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

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

 [Federal Register: December 15, 2006 (Volume 71, Number 241)]
[Notices]
[Page 75481-75495]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15de06-20]

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DEPARTMENT OF AGRICULTURE
Forest Service
RIN 0596-AB86

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

AGENCY: Forest Service, USDA.
ACTION: Final directive.

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SUMMARY: The Forest Service is revising procedures for implementing the
National Environmental Policy Act (NEPA) and Council on Environmental
Quality (CEQ) regulations. The procedures are being revised through
issuance of a final directive that amends Forest Service Handbook (FSH)
1909.15, chapter 30. This chapter describes categorical exclusions;
that is, categories of actions which do not individually or
cumulatively have a significant effect on the human environment, and
therefore, normally do not require further analysis and documentation
in either an environmental assessment (EA) or an environmental impact
statement (EIS). The amendment adds one such category of actions to the
Agency's NEPA procedures for final decisions on proposals to develop,
amend, or revise land management plans.

DATES: Effective Date: This amendment is effective December 15, 2006

ADDRESSES: The new Forest Service categorical exclusion is set out in
FSH 1909.15, chapter 30, which is available electronically via the
World Wide Web/Internet at http://www.fs.fed.us/im/directives. Single
paper copies are available by contacting Anthony Erba, Forest Service,
USDA, Ecosystem Management Coordination Staff (Mail Stop 1104), 1400
Independence Avenue, SW., Washington, DC 20250-1104. Additional
information and analysis can be found at 
http://www.fs.fed.us/emc/nfma/index.htm.

FOR FURTHER INFORMATION CONTACT: Anthony Erba, USDA Forest Service,
Ecosystem Management Coordination Staff, (202) 205-0895. Individuals
who use telecommunication devices for the deaf (TDD) may call the
Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8
a.m. and 4 p.m., Eastern Standard Time, Monday through Friday.

SUPPLEMENTARY INFORMATION:

Background

    On January 5, 2005, the Forest Service published the 2005 planning
rule (70 FR 1023) establishing procedures for National Forest System
compliance with the NFMA. That planning rule provided that approval of
a plan, plan amendment, or plan revision may be categorically excluded
from National Environmental Policy Act (NEPA) documentation in
accordance with Forest Service NEPA procedures. On the same date, the
Forest Service published a proposed amendment to its NEPA procedures to
provide for such a categorical exclusion. Specifically, the categorical
exclusion proposed on January 5, 2005 (70 FR 1062) would require four
changes in chapter 30 of FSH 1909.15.
    1. A category would be added to section 31.2 that would allow
development, amendment, and revision of plan components, or portions
thereof, to be categorically excluded unless extraordinary
circumstances exist.
    2. A paragraph would be added to section 30.3 to define the
extraordinary circumstances pertinent to the new category. It would
specify that the inclusion of a project or activity decision in a plan
component may constitute an extraordinary circumstance.
    3. A paragraph would be added to section 30.3 to clarify that the
extensive public participation requirements in the land management
planning regulations at 36 CFR 219.9 are sufficient to satisfy the
scoping requirements currently included in section 30.3.
    4. A paragraph would be added to section 32.2 to clarify that the
plan approval document required by the land management planning
regulations at 36 CFR 219.7(c) is sufficient to satisfy the decision
memo requirements of chapter 30.
    In response to comments on the proposed categorical exclusion and
to clarify meaning, three revisions were made to the original proposal
as follows.
    1. The wording of the category to be added to section 31.2 was
changed to remove the phrase ``except where extraordinary circumstances
exist'' because the phrase is not necessary. The following wording was
added to further clarify the actions that meet this category's
definition: ``that provide broad guidance and information for project
and activity decision-making in a National Forest System unit.''
Consistent with the Supreme Court decision in Ohio Forestry Ass'n v. Sierra

[[Page 75482]]

