 
fully honoring its environmental stewardship responsibilities. The 
proposed rule would contribute to increasing the pace and scale of work 
accomplished on the ground and would help the Agency achieve its 
mission to sustain the health, diversity, and productivity of the 
nation's forests and grasslands to meet the needs of present and future 
generations. Public input has informed the development of the proposed 
rule, including through an Advance Notice of Proposed Rulemaking. The 
Agency is now requesting public comment on the revisions in the 
proposed rule. The Agency will carefully consider all public comments 
in preparing the final rule.

DATES: Comments must be received in writing by August 12, 2019.

ADDRESSES: Please submit comments via one of the following methods:
    1. Public participation portal (preferred): https://www.regulations.gov/.
    2. Mail: NEPA Services Group, c/o Amy Barker; USDA Forest Service, 
125 South State Street, Suite 1705, Salt Lake City, UT 84138.
    3. Email: [email protected].
    All comments, including names and addresses when provided, are 
placed in the record and are available for public inspection and 
copying. The public may inspect comments received online via the public 
reading room at https://www.regulations.gov/, or at U.S. Forest 
Service, Ecosystem Management Coordination, 201 14th St. SW, 2 Central, 
Washington, DC 20024. Visitors are encouraged to call ahead to 202-205-
1475 to facilitate entry to the building.

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 Forest Service is proposing revisions to its NEPA procedures 
(36 CFR part 220, which are located at https://www.fs.fed.us/emc/nepa/nepa_procedures/index.htm) with the goal of increasing efficiency of 
environmental analysis while meeting NEPA's requirements. The Forest 
Service is not fully meeting agency expectations, nor the expectations 
of the public, partners, and stakeholders, to improve the health and 
resilience of forests and grasslands, create jobs, and provide economic 
and recreational benefits. The Agency spends considerable financial and 
personnel resources on NEPA analyses and documentation. The Agency is 
proposing these revisions to make more efficient use of those 
resources. The Agency will continue to hold true to its commitment to 
deliver to decision makers scientifically based, high-quality analysis 
that honors its environmental stewardship responsibilities while 
maintaining robust public participation. These values are at the core 
of the Forest Service mission and are compatible with gaining 
efficiency in NEPA analysis and documentation.
    Reforming the Forest Service's NEPA procedures is needed at this 
time for a variety of reasons. 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 a new budget authority for FY 2020 to FY 2027, which will 
provide federal agencies with a new budget authority of over $20 
billion 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 to fulfill its environmental analysis and 
decision making responsibilities.
    Additionally, the Agency has a backlog of more than 5,000 
applications for new special use permits and renewals of existing 
special use permits that are awaiting environmental analysis and 
decision. On average, the Forest Service annually receives 3,000 
applications for new special use permits. Over 80 million acres of 
National Forest System (NFS) land are in need of restoration to reduce 
the risk of wildfire, insect epidemics, and forest diseases.
    Increasing the efficiency of environmental analysis would enable 
the Agency to do more to increase the health and productivity of our 
national forests and grasslands and be more responsive to requests for 
goods and services. The Agency's goal is to complete project decision 
making in a timelier manner, improve or eliminate inefficient processes 
and steps, and, where appropriate, increase the scale of analysis and 
the number of activities in a single analysis and decision. Improving 
the efficiency of environmental analysis and decision making will help 
the agency ensure that lands and watersheds are sustainable, healthy, 
and productive; mitigate wildfire risk; and contribute to the economic 
health of rural communities through use and access opportunities.
    Council on Environmental Quality (CEQ) regulations at 40 CFR 1507.3 
require Federal agencies to adopt procedures, as necessary, to 
supplement CEQ's regulations for implementing NEPA (40 CFR parts 1500-
1508), and to

[[Page 27545]]

consult with CEQ during their development and prior to publication in 
the Federal Register. CEQ encourages agencies to periodically review 
their NEPA procedures. The Agency developed the proposed rule in 
consultation with CEQ.
    The Forest Service's NEPA regulations were promulgated in 2008, 
when the Agency codified its NEPA procedures in the Code of Federal 
Regulations (CFR), at 36 CFR 220. However, the Agency's NEPA 
regulations, in large part, still reflect the policies and practices 
established by the Agency's 1992 NEPA Manual and Handbook. When the 
Agency promulgated its NEPA regulations in 2008, it stated, ``the 
additions to the Forest Service NEPA procedures in this rule are 
intended to provide an environmental analysis process that better fits 
with modern thinking on decisionmaking, collaboration, and adaptive 
management by describing a process for incremental alternative 
development and development of adaptive management alternatives'' (73 
FR 43084). The proposed rule would further modernize the Agency's NEPA 
policy by incorporating lessons learned and experience gained over the 
past 10 years.

Advance Notice of Proposed Rulemaking (ANPR)

    The Agency published an ANPR on January 3, 2018 (83 FR 302). 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.
    There were three form letter campaigns in response to the ANPR. 
Approximately 33,000 form letter comments came from two form letter 
campaigns, which urged the Forest Service to reject any proposal to 
weaken the Agency's NEPA process. The Forest Service received about 600 
comments from a third form letter campaign in favor of the Agency's 
efficiency goals as stated in the ANPR. The Agency will not regard form 
letters as ``votes'' as to whether the proposed rule should go forward. 
The Agency will continue to take public input into account as it 
revises its NEPA regulations. The Agency believes it is possible to 
make its NEPA regulations more efficient while remaining true to NEPA's 
intent of informed decision making, and without weakening the Agency's 
NEPA process.
    Many of the comments received are beyond the scope of the Agency's 
NEPA regulations, but pertain to other issues relevant to the Agency's 
environmental analysis and decision making, such as ensuring sufficient 
funding is available, hiring and training Agency personnel, the 
objections processes under 36 CFR 218, and the land management planning 
processes under 36 CFR 219. An executive summary of comments received 
in response to the ANPR is available at: https://www.fs.fed.us/emc/nepa/revisions/index.htm. Public comments received in response to the 
ANPR are available at: https://cara.ecosystem-management.org/Public/ReadingRoom?project=ORMS-1797.

Section-by-Section Description of Changes in the Proposed Rule

    The order of the sections of the proposed rule has been rearranged 
to align with the levels of NEPA documentation. The proposed rule would 
not change the order or headings of 36 CFR 220.1, 220.2, 220.3, or 
220.4. The proposed rule would revise the order and headings of 36 CFR 
220.5, 220.6, and 220.7 to read as follows:

Section 220.5 Categorical Exclusions
Section 220.6 Environmental Assessment and Decision Notice
Section 220.7 Environmental Impact Statement and Record of Decision

    The proposed rule sequentially addresses general guidance, 
Categorical Exclusions (CE), Environmental Assessments (EA), and 
Environmental Impacts Statement (EIS). This is a more logical order 
than previous versions.

Section 220.3 Definitions

    The proposed rule would add a definition to this section for 
condition-based management. Condition-based management is defined as a 
system of management practices based on implementation of specific 
design elements from a broader proposed action, where the design 
elements vary according to a range of on-the-ground conditions in order 
to meet intended outcomes. Condition-based management is not a new 
management approach for the Forest Service, but the Agency proposes to 
codify it based on existing practice to provide clear, consistent 
direction on its use, and to encourage more widespread use. Agency 
experience has shown that condition-based management can be useful for 
landscape-scale projects and analysis. As with adaptive management, not 
all proposed actions lend themselves to condition-based management, and 
the proposed rule is not intended to require its use for any particular 
type of proposed action.

Section 220.4 General Requirements

    Paragraph (c) states the responsible official's obligation to 
coordinate and integrate the NEPA review with agency decision making, 
and lists requirements for meeting that obligation. The proposed rule 
would add ``Leading the proposal development and environmental analysis 
process, to ensure a focused approach'' as the first item in the list 
and renumbers the existing items that follow. This addition emphasizes 
the importance of the responsible official's active, engaged, and 
focused involvement in the NEPA process.
    The proposed rule would combine and revise paragraphs (d) and (e), 
resulting in a new paragraph (d), Scoping and Public Notice. These 
revisions reflect the Agency's proposed approach to scoping and public 
engagement. Paragraph (d) would maintain the Agency's requirement to 
provide public notice, through the Schedule of Proposed Actions, of all 
proposed actions that will be documented with a decision memo, EA, or 
EIS. The Agency will continue to require scoping for EISs in accordance 
with CEQ regulations at 40 CFR 1501.7. Outside of the minimum 
requirements listed at (d)(1) and (2) of this section, additional 
public engagement is at the discretion of the local responsible 
official, except where specified by applicable statutes and 
regulations. For example, the current 36 CFR 218 regulations require 
public comment for EAs that are subject to the Project-Level 
Predecisional Administrative Review Process.
    As a result of the revision of paragraphs (d) and (e) into one 
paragraph (d), paragraphs (f) through (i) would be re-designated as (e) 
through (h), respectively.
    The proposed rule outlines an approach for ``right-sizing'' the 
public engagement and scoping processes to each proposed action. The 
proposed rule language aligns with additional guidance being added to 
the draft directives, specifically in the Forest Service Handbook. This 
guidance encourages early and ongoing engagement with the public and 
other external partners (such as other Federal agencies, Tribes, 
States, and local

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governments) that is not limited to a single NEPA process.
    The proposed rule would add a new paragraph (i), Determination of 
NEPA Adequacy. This paragraph outlines a process for determining 
whether a completed Forest Service NEPA analysis can satisfy NEPA's 
requirements for a subsequent proposed action. The process requires the 
consideration of the following factors: The similarity between the 
prior decision and the proposed actions, the adequacy of the range of 
alternatives for 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 Determination of NEPA Adequacy is 
modelled after the Department of Interior, Bureau of Land Management's 
use of that procedure. Other Federal agencies also provide for 
comparable approaches in their NEPA procedures. Adding the 
Determination of NEPA Adequacy to Forest Service NEPA procedures would 
provide the Agency an opportunity to be more efficient by reducing 
redundant analyses of substantially similar proposed actions with 
substantially similar impacts, and is consistent with CEQ policy to 
reduce paperwork and avoid redundancy.
    The proposed rule would move the provisions on adaptive management 
from current Sec. Sec.  220.5(e) and 220.7(b)(iv) to Sec.  220.4(j). 
This change would add adaptive management to the general requirements 
section of the regulation; the current regulation discusses adaptive 
management separately under the sections on EAs and EISs.
    The proposed rule would also add a new paragraph (k) for condition-
based management, specifying that the proposed action and one or more 
alternatives may include condition-based management.
    The proposed rule would also add a new paragraph (l) on 
supplementation and new information, specifying when supplements are 
required.

