National Environmental Policy Act (NEPA) Compliance, 73620-73632 [2020-25465]

Agencies

• DEPARTMENT OF AGRICULTURE
• Forest Service

[Federal Register Volume 85, Number 224 (Thursday, November 19, 2020)]
[Rules and Regulations]
[Pages 73620-73632]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25465]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 220

RIN 0596-AD31


National Environmental Policy Act (NEPA) Compliance

AGENCY: Forest Service, USDA.

ACTION: Final rule.

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SUMMARY: The U.S. Department of Agriculture, Forest Service (Agency) is 
adopting a final rule amending its National Environmental Policy Act 
(NEPA) regulations. The final rule establishes new and revised 
categorical exclusions (pertaining to certain special use 
authorizations, infrastructure management activities, and restoration 
and resilience activities) and adds the determination of NEPA adequacy 
provision to the Agency's NEPA regulations. These amendments will 
increase efficiency in the Agency's environmental analysis and 
decision-making while meeting NEPA's requirements and fully honoring 
the Agency's environmental stewardship responsibilities. Public comment 
has informed and improved the final rule.

DATES: This rule is effective November 19, 2020.

ADDRESSES: Additional information is available online at https://www.fs.fed.us/emc/nepa/revisions/index.shtml.

FOR FURTHER INFORMATION CONTACT: Christine Dawe; Director, Ecosystem 
Management Coordination; 406-370-8865. Individuals who use 
telecommunication devices for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. 
and 8:00 p.m., Eastern Standard Time, Monday through Friday.

SUPPLEMENTARY INFORMATION:

Background

    The mission of the Forest Service is to sustain the health, 
diversity, and productivity of the Nation's forests and grasslands to 
meet the needs of present and future generations. The National 
Environmental Policy Act (NEPA) has twin goals of requiring Federal 
agencies (1) to consider the significant environmental impacts of their 
proposed actions and (2) to inform the public that environmental 
concerns were considered in the decision-making process. These goals 
are not only complementary to the Agency's mission, but such informed 
decision-making is essential to its achievement. The Agency devotes 
considerable financial and personnel resources to NEPA analyses and 
documentation, completing on average 1,588 categorical exclusion (CE) 
determinations, 266 environmental assessments (EAs), and 39 
environmental impact statements (EISs) annually (based on Fiscal Years 
2014-2019). The Agency is amending its NEPA regulations as described in 
this final rule to make more efficient use of those resources to 
fulfill NEPA's requirements and, in turn, its mission. The final rule 
is consistent with the Council on Environmental Quality's (CEQ's) 
intent to ensure that Federal agencies conduct environmental reviews in 
a coordinated, consistent, predictable, and timely manner, and to 
reduce unnecessary burdens and delays (40 CFR 1500.1).
    An increasing percentage of the Agency's resources have been spent 
each year to provide for wildfire suppression, resulting in fewer 
resources available for other management activities, such as 
restoration. In 1995, wildland fire management funding made up 16 
percent of the Forest Service's annual spending, compared to 57 percent 
in 2018. Along with a shift in funding, there has also been a 
corresponding shift in staff from non-fire to fire programs, with a 39 
percent reduction in all non-fire personnel since 1995.
    The Consolidated Appropriations Act of 2018 (2018 Omnibus Bill) 
included new budget authority for fighting wildfires, in addition to 
regular appropriations. While this budget stability is welcome, the 
trends discussed above make it imperative that the Agency makes the 
most efficient use of available funding and resources consistent with 
its statutory authorities to fulfill its environmental analysis and 
decision-making responsibilities.
    On January 3, 2018, the Agency published an Advance Notice of 
Proposed Rulemaking (ANPR) (83 FR 302) announcing its intent to revise 
its NEPA procedures with the goal of increasing the efficiency of 
environmental analysis. The Agency received 34,674 comments in response 
to the ANPR, of which 1,229 were unique. Most of the unique comments 
expressed support for the Agency's effort to identify efficiencies in 
the NEPA process. The unique comments in support of the ANPR all 
generally acknowledged that there is room for increased efficiency in 
the Agency's NEPA process. Some of these comments expressed unqualified 
support for increasing efficiency; other comments supported the 
Agency's goals but included caveats that these gains should not come at 
a cost to public involvement or conservation of natural resources.
    On June 13, 2019, the Agency published a proposed rule (84 FR 
27544) proposing revisions to its NEPA procedures. Following an initial 
60-day comment period that was extended for 14 days in response to 
requests from the public, the Agency received roughly 103,000 comments. 
Roughly 6,200 comments were unique, individual comments; the remainder 
were organized response campaign comments (form letters). A detailed 
summary of

[[Page 73621]]

comments on the proposed rule and the Agency's response follows below.
    After the Forest Service rulemaking process had begun, CEQ 
published an advance notice of proposed rulemaking on June 20, 2018, 
announcing that it was ``considering updating its implementing 
regulations for the procedural provisions of the National Environmental 
Policy Act'' (83 FR 28591). On January 10, 2020, after publication of 
the Forest Service's proposed rule, CEQ published a proposed rule to 
revise its regulations at 40 CFR parts 1500-1508 (85 FR 1684). On July 
16, 2020, CEQ published a final rule revising its regulations (85 FR 
43304).
    The Council on Environmental Quality's revised regulations took 
effect on September 14, 2020 (40 CFR 1506.13). Where existing Forest 
Service NEPA procedures are inconsistent with CEQ's revised 
regulations, CEQ's revised regulations shall apply, unless there is a 
clear and fundamental conflict with the requirements of another statute 
(40 CFR 1507.3(a)). Per CEQ's revised regulations, the Forest Service 
shall develop, as necessary, proposed procedures to implement the CEQ's 
revised regulations no more than 12 months after September 14, 2020, 
including to eliminate any inconsistencies with CEQ's revised 
regulations (40 CFR 1507.3(b)).
    In light of CEQ's revised regulations, the Forest Service's final 
rule is of limited scope. The Forest Service is amending its NEPA 
regulations to add only the new and expanded CEs and a Determination of 
NEPA Adequacy provision as described in more detail below. Other 
changes to the Forest Service's NEPA regulations that were included in 
the proposed rule, along with associated comments, will be reconsidered 
in association with the Agency's review of its NEPA procedures as 
directed by CEQ's revised regulations. These changes include, but are 
not limited to, revisions to the Agency's scoping and public engagement 
requirements, schedule of proposed actions, condition-based management, 
classes of actions that normally require an EIS, procedures associated 
with CE determinations, and use of other agency CEs.

Summary of the Final Rule

    The amendments in the final rule will increase efficiency in the 
Agency's environmental analysis and decision-making while meeting 
NEPA's requirements and fully honoring the Agency's environmental 
stewardship responsibilities. The final rule adds a Determination of 
NEPA Adequacy provision, which outlines a process for determining 
whether a previously completed Forest Service NEPA analysis can satisfy 
NEPA's requirements for a subsequently proposed action. The final rule 
also establishes six new CEs, consolidates two existing CEs into one, 
and expands two existing CEs. The six new CEs include activities 
related to recreation special uses, administrative sites, recreation 
sites, and restoration and resilience projects, along with two CEs for 
certain road management projects. Two existing CEs are consolidated 
into one covering clerical modification or reauthorization of existing 
special uses. The two expanded CEs cover (1) approval, modification, or 
continuation of special use authorizations on up to 20 acres of NFS 
lands and (2) decommissioning of both unauthorized roads and trails and 
National Forest System roads and trails. These CEs are described in 
greater detail in the comment responses below and in the document 
titled, ``Supporting Statement: Categorical Exclusions For Certain 
Special Uses, Infrastructure, and Restoration Projects,'' available at 
https://www.fs.fed.us/emc/nepa/revisions/index.shtml.
    Additionally, to avoid public confusion the final rule includes a 
technical amendment to remove and reserve paragraph Sec.  220.6(e)(10), 
which was enjoined in Sierra Club v. Bosworth, 510 F.3d 1016 (9th Cir. 
2007).
    The proposed rule would have reordered the content of Sec. Sec.  
220.5, 220.6., and 220.7 to align with the levels of NEPA documentation 
(CE, EA, EIS). The final rule does not reorder the content of these 
sections.