Club (523 U.S. 726 (1998)), the Agency further refined the category by
adding language stating that ``[p]roposals 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. The Agency also added that such proposals for
action shall be considered separately under Forest Service NEPA
procedures.''
    2. The paragraph to be added to section 30.3 defining the
extraordinary circumstances pertinent to the new category for land
management plans was deleted. The Agency added wording to the existing
paragraph 2 further clarifying when extraordinary circumstances exist.
This definition of extraordinary circumstances applies to any proposed
action, including proposals to develop, amend, or revise land
management plans. The added wording makes it clear that there must be a
cause-effect relationship between the proposed action and any potential
effects to the listed resources, and if such a relationship exists, the
degree of the effect resulting from the cause-effect relationship
determines whether extraordinary circumstances exist: ``The mere
presence of one or more of these resource conditions does not preclude
use of a categorical exclusion. It is (1) The existence of a cause-
effect relationship between a proposed action and the potential effect
on these resource conditions and (2) if such a relationship exists, it
is the degree of the potential effect of a proposed action on these
resource conditions that determines whether extraordinary circumstances
exist.''
    A final decision on a proposed action is viewed as causing effects
on the resources listed in section 30.3(2) when effects may occur
without additional action by the agency other than routine
administrative actions implementing the decision. For projects and
activities, the final decision point is typically the decision to
approve the project or activity, typically accompanied by a final
environmental impact statement, environmental assessment, or
categorical exclusion determination. There would normally be a ``cause-
effect relationship'' between the project or activity and the
environmental impacts. For example, there would normally be a ``cause-
effect relationship'' between the decision to approve a timber sale and
the direct, indirect, and cumulative effects on the environment of the
timber sale project.
    However, for land management plans developed under the 2005
planning rule, a cause-effect relationship of this nature typically
does not exist. For example, to establish a ``cause-effect
relationship'' for a land management plan, plan revision, or plan
amendment, it is not sufficient to find that one or more plan
components increase or decrease the likelihood of effects from future
actions on one of the resources listed in section 30.3(2). Rather, it
is necessary to conclude that a plan component by itself, without
further analysis and decision-making by the agency, will either allow
otherwise disallowed, or prohibit otherwise unprohibited, actions by
the agency or other parties that may have effects on the listed resources.
    In all cases, it is the agency's intent that the existence or non-
existence of a ``cause-effect'' relationship continues to be
established by the professional judgment of the responsible official
based on available information and that no statistical, mathematical,
or other formal method of proof is required.

History

    The Forest Service is responsible for managing 192 million acres of
national forests, national grasslands, and other areas, known
collectively as the National Forest System (NFS). The Chief of the
Forest Service, through a line organization of regional foresters,
forest or grassland supervisors, and district rangers, manages the
surface resources and, in some instances, the subsurface resources of
those lands. Management is guided by land management plans prepared in
accordance with the National Forest Management Act (NFMA) (16 U.S.C.
1600 et seq.) and its implementing regulations (36 CFR 219). The first
implementing regulations were adopted in 1979 and revised in 1982. The
implementing regulations adopted in 2005 replace the 1982 regulations.
    The NFMA requires the Secretary to promulgate regulations
``specifying procedures to insure that land management plans are
prepared in accordance with the [NEPA] including, but not limited to,
direction on when and for what plans an environmental impact statement
* * * shall be prepared'' (16 U.S.C. 1604 (g)(1)). In the implementing
regulations adopted in 1979 and 1982, the Secretary required that
environmental impact statements be prepared when developing plans,
significant plan amendments, and plan revisions. The Forest Service
believed this would provide a more efficient and effective overall
planning process.
    As a means of achieving NFMA land management objectives, the 1979
and 1982 planning rules included a requirement that the planning
process include development of multiple alternative plans to identify
``the alternative that comes nearest to maximizing net public benefits
* * *'' (36 CFR 219.12(f), September 30, 1982, as amended). The Forest
Service took the approach of requiring multiple alternatives even
though nothing in the NFMA (or any other substantive statute directing
management of the National Forest System) demands that the Forest
Service develop or consider alternative management regimes or
alternative programs when developing land management plans, plan
amendment, or plan revisions. The NFMA alternatives were to include a
range of resource outputs, projects and activities, and expenditure
levels. The 1982 planning rule also established requirements for an
``analysis of the management situation'' and ``benchmark analyses.''
These were used to define a range of resource production possibilities
for various alternatives. The formulation of alternatives was intended
to help the decision-maker maximize the use of various resources,
consistent with the protection of other resources and objectives. The
Forest Service believed at that time that plans were essentially a
collection of 15 year's worth of projects.
    Both the 1979 and 1982 planning rules required that alternatives be
compared using the range of hypothetical resource outputs that could
occur under each alternative. Each alternative contained standards and
guidelines that would be analyzed when applied to hypothetical projects
and activities. Interdisciplinary teams developing plans comparatively
analyzed the effects of plan alternatives based on forecasts and broad
predictions of future conditions and budgets. These teams completed
this analysis despite other factors (e.g., budget limits, changes in
land conditions) that made it unlikely that potential output levels
would be realized. The Forest Service essentially speculated about
hypothetical projects and activities over a 15-year period.
    The Forest Service believed the most efficient planning approach
was to integrate the 1982 rule's regulatory requirement to formulate
alternatives to maximize net public benefit with the NEPA alternative
requirement (i.e., 40 CFR 1502.14). Given the massive resources devoted
to approving, amending, and revising plans, the Agency believed that if
EISs were prepared at the point of developing plans, plan amendments,
and plan revisions, those EISs also would