Section 220.5 Environmental Impact Statement and Record of Decision

    The proposed rule would revise the heading of Sec.  220.5 to read 
as follows: Section 220.5 Categorical Exclusions. The proposed rule 
would revise all of the paragraphs of Sec.  220.5 by replacing all of 
the text with new text based on current Sec.  220.6, paragraphs (a) 
through (f). Additionally, revisions are proposed within these 
paragraphs (a) through (f) to provide clarity, revise the list of 
extraordinary circumstances, and propose changes and additions to 
categorical exclusions in paragraphs (d) and (e).

Clarifications Regarding Categorical Exclusions (CE)

    The proposed rule would clarify in paragraph (a) that a proposed 
action may be categorically excluded if it is within one or more of the 
categories listed in 7 CFR part 1b.3, 36 CFR 220.5(d), or 36 CFR 
220.5(e). Categorical exclusions are categories of actions that 
normally will not result in individual or cumulative significant 
impacts on the quality of the human environment and, therefore, do not 
require analysis or documentation in either an EA or EIS (40 CFR 
1508.4). Where a proposed action consists of multiple activities, and 
all of the activities that comprise the proposed action fall within one 
or more CEs, the responsible official may rely on multiple categories 
for a single proposed action. This approach shall not be used to avoid 
any express constraints or limiting factors that apply to a particular 
CE. This clarification to paragraph (a) is consistent with CEQ's 
definition of CEs as categories of actions that do not individually or 
cumulatively have a significant effect on the environment.
    Paragraph (a) further explains that CEs are independently 
established and constraints or limitations in a particular categorical 
exclusion do not constrain or limit the operation of other categorical 
exclusions. For example, an express spatial or temporal limitation in 
one CE should not be construed to apply to another similar CE that is 
otherwise silent on spatial or temporal limits.
    The proposed rule would adjust and refine instructions for 
evaluating extraordinary circumstances. The proposed rule would revise 
the list of resource conditions to be considered in determining whether 
extraordinary circumstances warrant analysis and documentation in an EA 
or EIS. The proposed rule would remove ``sensitive species'' from item 
(i). The Agency's 2012 planning regulations marked a transition away 
from the term ``sensitive species,'' and retention of the term in the 
NEPA procedures is unnecessary. All land management plans have 
direction to provide for the diversity of plant and animal communities 
and support the persistence of native species in the plan area. All 
Forest Service projects must comply with relevant land management 
plans; therefore, it is not necessary to include sensitive species in 
the list of resource conditions.
    The proposed rule also would add wild and scenic rivers to the list 
of Congressionally designated areas in Sec.  220.5(b)(1)(iii), and move 
potential wilderness areas from (b)(1)(iv) to (b)(1)(iii) to add it to 
the list of Congressionally designated areas. The proposed rule would 
revise Sec.  220.5(b)(1)(iv) to include roadless areas designated under 
36 CFR part 294, including Idaho and Colorado Roadless Areas.
    In Sec.  220.5(b)(2), the proposed rule would clarify the degree of 
effects threshold for determining whether extraordinary circumstances 
exist. The proposed rule explains that extraordinary circumstances 
exist when there is a cause-and-effect relationship between the 
proposed action and listed resource conditions, and the responsible 
official determines that there is a likelihood of substantial adverse 
effects to the listed resource conditions. Additionally, the proposed 
rule explains that when evaluating extraordinary circumstances, the 
responsible official may also consider whether the long-term beneficial 
effects outweigh short-term adverse effects.
    The proposed rule would revise Sec.  220.5(c) to clarify that in 
addition to the Sec.  220.4(d) requirements for public notice in the 
Schedule of Proposed Actions, the responsible official may choose to 
conduct additional public engagement activities to involve key 
stakeholders and interested parties. Additional public engagement would 
be conducted commensurate with the nature of the decision being made.

Changes to Existing CEs and Proposed New CEs

    The proposed rule would add several new CEs. The Forest Service 
developed these CEs pursuant to CEQ's 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''(https://ceq.doe.gov/docs/ceq-regulations-and-guidance/NEPA_CE_Guidance_Nov232010.pdf).
    The Forest Service is uniquely situated when compared to other 
Federal agencies in terms of using CEs to satisfy NEPA's procedural 
requirements. The Forest Service manages the National Forest System to 
sustain multiple uses of its renewable resources in perpetuity while 
maintaining the long-term health and productivity of the land. To 
achieve this goal, each unit of the National Forest System is managed 
according to a land management plan. A land management plan is a 
programmatic document supported by an EIS and Record of Decision. A 
land management plan guides the sustainable, integrated resource 
management of the resources within the plan area in the context of the 
broader landscape. Land

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management plans ``must provide for social, economic, and ecological 
sustainability within Forest Service authority and consistent with the 
inherent capability of the plan area'' (36 CFR 219.8).\1\ Ecological 
sustainability refers to the capability of ecosystems to maintain 
ecological integrity (36 CFR 219.19).
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    \1\ Similarly, National Forests managed under land management 
plans developed pursuant to the 1982 planning regulations ``shall 
provide for multiple use and sustained yield of goods and services 
from the National Forest System in a way that maximizes long term 
net public benefits in an environmentally sound manner'' (36 CFR 
219.1(a) (1982)).
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    Each Forest Service proposed action, including those authorized 
with a CE, must be consistent with the applicable land management plan 
(16 U.S.C. 1604(i)). Forest Service proposed actions, including those 
authorized with a CE, are developed using an interdisciplinary approach 
to identify design features to limit adverse environmental effects; 
ensure consistency with land management plans; and take into account 
applicable plan goals, objectives, and desired conditions, and other 
applicable laws, regulations, and policies.
    Categorical exclusions do not apply where there are extraordinary 
circumstances in which a normally excluded action may have a 
significant environmental effect (40 CFR 1508.4). Nor do these 
administratively established CEs represent a final determination of the 
level of NEPA review to be undertaken, as the responsible official 
still retains discretion to prepare an EA or EIS. Activities conducted 
under these CEs must be consistent with Agency procedures and 
applicable land management plans, and must comply with all applicable 
Federal and State laws for protecting the environment. The proposed CEs 
were developed considering other applicable Agency procedures and 
policies, and specific limitations were imposed on some of the 
categories based on these considerations. The Agency believes it is 
appropriate to establish these CEs as a means to reduce paperwork and 
delays, consistent with CEQ regulations for implementing NEPA at 40 CFR 
1500.4(p) and 1500.5(k).
    In accordance with CEQ's 2010 guidance memorandum, the Forest 
Service reviewed and analyzed past actions, including their supporting 
NEPA documentation, to develop initial outlines of potential new CEs. 
The Agency convened discussions on the proposed CEs with Agency leaders 
and subject matter experts to further refine the proposals. The Agency 
also conducted follow up engagement with Forest Service personnel 
familiar with the previously implemented actions, on units where those 
actions were located, to determine whether the effects of projects as 
implemented were consistent with predictions in the NEPA analysis. The 
Forest Service also reviewed and analyzed the comparable CEs of other 
federal agencies for benchmarking the proposals. The Agency's proposal 
is based on data from implementing comparable past actions; the expert 
judgment of the responsible officials who made the findings for 
projects reviewed for this supporting statement; information from other 
professional staff, experts, and scientific analyses; and a review and 
comparison of similar CEs implemented by other Federal agencies. Based 
on its review of all the information provided, the Forest Service 
believes that actions covered by the proposed CEs would not 
individually or cumulatively have significant effects on the human 
environment, as defined at 40 CFR 1508.27.
    The Forest Service has prepared supporting statements for each of 
its proposed new CEs. These supporting statements summarize the 
administrative record and rationale for the new CEs. The supporting 
statements support the Forest Service's initial determination that each 
CE does not individually or cumulatively have significant impacts. The 
supporting statements provide the background and context for why these 
proposals were developed and how they fit in with Agency and 
Departmental priorities; explain existing policy related to the 
activities covered by the proposed CE; and document the process by 
which the Forest Service developed the proposals. The supporting 
statements are available online at https://www.fs.fed.us/emc/nepa/revisions/index.htm. For additional information on any of the proposed 
CEs described below, please see the associated supporting statements, 
which include a larger discussion of the rationale for the proposed 
CEs. The justification for proposed CEs (d)(11), (d)(12), and (e)(3), 
is included in the supporting statement for Certain Special Uses 
Projects and its associated appendices. The justification for proposed 
CEs (e)(20-25) is included in the supporting statement for Certain 
Infrastructure Projects and its associated appendices.
    The justification for proposed CE (e)(26) is included in the 
supporting statement for Certain Restoration Projects and its 
associated appendices.

Section 220.5(d) Categories of Actions for Which a Project or Case File 
and Decision Memo Are not Required

    The proposed rule would consolidate the existing CE at (e)(15), 
which requires a decision memo, with the existing CE at (d)(10), which 
does not require a decision memo, as a new CE at (d)(11). CEs (e)(15) 
and (d)(10) would be removed. The existing CEs both cover clerical 
modification or reauthorization of existing special uses. Both of these 
CEs apply only when modification or reauthorization of an existing 
special use does not involve changes in the authorized facilities or 
increase the scope or intensity of authorized activities. Both of these 
CEs are also used only when the permit holder is in full compliance 
with the terms and conditions of the special use authorization. These 
criteria would also apply to the new CE at (d)(11). Due to their 
similarities, there is often confusion over which CE to use. 
Consolidation of the existing CEs would increase efficiency and reduce 
confusion over which category to apply when issuing special use 
authorizations to replace an existing or expired special use 
authorization, when such issuance is a purely clerical action to 
account for administrative changes. Establishment and use of this 
consolidated CE would also help to reduce the backlogs for processing 
renewals of existing authorizations.
    Proposed new CE (d)(12) would cover the issuance of a new 
authorization or amendment of an existing authorization for activities 
that occur on existing roads or trails, in existing facilities, or in 
areas where activities are consistent with the applicable land 
management plan or other documented decision. In the Agency's 
experience, the potential for special uses to have significant effects 
on the human environment is generally avoided when special uses occur 
on existing NFS roads or NFS trails, in existing facilities, or in 
areas where activities are consistent with the applicable land 
management plan or other documented decision. New CE (d)(12) would 
create more efficiencies in the processing of both new authorizations 
and renewals of existing authorizations.