Comments on the Proposal/Section by Section Description of the Final 
Rule

General Comments

    Comments expressed a wide range of opinions--both strongly for and 
against--the proposed rule. Comments expressing support for the 
proposed rule stated that it was a means to improve the Agency's NEPA 
processes. Other comments, however, opposed various provisions of the 
proposed rule, expressing concern that the revisions could: (1) 
Diminish social, economic, or environmental outcomes and lead to abuse; 
(2) result in inadequate environmental analysis and undermine the 
Forest Service's mission; (3) reduce the opportunity for public comment 
and environmental review of projects; (4) and erode public trust, 
violate existing laws and regulations, and increase potential 
litigation.
    Response: The Agency notes the general comments in support of or in 
opposition to the rule. The Agency has carefully considered the input 
from the public, other government entities, and Tribes and has made 
several adjustments to the final rule to address the concerns described 
above. These changes are described in more detail below and include, 
for example, not moving forward with some of the proposed CEs and 
adding additional limitations to other CEs. Throughout the rulemaking 
process, the Agency's goal has been to develop a final rule that 
enables the Agency to efficiently deliver environmental analysis to 
decision-makers that is scientifically based, is of high quality, and 
honors environmental stewardship responsibilities. The final rule 
achieves this goal and will facilitate decision-making that fulfills 
the Agency's mission of sustaining the health, diversity, and 
productivity of the Nation's forests and grasslands to meet the needs 
of present and future generations.
    The Agency will make diligent efforts to involve the public in 
implementing its NEPA procedures as required by CEQ's revised NEPA 
regulations at 40 CFR 1506.6. The Agency's final rule does not address 
or reduce existing Agency public involvement practices concerning CEs. 
Scoping and public engagement requirements will be assessed during the 
development of revised Agency NEPA procedures required by CEQ's revised 
NEPA regulations. Further, the Agency will continue to comply with the 
requirements of all applicable laws and regulations, such as the 
National Environmental Policy Act, National Forest Management Act, 
Endangered Species Act, and National Historic Preservation Act.
    Comment: Some commenters suggest that there is insufficient 
justification to support the need for the proposed rule as described in 
the Federal Register notice or indicate, in opposing the proposed rule, 
that the regulations it would amend are relied upon by the commenters 
and other stakeholders.
    Response: The CEQ regulations state that agencies shall reduce 
excessive paperwork and delay by using CEs and, for efficiency, shall 
identify CEs in their agency NEPA procedures (40 CFR 1500.4(a), 
1500.5(a), and 1501.4(a)). The final rule reduces paperwork and delay 
by adding the Determination of NEPA Adequacy provision and establishing 
new and expanded categorical exclusions based on Agency experience and 
expertise. The CEQ NEPA regulations at 40 CFR parts 1500-1508 encourage 
agencies to continue to review their NEPA policies and procedures and 
to revise them as

[[Page 73622]]

necessary. To the extent commenters raise concerns about reliance 
rights, the Forest Service further notes that rules implementing NEPA, 
such as this one and its predecessor, are purely procedural. They 
simply direct the actions of public officials. They therefore do not 
engender specific, reasonable, and detrimental reliance by individuals 
and groups outside the government.
    Comment: Commenters suggested a need to prepare an EIS to assess 
the potential impacts from implementation of the proposed rule; in 
particular, comments request that the Forest Service evaluate proposed 
rule impacts to social, cultural, and economic conditions of affected 
communities and user groups; climate change and carbon stores; scenic 
integrity; National Scenic and Historic Trails; and caves and karst 
resources.
    Response: The CEQ regulations do not require agencies to prepare a 
NEPA analysis before establishing or updating agency NEPA procedures. 
See, e.g., Heartwood, Inc. v. U.S. Forest Service, 230 F.3d 947, 954-55 
(7th Cir. 2000). Agency NEPA regulations establish the procedures for 
fulfilling their responsibilities under NEPA but are not the Agency's 
final determination of what level of NEPA analysis is required for a 
particular proposed action. This rule does not authorize any activity 
or commit resources to a project that may affect the environment. This 
rule does not have any reasonably foreseeable impact on the 
environment, nor does the rule authorize or prohibit any action that 
would have any effect on the environment.
    Comment: After CEQ published a notice of proposed rulemaking to 
revise its regulations for implementing NEPA on January 10, 2020 (85 FR 
1684), the Forest Service received a request from several organizations 
that it abandon or suspend its rulemaking effort pending the outcome of 
CEQ's rulemaking effort.
    Response: The Forest Service has coordinated with CEQ throughout 
the Forest Service's rulemaking process. Partially as a result of CEQ's 
revised regulations, the Forest Service's final rule is of limited 
scope and amends its regulations to add only new and expanded CEs and 
the DNA provision. On November 10, 2020, CEQ issued a letter stating 
that CEQ has reviewed this rule and has found it to be in conformity 
with NEPA and CEQ regulations (per 40 CFR 1507.3). Where existing 
Agency NEPA procedures are inconsistent with CEQ's revised regulations, 
CEQ's revised regulations shall apply (see 40 CFR 1507.3(a)). As 
explained above, the Forest Service will review its NEPA regulations 
and initiate another rulemaking process as required by CEQ's revised 
regulations.\1\
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    \1\ CEQ has determined that the categorical exclusions contained 
in agency NEPA procedures as of September 14, 2020, are consistent 
with the new CEQ regulations. See Sec.  1507.3. The Forest Service 
notes its concurrence that its existing categorical exclusions are 
consistent with the 2020 CEQ NEPA regulations.
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    Comment: Commenters disagreed with the discussion of costs and 
benefits of the proposed rule in its accompanying Federal Register 
notice and stated that the determination did not consider all potential 
costs. Commenters contend that faster decision-making, especially if it 
eliminates some opportunities for public input, will often result in 
worse decisions. This, in turn, will increase the overall amount of 
time spent on projects due to delays from litigation or re-analysis. 
Comments suggest that spending more time on NEPA analysis will ensure 
the analysis is of higher quality. Additionally, some commenters argue 
that there are no efficiencies to be gained in completing a project 
under a CE instead of an EA, and that CEs take less time only because 
projects analyzed under a CE are generally of smaller size than those 
analyzed in an EA.
    Response: The amendments in the final rule are more limited in 
scope than the Forest Service's proposed rule. The Agency has updated 
the discussion of cost and benefits of the final rule consistent with 
these changes (see the Executive Order 12866 section). The final rule 
does not address existing Agency public involvement practices 
concerning CEs.
    The notion that CEs are no more efficient than EAs runs counter to 
the Agency's experience that less-detailed NEPA documentation takes 
less time to complete than more-detailed NEPA documentation. Indeed, 
this claim by commenters similarly runs contrary to the whole design of 
the NEPA regulations since their inception and continuing up through 
the 2020 CEQ NEPA regulations. Specifically, there are three levels of 
NEPA review, each of which requires successively more documentation and 
analysis than the prior level: Determination of whether a CE applies, 
completion of an EA, and completion of an EIS. See 40 CFR 1501.3(a) 
(describing these three levels); see also 40 CFR 1501.4(a) (2019) 
(noting how these three levels interrelate).
    Nevertheless, the Agency compared the days from project initiation 
to decision for the 68 sample EAs used to develop the restoration CE to 
the 140 projects completed under the CE in Section 603 of the Healthy 
Forests Restoration Act since its establishment. The Section 603 CE, 
like the restoration CE, has a maximum project size in the thousands of 
acres and covers an array of activities, including several similar 
activities. Using the 68-EA sample, the median time to complete an EA 
per 1000 acres was 186 days. Conversely, the median time to complete a 
decision memo using the Section 603 CE per 1000 acres was 111 days. 
This analysis supports the Agency's premise that CEs represent a more 
timely and efficient form of NEPA compliance.
    Comment: Comments suggest that the Forest Service should focus on 
addressing causes of agency inefficiency in environmental decision-
making (e.g., funding, staffing, training, internal policies and 
consistency, and agency culture).
    Response: The Agency recognizes that factors outside of its NEPA 
regulations also contribute to inefficiency in environmental analysis 
and decision-making. In late 2017, the Agency announced its 
Environmental Analysis and Decision-Making change effort, which intends 
to reduce the time and cost of environmental analysis and decision-
making processes to produce efficient, effective, and high-quality land 
management decisions. The scope of this change effort includes and 
extends beyond revising the Agency's NEPA regulations. The 
Environmental Analysis and Decision-Making change effort includes, for 
example: A new, national NEPA training program; formation of National 
Historic Preservation Act and Endangered Species Act task forces to 
identify and implement efficiencies; compliance performance metrics for 
leadership; production of an environmental analysis and decision-making 
information library and network sharing platform; and development of a 
contracting center of excellence.
Section 220.4 General Requirements (Determination of NEPA Adequacy)
    Comment: Some commenters stated that use of Determinations of NEPA 
Adequacy (DNAs) would curtail effective analysis and public input by 
relying on non-site-specific, potentially outdated information, and 
that the Bureau of Land Management (BLM) model is not appropriate for 
the Agency. Commenters requested the concept be eliminated or that 
additional sideboards be applied to ensure it is applied correctly. 
Commenters also requested that the Forest Service provide more details 
for when a previous NEPA analysis can satisfy NEPA requirements for a 
subsequent action, such as geographical considerations (e.g.,