[[Page 75483]]

generally be sufficient for the approval of future proposed projects
and activities. If a plan EIS was not adequate for a project or
activity approval, the Agency believed that any additional NEPA
analysis and documentation needed would tier to or supplement the
analysis in the plan EIS.

Forest Service Experience With Plan-Level NEPA Under The 1982 Planning
Rule

    As the Forest Service gained experience with land management
planning, it became clear that the Agency view that plans were
essentially a collection of 15 years' worth of projects and decisions
was incorrect. Many of these hypothetical projects and activities could
not be accurately predicted and never occurred because of circumstances
that were beyond the control of the Agency; such as, budget levels and
changed land conditions. The Agency also learned that this view was not
compatible with adaptive management principles (e.g., monitoring, plan
amendments, or plan revisions).
    Throughout the 27 years of land management planning, the Agency
also learned that tiering from the environmental analysis in plan EISs
did not provide nearly as much useful information at the project or
activity level as the Agency had expected. The effects analysis in Plan
EISs was often too general to meet analytical needs for projects and
activities. The effects analysis conclusions did not remain current
over the life of a plan. In addition, typically because of public input
and litigation, the Forest Service found that additional analysis and
documentation in EAs and EISs was still necessary for projects and
activities. The Forest Service found itself preparing much more site-
specific NEPA documentation for projects than it had anticipated when
it adopted the 1979 and 1982 planning rules. The relevant analysis
typically had to be redone in a project-level NEPA analysis before
proposals for projects and activities were approved. Meaningful
analysis of a project's effects could not be done until the project
design, the project location's environmental conditions, and the
management direction applicable to the project based on the project
design were known.
    When the Agency has attempted to rely solely on a plan EIS to
disclose the effects for subsequent on-the-ground actions, courts
pointed out the weaknesses associated with this strategy. For example,
the Eldorado National Forest created an off-road vehicle (ORV)
management plan for the forest without conducting a forest-wide
environmental analysis, instead relying on the EIS completed for the
1989 land management plan for the ORV plan. In Center for Sierra Nevada
Conservation v. Berry (No. 2-02-325 LKK/JFM (E.D. Cal. Feb. 15, 2005),
a Federal district court concluded:

    The LRMP EIS did not analyze the programmatic environmental
impacts of a designated-route-only ORV trail system in Eldorado, nor
did it analyze the environmental impacts of any particular ORV
routes in the Forest or of permitting travel off of designated
routes * * * Therefore, the Forest Service's duty under NEPA was not
satisfied by tiering the ORV plan to the LRMP's EIS.

    In reaching this conclusion, the district court emphasized the
strategic nature of plans, referencing the Norton v. Southern Utah
Wilderness Alliance, 124 S.Ct. 2373 (2004) (SUWA), case (``Such land
use plans are `not ordinarily the medium for affirmative decisions that
implement the Agency's projections,' rather, they guide the development
of future, more detailed plans.'' 124 S.Ct. 2373, 2382 (2004)).
    Land management plans developed under the 2005 planning rule will
typically be strategic and aspirational. In 1998 and 2004, the Supreme
Court issued decisions that support the Forest Service's conclusion
that its land management plans developed under the 2005 planning rule
typically will not have independent environmental effects, and thus,
will not have significant environmental effects. In Ohio Forestry Ass'n
v. Sierra Club, 523 U.S. 726 (1998), the Supreme Court recognized that,
in contrast to proposals for actions that approve projects and
activities, the land management plan provisions at issue ``do not
command anyone to do anything or to refrain from doing anything; they
do not grant, withhold, or modify any formal legal license, power, or
authority; they do not subject anyone to any civil or criminal
liability; they create no legal rights or obligations'' (523 U.S. at
733 (1998)). In SUWA, the Supreme Court's description of the Bureau of
Land Management's (BLM's) land use plan, developed under the Federal
Land Policy and Management Act (FLPMA), is in accord with Forest
Service land management plans developed under the 2005 planning rule.
The Supreme Court noted that the BLM's land use plans are ``tools by
which `present and future use is projected' * * * [and] generally a
statement of priorities,'' 124 S.Ct. 2373 at 2382-83 (2004) (citation
omitted; emphasis added by Supreme Court). The Court also noted that
BLM's plans are normally not used to make site-specific implementation
decisions.
    In 1988, even before Ohio Forestry, the Chief of the Forest Service
established, in response to appeals on plans for the Idaho Panhandle
and Flathead National Forests that land management planning for
National Forest System units involves two levels of decisions: (1)
Approval of plans or amendments and revisions to plans that provide
frameworks for project decision-making; and (2) project or activity
decisions. Thus, the Forest Service recognizes the distinction between
a plan's strategic framework and project decision-making in plan and
project documents.
    Other case law also has recognized the strategic nature of land
management plans. In Swan View Coalition v. Turner, 824 F. Supp. 923
(D. Mont. 1992), the court noted the nature of plans:

    [T]he Forest Plan is a broad framework for the management of a
National Forest which does not directly commit to development.
Allowing for additional review at each subsequent stage of
development recognizes both the managerial purpose of a Forest Plan
to provide mechanisms for monitoring and regulating future
development as well as its inherent limitations in predicting what
development will actually occur.

    Finally, other Federal agencies have recognized the strategic
nature of broad planning documents and that meaningful analysis of
environmental impacts of these documents is difficult, if not
impossible. In 1986, the United States Fish and Wildlife Service
(USFWS) clarified the nature of recovery plans and adopted a
categorical exclusion for them. The USFWS determined the categorical
exclusion was appropriate because:

    Recovery plans are broad planning documents * * * Recovery plans
typically do not propose specific actions, but instead set forth
general policies for management and treatment of the species. For
these reasons, meaningful analysis of the environmental impacts of a
recovery plan is usually difficult, if not impossible * * * In
addition, recovery plans impose no obligations on any agency,
entity, or persons to implement the various tasks listed in the plan
* * * any recovery actions set forth in a recovery plan that are to
be carried out by Federal agencies will be subjected to NEPA
analysis at the time they actually are ``proposed'' within the
meaning of NEPA.

(November 5, 1986 Memorandum to Regional Directors) (emphasis added).
While the purposes of USFWS recovery plans and Forest Service land
management plans are different, the strategic nature of the plans is
very similar. Like USFWS recovery plans, Forest Service land management
plans

[[Page 75484]]

typically impose no obligations on any agency, person, or entity and
any projects or activities in the plan area will be subject to NEPA
analysis and documentation at the time they are proposed.

Forest Service Response to Experience

    As a result of this experience under the 1979 and 1982 planning
rules, the Forest Service made a number of changes in the 2005 planning
rule that are pertinent to the use of a categorical exclusion for
planning. The 2005 planning rule modified and clarified the nature of
land management plans, emphasizing their strategic and aspirational
nature. Plans under the 2005 planning rule will have five principal
components: desired conditions, objectives, guidelines, suitability of
areas, and special areas (36 CFR 219.7(a)(2)). Plans under the 2005
rule will describe desired conditions and objectives for the plan area,
and provide guidance for future decision-making. Plans under the 2005
rule typically will not include 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. (The five
principal components are described further in the next section of this
preamble.)
    The planning process under the 2005 planning rule now emphasizes
public participation and collaboration, and allows for consideration of
plan options in an iterative fashion in which those options are
developed and narrowed successively. The 2005 planning rule no longer
requires the parallel development and analysis of multiple
alternatives, and their comparison based on the analysis of projected
and hypothetical projects and activities, to identify the alternative
that comes nearest to maximizing ``net public benefits.''
    The 2005 planning rule creates an expectation that elements
sometimes found in plans under the 1982 planning rule, will now be
uncommon. The 2005 rule, together with Agency NEPA procedures,
establishes specific requirements for those plans where these uncommon
elements do occur. For example, plans developed under the 1982 planning
rule sometimes included specific final decisions (such as oil and gas
leasing) or decisions establishing specific prohibitions (such as
decisions prohibiting motorized vehicles in certain areas). In
contrast, plans under the 2005 planning rule typically will not include
proposals for actions that approve or prohibit projects and activities.
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 for land management
plans and will be considered separately under Forest Service NEPA
procedures (i.e., further analysis and documentation in an EA or EIS or
application of a categorical exclusion (e.g., proposals to repair an
administrative site or conduct a limited timber harvest that are
covered by categorical exclusions 3 in section 3.12 and 12 in section
3.2 respectively)).
    Given these changes in the nature of the planning process and the
nature of plans themselves, the Forest Service has concluded that
actions approving, amending, or revising a land management plan under
the 2005 planning rule that provides broad guidance and information for
project and activity decision-making do not individually or
cumulatively have significant effects on the human environment (40 CFR
1508.4). Plan components typically cannot be linked in a cause-effect
relationship over time and within a geographic area to effects on the
human environment without 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. Therefore, the Forest
Service concludes that such actions can be categorically excluded from
analysis and documentation in an EA or EIS, absent extraordinary
circumstances, as provided in Agency NEPA procedures. This final
directive establishes a category for plans (i.e., Planning CE) in the
Forest Service NEPA Handbook (FSH 1909.15).