Section 220.5(e) Categories of Actions for Which a Project or Case File 
and Decision Memo Are Required

    The proposed rule would expand existing CE (e)(3) to cover the 
approval, modification, or continuation of special uses of NFS lands 
that require less than 20 acres of land. The current version of CE 
(e)(3) is limited to minor special uses

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that require less than five contiguous acres of land. The proposed rule 
would also remove the term ``minor.'' The presence of ``minor'' in CE 
(e)(3) has caused confusion among Agency personnel because it is not a 
term of art in this context. The Agency has substantial experience 
authorizing special uses. A review of EAs and associated FONSIs 
relevant to this proposed CE found that approval, modification, or 
continuation of special uses that require less than 20 acres of NFS 
lands does not have the potential to have significant effects on the 
environment. The level of effects associated with the proposed actions 
in the CE are expected to be below the threshold for significant 
environmental effects.
    The proposed rule would expand the scope of CE (e)(20) to include 
lands occupied by National Forest System roads and trails. The current 
version of this CE, which was established in 2013, is limited to lands 
occupied by unauthorized roads and trails. CE (e)(20) would allow 
activities that restore, rehabilitate, or stabilize lands occupied by 
roads and trails to a more natural condition. The proposal to expand CE 
20 to include NFS roads and trails was made based on a review of 
implementation of existing CE (e)(20), a review of the record and 
supporting statement from when CE (e)(20) was established (which has 
been incorporated in the record), subject matter expertise, and a 
review of other road and trail management projects that included 
decommissioning activities for NFS roads and NFS trails. A review of 
EAs and associated FONSIs for the projects that included the proposed 
activities found that none of them predicted significant effects on the 
human environment. 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.
    Proposed new CE (e)(21) would cover the 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). Use of this CE would be limited 
to existing administrative sites, and used alongside other established 
Agency processes, such as those processes used for facility master 
planning and identifying the appropriate level of analysis for a 
specific project. Many Forest Service administrative facilities are in 
need of reconstruction or major repair or could be decommissioned or 
disposed of, reducing the Agency's footprint. Accumulating deferred 
maintenance can result in deterioration of performance, increased 
repair costs, a decrease in asset value, along with health and safety 
concerns. The activities proposed in CE (e)(21) would help the Agency 
more efficiently address these issues. The proposed CE was developed 
with input from subject matter experts. A review of projects and their 
associated EAs and FONSIs found that no significant effects were 
predicted on the human environment. Based on a review of past actions, 
a review of CEs implemented by other agencies, and the Forest Service's 
extensive experience implementing projects that allow for the use and 
management of administrative sites, the Forest Service has concluded 
that this proposed category of actions does not have individual or 
cumulative significant effects and, therefore, should be categorically 
excluded from documentation in an EA or EIS.
    Proposed new CE (e)(22) would cover the construction, 
reconstruction, decommissioning, or disposal of buildings, 
infrastructure, or improvements at an existing recreation site. This 
would include infrastructure or improvements that are adjacent or 
connected to an existing 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. 
This CE would apply to both existing recreation sites managed by the 
Forest Service and sites managed under special use authorities. Use of 
this CE would be limited to existing recreation sites and used 
alongside other established Agency processes, such as those processes 
used for facility master planning and for screening special use permit 
applications (36 CFR 251).
    Proposed new CE (e)(23) would cover the conversion of an 
unauthorized or non-NFS trail or trail segments to an NFS trail, when 
determined appropriate by the responsible official and consistent with 
applicable land management plan direction, travel management decisions, 
trail-specific direction, and other related direction. When considering 
conversion of an unauthorized trail to an NFS trail, the responsible 
official should also consider whether the converted route would meet 
Trail Management Objectives and provide the desired recreation 
experience, and the route's long-term maintenance needs.
    Similar to the Agency's administrative sites, recreation sites and 
facilities are also in need of major repair or decommissioning. 
Additionally, unauthorized trails that have been created over time by 
users do not meet technical or environmental protection standards. 
Proposed CEs (e)(22) and (23) would help the Forest Service more 
efficiently address recreation management needs in order to reduce 
environmental and public safety concerns. A suite of recreation 
management and trails management projects completed using an EA and 
their associated FONSIs were reviewed during development of these 
proposed CEs, along with input from subject matter experts and review 
of other Agency CEs. Based on this review, consideration of projects 
being developed in compliance with other policies and practices 
mentioned above, and subject matter expertise, the Agency does not 
expect that the proposed actions undertaken in proposed CEs (e)(22) and 
(23) would individually or cumulatively have significant environmental 
effects. Proposed new CE (e)(24) would cover the 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 mileage limitations included in this proposed CE were 
established from a review of previously implemented actions, 
discussions and coordination with Agency transportation program 
managers, and a review of existing CEs related to roads management in 
use by other Federal agencies.
    Proposed new CE (e)(25) would cover the conversion of an 
unauthorized or non-National Forest System (non-NFS) road to an NFS 
road. When determining whether to convert a non-NFS road to an NFS 
road, the responsible official would also consider outcomes related to 
the local unit's travel analysis process, travel management decisions, 
and overall goals and objectives of the transportation program.
    Proposed CEs (e)(24) and (25) were developed with a focus on 
increasing efficiency and management of National Forest System roads. 
The Forest Service infrastructure includes over 370,000 miles of roads 
and 13,000 road and trail bridges. Recreational use and need for access 
to NFS lands on NFS roads continues to increase; these roads are also 
used for resource protection. Deterioration of roads over time 
increases risk of erosion, landslides, and slope failure, which creates 
environmental and safety concerns.

[[Page 27549]]

These proposed CEs would help the Forest Service more efficiently 
address some of these growing concerns. Based upon a review of 
previously implemented projects and subject matter expertise and 
building on the Agency's extensive background in managing NFS roads and 
associated infrastructure, such as bridges, the Forest Service 
anticipates that the level of effects associated with proposed actions 
covered by the proposed CEs to be below the threshold for significant 
environmental effects.
    Proposed new CE (e)(26) would cover ecosystem restoration or 
resilience activities, in compliance with the applicable land 
management plan, taking into account plan goals, objectives, or desired 
conditions. Activities to improve ecosystem health, resilience, or 
other watershed conditions cannot exceed 7,300 acres. When commercial 
or non-commercial timber harvest activities are proposed (Sec.  
220.5(a)(26)(i)(H) and (i)(I)), they must be carried out in combination 
with at least one additional restoration activity to qualify for the 
CE, and harvested acres cannot exceed 4,200 of the 7,300 acres. The 
Forest Service defines restoration as ``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'' (36 CFR 219.19 and FSM 
2020).
    The Forest Service reviewed recently implemented actions to develop 
this proposed CE by randomly selecting a sample of 68 projects from 
over 718 projects completed under an EA from fiscal years 2012 to 2016. 
The average of commercial and non-commercial harvest activities from 
the 68 sampled EAs was 4,237 acres, and the average of total project 
activities was 7,369 acres. Further information on these projects is 
available in the supporting statement for Certain Restoration Projects 
and its associated appendices.
    Proposed CE (e)(26) was developed with the intent to allow the 
Agency to more efficiently implement projects that include restoration 
activities to improve forest health and resiliency to disturbances and 
to improve terrestrial and aquatic habitat and other watershed 
conditions. The Agency has implemented forest and watershed restoration 
projects for decades. Through this experience, the Agency has found 
that in certain circumstances the environmental effects of some 
restoration activities have not been individually or cumulative 
significant. Based on this experience, professional expertise, and 
analysis of EAs and associated FONSIs for previously implemented 
projects, the Agency does not expect that the restoration activities 
proposed in this CE would result in potentially significant effects.
    Proposed new CE (e)(27) would cover a Forest Service action that 
will be implemented jointly with another Federal agency where the 
action qualifies for a CE of the other Federal agency. If the Forest 
Service chooses to use another Federal agency's CE to cover a proposed 
action, the responsible official must obtain written confirmation from 
the other Federal agency that the CE applies to the proposed action. 
Proposed actions covered by this CE would remain subject to applicable 
land management plan direction and other applicable laws, regulations, 
and policies.

36 CFR Section 220.6 Categorical Exclusions

    The proposed rule would revise the heading of Sec.  220.6 to read 
as follows: Section 220.6 Environmental Assessment and Decision Notice. 
The proposed rule would revise all of the paragraphs of section 220.6 
by replacing all of the text with new text based on current Sec.  
220.7, paragraphs (a) through (d). Additionally, revisions are proposed 
within these paragraphs, including adding a paragraph on public 
involvement.
    The proposed rule would revise paragraph (a) to state that an EA, 
which is prepared to determine whether to prepare either a FONSI or 
EIS, may be prepared in any format. This revision emphasizes the 
primary purpose of preparing an EA according to CEQ's regulations at 40 
CFR 1508.9. The proposed rule would add new paragraph (c) and relabel 
the subsequent items in Sec.  220.6. Paragraph (c) would clarify that 
in addition to the public notice requirements listed at Sec.  220.4(d), 
and any requirements specified by applicable statutes or regulations 
(such as 36 CFR part 218), the responsible official may choose to 
conduct additional public engagement opportunities to involve key 
stakeholders and interested parties. Additional involvement would be 
conducted commensurate with the nature of the decision being made.