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location, scale); temporal considerations (e.g., previous decision 
date); and current and desired conditions considerations. Comments also 
stated that DNAs should require public input and documentation. 
Alternatively, comments expressed support for the use of DNAs to 
expedite agency action by reducing redundant analyses of substantially 
similar proposed actions with substantially similar impacts. Some 
comments also urged that the proposed rule should more closely follow 
BLM guidance and language for DNAs.
    Response: Section 220.4(i) of the proposed rule added the DNA 
provision, which outlines a process for determining whether a 
previously completed Forest Service NEPA analysis can satisfy NEPA's 
requirements for a subsequently proposed action. The proposed DNA 
review process required consideration of the following factors: The 
similarity between the prior decision and the proposed actions, the 
adequacy of the alternatives to the proposed action, any significant 
new circumstances or information since the prior decision, and the 
adequacy of the impact analysis for the proposed action.
    The final rule retains and clarifies the DNA provision at Sec.  
220.4(j). A DNA documents the responsible official's review and 
determination whether a NEPA analysis prepared for a prior activity can 
satisfy NEPA's requirements for a new proposed action that is 
substantially the same. For example, approval of a special use permit 
for a commercial fishing derby at a lake on NFS lands could rely on 
NEPA documentation prepared for the same or similar event the year 
before. If the elements outlined at Sec.  220.4(j)(1) are not met for 
the proposed action currently under consideration, the DNA provision 
should not be used.
    The Forest Service has modelled its DNA regulation after provisions 
of the BLM's NEPA procedures and is consistent with CEQ's NEPA 
regulations (40 CFR 1500.4(p), 1501.12, 1502.9(d)(4), and 1506.3). 
CEQ's regulations require elimination of duplication, encourage 
incorporation by reference, allow reevaluation of prior NEPA analyses, 
and allow adoption of other agencies' NEPA documentation. BLM uses DNAs 
in association with previously prepared BLM NEPA documents. The Forest 
Service intends the use of DNAs to be in line with BLM's practice and 
will operate as essentially an ``internal adoption'' mechanism to be 
used when a new proposed action is substantially the same as an 
alternative analyzed in a prior Forest Service NEPA document.
    The BLM's DNA mechanism also allows officials to use DNAs to 
document that no supplementation of an EIS or EA is required. However, 
the Forest Service will continue to use its Supplemental Information 
Reports (see FSH 1909.15, sec. 18) to assess new information and 
changed circumstances rather than use DNAs for such purposes consistent 
with 40 CFR 1502.9(d)(4).
    As requested by some commenters, the final rule revises Sec.  
220.4(j) to more closely align with language from the Department of the 
Interior and the BLM. However, Sec.  220.4(j)(1)(i) uses 
``substantially the same'' instead of the BLM's use of ``essentially 
similar'' to describe the required relationship of the new proposed 
action to the previously analyzed proposed action. This change aligns 
with CEQ's related adoption provision, 40 CFR 1506.3, as described 
above.
    The final rule also clarifies that, in order to use a DNA, the 
responsible official must determine that each of the elements set out 
at Sec.  220.4(j)(1) are met. In addition, the final rule clarifies at 
Sec.  220.4(j)(2) that proposed actions undergoing a DNA review shall 
be included on the Schedule of Proposed Actions; be subject to scoping; 
be subject to administrative review processes that were applicable to 
the prior decision; and include issuance of a new decision document.
Section 220.6 Categorical Exclusions
    Comment: Commenters expressed both general support and opposition 
to the use or expansion of CEs, as described in the proposed rule. 
Those in favor stated the new CEs will help the Agency conduct its NEPA 
review of projects in a more timely and efficient manner, supported the 
analysis done to substantiate the proposed CEs, and expressed 
confidence that responsible officials will use CEs appropriately. Those 
in opposition believed that the proposed CEs involved actions that 
would or could have significant effects, maintained that many or all 
proposed actions should undergo detailed analysis and public 
involvement, or that responsible officials would have too much 
discretion under the proposed CEs.
    Response: The Agency has noted the comments providing general 
support or opposition. Comments specific to a certain CE are addressed 
below in additional responses. Administratively established CEs are a 
valid form of NEPA review. The CEQ regulations direct that for 
efficiency, agencies shall identify in their agency NEPA procedures 
categories of actions that normally do not have a significant effect on 
the human environment, and therefore do not require preparation of an 
environmental assessment or environmental impact statement (40 CFR 
1501.4).
    The Forest Service is establishing new CEs in the final rule 
pursuant to CEQ's implementing regulations at 40 CFR 1507.3. On 
November 10, 2020, CEQ issued a letter stating that CEQ has reviewed 
this rule and has found it to be in conformity with NEPA and CEQ 
regulations (per 40 CFR 1507.3). The Forest Service has prepared a 
supporting statement for the CEs that outlines the process the Forest 
Service followed to substantiate the establishment of the CEs. This 
document is titled, ``Supporting Statement: Categorical Exclusions For 
Certain Special Uses, Infrastructure, and Restoration Projects,'' and 
is available at https://www.fs.fed.us/emc/nepa/revisions/index.shtml. 
Specific responses to comments raised on the supporting statements are 
also addressed in later sections of this notice.
    Categorical exclusions provide an efficient tool to complete the 
NEPA environmental review process for proposals that normally do not 
require EAs or EISs. The use of CEs can reduce paperwork and delay, so 
that EAs or EISs are targeted toward proposed actions where significant 
environmental impacts are uncertain or anticipated.
    Consistent with CEQ regulations, the application of non-statutory 
Forest Service CEs is limited by ``extraordinary circumstances,'' in 
which a normally excluded action may have a significant effect (40 CFR 
1501.4). Activities conducted under Agency CEs must be consistent with 
Agency procedures and must comply with all applicable Federal and State 
laws for protecting the environment. Management direction set forth in 
Forest Service land management plans also provides important 
parameters. Land management plans help ensure that potential 
environmental effects have been taken into account through the 
consistency requirement set forth in the National Forest Management Act 
and USDA's implementing regulations (16 U.S.C. 1604(i); 36 CFR 219.15) 
directing projects and activities be consistent with plan direction or 
be accounted for through project-specific amendments.
    Listing a category of actions as able to be categorically excluded 
in the agency's NEPA regulations does not constitute a final conclusive 
determination regarding the appropriate level of NEPA review for a 
specific proposed action. Listing a category of actions creates an 
initial presumption

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that a CE, rather than an EA or an EIS, is normally appropriate to 
support approval of the listed actions. The extraordinary circumstances 
review, interdisciplinary process, or public input can result in the 
determination to prepare an EA or an EIS.
    The Forest Service made several modifications to the final rule 
regarding CEs as a result of public comment. The proposed CEs for 
converting unauthorized roads and trails to National Forest System 
roads and trails, as presented in the proposed rule at Sec.  
220.5(e)(23) and (25), were not carried forward in the final rule due 
to public concerns about whether establishment of those CEs could 
encourage the creation of unauthorized roads and trails. Additionally, 
the final rule includes modifications to the restoration CE (Sec.  
220.6(e)(25)); the roads CEs (Sec.  220.6(e)(23) and (24)); and the 
special uses CEs (Sec.  220.6(d)(11) and (12) and Sec.  220.6(e)(3)). 
Specific changes made to the CEs are discussed further in the responses 
to comments below and the Supporting Statement.
    Comment: Some commenters asked the Forest Service to review all 
existing CEs and consider increasing their limits. Other commenters 
suggested the Forest Service is required to review all CEs for their 
potential for significant effects before proposing additional CEs.
    Response: The Agency has exercised its discretion in defining the 
scope of the current rulemaking process and in electing to pursue 
additional CEs for special uses, infrastructure, and restoration 
consistent with its program needs. The Agency believes these program 
areas present the best opportunities for increasing efficiency in the 
Agency's NEPA procedures in furtherance of producing efficient, 
effective, and high-quality land management decisions that will timely 
accomplish work on the ground consistent with its statutory mission and 
authorities and be more responsive to the public. Focused consideration 
on establishing CEs for individual program activities is consistent 
with past agency practice to develop CEs (see, e.g., Oil and Gas 
Activities (72 FR 7391), Special Use Authorizations (69 FR 40591), Soil 
and Water Restoration Activities (78 FR 56153); Limited Timber Harvest 
(68 FR 44598)).
    Comment: Beyond the additional and modified CEs identified in the 
proposed rule, commenters also asked that the Forest Service 
incorporate new CEs for a variety of activities, including grazing- and 
range-related activities, vegetation management plans and vegetation 
management activities, watershed and other research projects, land 
exchanges, and mineral exploration.
    Response: The Agency appreciates the public interest expressed in 
identifying additional opportunities for CEs. While the Agency has 
elected to maintain the rulemaking's focus on special uses, 
infrastructure, and restoration, this does not preclude the agency from 
examining additional opportunities for improvement through additional 
reviews. For example, the Forest Service recently announced in the 
Spring 2020 Unified Agenda of Regulatory and Deregulatory Actions its 
intent to update its CE for rangeland management improvement projects 
at Sec.  220.6(e)(9) to incorporate modern range management practices 
(see https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202004&RIN=0596-AD46).