Examples of Plan Components Under the 2005 Planning Rule

    The following 2005 planning rule plan component examples illustrate
why future actions must be proposed before any effects on the human
environment can be analyzed and occur. These examples demonstrate that
the plan components under the 2005 rule generally will not approve
projects and activities or command anyone to refrain from undertaking
projects and activities, or grant, withhold or modify contracts,
permits or other formal legal instruments.
    Desired conditions are the social, economic, and ecological
attributes toward which management of the land and resources of the
plan area is to be directed (36 CFR 219.7(2)(i)). The desired
conditions illustrate how the desired landscape would look or function.
Desired conditions will not describe the precise activities to be
undertaken to bring the forest to those conditions. Desired conditions
in the approved plan, plan amendment, or plan revision do not approve
projects and activities, or command anyone to refrain from undertaking
projects and activities, or grant, withhold or modify contracts,
permits or other formal legal instruments. The following is an example
of how a desired condition regarding certain vegetation and species
habitat and recreation opportunities will be expressed under the 2005
planning rule:

    Watersheds in this management area are dominated by oak-
grasslands. On upper slopes and ridges across this area, grasslands
(less than 10 percent tree canopy closure) and open oak woodlands
(10-60 percent tree canopy closure) are interspersed in variable
mixtures. In general, tree density increases as one moves down
slope, but densities are variable and transitions gradual. Snag and
den tree densities average three stems per acre on a watershed
basis. Native grasses and forbs dominate understories. Most mid and
lower slopes have open oak forests (60-80 percent tree canopy
closure), with understories containing oak regeneration in
sufficient numbers to provide for sustaining oak on these sites over
time. Multi-layered mixed hardwood mesophytic and riparian forests
occur on lower slopes, where, because of topography and moisture,
understory fires burn at low intensities or not at all. Within
riparian corridors, vegetative filter strips have 80 percent total
ground cover comprised of grasses, or forbs. In riparian areas,
flooding is the primary disturbance factor.
    In upland portions of this management unit, diverse grass and
grass-forb understories provide diverse and abundant herbage, seeds,
and insects. Open canopies and the use of periodic fire create this
understory condition. This understory condition also supports a
diverse assemblage of wildlife. Rare species that are adapted to
open forests and grasslands, but have declined due to land-use
changes and the alteration of these habitats, are present and
distributed in numbers that will provide for self-sustaining
populations. These include Henslow's sparrow, whippoor-will,
southern prairie aster, barbed rattlesnake-root, buffalo clover, and
prairie parsley. Small mammals, such as deer mice (Peromyscus spp.),
voles, and rabbits are abundant, supporting increased populations of
predators, such as raptors, foxes, and bobcats.
    Generally unmodified natural environments characterize this area
and users have the opportunity to experience a moderate degree of
independence, closeness to nature, solitude, and remoteness, with
some areas generally suitable for motorized opportunities and others
for non-motorized opportunities. Satisfactory recreational
experience is provided for at least 70 percent

[[Page 75485]]

of forest visitors annually, as determined from comment forms that
show ratings of ``acceptable'' or higher. This area contributes to
economic sustainability by providing special interest areas for
birders, who frequently use quality outfitter guides for birding tours.