Section 220.7 Environmental Assessment and Decision Notice

    The proposed rule would revise the heading of Sec.  220.7 to read 
as follows: Section 220.7 Environmental Impact Statement and Record of 
Decision. The proposed rule would revise all of the paragraphs of Sec.  
220.7 by replacing all of the text with new text based on current Sec.  
220.5, paragraphs (a) through (g). Additionally, revisions are proposed 
within these paragraphs (a) through (g), including adding a paragraph 
on public notice and scoping.
    The proposed rule, in paragraph (a) of this section, would revise 
the list of classes of actions normally requiring an EIS. The proposed 
rule would add development of a new land management plan or land 
management plan revision in accordance with 36 CFR 219.7. The proposed 
rule also would add mining operations that authorize surface 
disturbance on greater than 640 acres over the life of the proposed 
action. The proposed rule would remove classes of actions that would 
substantially alter the undeveloped character of an inventoried 
roadless area or a potential wilderness area. The Agency proposes this 
change in part because the activities that have the greatest potential 
to affect the roadless character of these lands are addressed 
separately by the Roadless Area Conservation Rule and state-specific 
roadless rules at 36 CFR part 294. Potential wilderness areas are a 
class of Congressionally designated lands where management must conform 
with the establishing statute's requirements, and therefore presumptive 
preparation of an EIS is not required. The responsible official would 
continue to prepare an EIS for proposed actions where impacts may be 
significant.
    Proposed new paragraph (b) would require scoping for an EIS to be 
carried out in accordance with CEQ requirements at 40 CFR 1501.7. 
Paragraph (b) also clarifies that no single scoping technique is 
required or prescribed; however, while public notice shall be provided 
in the Schedule of Proposed Actions as required at Sec.  220.4(d), the 
Schedule of Proposed Actions shall not be the sole scoping mechanism. 
Current paragraphs (b) through (g) would be re-designated as (c) 
through (h), respectively.
    The proposed rule would revise current paragraph (e) relating to 
EIS alternatives and re-designate it as paragraph (f). The proposed 
rule would clarify that each alternative other than the no action 
alternative must meet the purpose and need. The proposed rule also 
would eliminate the requirement for alternatives to address one or more 
significant issues related to the proposed action. Alternatives may, 
but are not required to, address issues related to the proposed action. 
For example, an alternative may simply

[[Page 27550]]

address a different way of responding to the purpose and need for 
action, consistent with CEQ's requirement to develop alternatives ``in 
any proposal which involves unresolved conflicts concerning alternative 
uses of available resources'' (40 CFR 1501.2(c); 1507.2(d)). 
``Unresolved conflicts'' and issues often overlap, but not in every 
instance.

Proposed Revisions to Forest Service Directives

Forest Service Manual 1950 and Handbook 1909.15

    The Forest Service will propose revisions to its directives, Forest 
Service Handbook (FSH 1909.15) and Manual (FSM 1950), in conjunction 
with this rulemaking. FSM 1950 provides descriptions of Forest Service 
NEPA authority, objectives, policy, and responsibilities. Forest 
Service Handbook 1909.15 provides explanatory guidance interpreting CEQ 
and Forest Service procedures in regulation. A subsequent notice will 
be published in the Federal Register announcing the availability of the 
proposed directives and list information on how to comment on the 
proposed directives. When the notice is published, the proposed 
directives and a copy of the Federal Register notice will be posted at 
https://www.fs.fed.us/emc/nepa/revisions/index.htm.

Regulatory Certifications

National Environmental Policy Act

    The proposed rule would revise agency procedures and guidance for 
implementing NEPA. Forest Service NEPA procedures are procedural 
guidance to 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. The CEQ set 
forth the requirements for establishing agency NEPA procedures in its 
regulations at 40 CFR 1505.1 and 1507.3. The CEQ regulations do not 
require agencies to conduct NEPA analyses or prepare NEPA documentation 
when establishing their 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

    This proposed rule 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 rule 
does not constitute a significant energy action as defined in the 
Executive Order.

Consultation and Coordination With Indian Tribal Governments

    This proposed rule has been reviewed under Executive Order 13175 of 
November 6, 2000, Consultation and Coordination with Indian Tribal 
Governments. The Forest Service is sending letters inviting federally 
recognized Tribes and Alaska Native Corporations to begin consultation 
on the proposed rule. The Forest Service will continue to conduct 
government-to-government consultation on the rule until the final rule 
is published.
    Pursuant to Executive Order 13175, the Agency has assessed the 
impact of this proposed rule on Indian tribal governments and has 
determined that the proposed rule would not significantly or uniquely 
affect communities of Indian tribal governments. The proposed rule 
deals with administrative procedures for complying with the 
requirements of the National Environmental Policy Act and, as such, has 
no direct effect on the occupancy and use of NFS land.
    The Agency has also determined that this proposed rule would not 
impose substantial direct compliance costs on Indian tribal 
governments. This proposed rule does not mandate tribal participation 
in the Forest Service NEPA process.
    The proposed directives will emphasize and recognize the benefit of 
including Tribes in public engagement strategies. The proposed 
directives will also highlight opportunities to leverage existing data 
from Tribes and analyses, along with other Federal, State, or local 
agencies to gain efficiency in the NEPA process. Inclusion of Tribes, 
tribal members, tribal organizations, and Alaska Native Corporations in 
public engagement strategies is beneficial; however, the proposed 
directives will also recognize these efforts are not a substitute for 
fulfilling Tribal consultation requirements.

Executive Orders 12866

    This proposed rule has been reviewed under USDA procedures and 
Executive Order (E.O.) 12866 issued September 30, 1993, on regulatory 
planning and review, and the major rule provisions of the Small 
Business Regulatory Enforcement and Fairness Act (5 U.S.C. 800). The 
Office of Management and Budget (OMB) has determined that this is a 
significant rule as defined by E.O. 12866 and therefore will be subject 
to interagency review.
    Many benefits and costs associated with the rule are not 
quantifiable. Benefits (or cost reductions) derived from the 
opportunities for public engagement to more fully address public 
concerns, timely and focused environmental analysis, flexibility in 
preparation of environmental documents, and improved decision making 
indicate a positive net benefit of the proposed rule. The proposed rule 
aims to increase efficiency of environmental analysis while remaining 
true to NEPA's intent of informed decision making and without weakening 
the Agency's NEPA process. The proposed rule is expected to increase 
the pace and scale of forest and grassland management operations on the 
ground, thereby helping sustain the health of forests and grasslands 
and meet the needs of the public. The direct benefits of the proposed 
rule are, therefore, reduced costs and time spent on environmental 
analysis, where costs include those incurred by the Forest Service as 
well as by proponents or the public engaged in the environmental 
analysis process. The indirect benefits to the public are also expected 
to increase, as the proposed rule would provide for timelier 
development of, access to, and use of forest ecosystem goods and 
services, which are provided by healthier and more productive forests.
    For example, by implementing Determination of NEPA Adequacy, the 
Agency anticipates reductions in time and cost as a result of reducing 
redundant analyses. Use of condition-based management provides 
flexibility to account for changing conditions on the ground over time. 
Condition-based management also allows the Agency to satisfy NEPA 
despite uncertainty through validation of data and assumptions relied 
upon in NEPA analysis prior to implementation. Use of condition-based 
management may increase the scope and scale of analyses and the number 
of activities authorized in a single analysis and decision. These 
efficiencies may reduce total Agency costs and decisionmaking time. 
These concepts, however, will take some time to become well-established 
and widely used; potential benefits will occur over time.
    From Fiscal Years 2014 to 2018, the Agency's average annual 
environmental analysis workload included approximately 1,590 CEs and 
277 EAs. The average time to decision for CEs was 206 days and for EAs 
was 687 days. The proposed rule includes development of 7 new CEs with 
a decision memo. Focusing on the new CEs, the Agency assumes for the

[[Page 27551]]

purpose of this analysis that each CE may be used an average of 1 to 30 
times a year. Under these assumptions, the proposed rule may 
potentially result in 7 to 210 decision memos being completed in lieu 
of a decision notice. As a result, the Agency may complete NEPA 
analysis on these projects an average of 1 to 16 months earlier, per 
project. In practice, these figures will vary dependent upon the 
project and nature of the CE being used. The Agency also anticipates 
use 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 other new CEs over the course of the past several 
years. The Agency has recent experience implementing new CEs, such as 
the three soil and water restoration CEs that were established in 2013 
and recent legislative amendments to the Healthy Forests Restoration 
Act (HFRA) Section 603 and 605, in 2014 and 2018, respectively.
    There is potential for some time and cost savings by removing 
formal scoping periods for some EAs and CEs; however, under existing 
scoping practices, other work on a project often continues during 
scoping and not every day is actively spent working on a project. 
Therefore, it is difficult to quantify estimated savings. The changes 
proposed place emphasis on right-sizing public engagement opportunities 
and allow for discretion and flexibility in our scoping and public 
engagement mechanisms. This approach will allow the Agency to 
concentrate resources on projects that are potentially more complex or 
have greater public interest. Increased discretion and flexibility can 
provide more transparency, provide timelier responses to public needs, 
and accelerate decisionmaking.
    Some members of the public may perceive the changes to scoping as a 
cost. However, the Agency's public engagement requirements will still 
exceed the requirements of CEQ's NEPA regulations notifying the public 
through posting all EISs, EAs, and CEs with an associated decision memo 
to the Schedule of Proposed Actions. This perceived cost is further 
reduced in the case of EAs due to the Agency's requirement under 36 CFR 
218 to provide notice and an opportunity to comment.

Executive Order 13771

    The proposed 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 proposed 
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 (RFA), as amended by the Small 
Business Regulatory Flexibility Enforcement Fairness Act of 1996 and 
Executive Order 13272, requires an agency to prepare a regulatory 
flexibility analysis of rules which have received a significant 
determination by the Office of Management and Budget under Executive 
Order 12866. The proposed rule only directly affects the Forest 
Service, and as such, will not have a significant impact on a 
substantial number of small entities. The proposed rule is expected to 
have a minor positive indirect effect on small entities, including 
small government entities, by increasing efficiencies in environmental 
analysis and decision making, improving clarity, and reducing delays 
associated with NEPA compliance.

Federalism

    The Agency has considered this proposed 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 proposed rule has been reviewed under E.O. 12988, Civil 
Justice Reform. Under the proposed rule, (1) all State and local laws 
and regulations that conflict with this proposed rule or impede its 
full implementation will be preempted; (2) no retroactive effect is 
given to this proposed rule; and (3) exhaustion of administrative 
proceedings before parties may file suit in court challenging its 
provisions is required.