Comments on New and Revised CEs Not Requiring Documentation in a 
Project or Case File and Decision Memo

    Comment: Many comments expressed support for the CE in paragraph 
(d)(11) of the proposed rule, along with the Agency's goals to expedite 
processing of special use authorizations and reduce confusion in 
implementation of existing CEs in paragraphs (d)(10) and (e)(15). Some 
commenters requested limiting this CE to recreation special uses, 
requiring documentation in a decision memo, requiring public 
involvement, or adding additional examples of actions that would be 
covered by the CE.
    Response: The final rule consolidates two similar existing CEs 
regarding special use authorizations into a new category at Sec.  
220.6(d)(11). The Forest Service agrees that consolidation of CEs at 
Sec. Sec.  220.6(d)(10) (covering amendment to or replacement of an 
existing special use authorization) and (e)(15) (covering issuance of a 
new special use authorization for a new term to replace an existing or 
expired special use authorization) of the existing regulations will 
reduce confusion and increase efficiency in use of the CE for special 
use authorizations. The Forest Service has extensive experience using 
these CEs. A review of use of the CE at Sec.  220.6(e)(15) from fiscal 
years 2012-2016 demonstrates that responsible officials have been 
relying on this CE appropriately, well within its constraints. From 
fiscal years 2012 through 2016, category (e)(15) was used 1,584 times 
(roughly 317 times per year). A review of these projects indicated that 
the CE is being used as intended and within its limiting factors. 
Because the new, consolidated CE is limited to actions to replace an 
existing authorization where there are no changes to the authorized 
facilities or increases in the scope or magnitude of the authorized 
activities, the Agency has determined that documentation with a 
decision memo or project file is not required. An applicant or holder 
also must continue to comply with the terms and conditions of the 
existing special use authorization.
    Some of the examples of actions covered by the CE have been 
clarified, but the list of examples for the category is not intended to 
be exhaustive, and additional examples have not been incorporated into 
the final rule. Outdated terms such as ``electric transmission line'' 
and ``powerline,'' which were used during development of the proposed 
rule, have been replaced with ``powerline facility'' to match recent 
revisions to the Agency's special use regulations (36 CFR part 251). 
Additional examples requested by commenters covering changes to the 
terms and conditions of an authorization that require Forest Service 
approval have not been added to the final rule because these examples 
are outside the scope of the existing and consolidated CEs. The CE in 
paragraph (d)(11) has also not been limited to recreation special uses 
as requested by some commenters. The existing CEs encompass both 
recreation and non-recreation special uses; limiting the consolidated 
CE to recreation special uses would undercut the Agency's efficiency 
goals.
    Comment: Some commenters expressed support for the new CE at Sec.  
220.5(d)(12) of the proposed rule because it will increase NEPA 
efficiency related to recreation special use permits. Additionally, 
some commenters agreed that issuance of an outfitting and guiding 
permit where the use supported by the outfitter and guide is already 
allowed in the area should not have significant environmental effects 
and would be appropriate to cover under a CE. Many commenters requested 
that the final rule limit this CE to recreation special uses, provide 
further clarification on where activities covered by the CE could 
occur, and provide additional examples of activities covered by the CE. 
Some commenters also requested that the CE require a decision memo or 
interpreted the language related to land management plan consistency in 
the proposed CE to mean that a NEPA analysis would not occur. Some 
commenters more generally opposed issuance of special use permits being 
analyzed under a CE and that issuance of special use permits should 
always be subject to a higher level of environmental review and public 
input.
    Response: The final rule retains this CE at Sec.  220.6(d)(12) and 
makes some

[[Page 73625]]

edits to the language used in the proposed rule. The final rule 
clarifies that the CE in paragraph (d)(12) is limited to recreation 
special uses. The final rule also revises the CE to clarify that it is 
limited to recreation special uses that occur on existing roads or 
trails, in existing facilities, at existing recreation sites, or in 
areas where the activities supported by recreation special uses are 
allowed. The intent of the CE is to facilitate issuance of recreation 
special use permits where the activities supported by those permits are 
already occurring or allowed on a noncommercial basis. In general, 
there is no difference in environmental impacts between recreational 
activities conducted by the general public and recreational activities 
led by an outfitter and guide. As a result, the final rule retains this 
CE under those administrative categories that do not require 
documentation in a decision memo. Agency proposed actions that rely on 
this CE, like all of the agency's proposed actions subject to NEPA, 
must be consistent with the land management plan and all other laws, 
regulations, and policies. This includes compliance with the Endangered 
Species Act, Clean Water Act, and National Historic Preservation Act.

Comments on New and Expanded CEs Requiring Documentation in a Project 
or Case File and Decision Memo

    Comment: Some commenters opposed the proposed rule's expansion of 
the existing special use authorization CE at Sec.  220.6(e)(3) from 5 
to 20 acres, on the grounds that this change would quadruple the 
existing acreage subject to the CE, which would result in significant 
effects. Some commenters stated that the rationale for expanding the CE 
was insufficient. Tribes and Tribal organizations expressed concern 
that this CE could adversely affect sacred and cultural sites. Several 
commenters supported expansion of the CE.
    Response: At Sec.  220.6(e)(3), the final rule retains the 
expansion of the CE from 5 to 20 acres and retains the removal of the 
words ``contiguous'' and ``minor.'' These words were removed in the 
proposed rule to improve clarity and reduce confusion for Agency 
personnel in determining when the CE can be used. The final rule also 
modifies the list of examples for this CE to add clarity and reduce 
redundancy with other CEs. For example, subparagraph (vii) of the 
former version of the CE (``[a]pproving the continued use of land where 
such use has not changed and no change in the physical environment or 
facilities are proposed'') largely was redundant with the two existing 
CEs now consolidated at Sec.  220.6(d)(11). The types of activities 
covered under the expanded CE are very similar to those covered under 
the existing CE. The final supporting statement provides additional 
information justifying the Agency's conclusion that expanding the CE 
from 5 to 20 acres will not result in significant impacts. The Agency 
reviewed 62 EAs, findings of no significant impact, and decision 
notices for proposed actions like those that would be covered by this 
CE. The average acreage authorized by these decisions was 41.9 acres. 
The modest expansion to 20 acres is well below this figure. Based on 
the agency's history with using the existing CE and the information 
presented in the supporting statement, the Forest Service has 
determined that the expansion of the CE is justified.
    The Forest Service recognizes the importance of consultation and 
coordination with Tribes consistent with E.O. 13175, which imposes 
requirements independent of compliance with NEPA. The Forest Service 
also will continue to ensure that Tribal consultation occurs on 
individual projects as required by Agency policy. Additionally, 
American Indian and Alaska Native religious or cultural sites and 
archaeological sites or historic properties or areas will be considered 
as part of the extraordinary circumstances review applicable to all 
CEs. See 36 CFR 220.6(b)(vi), (vii).
    Comment: Some commenters opposed expansion of the existing CE at 
Sec.  220.6(e)(20) because they believed that such an expansion would 
allow for closure of roads and trails without any public involvement. 
Other commenters requested notice, coordination, and consultation with 
county and local governments and raised concerns about compliance with 
the National Historic Preservation Act. Some commenters requested 
additional information regarding use of this CE in relation to the 
Forest Service's travel management rule at 36 CFR part 212. Other 
commenters expressed support for the expansion of the CE and agreed 
with the Agency's finding that the actions and environmental impacts 
for restoration of lands occupied by a NFS road or NFS trail are 
generally the same as when restoration occurs for lands occupied by an 
unauthorized road or unauthorized trail.
    Response: The final rule retains the proposed rule's expansion of 
this CE at Sec.  220.6(e)(20) to include decommissioning of NFS roads 
and NFS trails, as well as unauthorized roads and trails. The inclusion 
of NFS roads and NFS trails in the CE will help accomplish restoration 
objectives on national forests and grasslands, address road and trail 
maintenance backlogs, and help the Agency maintain compliance with 
long-standing policies that require decommissioning of unneeded roads 
and trails. Regardless of whether the activity undertaken is the 
restoration of lands occupied by an NFS road or NFS trail or 
unauthorized road or trail, the actions and environmental impacts are 
generally the same and not significant.
    Proposed actions covered by this CE would be developed in 
compliance with the travel analysis process and the travel management 
rule. The Agency uses travel analysis to identify the minimum road 
system, including unneeded NFS roads and NFS trails. Travel analysis is 
a dynamic, interdisciplinary, science-based process that examines 
ecological, social, cultural, and economic concerns. Information from 
the travel analysis process is used to inform future travel management 
decisions at the project level. In particular, travel management 
decisions identify whether a route needs to be added or removed, if an 
NFS trail or NFS road needs to be constructed, or if a route needs to 
be decommissioned.
    Prior to determining if an NFS road or NFS trail could be 
decommissioned using this CE, the NFS road or NFS trail would need to 
be identified as unneeded and eligible for decommissioning through the 
travel analysis and travel management processes. Appropriate compliance 
with the requirements of the National Historic Preservation Act is 
independent of compliance with NEPA, and not dependent on whether a CE, 
EA, or EIS is prepared for the latter.
    This CE will not be used to make access decisions about which roads 
and trails are to be designated open for public use, or which will be 
closed from public use. This CE will allow the Forest Service to 
restore, rehabilitate, or stabilize lands more efficiently where public 
access is not currently permitted, e.g., for roads and trails that are 
already closed. This approach is consistent with the initial 
development and establishment of this CE (see 78 FR 56157).
    Comment: Some commenters supported the proposed rule's new CE 
regarding administrative sites because it would add efficiency to their 
overall management and help the Agency address deferred maintenance of 
administrative facilities. Some commenters stated that the CE was 
written too broadly. Other commenters stated that the CE overlaps with 
an existing CE that does not require a