    This type of a description states a vision for the desired
condition of the forest. Desired conditions provide a context for
future proposed projects or activities. Projects and activities will be
developed to help achieve or maintain one or more of the desired
conditions of the plan.
    To be consistent with the plan, a future proposed project or
activity can (1) Maintain or help achieve one or more desired future
conditions, or (2) be neutral to relevant desired conditions. The
statement of desired conditions will typically influence the choice and
design of future proposed projects and activities in the plan area. The
influence desired conditions have on the direct, indirect, and
cumulative effects of future projects or activities is not known and
cannot be meaningfully analyzed until such projects or activities are
proposed by the Agency.
    Objectives are concise projections of measurable, time-specific
intended outcomes (36 CFR 219.7(a)(2)(ii)). These outcomes typically
result from approved projects or activities. Objectives state
aspirations to guide the future proposed projects and activities for
the plan area to help maintain or achieve the desired conditions. Even
though objectives identify outcomes aimed at achieving or maintaining
desired conditions in the plan area and time frames based on current
and past trends of Agency capacity (i.e., budget and personnel), they
still are aspirational in nature. Objectives in the approved plan, plan
amendment, or plan revision do not approve projects and activities, or
command anyone to refrain from undertaking projects and activities, or
grant, withhold or modify contracts, permits or other formal legal
instruments. A binding commitment to these objectives would be
impossible since Agency budgets for any given year are not known.
Examples of objectives to achieve the desired conditions expressed in
the example above are:

Restore 150 acres of nesting and foraging habitat for neotropical
migrant birds in 3-5 years.
Create 100 acres of Henslow's sparrow habitat within 10 years.
Decommission about two miles of routes each year. Non-system roads
that may be causing environmental damage are prioritized for route
decommissioning or rehabilitation.

    While objectives describe aspirations in the plan area to help
achieve desired conditions, they will not create a binding commitment
to undertake future proposed projects and activities. Objectives will
not set the location, timing, or method of any future proposed project
or activity. Rather, they provide strategic benchmarks that are helpful
in evaluating progress toward desired conditions. Projects and
activities are typically developed and designed to achieve one or more
of the objectives of the plan. Objectives help guide the responsible
official set priorities for future proposed projects to meet the
desired conditions. For example, the plan objective for creating
Henslow's sparrow habitat guides the responsible official to look for
the best location to propose projects that create habitat for Henslow's
sparrow. The responsible official may compare the existing conditions
with the desired conditions described for several watersheds before
developing a proposal to create Henslow's sparrow habitat. The
responsible official can then choose the location to develop a proposed
project that contributes to the desired conditions.
    To be consistent with the plan, a project or activity can (1) Help
make progress toward one or more objectives, or (2) be neutral to
relevant objectives. Objectives will typically influence the choice and
design of projects or activities in the plan area. The influence
objectives have on the direct, indirect, and cumulative effects of
future projects or activities is not known and cannot be meaningfully
analyzed until such projects or activities are proposed by the Agency.
    Guidelines provide information and guidance that will be applied to
future proposed projects or activities to contribute to achieving or
maintaining desired conditions (see 36 CFR 219.7(a)(2)(iii)). The term
``guideline'' represents general guidance that will be adopted or, if
necessary, adapted, based on site-specific conditions and
circumstances. Guidelines in the approved plan, plan amendment, or plan
revision do not approve projects and activities, or command anyone to
refrain from undertaking projects and activities, or grant, withhold or
modify contracts, permits or other formal legal instruments. Examples
of guidelines which would guide the design of projects or activities to
help achieve the desired conditions and objectives will be expressed in
terms like the following:

    Human activity in neotropical migrant bird nesting habitat areas
should be excluded during a period of March 15 to May 15 with the
exception of through travel routes.
    For restoration activities, mechanical equipment should not be
used within 20 feet of riparian buffers.
    Low impact techniques should be emphasized in dispersed
recreation areas. The use of ``Use Tread Lightly'' techniques ought
to be employed in education and interpretation.