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 
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, this proposed rule is not subject to the 
requirements of section 202 and 205 of the UMRA.

Controlling Paperwork Burdens on the Public

    This proposed 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.

0
Therefore, for the reasons set forth in the preamble, the Department of 
Agriculture proposes to amend chapter II of Title 36 of the Code of 
Federal Regulations by revising part 220 to read as follows:

PART 220--National Environmental Policy Act (NEPA) Compliance

Sec.
220.1 Purpose and scope.
220.2 Applicability.
220.3 Definitions.
220.4 General requirements.
220.5 Categorical exclusions.
220.6 Environmental assessment and decision notice.
220.7 Environmental impact statement and record of decision.

    Authority:  42 U.S.C. 4321 et seq.; E.O. 11514; 40 CFR parts 
1500-1508; 7 CFR part 1b.

[[Page 27552]]

Sec.  220.1   Purpose and scope.

    (a) Purpose. This part establishes Forest Service, U.S. Department 
of Agriculture (USDA) procedures for compliance with the National 
Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.) and 
the Council on Environmental Quality (CEQ) regulations for implementing 
the procedural provisions of NEPA (40 CFR parts 1500 through 1508).
    (b) Scope. This part supplements and does not lessen the 
applicability of the CEQ regulations, and is to be used in conjunction 
with the CEQ regulations and USDA regulations at 7 CFR part 1b.


Sec.  220.2   Applicability.

    This part applies to all organizational elements of the Forest 
Service. Consistent with 40 CFR 1500.3, no trivial violation of this 
part shall give rise to any independent cause of action.


Sec.  220.3   Definitions.

    The following definitions supplement, by adding to, the terms 
defined at 40 CFR parts 1500 through 1508.
    Adaptive management. A system of management practices based on 
clearly identified intended outcomes and monitoring to determine if 
management actions are meeting those outcomes; and, if not, to 
facilitate management changes that will best ensure that those outcomes 
are met or re-evaluated. Adaptive management stems from the recognition 
that knowledge about natural resource systems is sometimes uncertain.
    Condition-based management. A system of management practices based 
on implementation of specific design elements from a broader proposed 
action, where the design elements vary according to a range of on-the-
ground conditions in order to meet intended outcomes. Condition-based 
management stems from the recognition that the environment is dynamic, 
changing as ecosystems respond to changing natural and human-caused 
events.
    Decision document. A record of decision, decision notice or 
decision memo.
    Decision memo. A concise written record of the responsible 
official's decision to implement an action categorically excluded from 
analysis and documentation in an environmental impact statement (EIS) 
or environmental assessment (EA).
    Decision notice. A concise written record of the responsible 
official's decision when an EA and finding of no significant impact 
(FONSI) have been prepared.
    Environmentally preferable alternative. The environmentally 
preferable alternative is the alternative that will best promote the 
national environmental policy as expressed in NEPA's section 101 (42 
U.S.C. 4321). Ordinarily, the environmentally preferable alternative is 
that which causes the least harm to the biological and physical 
environment; it also is the alternative which best protects and 
preserves historic, cultural, and natural resources. In some 
situations, there may be more than one environmentally preferable 
alternative.
    Reasonably foreseeable future actions. Those Federal or non-Federal 
activities not yet undertaken, for which there are existing decisions, 
funding, or identified proposals. Identified proposals for Forest 
Service actions are described in Sec.  220.4(a).
    Responsible official. The Agency employee who has the authority to 
make and implement a decision on a proposed action.
    Schedule of proposed actions (SOPA). A Forest Service document that 
provides public notice about those proposed Forest Service actions for 
which a record of decision, decision notice, or decision memo would be 
or has been prepared. The SOPA also identifies a contact for additional 
information on proposed actions.


Sec.  220.4   General requirements.

    (a) Proposed actions subject to the NEPA requirements. As required 
by 42 U.S.C. 4321 et seq., a Forest Service proposal is subject to the 
NEPA requirements when all of the following apply:
    (1) The Forest Service 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 (see 40 CFR 1508.23);
    (2) The proposed action is subject to Forest Service control and 
responsibility (see 40 CFR 1508.18);
    (3) The proposed action would cause effects on the natural and 
physical environment and the relationship of people with that 
environment (see 40 CFR 1508.14); and
    (4) The proposed action is not statutorily exempt from the 
requirements of section 102(2)(C) of the NEPA (42 U.S.C. 4332(2)(C)).
    (b) Emergency responses. When the responsible official determines 
that an emergency exists that makes it necessary to take urgently 
needed actions before preparing a NEPA analysis and any required 
documentation in accordance with the provisions in Sec. Sec.  220.5, 
220.6, and 220.7 of this part, then the following provisions apply.
    (1) The responsible official may take actions necessary to control 
the immediate impacts of the emergency and are urgently needed to 
mitigate harm to life, property, or important natural or cultural 
resources. When taking such actions, the responsible official shall 
take into account the probable environmental consequences of the 
emergency action and mitigate foreseeable adverse environmental effects 
to the extent practicable.
    (2) If the responsible official proposes emergency actions other 
than those actions described in paragraph (b)(1) of this section, and 
such actions are not likely to have significant environmental impacts, 
the responsible official shall document that determination in an EA and 
FONSI prepared in accord with these regulations. If the responsible 
official finds that the nature and scope of proposed emergency actions 
are such that they must be undertaken prior to preparing any NEPA 
analysis and documentation associated with a CE or an EA and FONSI, the 
responsible official shall consult with the Washington Office about 
alternative arrangements for NEPA compliance. The Chief or Associate 
Chief of the Forest Service may grant emergency alternative 
arrangements under NEPA for environmental assessments, findings of no 
significant impact and categorical exclusions (FSM 1950.41a). 
Consultation with the Washington Office shall be coordinated through 
the appropriate regional office.
    (3) If the responsible official proposes emergency actions other 
than those actions described in paragraph (b)(1) of this section and 
such actions are likely to have significant environmental impacts, then 
the responsible official shall consult with CEQ, through the 
appropriate regional office and the Washington Office, about 
alternative arrangements in accordance with CEQ regulations at 40 CFR 
1506.11 as soon as possible.
    (c) Agency decisionmaking. For each Forest Service proposal (Sec.  
220.4(a)), the responsible official shall coordinate and integrate NEPA 
review and relevant environmental documents with agency decisionmaking 
by:
    (1) Leading the proposal development and environmental analysis 
process, to ensure a focused approach;
    (2) Completing the environmental document review before making a 
decision on the proposal;
    (3) Considering environmental documents, public and other agency 
comments (if any) on those documents,

[[Page 27553]]

and agency responses to those comments;
    (4) Including environmental documents, comments, and responses in 
the administrative record;
    (5) Considering the alternatives analyzed in environmental 
document(s) before rendering a decision on the proposal; and
    (6) Making a decision encompassed within the range of alternatives 
analyzed in the environmental documents.
    (d) Scoping and public notice. Minimum requirements for scoping and 
public notice are listed below, except where specified by applicable 
statutes or regulations (for example, 36 CFR part 218). Additional 
public involvement is at the discretion of the local responsible 
official.
    (1) The Forest Service will publish to the Schedule of Proposed 
Actions (SOPA) all proposed actions that will be documented with a 
decision memo, environmental assessment, or environmental impact 
statement. The local responsible official shall ensure the SOPA is 
updated and notify the public of the availability of the SOPA.
    (2) Scoping is required for all Forest Service environmental impact 
statements (40 CFR 1501.7).
    (e) Cumulative effects considerations of past actions. Cumulative 
effects analysis shall be carried out in accordance with 40 CFR 1508.7 
and in accordance with ``The Council on Environmental Quality Guidance 
Memorandum on Consideration of Past Actions in Cumulative Effects 
Analysis'' dated June 24, 2005. The analysis of cumulative effects 
begins with consideration of the direct and indirect effects on the 
environment that are expected or likely to result from the alternative 
proposals for agency action. Agencies then look for present effects of 
past actions that are, in the judgment of the agency, relevant and 
useful because they have a significant cause-and-effect relationship 
with the direct and indirect effects of the proposal for agency action 
and its alternatives. CEQ regulations do not require the consideration 
of the individual effects of all past actions to determine the present 
effects of past actions. Once the agency has identified those present 
effects of past actions that warrant consideration, the agency assesses 
the extent that the effects of the proposal for agency action or its 
alternatives will add to, modify, or mitigate those effects. The final 
analysis documents an agency assessment of the cumulative effects of 
the actions considered (including past, present, and reasonably 
foreseeable future actions) on the affected environment. With respect 
to past actions, during the public involvement process and subsequent 
preparation of the analysis, the agency must determine what information 
regarding past actions is useful and relevant to the required analysis 
of cumulative effects. Cataloging past actions and specific information 
about the direct and indirect effects of their design and 
implementation could, in some contexts, be useful to predict the 
cumulative effects of the proposal. The CEQ regulations, however, do 
not require agencies to catalogue or exhaustively list and analyze all 
individual past actions. Simply because information about past actions 
may be available or obtained with reasonable effort does not mean that 
it is relevant and necessary to inform decisionmaking. (40 CFR 1508.7)
    (f) Classified information. To the extent practicable, the 
responsible official shall segregate any information that has been 
classified pursuant to Executive order or statute. The responsible 
official shall maintain the confidentiality of such information in a 
manner required for the information involved. Such information may not 
be included in any publicly disclosed documents. If such material 
cannot be reasonably segregated, or if segregation would leave 
essentially meaningless material, the responsible official must 
withhold the entire analysis document from the public; however, the 
responsible official shall otherwise prepare the analysis documentation 
in accord with applicable regulations. (40 CFR 1507.3(c))
    (g) Incorporation by reference. Material may be incorporated by 
reference into any environmental or decision document. This material 
must be reasonably available to the public and its contents briefly 
described in the environmental or decision document. (40 CFR 1502.21)
    (h) Applicants. The responsible official shall make policies or 
staff available to advise potential applicants of studies or other 
information foreseeably required for acceptance of their applications. 
Upon acceptance of an application as provided by 36 CFR 251.54(g) the 
responsible official shall initiate the NEPA process.
    (i) Determination of NEPA Adequacy. (1) NEPA analysis performed for 
a previous proposed action can suffice for a new proposed action. A 
Determination of NEPA Adequacy (DNA) is a tool to determine whether a 
previously completed NEPA analysis can satisfy NEPA's requirements for 
a subsequent proposed action. In making this determination, the 
responsible official shall evaluate:
    (i) Is the new proposed action essentially similar to a previously 
analyzed proposed action or alternative analyzed in detail in previous 
NEPA analysis?
    (ii) Is the range of alternatives previously analyzed adequate 
under present circumstances?
    (iii) Is there any significant new information or circumstances 
relevant to environmental concerns that would substantially change the 
analysis in the existing NEPA document(s)?
    (iv) Are the direct, indirect, and cumulative effects that would 
result from implementation of the new proposed action similar (both 
quantitatively and qualitatively) 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 project or activity. New project 
and activity decisions made in reliance on a DNA shall be subject to 
all applicable notice, comment, and administrative review processes.
    (j) Adaptive Management. The proposed action and any alternatives 
to the proposed action may include adaptive management. An adaptive 
management proposal or alternative must clearly identify the 
adjustment(s) that may be made when monitoring during project 
implementation indicates that the action is not having its intended 
effect, or is causing unintended and undesirable effects. The NEPA 
analysis must disclose not only the effect of the proposed action or 
alternative but also the effect of the adjustment. Such proposal or 
alternative must also describe the monitoring that would take place to 
inform the responsible official during implementation whether the 
action is having its intended effect.
    (k) Condition-based management. The proposed action and any 
alternatives may include condition-based management. A condition-based 
management alternative must clearly identify the management actions 
that will be undertaken, and any design elements that will be 
implemented, when a certain set or range of conditions are present. The 
NEPA analysis must disclose the effects of all condition-based actions, 
taking into account design elements that limit such actions. Such 
proposal or alternative must also describe the process by which 
conditions will be validated prior to implementation.
    (l) Supplementation and new information. (1) The responsible 
official shall prepare supplements to either draft or final 
environmental impact