[[Page 73626]]

decision memo and that this CE would result in unnecessary work and 
documentation.
    Response: At Sec.  220.6(e)(21), the final rule adopts the proposed 
rule's CE regarding administrative sites. The existing CE for repair 
and maintenance of administrative sites at 36 CFR 220.6(d)(3) of the 
final rule is unaffected by the new CE at 36 CFR 220.6(e)(21). The 
existing CE was established on September 18, 1992 (57 FR 43180), and 
the Federal Register notice for the final rule states that the CE is 
intended for routine repair and maintenance. Current Forest Service 
directives define ``maintenance'' as ``an activity that entails 
preserving, insofar as practical, the original condition of Forest 
Service-owned buildings and related facilities'' (Forest Service 
Handbook (FSH) 7309.11, Zero Code). Repair is defined as ``the 
refurbishment or replacement of existing facility components with the 
same kind of materials for the purpose of maintaining the original 
condition and function while returning the facility to a sound state'' 
(FSH 7309.11, Zero Code).
    The new CE in paragraph (e)(21) allows activities beyond routine 
repair and maintenance at existing administrative sites. Many of the 
Forest Service's administrative facilities need reconstruction or major 
repair, could be decommissioned, or may be subject to disposal. The new 
CE will increase NEPA efficiency associated with improving existing 
facilities to provide for both employee and public safety and 
decommissioning or disposing of administrative facilities to reduce the 
Agency's footprint. The CE in the final rule is limited to activities 
within an existing administrative site as defined in section 502(1) of 
Public Law 109-54 (119 Stat. 559; 16 U.S.C. 580d note). Proposed 
actions covered by this CE will also be subject to established Agency 
processes for facilities management, including facility master 
planning.
    Comment: Several commenters expressed opposition to the proposed 
rule's recreation sites CE at Sec.  220.5(e)(22) on the grounds that it 
is too broad, that the actions covered could result in significant 
effects, and that changes to recreation sites should require public 
input and review. Some commenters argued that certain activities 
covered under this CE should require analysis under an EA or EIS to 
ensure consideration of social needs through analysis of multiple 
alternatives.
    Response: The final rule retains the new recreation site CE at 
Sec.  220.6(e)(22). The Forest Service provides access to roughly 
29,700 recreation sites. This CE will increase efficiency in NEPA 
compliance for proposed actions to improve existing recreation sites 
that are in decline or pose safety or resource concerns.
    The CE is limited to existing recreation sites and covers 
construction, reconstruction, decommissioning, or disposal of 
buildings, infrastructure, or existing improvements, including 
infrastructure or improvements that are adjacent or connected to an 
existing recreation site and provide access or utilities for that site. 
The CE does not cover development of new recreation sites. The CE would 
be used alongside other established Agency processes for recreation and 
facilities planning.
    CEQ regulations define a CE as a category of actions that the 
agency has determined normally do not have a significant effect on the 
human environment. CEQ regulations further explain that social effects 
are not intended by themselves to require preparation of an EIS (40 CFR 
1502.16(b)). However, social needs are considered during the recreation 
site planning process and development of a recreation site design 
narrative, which precede development of a specific proposed action for 
which this CE potentially would apply. Additionally, as noted above, 
this CE is limited to activities at existing recreation sites and does 
not encompass development of new recreation sites.
    During development of this CE, the Forest Service reviewed 
previously analyzed projects that focused on recreation management and 
evaluated similar CEs in use by other agencies that manage public 
recreation sites and facilities. The Agency has determined that the 
activities covered by this CE will not result in significant effects. 
Further information and rationale are provided in the supporting 
statement.
    Comment: Comments on the proposed rule's road construction CE at 
Sec.  220.5(e)(24) were mixed. Those commenters in favor of the CE 
highlighted the beneficial effects of increasing access and public 
safety and addressing the Agency's backlog of road reconstruction and 
rehabilitation. Some of these commenters requested that the CE not have 
any mileage limitation. Other commenters supported certain road-related 
activities, such as realignment and culvert and bridge rehabilitation, 
but only if those activities benefitted fish and aquatic species.
    Some commenters stated that the activities covered by the road 
construction CE would cause erosion and sedimentation and impacts on 
water quality and aquatic habitats, Commenters also stated that 
including construction of new roads in a CE would hamper the Agency's 
ability to maintain its existing roads. Some of these commenters 
requested reducing the mileage limits for all road activities.
    More generally, commenters requested that the Agency clarify public 
involvement associated with projects that would be supported by this 
CE, coordination with state agencies, the CE's relation to travel 
management, the meaning of terms of like ``open'' and ``close'' in this 
context and the difference between the proposed CE and the existing CE 
for repair and maintenance of roads.
    Response: The proposed rule included a CE for construction or 
realignment of up to 5 miles of NFS roads, reconstruction of up to 10 
miles of NFS roads and associated parking areas, opening or closing an 
NFS road, and culvert or bridge rehabilitation or replacement along NFS 
roads. The inclusion of two mileage limits with a single list of 
examples created confusion. As a result, the final rule divides the 
proposed rule's roads CE into two separate CEs at Sec. Sec.  
220.6(e)(23) and (24). Each of these CEs applies only to NFS roads. The 
CE in paragraph (e)(23) covers up to 8 miles of certain road management 
activities and cannot be used for construction and realignment. The CE 
in paragraph (e)(24) covers road construction and realignment on up to 
2 miles of NFS roads and associated parking areas.
    The reduced road mileages in these two CEs are the result of 
consideration of public comment and additional review conducted by the 
Agency. As the Agency developed these two CEs, it narrowed the focus of 
its analysis of previously completed projects from broad, general 
project purposes to more specific project activities. Specifically, the 
Agency conducted an additional search of its NEPA database for 
previously completed projects to define appropriate mileage limitations 
for each of the CEs. This additional analysis is described in greater 
detail in the supporting statement.
    Also based on additional review and analysis and in response to 
public comments, the Agency removed the example of opening or closing a 
road. Additionally, the Agency removed references to culvert 
rehabilitation and replacement because those activities are covered 
under the existing CE at 36 CFR 220.6(e)(18) of the final rule. The 
data used to establish these CEs is included in the supporting 
statement.
    The Forest Service has an existing CE at 36 CFR 220.6(d)(4) of the 
final rule for

[[Page 73627]]

repair and maintenance of roads, trails, and landline boundaries. That 
CE is intended to be used for routine maintenance of NFS roads and 
includes no mileage limit and no requirement for documentation in a 
decision memo. The new CEs established in the final rule cover NFS road 
management activities that go beyond routine repair and maintenance but 
have been demonstrated by the Agency's experience not to have 
significant effects.
    In addition to adhering to the mileage limitations, determining 
that extraordinary circumstances do not exist, and requiring 
documentation in a decision memo, the responsible official incorporates 
design features as a standard operating procedure to avoid or minimize 
resource impacts. Examples of design features that are routinely 
incorporated are listed in the supporting statement. Design features to 
prevent impacts from erosion and sedimentation may include requiring 
road locations to be reviewed by an Agency watershed specialist, 
requiring erosion control measures in accordance with state department 
of transportation requirements, or minimizing erosion and removing 
sediment by capturing and filtering runoff before it leaves the project 
limits. Additional examples of design features have been added to the 
supporting statement.
    All proposed actions covered under the CEs in paragraphs (e)(23) 
and (24) must be consistent with applicable travel management 
decisions. The travel management rule at 36 CFR part 212, subpart A, 
was promulgated in 2005 and established requirements for administration 
of the forest transportation system. The Forest Service uses travel 
analysis to identify the minimum road system. Travel analysis is a 
dynamic, interdisciplinary, science-based process that examines 
ecological, cultural, social, and economic concerns. Information from 
the travel analysis process is used to inform future travel management 
decisions at the project level. Travel analysis is used to identify 
whether a road needs to be added to the forest transportation system or 
decommissioned.
    The CEs do not apply to decisions to add roads to the forest 
transportation system. Rather, once the Agency has determined that a 
road needs to be constructed during the travel management decision 
process, a CE could be used to comply with NEPA for the actual road 
construction. As explained above, the final rule does not address or 
reduce existing Agency public involvement practices concerning CEs.