[[Page 27554]]

statements (40 CFR 1502.9(c) or environmental assessments if:
    (i) The agency makes substantial changes in the proposed action 
that are relevant to environmental concerns; or
    (ii) There are significant new circumstances or information 
relevant to environmental concerns and bearing on the proposed action 
or its impacts and there remains Federal action to occur.
    (2) The responsible official may prepare a supplemental information 
report to document the review of potentially significant new 
circumstances or information. If a supplemental information report is 
prepared, it shall be included in the project record.


Sec.  220.5   Categorical exclusions.

    (a) General. A proposed action may be categorically excluded from 
analysis and documentation in an EA or EIS when there are no 
extraordinary circumstances related to the proposed action, and the 
proposed action is within one or more of the categories listed at 7 CFR 
part 1b.3 or 36 CFR 220.5(d) or (e). All categories are independently 
established and do not constrain or limit the operation of each other. 
Multiple categories may be relied upon for a single proposed action 
when a single category does not cover all aspects of the proposed 
action.
    (b) Resource conditions. (1) Resource conditions that should be 
considered in determining whether extraordinary circumstances related 
to a proposed action warrant analysis and documentation in an EA or an 
EIS are:
    (i) Federally listed threatened or endangered species or designated 
critical habitat and species proposed for Federal listing or proposed 
critical habitat;
    (ii) Flood plains, wetlands, or municipal watersheds;
    (iii) Congressionally designated areas, such as wilderness, 
wilderness study areas, potential wilderness areas, wild and scenic 
rivers, or national recreation areas;
    (iv) Roadless areas designated under 36 CFR part 294;
    (v) Research natural areas;
    (vi) American Indian and Alaska Native religious or cultural sites; 
and
    (vii) Archaeological sites, or historic properties or areas.
    (2) The mere presence of one or more of these resource conditions 
does not preclude use of a categorical exclusion. Extraordinary 
circumstances exist when there is a cause-and-effect relationship 
between a proposed action and listed resource conditions and the 
responsible official determines that there is a likelihood of 
substantial adverse effects. The responsible official may consider 
whether long-term beneficial effects outweigh short-term adverse 
effects in making this determination.
    (c) Public involvement. In addition to public notice in the SOPA, 
as required at 220.4(d), the responsible official may choose to conduct 
additional public engagement activities to involve key stakeholders and 
interested parties. This additional involvement shall be conducted 
commensurate with the nature of the decision to be made.
    (d) Categories of actions for which a project or case file and 
decision memo are not required. A supporting record and a decision memo 
are not required, but at the discretion of the responsible official, 
may be prepared for the following categories:
    (1) Orders issued pursuant to 36 CFR part 261--Prohibitions to 
provide short-term resource protection or to protect public health and 
safety. Examples include but are not limited to:
    (i) Closing a road to protect bighorn sheep during lambing season, 
and
    (ii) Closing an area during a period of extreme fire danger.
    (2) Rules, regulations, or policies to establish service-wide 
administrative procedures, program processes, or instructions. Examples 
include but are not limited to:
    (i) Adjusting special use or recreation fees using an existing 
formula;
    (ii) Proposing a technical or scientific method or procedure for 
screening effects of emissions on air quality related values in Class I 
wildernesses;
    (iii) Proposing a policy to defer payments on certain permits or 
contracts to reduce the risk of default;
    (iv) Proposing changes in contract terms and conditions or terms 
and conditions of special use authorizations;
    (v) Establishing a service-wide process for responding to offers to 
exchange land and for agreeing on land values; and
    (vi) Establishing procedures for amending or revising forest land 
and resource management plans.
    (3) Repair and maintenance of administrative sites. Examples 
include but are not limited to:
    (i) Mowing lawns at a district office;
    (ii) Replacing a roof or storage shed;
    (iii) Painting a building; and
    (iv) Applying registered pesticides for rodent or vegetation 
control.
    (4) Repair and maintenance of roads, trails, and landline 
boundaries. Examples include but are not limited to:
    (i) Authorizing a user to grade, resurface, and clean the culverts 
of an established NFS road;
    (ii) Grading a road and clearing the roadside of brush without the 
use of herbicides;
    (iii) Resurfacing a road to its original condition;
    (iv) Pruning vegetation and cleaning culverts along a trail and 
grooming the surface of the trail; and
    (v) Surveying, painting, and posting landline boundaries.
    (5) Repair and maintenance of recreation sites and facilities. 
Examples include but are not limited to:
    (i) Applying registered herbicides to control poison ivy on 
infested sites in a campground;
    (ii) Applying registered insecticides by compressed air sprayer to 
control insects at a recreation site complex;
    (iii) Repaving a parking lot; and
    (iv) Applying registered pesticides for rodent or vegetation 
control.
    (6) Acquisition of land or interest in land. Examples include but 
are not limited to:
    (i) Accepting the donation of lands or interests in land to the 
NFS, and
    (ii) Purchasing fee, conservation easement, reserved interest deed, 
or other interests in lands.
    (7) Sale or exchange of land or interest in land and resources 
where resulting land uses remain essentially the same. Examples include 
but are not limited to:
    (i) Selling or exchanging land pursuant to the Small Tracts Act;
    (ii) Exchanging NFS lands or interests with a State agency, local 
government, or other non-Federal party (individual or organization) 
with similar resource management objectives and practices;
    (iii) Authorizing the Bureau of Land Management to issue leases on 
producing wells when mineral rights revert to the United States from 
private ownership and there is no change in activity; and
    (iv) Exchange of administrative sites involving other than NFS 
lands.
    (8) Approval, modification, or continuation of minor short-term (1 
year or less) special uses of NFS lands. Examples include but are not 
limited to:
    (i) Approving, on an annual basis, the intermittent use and 
occupancy by a State-licensed outfitter or guide;
    (ii) Approving the use of NFS land for apiaries; and
    (iii) Approving the gathering of forest products for personal use.
    (9) Issuance of a new permit for up to the maximum tenure allowable 
under the National Forest Ski Area Permit Act of 1986 (16 U.S.C. 497b) 
for an existing ski area when such issuance is a purely ministerial 
action to account for administrative changes, such as a change in 
ownership of ski area improvements, expiration of the current permit, 
or a change in the statutory authority applicable to the current 
permit. Examples include, but are not limited to:

[[Page 27555]]