Restoration and Resilience CE Comments

    Comment: The Agency received many comments covering a wide range of 
topics related to the restoration CE included in the proposed rule at 
Sec.  220.5(e)(26). Some commenters supported the establishment of a 
restoration CE to help the Agency expedite activities to restore 
National Forest System lands and increase forest and grassland 
resilience. Other comments opposed the proposed restoration and 
resilience CE on general grounds or opposed specific elements of the 
CE.
    Response: The Agency notes the general support or opposition 
regarding the restoration and resilience CE. The final rule retains a 
modified version of the CE covering restoration and resilience 
activities at Sec.  220.5(d)(25). Specific comments and the resulting 
modifications from the proposed rule are addressed below.
    Comment: Several comments on the proposed restoration and 
resilience CE concerned its scope or included activities. Some 
commenters requested that clearer examples be provided and that the 
Agency focus on practices instead of outcomes. Some supportive 
commenters requested removal of the limitation that commercial and non-
commercial harvest activities be allowed only in conjunction with 
another restoration activity.
    Some commenters expressed the general sentiment that the CE is too 
broad and needs narrowing definitions and limitations. Other commenters 
stated that the CE would allow activities not focused on restoration. 
Some commenters requested that either timber harvest generally, or 
salvage harvest in particular, should be prohibited because such 
activities are not always associated with restoration or scientific 
literature did not support such treatments use for restoration or 
resilience purposes.
    Response: Following the public comment period, the Forest Service 
convened a group of Agency scientists to review the body of literature 
submitted in public comments specific to the proposed restoration CE. 
This review, combined with input from other Agency subject matter 
experts in the watershed, wildlife, and forest management program 
areas, resulted in changes to the restoration CE in the final rule.
    In the final rule, the Agency has narrowed the scope of the 
category of permissible activities. The final rule requires all 
activities conducted under the CE have a primary purpose of meeting 
restoration objectives or increasing forest and grassland resilience. 
``Primary purpose'' is a well understood operational term both within 
the Agency and by the public. This adjustment is responsive to concerns 
that the category focus on outcomes, as well as concerns regarding the 
use of certain tools that may be used to achieve restoration and 
resilience goals.
    The primary purpose requirement is further amplified in paragraph 
(ii)(B), which limits qualifying thinning and harvesting activities to 
those designed to achieve ecological restoration or resilience 
objectives. Permissible projects may generate secondary or ancillary 
multiple use benefits other than restoration and resilience. Such is 
the nature of multiple use management. However, restoration and 
resilience must be the project's primary objective. Because the final 
rule adopts a primary purpose requirement, the final rule removes the 
provision that would have required commercial or non-commercial timber 
harvest activities to be carried out in combination with at least one 
additional restoration activity.
    The Agency will rely on its standard definition of restoration in 
applying the category. (Restoration is ``the process of assisting the 
recovery of an ecosystem that has been degraded, damaged, or destroyed. 
Ecological restoration focuses on reestablishing the composition, 
structure, pattern, and ecological processes necessary to facilitate 
terrestrial and aquatic ecosystems sustainability, resilience, and 
health under current and future conditions. Functional restoration 
focuses on the underlying processes that may be degraded, regardless of 
the structural condition of the ecosystem.'' (FSH 1909.12 and 36 CFR 
219.19)).
    The final rule clarifies the list of activities to meet restoration 
and resilience objectives at paragraph (i). These include stream 
restoration, aquatic organism passage rehabilitation, or erosion 
control; invasive species control and reestablishment of native 
species; prescribed burning; reforestation; road and/or trail 
decommissioning (system and non-system); pruning; vegetation thinning; 
and timber harvesting. The restoration CE allows timber harvest because 
timber harvest is a general term that encompasses removal of trees for 
a variety of purposes. The restoration CE requires harvest activities 
to be designed to achieve ecological restoration objectives. The CE 
will not be available for projects designed primarily to achieve 
economic returns. The

[[Page 73628]]

commercial sale of timber harvested via use of the CE is permissible, 
but as discussed above, only where commercial value is a secondary or 
ancillary benefit to the primary restoration activity.
    Similarly, the Agency has added a limitation to the vegetation 
thinning and timber harvesting activities provision disallowing salvage 
harvesting under the restoration and resilience CE. The Agency defines 
salvage harvest as the removal of dead trees or damaged or dying trees 
due to injurious agents other than competition, to recover value that 
would otherwise be lost (FSM 2470). The effects of salvage harvest and 
its relation to restoration and resilience depend on a variety of 
factors. The exclusion of salvage harvest from the restoration CE does 
not mean that salvage harvest cannot be used to achieve restoration or 
resilience objectives in other contexts or under other categorical 
exclusions (see, for example, the existing salvage harvest CE at Sec.  
220.6(e)(13)). Nor does it imply that the effects of salvage harvest 
are significant under NEPA.
    Comment: Some commenters supported the acreage limits in the 
proposed restoration CE. Other commenters argued that the acreage 
limits in the proposed restoration CE would allow for potentially 
significant effects, questioned their basis, or argued that the 
supporting statement did not demonstrate that allowing 4,200 acres of 
commercial or noncommercial harvest would not result in significant 
effects. Still other commenters requested removing express acreage 
limits entirely or expanding the acreage limit for all listed 
activities to 7,300 acres.
    Response: The proposed restoration CE would have allowed activities 
to improve ecosystem health, resilience, and other watershed conditions 
on up to 7,300 acres. If commercial/non-commercial timber harvest 
activities were proposed, those aspects of the project were not to 
exceed 4,200 of the 7,300 acres.
    The Agency reviewed information submitted in public comments, 
conducted a science review, and reviewed the original project data on 
which the limitations in the proposed rule were based. Based on that 
review, the final rule's restoration CE at Sec.  220.6(e)(25) allows 
activities to improve ecosystem health, resilience, and other watershed 
conditions on up to 2,800 acres. This revision is described in more 
detail below in the discussion of the supporting statement for the CE. 
In general, the 2,800-acre limitation better accounts for the effects 
of outliers in the sampled EA data set, better reflects the average 
size of projects from the sampled EAs, and also aligns with average 
acreages of specific activities in the sampled EA data set for which 
some commenters had concerns regarding the degree of impacts (such as 
commercial timber harvest).
    Comment: Some commenters supported establishment of the proposed CE 
and the analysis set forth in the supporting statement associated with 
the proposed rule and stated that the Agency had provided a strong 
rationale for the CE. Other commenters questioned the findings that the 
CE will not result in significant adverse impacts, stating that the 
supporting statement was insufficient and not supported by science or 
other benchmarks. Some of these commenters questioned the adequacy of 
the monitoring information presented, disagreed with reliance on forest 
plan standards and best management practices to prevent significant 
effects, questioned how agency experts or cited research papers were 
used to develop the CE, and argued that the Agency's analysis of 
sampled EAs did not support the size of the restoration CE in the 
proposed rule.
    Response: The Agency has carefully considered all comments 
submitted concerning the proposed restoration and resilience CE and 
made adjustments that refine the terms and parameters for the category. 
The agency has revised its supporting statement to include more details 
related to the acreage data and monitoring information. The Agency has 
revised its acreage calculations to address sampled EAs in order to 
account for projects with multiple activities occurring per acre. The 
revised calculations more accurately reflect a net project acreage 
versus gross total activity acres. The supporting statement now 
includes a table clearly identifying the source of the acreage data. 
The appendix of previously implemented projects has also been updated 
to demonstrate how acreages were calculated.
    In response to public comment, the supporting statement for the 
final rule now includes additional discussion of the project 
development process and the interactions between proposal development, 
responsible official engagement, best management practices, design 
features, extraordinary circumstances, and forest plan compliance. The 
supporting statement also includes examples of design features that are 
typically incorporated into a proposed action for activities covered 
under the CE. The supporting statement also includes additional 
information related to monitoring and how professional experts were 
engaged in the development of the CE.
    Comment: Some commenters requested that a public participation or 
collaboration element should be added to the restoration CE.
    Response: The Agency has added a collaboration requirement to the 
restoration CE at Sec.  220.6(e)(25)(ii)(A): ``Projects shall be 
developed through a collaborative process that includes multiple 
interested persons representing diverse interests.'' The Agency has had 
success working with various types of collaborative processes. This 
requirement is intended to be flexible, accommodate a variety of 
collaborative approaches, and does not require convening a formal 
collaborative group.
    Comment: The Forest Service received a variety of comments 
regarding the road limitations in the proposed restoration and 
resilience CE. Comments included suggestions to increase the road 
mileages for construction of permanent and temporary roads, removing 
road construction from the CE, and questioning why the road mileage 
limitations for the restoration CE differed from those in the CE 
proposed rule's road construction CE at 36 CFR 220.5(e)(24).
    Response: In the final rule, Sec.  220.6(e)(25) includes adjusted 
road mileage limitations and addressed reconstruction within the 
framework of construction limits. The restoration CE allows 
construction and reconstruction of permanent roads up to 0.5 miles; and 
construction of temporary roads up to 2.5 miles. The restoration and 
resilience CE requires all temporary roads to be decommissioned no 
later than 3 years after the date the project is completed. The final 
rule also clarifies that the category allows repair and maintenance of 
NFS roads and trails to prevent or address resource impacts.
    Some commenters were confused about the road limitations of the CE 
and how they compare to the limitations of other CEs. A frequent 
comparison was the limitation of construction of permanent roads of 0.5 
miles when the proposed rule also included a proposed CE that would 
allow five miles of permanent road construction.
    The proposed rule's use of different road mileage limitations 
reflected the purpose of the individual CE and the agency's experience 
in managing those activities categories. These two CEs were developed 
independently based on different supporting data and have different 
focuses. The restoration and resilience CE was developed with a focus 
on activities that improve overall ecosystem health and restore 
national

[[Page 73629]]

forests and grasslands. The roads management CE was developed with a 
focus on road management activities to address access issues and 
resource impacts; it has a narrower scope than the restoration CE. In 
the final rule the road management CE was also modified, and the 
mileage limitations have been lowered to 2 miles for permanent road 
construction.
    Forest Service CEs are independently established, as has been the 
case with historical agency practice concerning development and use of 
CEs. The activities covered by, or limitations in, a particular CE do 
not constrain or limit the operation of any other CE. Likewise, more 
than one CE may apply to an activity. Integrated, multiple-use 
management activities, which are designed to accomplish management 
goals that often cross administrative program boundaries, can fit 
within multiple CEs.

Regulatory Certifications

National Environmental Policy Act

    The final rule amends agency regulations for implementing NEPA. 
Forest Service NEPA procedures assist in the fulfillment of agency 
responsibilities under NEPA but are not the agency's final 
determination of what level of NEPA analysis is required for a 
particular proposed action. This rule would not authorize any activity 
or commit resources to a project that may affect the environment. This 
rule does not have any reasonably foreseeable impact on the 
environment, nor does the rule authorize or prohibit any action that 
would have any effect on the environment. The CEQ set forth the 
requirements for establishing agency NEPA procedures in its regulations 
at 40 CFR 1507.3. The CEQ regulations do not require agencies to 
prepare a NEPA analysis before establishing or updating agency NEPA 
procedures. The determination that establishing agency NEPA procedures 
does not require NEPA analysis and documentation has been upheld in 
Heartwood, Inc. v. U.S. Forest Service, 230 F.3d 947, 954-55 (7th Cir. 
2000).

Energy Effects

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

Consultation and Coordination With Indian Tribal Governments

    The Forest Service considered this final rule in compliance with 
E.O. 13175, Consultation and Coordination with Indian Tribal 
Governments. On June 13, 2019, the agency initiated a 120-day 
consultation period. This period was extended an additional 26 days, 
based on requests from some Tribes. The Forest Service also considered 
input from Tribes received after this period. Twenty-eight federally 
and non-federally recognized Tribes submitted written comments and/or 
participated in regional tribal meetings.
    While some Tribes expressed support for the proposed rule, many 
Tribes expressed concern over how the rule would impact the Agency's 
responsibility to consult with Tribes on federal actions. Specifically, 
many were concerned that the proposed rule's addition of CEs and 
elimination of the scoping requirement for CEs and EAs would reduce 
opportunities for tribal engagement.
    In response, the Forest Service maintains and reiterates its 
commitment to ensuring that Tribal consultation occurs for individual 
projects as appropriate pursuant to Forest Service Manual 1560 and 
Forest Service Handbook 1509.13. This regulatory revision makes no 
change to Tribal consultation. Further as discussed above, the final 
rule is of limited scope and amends the Forest Service NEPA regulations 
to include only new and expanded CEs and the DNA provision. Projects 
and activities supported by environmental assessments remain subject to 
project-level pre-decisional administrative review process 
(``objections'' process) at 36 CFR part 218, which requires notice and 
a designated opportunity for comments.
    The Agency acknowledges that it shares a government-to-government 
relationship with Tribes that differs from its relationship with the 
general public. The final rule does not change the Forest Service's 
Tribal consultation obligations.

Executive Order 12866

    This rule has been reviewed under USDA procedures and Executive 
Order (E.O.) 12866 issued September 30, 1993, on regulatory planning 
and review. The Office of Management and Budget (OMB) has determined 
that this is a significant rule as defined by E.O. 12866 and therefore 
subject to interagency review.
    A more timely and efficient process will reduce administrative 
costs. There are many benefits and costs associated with the rule; 
however, they are not quantifiable with available data. Benefits (or 
cost reductions) derived from timely and focused environmental 
analysis, flexibility in preparation of environmental documents, and 
improved decision-making indicate a positive net benefit of the rule. 
The direct benefits of the rule are, therefore, reduced costs and time 
spent on environmental analysis.
    For example, by implementing the Determination of NEPA Adequacy 
(DNA) provision, the Agency anticipates reductions in time and cost as 
a result of reducing redundant analyses. These efficiencies may reduce 
total Agency costs and decision-making time. These concepts, however, 
will take some time to become well established and widely used; 
potential benefits will occur over time.
    The rule also establishes 5 new CEs that require a decision memo. 
Focusing on the new CEs, the Agency assumes for the purpose of this 
analysis, based on average use of its existing CEs, that each new CE 
may be used an average of 1 to 30 times per year. Under these 
assumptions, the rule may potentially result in 5 to 150 decision memos 
per year being completed in lieu of a decision notice.
    From Fiscal Years 2014 to 2019, the Agency's average annual 
environmental analysis workload included approximately 1,588 CE 
determinations and 266 EAs. This six-year span includes the most recent 
data available. The average time to decision for CEs was 204 days and 
for EAs was 707 days. As a result, the Agency may complete NEPA 
analysis on proposed actions using the new CEs an average of 1 to 17 
months earlier, per proposed action. In practice, these figures will 
vary dependent upon the proposed action and the particular CE being 
applied.
    The Forest Service has combined and modified some existing CEs with 
this rulemaking to reduce confusion and better capture Agency proposed 
actions that do not normally have significant environmental effects. 
This, in turn, allows for timelier decision-making. Specifically, 
combining CEs at Sec.  220.6(d)(10) (not requiring a decision memo) and 
Sec.  220.6(e)(15) (requiring a decision memo) of the existing 
regulations, which both covered administrative actions on special use 
permits, eliminates confusion among Agency staff over which CE applies 
and reduces administrative workload by not requiring a decision memo. 
Expanding the acreage of special uses on which the existing CE at Sec.  
220.6(e)(3) can be applied from 5 acres to 20 acres, as well as 
expanding the roads and trails on

[[Page 73630]]

which the existing CE at Sec.  220.6(e)(20) can be applied, are 
practical, common sense changes that increase Agency NEPA efficiency.
    While CEs replace the more costly use of EAs, several factors 
contribute to the determination of the most appropriate form of NEPA 
analysis. In general, qualifying projects that in the past would have 
been analyzed under an EA may now rely upon the new CEs, but 
responsible officials retain discretion to use another form of NEPA 
analysis.
    DNAs will further reduce the number of EAs undertaken each year, as 
Agency staff make use of this tool rather than defaulting to preparing 
a second EA. However, the Agency expects that use of the DNA provision 
will be modest at least in the first several years of its 
establishment.
    The Agency anticipates use of DNAs and of the new CEs to slowly 
increase over time, taking into account time for adoption across the 
agency as has been observed during implementation of new CEs, statutory 
categorical exclusions and exceptions over the course of the past 
several years.

Executive Order 13771

    The final rule has been reviewed in accordance with E.O. 13771 on 
reducing regulation and controlling regulatory costs and is considered 
an E.O. deregulatory action. The impacts of the final rule are as 
discussed above.

Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
the Office of Information and Regulatory Affairs designated this rule 
as not a `major rule', as defined by 5 U.S.C. 804(2).

Regulatory Flexibility Act

    The Regulatory Flexibility Act, as amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996, and Executive Order 13272 
require an agency to prepare a regulatory flexibility analysis of a 
rule if the rule is subject to notice and comment under the 
Administrative Procedure Act. The final rule directly affects only the 
Forest Service. Forest Service NEPA procedures assist in the 
fulfillment of agency responsibilities under NEPA; the final rule does 
not impose any requirements on small entities. While small entities 
represent some applicants for special use authorizations that would now 
be covered by the CEs at Sec. Sec.  220.6(d)(11) and (12) and 
220.6(e)(3), this is a negligible indirect effect only to certain small 
entities. Not all applicants are small entities and, moreover, the 
timing of a special use authorization depends on several factors beyond 
NEPA compliance, including compliance with other laws and incomplete 
information provided by the applicant. Therefore, the USDA Under 
Secretary for Natural Resources and Environment certifies that the rule 
will not have a significant economic impact on a substantial number of 
small entities.

Federalism

    The Agency has considered this final rule under the requirements of 
Executive Order 13132, Federalism. The Agency has concluded that the 
rule conforms with the federalism principles set out in this Executive 
Order; will not impose any compliance costs on the states; and will not 
have substantial direct effects on the States or the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government. 
Therefore, the Agency has determined that no further assessment of 
federalism implications is necessary.

No Takings Implications

    This rule has been analyzed in accordance with the principles and 
criteria contained in Executive Order 12630, Governmental Actions and 
Interference with Constitutionally Protected Property Rights, and it 
has been determined that the rule does not pose the risk of a taking of 
protected private property.

Civil Justice Reform

    This final rule has been reviewed under E.O. 12988, Civil Justice 
Reform. Under the final rule, (1) all State and local laws and 
regulations that conflict with this final rule or impede its full 
implementation will be preempted; (2) no retroactive effect is given to 
this final rule; and (3) the rule will not require the use of 
administrative proceedings before parties could file suit in court 
challenging its provisions.

Unfunded Mandates Reform Act

    Pursuant to Title II of the Unfunded Mandates Reform Act (UMRA) of 
1995 (2 U.S.C. 1531-1538), the Agency has assessed the effects of the 
final rule on State, local, and Tribal governments, and the private 
sector. This final rule would not compel the expenditure of $100 
million or more by any State, local, or Tribal government, or anyone in 
the private sector. Therefore, this final rule is not subject to the 
requirements of section 202 and 205 of the UMRA.

Controlling Paperwork and Burdens on the Public

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

List of Subjects in 36 CFR Part 220

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

    Therefore, for the reasons set forth in the preamble, part 220 of 
title 36 of the Code of Federal Regulations is amended as follows:

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

0
1. The authority citation for part 220 continues to read as follows:

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


0
2. Amend Sec.  220.4 by adding paragraph (j) to read as follows:


Sec.  220.4   General requirements.