    (i) Issuing a permit to a new owner of ski area improvements within 
an existing ski area with no changes to the master development plan, 
including no changes to the facilities or activities for that ski area;
    (ii) Upon expiration of a ski area permit, issuing a new permit to 
the holder of the previous permit where the holder is not requesting 
any changes to the master development plan, including changes to the 
facilities or activities; and
    (iii) Issuing a new permit under the National Forest Ski Area 
Permit Act of 1986 to the holder of a permit issued under the Term 
Permit and Organic Acts, where there are no changes in the type or 
scope of activities authorized and no other changes in the master 
development plan.
    (10) [Reserved]
    (11) Issuance of a new special use authorization to replace an 
existing or expired special use authorization, when such issuance is a 
purely clerical action to account 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 intensity 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 
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.
    (iii) Issuing a new permit to replace an outfitting and guiding 
permit that is at the end of its term, or to convert 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 activities that occur on existing roads or trails, in 
existing facilities, or in areas where activities are consistent with 
the applicable land management plan or other documented decision. 
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 motorcycle enduro ride on 
existing roads;
    (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 fund raising activities and other recreational events.
    (v) Issuance of a campground concession permit for an existing 
campground that has previously been operated by the Forest Service.
    (e) Categories of actions for which a project or case file and 
decision memo are required. A supporting record is required and the 
decision to proceed must be documented in a decision memo for the 
categories of action in paragraphs (e)(1) through (28) of this section. 
As a minimum, the project or case file should include any records 
prepared, such as: The names of interested and affected people, groups, 
and agencies contacted; the determination that no extraordinary 
circumstances exist; a copy of the decision memo; and a list of the 
people notified of the decision.
    (1) Construction and reconstruction of trails. Examples include, 
but are not limited to:
    (i) Constructing or reconstructing a trail to a scenic overlook, 
and
    (ii) Reconstructing an existing trail to allow use by individuals 
with disabilities.
    (2) Additional construction or reconstruction of existing telephone 
or utility lines in a designated corridor. Examples include, but are 
not limited to:
    (i) Replacing an underground cable trunk and adding additional 
phone lines, and
    (ii) Reconstructing a power line by replacing poles and wires.
    (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 40-foot utility corridor that 
crosses four miles of a national forest;
    (v) Approving the installation of a driveway or other facilities 
incidental to use of a private residence;
    (vi) Approving new or additional telecommunication facilities, 
improvements, or use at a site already used for such purposes;
    (vii) Approving the expansion of an existing gravel pit or the 
removal of mineral materials from an existing community pit or common-
use area;
    (viii) Approving the continued use of land where such use has not 
changed since authorized and no change in the physical environment or 
facilities are proposed.
    (4) [Reserved]
    (5) Regeneration of an area to native tree species, including site 
preparation that does not involve the use of herbicides or result in 
vegetation type conversion. Examples include, but are not limited to:
    (i) Planting seedlings of superior trees in a progeny test site to 
evaluate genetic worth, and
    (ii) Planting trees or mechanical seed dispersal of native tree 
species following a fire, flood, or landslide.
    (6) Timber stand and/or wildlife habitat improvement activities 
that do not include the use of herbicides or do not require more than 1 
mile of low standard road construction. Examples include, but are not 
limited to:
    (i) Girdling trees to create snags;
    (ii) Thinning or brush control to improve growth or to reduce fire 
hazard including the opening of an existing road to a dense timber 
stand;
    (iii) Prescribed burning to control understory hardwoods in stands 
of southern pine; and
    (iv) Prescribed burning to reduce natural fuel build-up and improve 
plant vigor.
    (7) Modification or maintenance of stream or lake aquatic habitat 
improvement structures using native materials or normal practices. 
Examples include, but are not limited to:
    (i) Reconstructing a gabion with stone from a nearby source;
    (ii) Adding brush to lake fish beds; and
    (iii) Cleaning and resurfacing a fish ladder at a hydroelectric 
dam.
    (8) Short-term (1 year or less) mineral, energy, or geophysical 
investigations and their incidental support activities that may require 
cross-country travel by vehicles and equipment, construction of less 
than 1 mile of low standard road, or use and minor repair of existing 
roads. Examples include, but are not limited to:
    (i) Authorizing geophysical investigations which use existing roads 
that may require incidental repair to reach sites for drilling core 
holes, temperature gradient holes, or seismic shot holes;
    (ii) Gathering geophysical data using shot hole, vibroseis, or 
surface charge methods;
    (iii) Trenching to obtain evidence of mineralization;
    (iv) Clearing vegetation for sight paths or from areas used for 
investigation or support facilities;

[[Page 27556]]

    (v) Redesigning or rearranging surface facilities within an 
approved site;
    (vi) Approving interim and final site restoration measures; and
    (vii) Approving a plan for exploration which authorizes repair of 
an existing road and the construction of \1/3\ mile of temporary road; 
clearing vegetation from an acre of land for trenches, drill pads, or 
support facilities.
    (9) Implementation or modification of minor management practices to 
improve allotment condition or animal distribution when an allotment 
management plan is not yet in place. Examples include, but are not 
limited to:
    (i) Rebuilding a fence to improve animal distribution;
    (ii) Adding a stock watering facility to an existing water line; 
and
    (iii) Spot seeding native species of grass or applying lime to 
maintain forage condition.
    (10) [Reserved]
    (11) Post-fire rehabilitation activities, not to exceed 4,200 acres 
(such as tree planting, fence replacement, habitat restoration, 
heritage site restoration, repair of roads and trails, and repair of 
damage to minor facilities such as campgrounds), to repair or improve 
lands unlikely to recover to a management approved condition from 
wildland fire damage, or to repair or replace minor facilities damaged 
by fire. Such activities:
    (i) Shall be conducted consistent with Agency and Departmental 
procedures and applicable land and resource management plans;
    (ii) Shall not include the use of herbicides or pesticides or the 
construction of new permanent roads or other new permanent 
infrastructure; and
    (iii) Shall be completed within 3 years following a wildland fire.
    (12) Harvest of live trees not to exceed 70 acres, requiring no 
more than \1/2\ mile of temporary road construction. Do not use this 
category for even-aged regeneration harvest or vegetation type 
conversion. The proposed action may include incidental removal of trees 
for landings, skid trails, and road clearing. Examples include, but are 
not limited to:
    (i) Removal of individual trees for sawlogs, specialty products, or 
fuelwood, and
    (ii) Commercial thinning of overstocked stands to achieve the 
desired stocking level to increase health and vigor.
    (13) Salvage of dead and/or dying trees not to exceed 250 acres, 
requiring no more than \1/2\ mile of temporary road construction. The 
proposed action may include incidental removal of live or dead trees 
for landings, skid trails, and road clearing. Examples include, but are 
not limited to:
    (i) Harvest of a portion of a stand damaged by a wind or ice event 
and construction of a short temporary road to access the damaged trees, 
and
    (ii) Harvest of fire-damaged trees.
    (14) Commercial and non-commercial sanitation harvest of trees to 
control insects or disease not to exceed 250 acres, requiring no more 
than \1/2\ mile of temporary road construction, including removal of 
infested/infected trees and adjacent live uninfested/uninfected trees 
as determined necessary to control the spread of insects or disease. 
The proposed action may include incidental removal of live or dead 
trees for landings, skid trails, and road clearing. Examples include, 
but are not limited to:
    (i) Felling and harvest of trees infested with southern pine 
beetles and immediately adjacent uninfested trees to control expanding 
spot infestations, and
    (ii) Removal and/or destruction of infested trees affected by a new 
exotic insect or disease, such as emerald ash borer, Asian long horned 
beetle, and sudden oak death pathogen.
    (15) [Reserved]
    (16) Plan amendments developed in accordance with 36 CFR part 219 
et seq. that provide broad guidance and information for project and 
activity decisionmaking in a NFS unit. Proposals for actions that 
approve projects and activities, or that command anyone to refrain from 
undertaking projects and activities, or that grant, withhold or modify 
contracts, permits or other formal legal instruments, are outside the 
scope of this category and shall be considered separately under Forest 
Service NEPA procedures.
    (17) Approval of a Surface Use Plan of Operations for oil and 
natural gas exploration and initial development activities, associated 
with or adjacent to a new oil and/or gas field or area, so long as the 
approval will not authorize activities in excess of any of the 
following:
    (i) One mile of new road construction;
    (ii) One mile of road reconstruction;
    (iii) Three miles of individual or co-located pipelines and/or 
utilities disturbance; or
    (iv) Four drill sites.
    (18) Restoring wetlands, streams, riparian areas or other water 
bodies by removing, replacing, or modifying water control structures 
such as, but not limited to, dams, levees, dikes, ditches, culverts, 
pipes, drainage tiles, valves, gates, and fencing, to allow waters to 
flow into natural channels and floodplains and restore natural flow 
regimes to the extent practicable where valid existing rights or 
special use authorizations are not unilaterally altered or canceled. 
Examples include but are not limited to:
    (i) Repairing an existing water control structure that is no longer 
functioning properly with minimal dredging, excavation, or placement of 
fill, and does not involve releasing hazardous substances;
    (ii) Installing a newly-designed structure that replaces an 
existing culvert to improve aquatic organism passage and prevent 
resource and property damage where the road or trail maintenance level 
does not change;
    (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; and
    (iv) Removing a small earthen and rock fill dam with a low hazard 
potential classification that is no longer needed.
    (19) Removing and/or relocating debris and sediment following 
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 an unstable debris jam on a river following a flood 
event and relocating it back in the floodplain and stream channel to 
restore water flow and local bank stability;
    (ii) Clean-up and removal of infrastructure flood debris, such as, 
benches, tables, outhouses, concrete, culverts, and asphalt following a 
hurricane from a stream reach and adjacent wetland area; and
    (iii) Stabilizing stream banks and associated stabilization 
structures to reduce erosion through bioengineering techniques 
following a flood event, including the use 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 roads and trails, including unauthorized roads and trails 
and NFS roads and NFS trails, to a more natural

[[Page 27557]]

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 a 
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 either managed by the Forest Service or managed under special use 
authorities, 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 on 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
    (ix) Reconstructing or expanding a recreation rental cabin.
    (23) Converting a non-NFS or unauthorized trail or trail segment to 
an NFS trail when determined appropriate by the responsible official 
and consistent with applicable land management plan direction, travel 
management decisions, trail-specific decisions, and other related 
direction. Examples include but are not limited to:
    (i) Converting an unauthorized trail that crosses land acquired by 
the Forest Service to an NFS trail; and
    (ii) Converting an unauthorized trail to an NFS trail, including 
associated repair and reconstruction activities, to enhance access and 
recreation opportunities.
    (24) 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. Examples include but are 
not limited to:
    (i) Reconstructing an NFS road or parking area to address deferred 
maintenance;
    (ii) Constructing an NFS road to improve access to a trailhead or 
parking area;
    (iii) Modifying the surface of an NFS road;
    (iv) Rerouting an NFS road to minimize resource impacts;
    (v) Closing an NFS road to address resource impacts; and
    (vi) Shoulder widening or other safety improvements within the 
right-of-way for an NFS road.
    (25) Converting an unauthorized or non-NFS road to an NFS road. 
Examples include but are not limited to:
    (i) Converting a non-NFS road that crosses land acquired by the 
Forest Service to an NFS road; and
    (ii) Converting a non-NFS road to an NFS road to enhance access and 
recreation opportunities.
    (26) Ecosystem restoration and/or resilience activities on NFS 
lands in compliance with the applicable land management plan, 
including, but not limited to the plan's goals, objectives, or desired 
conditions. Activities to improve ecosystem health, resilience, and 
other watershed conditions cannot exceed 7,300 treated acres. If 
commercial/non-commercial timber harvest activities are proposed they 
must be carried out in combination with at least one additional 
restoration activity and harvested acres cannot exceed 4,200 of the 
7,300 acres.
    (i) Restoration and resilience activities include, but are not 
limited to:
    (A) Terrestrial and aquatic habitat improvement and/or creation,
    (B) Stream restoration, aquatic organism passage, or erosion 
control,
    (C) Road and/or trail decommissioning (system and non-system),
    (D) Control of invasive species and reestablishing native species,
    (E) Hazardous fuels reduction and/or wildfire risk reduction,
    (F) Prescribed burning,
    (G) Reforestation,
    (H Commercial harvest, and/or
    (I) Non/pre-commercial thinning,
    (ii) Road and trail limitation. A restoration/resilience activity 
under this category may include:
    (A) Construction of permanent roads up to 0.5 miles.
    (B) Maintenance or reconstruction of NFS roads and system trails, 
such as relocation of road or trail segments to address resource 
impacts.
    (C) Construction of temporary roads up to 2.5 miles. All temporary 
roads constructed for a project under this category shall be 
decommissioned no later than 3 years after the date the project is 
completed.
    (27) A Forest Service action that will be implemented jointly with 
another Federal agency and the action qualifies for a categorical 
exclusion of the other Federal agency. If the Forest Service chooses to 
use another Federal agency's categorical exclusion to cover a proposed 
action, the responsible official must obtain written concurrence from 
the other Federal agency that the categorical exclusion applies to the 
proposed action.
    (f) Decision memos. The responsible official shall notify 
interested or affected parties of the availability of the decision memo 
as soon as practicable after signing. While sections may be combined or 
rearranged in the interest of clarity and brevity, decision memos must 
include the following content:
    (1) A heading, which must identify:
    (i) Title of document: Decision Memo;

[[Page 27558]]

    (ii) Agency and administrative unit;
    (iii) Title of the proposed action; and
    (iv) Location of the proposed action, including administrative 
unit, county, and State.
    (2) Decision to be implemented and the reasons for categorically 
excluding the proposed action including:
    (i) The category of the proposed action;
    (ii) The rationale for using the category or categories;
    (iii) A finding that no extraordinary circumstances exist;
    (3) Any interested and affected agencies, organizations, and 
persons contacted;
    (4) Findings required by other laws such as, but not limited to 
findings of consistency with the forest land and resource management 
plan as required by the National Forest Management Act; or a public 
interest determination (36 CFR 254.3(b));
    (5) The date when the responsible official intends to implement the 
decision and any conditions related to implementation;
    (6) Whether the decision is subject to administrative review, the 
applicable regulations, and when and where to file a request for 
review;
    (7) Name, address, and phone number of a contact person who can 
supply further information about the decision; and
    (8) The responsible official's signature and date when the decision 
is made.


Sec.  220.6   Environmental assessment and decision notice.

    (a) Environmental assessment. An environmental assessment (EA) 
shall be prepared for proposals as described in Sec.  220.4(a) that are 
not categorically excluded (Sec.  220.5) and for which the need for an 
EIS has not been determined (Sec.  220.7). An EA may be prepared in any 
format useful to determine whether to prepare either an EIS or a FONSI, 
as long as the requirements of paragraph (b) of this section are met. 
The EA may incorporate by reference information that is reasonably 
available to the public.
    (b) An EA must include the following:
    (1) Need for the proposal. The EA must briefly describe the need 
for the project.
    (2) Proposed action and alternative(s). The EA shall briefly 
describe the proposed action and any alternative(s) that meet the need 
for action. No specific number of alternatives is required or 
prescribed.
    (i) When there are no unresolved conflicts concerning alternative 
uses of available resources (NEPA, section 102(2)(E)), the EA need only 
analyze the proposed action and may proceed without consideration of 
additional alternatives.
    (ii) The EA may document consideration of a no-action alternative 
through the effects analysis by contrasting the impacts of the proposed 
action and any alternative(s) with the current condition and expected 
future condition if the proposed action were not implemented.
    (iii) The description of the proposal and any alternative(s) may 
include a brief description of incremental modifications developed 
through the analysis process. The documentation of these incremental 
changes to a proposed action or alternatives may be incorporated by 
reference.
    (3) Environmental Impacts of the Proposed Action and 
Alternative(s). The EA:
    (i) Shall briefly provide sufficient evidence and analysis, 
including the environmental impacts of the proposed action and 
alternative(s), to determine whether to prepare either an EIS or a 
FONSI (40 CFR 1508.9);
    (ii) Shall disclose the environmental effects of any adaptive 
management adjustments;
    (iii) Shall describe the impacts of the proposed action and any 
alternatives in terms of context and intensity as described in the 
definition of ``significantly'' at 40 CFR 1508.27;
    (iv) May discuss the direct, indirect, and cumulative impacts of 
the proposed action and any alternatives together in a comparative 
description or describe the impacts of each alternative separately; and
    (v) May incorporate by reference data, inventories, other 
information and analyses.
    (4) Agencies and Persons Consulted.
    (c) Public involvement. In addition to public notice in the SOPA 
and other requirements specified by applicable statutes or regulations 
(such as 36 CFR 218), as required at Sec.  220.4(d), the responsible 
official may choose to conduct additional public engagement activities 
to involve key stakeholders and interested parties. This additional 
involvement shall be conducted commensurate with the nature of the 
decision to be made.
    (d) Decision notice. If an EA and FONSI have been prepared, the 
responsible official must document a decision to proceed with an action 
in a decision notice unless law or regulation requires another form of 
decision documentation. A decision notice must document the conclusions 
drawn and the decision(s) made based on the supporting record, 
including the EA and FONSI. A decision notice must include:
    (1) A heading, which identifies the:
    (i) Title of document;
    (ii) Agency and administrative unit;
    (iii) Title of the project; and
    (iv) Location of the action, including county and State.
    (2) Decision and rationale;
    (3) Brief summary of public involvement;
    (4) A statement incorporating by reference the EA and FONSI if not 
combined with the decision notice;
    (5) Findings required by other laws and regulations applicable to 
the decision at the time of decision;
    (6) Expected implementation date;
    (7) Administrative review opportunities and, when such 
opportunities exist, a citation to the applicable regulations and 
directions on when and where to file a request for review;
    (8) Contact information, including the name, address, and phone 
number of a contact person who can supply additional information; and
    (9) Responsible Official's signature, and the date the decision 
notice is signed.
    (e) Notification. The responsible official shall notify interested 
and affected parties of the availability of the EA, FONSI, and decision 
notice as soon as practicable after the decision notice is signed.


Sec.  220.7   Environmental impact statement and record of decision.

    (a) Classes of actions normally requiring environmental impact 
statements.
    (1) Class 1. Proposals to carry out or to approve aerial 
application of chemical pesticides on an operational basis. Examples 
include but are not limited to:
    (i) Applying chemical insecticides by helicopter on an area 
infested with spruce budworm to prevent serious resource loss.
    (ii) Authorizing the application of herbicides by helicopter on a 
major utility corridor to control unwanted vegetation.
    (iii) Applying herbicides by fixed-wing aircraft on an area to 
release trees from competing vegetation.
    (2) Class 2. Development of a new land management plan or land 
management plan revision as provided for in 36 CFR 219.7.
    (3) Class 3.Mining operations that involve surface disturbance on 
greater than 640 acres over the life of the proposed action.
    (b) Public Notice and Scoping. Scoping shall be carried out in 
accordance with the requirements of 40 CFR 1501.7. No single scoping

[[Page 27559]]

technique is required or prescribed however, while public notice shall 
be provided by the SOPA, as required at Sec.  220.4(d), the SOPA shall 
not to be used as the sole scoping mechanism.
    (c) Notice of intent. Normally, a notice of intent to prepare an 
EIS shall be published in the Federal Register as soon as practicable 
after deciding that an EIS will be prepared. Where there is a lengthy 
period between the agency's decision to prepare an EIS and the time of 
actual preparation, the notice of intent may be published at a 
reasonable time in advance of preparation of the draft statement. A 
notice must meet the requirements of 40 CFR 1508.22, and in addition, 
include the following:
    (1) Title of the responsible official(s);
    (2) Any permits or licenses required to implement the proposed 
action and the issuing authority, to the extent known;
    (3) Lead, joint lead, or cooperating agencies if identified; and
    (4) Address(es) to which comments may be sent.
    (d) Withdrawal notice. A withdrawal notice must be published in the 
Federal Register if, after publication of the notice of intent or 
notice of availability, an EIS is no longer necessary. A withdrawal 
notice must refer to the date and Federal Register page number of the 
previously published notice(s).
    (e) Environmental impact statement format and content. The 
responsible official may use any EIS format and design as long as the 
statement is in accord with 40 CFR 1502.10.
    (f) Alternative(s). The EIS shall document the examination of 
reasonable alternatives to the proposed action. Each alternative other 
than the no action alternative must meet the purpose and need of the 
proposed action. No specific number of alternatives is required or 
prescribed. The responsible official may modify the proposed action and 
alternative(s) under consideration prior to issuing a draft EIS. In 
such cases, the responsible official may consider the incremental 
changes as alternatives considered. The documentation of these 
incremental changes to a proposed action or alternatives shall be 
included or incorporated by reference in accord with 40 CFR 1502.21.
    (g) Circulating and filing draft and final environmental impact 
statements. (1) The draft and final EISs shall be filed with the 
Environmental Protection Agency's Office of Federal Activities in 
Washington, DC (see 40 CFR 1506.9).
    (2) Requirements at 40 CFR 1506.9 ``Filing requirements,'' 40 CFR 
1506.10 ``Timing of agency action,'' and 40 CFR 1502.19 ``Circulation 
of the environmental impact statement'' shall only apply to the last 
draft and final EIS, and will not apply to material produced prior to 
the draft EIS or between the draft and final EIS which are filed with 
EPA.
    (3) When the responsible official determines that an extension of 
the review period on a draft EIS is appropriate, notice shall be given 
in the same manner used for inviting comments on the draft.
    (h) Distribution of the record of decision. The responsible 
official shall notify interested or affected parties of the 
availability of the record of decision as soon as practicable after 
signing.

    Dated: May 17, 2019.
James E. Hubbard,
Undersecretary, Natural Resources and Environment.
[FR Doc. 2019-12195 Filed 6-12-19; 8:45 am]
 BILLING CODE 3411-15-P