* * * * *
    (j) Determination of NEPA Adequacy (DNA). (1) An existing 
environmental analysis prepared pursuant to NEPA and the Council on 
Environmental Quality regulations may be used in its entirety for a new 
proposed action if the Responsible Official determines that the 
existing NEPA analysis adequately assesses the environmental effects of 
the proposed action and reasonable alternatives. The responsible 
official must determine and document that each of the following 
elements is met:
    (i) The new proposed action is substantially the same as a 
previously analyzed proposed action or alternative analyzed in detail 
in the existing NEPA analysis.
    (ii) The range of alternatives analyzed in the existing NEPA 
document(s) is appropriate with respect to the new proposed action.
    (iii) Any new information or circumstances relevant to 
environmental concerns would not substantially change the analysis in 
an existing NEPA document(s).

[[Page 73631]]

    (iv) The environmental effects that would result from 
implementation of the new proposed action are similar to those analyzed 
in the existing NEPA document(s).
    (2) A DNA for a new proposed action shall be included in the 
project record for the new proposed action. Proposed actions undergoing 
a DNA review shall:
    (i) Be included on the SOPA;
    (ii) Be subject to scoping;
    (iii) Be subject to pre-decisional administrative review, if 
applicable; and
    (iv) Include issuance of a new decision document (decision memo, 
decision notice, or record of decision) when approved.

0
3. Amend Sec.  220.6 by:
0
a. Removing and reserving paragraph (d)(10);
0
b. Adding paragraphs (d)(11) and (12);
0
c. Removing ``through (17)'' and adding ``through (25)'' in its place 
in paragraph (e) introductory text;
0
d. Revising paragraph (e)(3);
0
e. Removing and reserving paragraphs (e)(10) and (15);
0
f. Revising paragraph (e)(20); and
0
g. Adding paragraphs (e)(21) through (25).
    The additions and revisions read as follows:


Sec.  220.6  Categorical exclusions.

* * * * *
    (d) * * *
    (11) Issuance of a new special use authorization to replace an 
existing or expired special use authorization, when such issuance is to 
account only for administrative changes, such as a change in ownership 
of authorized improvements or expiration of the current authorization, 
and where there are no changes to the authorized facilities or 
increases in the scope or magnitude of authorized activities. The 
applicant or holder must be in compliance with all the terms and 
conditions of the existing or expired special use authorization. 
Subject to the foregoing conditions, examples include but are not 
limited to:
    (i) Issuing a new authorization to replace a powerline facility 
authorization that is at the end of its term;
    (ii) Issuing a new permit to replace an expired permit for a road 
that continues to be used as access to non-NFS lands; and
    (iii) Converting a transitional priority use outfitting and guiding 
permit to a priority use outfitting and guiding permit.
    (12) Issuance of a new authorization or amendment of an existing 
authorization for recreation special uses that occur on existing roads 
or trails, in existing facilities, in existing recreation sites, or in 
areas where such activities are allowed. Subject to the foregoing 
condition, examples include but are not limited to:
    (i) Issuance of an outfitting and guiding permit for mountain 
biking on NFS trails that are not closed to mountain biking;
    (ii) Issuance of a permit to host a competitive motorcycle event;
    (iii) Issuance of an outfitting and guiding permit for backcountry 
skiing;
    (iv) Issuance of a permit for a one-time use of existing facilities 
for other recreational events; and
    (v) Issuance of a campground concession permit for an existing 
campground that has previously been operated by the Forest Service.
    (e) * * *
    (3) Approval, modification, or continuation of special uses that 
require less than 20 acres of NFS lands. Subject to the preceding 
condition, examples include but are not limited to:
    (i) Approving the construction of a meteorological sampling site;
    (ii) Approving the use of land for a one-time group event;
    (iii) Approving the construction of temporary facilities for 
filming of staged or natural events or studies of natural or cultural 
history;
    (iv) Approving the use of land for a utility corridor that crosses 
a national forest;
    (v) Approving the installation of a driveway or other facilities 
incidental to use of a private residence; and
    (vi) Approving new or additional communication facilities, 
associated improvements, or communication uses at a site already 
identified as available for these purposes.
* * * * *
    (20) Activities that restore, rehabilitate, or stabilize lands 
occupied by roads and trails, including unauthorized roads and trails 
and National Forest System roads and National Forest System trails, to 
a more natural condition that may include removing, replacing, or 
modifying drainage structures and ditches, reestablishing vegetation, 
reshaping natural contours and slopes, reestablishing drainage-ways, or 
other activities that would restore site productivity and reduce 
environmental impacts. Examples include but are not limited to:
    (i) Decommissioning a road to a more natural state by restoring 
natural contours and removing construction fills, loosening compacted 
soils, revegetating the roadbed and removing ditches and culverts to 
reestablish natural drainage patterns;
    (ii) Restoring a trail to a natural state by reestablishing natural 
drainage patterns, stabilizing slopes, reestablishing vegetation, and 
installing water bars; and
    (iii) Installing boulders, logs, and berms on a road segment to 
promote naturally regenerated grass, shrub, and tree growth.
    (21) Construction, reconstruction, decommissioning, relocation, or 
disposal of buildings, infrastructure, or other improvements at an 
existing administrative site, as that term is defined in section 502(1) 
of Public Law 109-54 (119 Stat. 559; 16 U.S.C. 580d note). Examples 
include but are not limited to:
    (i) Relocating an administrative facility to another existing 
administrative site;
    (ii) Construction, reconstruction, or expansion of an office, a 
warehouse, a lab, a greenhouse, or a fire-fighting facility;
    (iii) Surface or underground installation or decommissioning of 
water or waste disposal system infrastructure;
    (iv) Disposal of an administrative building; and
    (v) Construction or reconstruction of communications 
infrastructure.
    (22) Construction, reconstruction, decommissioning, or disposal of 
buildings, infrastructure, or improvements at an existing recreation 
site, including infrastructure or improvements that are adjacent or 
connected to an existing recreation site and provide access or 
utilities for that site. Recreation sites include but are not limited 
to campgrounds and camping areas, picnic areas, day use areas, fishing 
sites, interpretive sites, visitor centers, trailheads, ski areas, and 
observation sites. Activities within this category are intended to 
apply to facilities located at recreation sites managed by the Forest 
Service and those managed by concessioners under a special use 
authorization. Examples include but are not limited to:
    (i) Constructing, reconstructing, or expanding a toilet or shower 
facility;
    (ii) Constructing or reconstructing a fishing pier, wildlife 
viewing platform, dock, or other constructed feature at a recreation 
site;
    (iii) Installing or reconstructing a water or waste disposal 
system;
    (iv) Constructing or reconstructing campsites;
    (v) Disposal of facilities at a recreation site;
    (vi) Constructing or reconstructing a boat landing;
    (vii) Replacing a chair lift at a ski area;
    (viii) Constructing or reconstructing a parking area or trailhead; 
and

[[Page 73632]]

    (ix) Reconstructing or expanding a recreation rental cabin.
    (23) Road management activities on up to 8 miles of NFS roads and 
associated parking areas. Activities under this category cannot include 
construction or realignment. Examples include but are not limited to:
    (i) Rehabilitating an NFS road or parking area where management 
activities go beyond repair and maintenance;
    (ii) Shoulder-widening or other safety improvements within the 
right-of-way for an NFS road; and
    (iii) Replacing a bridge along an NFS road.
    (24) Construction and realignment of up to 2 miles of NFS roads and 
associated parking areas. Examples include but are not limited to:
    (i) Constructing an NFS road to improve access to a trailhead or 
parking area;
    (ii) Rerouting an NFS road to minimize resource impacts; and
    (iii) Improving or upgrading the surface of an NFS road to expand 
its capacity.
    (25) Forest and grassland management activities with a primary 
purpose of meeting restoration objectives or increasing resilience. 
Activities to improve ecosystem health, resilience, and other watershed 
and habitat conditions may not exceed 2,800 acres.
    (i) Activities to meet restoration and resilience objectives may 
include, but are not limited to:
    (A) Stream restoration, aquatic organism passage rehabilitation, or 
erosion control;
    (B) Invasive species control and reestablishment of native species;
    (C) Prescribed burning;
    (D) Reforestation;
    (E) Road and/or trail decommissioning (system and non-system);
    (F) Pruning;
    (G) Vegetation thinning; and
    (H) Timber harvesting.
    (ii) The following requirements or limitations apply to this 
category:
    (A) Projects shall be developed or refined through a collaborative 
process that includes multiple interested persons representing diverse 
interests;
    (B) Vegetation thinning or timber harvesting activities shall be 
designed to achieve ecological restoration objectives, but shall not 
include salvage harvesting as defined in Agency policy; and
    (C) Construction and reconstruction of permanent roads is limited 
to 0.5 miles. Construction of temporary roads is limited to 2.5 miles, 
and all temporary roads shall be decommissioned no later than 3 years 
after the date the project is completed. Projects may include repair 
and maintenance of NFS roads and trails to prevent or address resource 
impacts; repair and maintenance of NFS roads and trails is not subject 
to the above mileage limits.
* * * * *

James E. Hubbard,
Under Secretary, Natural Resources and Environment.
[FR Doc. 2020-25465 Filed 11-18-20; 8:45 am]
BILLING CODE 3411-15-P