    In the nesting habitat guideline example above, the guideline
indicates how future proposed projects or activities involving the bird
habitat would typically be designed, namely, human presence should be
avoided at the designated times. This guideline example does not
command anyone to undertake or refrain from undertaking any project or
activity. Rather, guidelines describe parameters for activities in the
area, recognizing that the site-specific NEPA and other analyses
conducted during future project and activity decision-making may
support adjustment of the guideline in certain circumstances. Thus,
guidelines will typically influence the development of an Agency
proposal for future projects and activities in the plan area. The
influence guidelines have on the direct, indirect, and cumulative
effects of future projects or activities is not known and cannot be
meaningfully analyzed until such projects or activities are proposed by
the Agency.
    Guidelines are intended to be adaptable to changing conditions and
circumstances. Future proposed projects and activities typically will
be designed in accord with applicable plan guidelines. However, if the
responsible official determines that it is appropriate to adapt the
guidelines based on specific conditions or circumstances, the
responsible official will describe and document the reason for the
proposed adjustment and explain the relationship to desired conditions
and objectives in the project-level environmental analysis and decision
documents. In such cases, a plan amendment typically will not be required.
    The use of the term ``guideline'' in the Forest Service's 2005
planning rule emphasizes the strategic nature of plans under the rule.
In the 1982 planning rule and the first round of plans, the planning
term used was ``standards and guidelines.'' Standards and guidelines
were part of the plan's overall management direction that guided
management activities on a National Forest System unit. Some plans and
plan revisions under the 1982 planning rule term mandatory direction as
``standards'' and general direction with latitude for implementation as
``guidelines.'' Others do not make a distinction between standards and
guidelines. For purposes of the

[[Page 75486]]

discussion that follows, the term ``standards and guidelines'' refers
to management direction provided under the 1982 planning rule.
    To clarify the strategic nature of plans, the Forest Service
adopted the term ``guidelines'' in the 2005 planning rule. Under the
2005 rule, plans typically will not have standards and guidelines as
defined under the 1982 planning rule. The term ``guideline'' under the
2005 planning rule represents general guidance that will be applied
based on site-specific conditions and circumstances to future proposed
projects and activities. Guidelines will be used to design projects or
activities to contribute to achieving a plan area's desired conditions.
    Retaining, Revising, or Removing Existing Standards and Guidelines.
During development, amendment, or revision of plans under the 2005
planning rule, the responsible official must consider whether to
retain, revise, or remove existing standards and guidelines.
    The plan approval document will describe the extent to which
standards and guidelines from the existing plans are retained or
revised and the required evaluation report will identify the decision
document, or portion of such document, in which the standards and
guidelines were approved, and any prior environmental analysis which
pertains to such standards and guidelines. Typically, no further NEPA
analysis is required at the time of plan amendment or revision for
previously analyzed standards and guidelines that are retained or
revised. The influence of such standards and guidelines on the direct,
indirect or cumulative effects of future projects and activities will
be analyzed at the time such projects and activities are proposed.
However, in limited instances the agency may propose to retain an
existing or revised standards and guidelines that command the agency or
others to undertake or refrain from undertaking projects and
activities. Such a proposal is outside the scope of the category and
shall be considered separately under Forest Service NEPA procedures, at
which point the agency shall determine whether any previous
environmental analysis pertaining to the retained or revised standards
and guidelines is still adequate or whether it needs to be supplemented.
    When standards and guidelines are removed, the required evaluation
report will identify which standards and guidelines are removed and
provide a rationale for the removal. Typically no further NEPA analysis
is required at the time of plan amendment or revision to remove
standards and guidelines. The influence of the removal of standards and
guidelines on the direct, indirect, and cumulative effects of future
projects and activities will be analyzed at the time projects and
activities are proposed. However, in limited instances a proposal by
the agency to remove standards and guidelines may result in an
immediate environmental impact because the removal would allow projects
and activities to occur or require them to stop occurring without a
subsequent proposed action by the agency. Such a proposal is outside
the scope of this category and shall be considered separately under
Forest Service NEPA procedures.
    For the suitability of areas plan component, areas within a
National Forest System unit will be identified as generally suitable
for various uses that are compatible with desired conditions and
objectives for that area (36 CFR 219.7(a)(2)(iv)). As stated in the
preamble to the 2005 Planning Rule, a land management plan will
identify general suitability of areas for various uses. The
identification of an area as generally suitable for various uses does
not approve projects or activities, command anyone to refrain from
undertaking projects and activities, or grant, withhold or modify
contracts, permits or other formal legal instruments. Identification of
suitable land areas is not a final determination of the suitability of
an area for a future proposed project or activity. The identification
of generally suitable land areas is guidance for future project or
activity decision-making. The influence general suitability
identification has on the direct, indirect, and cumulative effects of
future projects or activities is not known and cannot be meaningfully
analyzed until such projects and activities are proposed by the agency.
    In accordance with NFMA, the 2005 planning rule requires the
responsible official to identify lands within the plan area as not
suitable for timber production. This identification is not a proposal
for action prohibiting timber harvest projects or activities. Salvage
timber sales and timber harvest activities necessary for other
multiple-use purposes may occur in these areas if proposed and approved
in the future. There are no effects from identification of areas as not
suitable for timber production. The identification influences the
development of future proposals for projects and activities. The
influence the identification has on the direct, indirect, and cumulative
effects of future projects and activities is not known and cannot be
meaningfully analyzed until future projects or activities are proposed.
    Suitable areas can be identified in several ways, including maps
and/or narrative descriptions. Examples of suitability identifications are:

    Areas along, and within 200 feet of, designated motorized travel
routes are generally suitable for dispersed camping (e.g., camping
outside designated campgrounds).
    Areas identified for dispersed recreation are generally suitable
for non-motorized recreational use including camping, photography,
hiking, fishing, and hunting.
    Dispersed recreation areas are generally suitable for timber
harvest (including salvage), for multiple-use purposes and to
achieve desired vegetation conditions. These areas are generally
suitable for commercial use of nontimber forest products.

    Identification of generally suitable land areas is guidance that
helps a land manager and user understand which areas generally are
suitable for uses based on compatibility with desired conditions for a
given area. For example, a dispersed recreation area's desired
condition would be described as typically undeveloped, or minimally
developed, highlighting the area's opportunities for non-motorized
recreation. As shown above, this particular area is identified as
generally suitable for non-motorized activities, such as camping,
photography, hiking, fishing, and hunting. This identification,
however, does not approve specific activities or prohibit activities
that have not been identified as a generally suitable use for the area.
A future proposed project for a use not identified as a generally
suitable use may be approved if appropriate based on site-specific
analysis and if the proposed project is consistent with other plan
components. Although not required for approval of the proposed project,
the site-specific NEPA analysis and documentation may lead the
responsible official to believe uses of the type approved are generally
suitable for the area and propose an amendment to the plan to identify
such uses as generally suitable for the area.
    Special areas are identified or designated for their unique or
special characteristics (36 CFR 219.7(a)(2)(v)). There are four ways
special areas may be addressed during plan development, amendment, or
revision:
    1. An area previously designated may be identified.
    2. The responsible official may make a preliminary administrative
recommendation for a Congressional designation (e.g., a wilderness or
Wild and Scenic Rivers segment).
    3. The responsible official may make a preliminary recommendation for an

[[Page 75487]]

administrative designation (e.g., Research Natural Area).
    4. The responsible official may designate an area (e.g., geological
areas).
Special Areas Previously Designated
    The responsible official may identify in the Plan Set of Documents
an area previously administratively or Congressionally designated. This
does not require analysis under NEPA. The effects of such designated
areas were assessed and considered when the designation was approved.
Preliminary Administrative Recommendation for Congressional Designation
    The responsible official may make a preliminary administrative
recommendation for Congressional designation (e.g., a wilderness or
Wild and Scenic Rivers segment) in the plan approval document. This is
a preliminary recommendation based on inventory and evaluation
procedures documented in Forest Service directives. The directives for
wilderness evaluation are in Forest Service Manual (FSM) 1923 and
Forest Service Handbook (FSH) 1909.12, chapter 70. The directives for
Wild and Scenic River evaluation are in FSM 1924 and FSH 1909.12,
chapter 80. This recommendation is a preliminary administrative
recommendation that will receive further review and possible
modification by the Chief of the Forest Service, the Secretary of
Agriculture, and the President of the United States. As a matter of
Forest Service policy, if the Chief decides to forward preliminary
administrative wilderness recommendations to the Secretary, an
appropriate NEPA document will accompany the recommendations.
    If the Department decides to make a final recommendation for a
congressional designation, the appropriate NEPA analysis and
documentation will accompany the legislative proposal for designation.
Recommendation for Administrative Designation
    The plan responsible official may also make a recommendation to
their supervisor for administrative designation that can be acted on by
that supervisor or a higher authority within the Department. For
example, Research Natural Areas (RNAs) can be recommended by a Forest
or Grassland Supervisor and may be designated by the Regional Forester
with concurrence by the Station Director. For further examples, see FSH
1909.12, section 11.15, exhibit 1 for a list of special area
designation authorities. The appropriate NEPA analysis and
documentation will be prepared when the responsible official with the
designation authority is considering a proposal to designate an area.
It is at this point in the administrative designation process that
direct, indirect, and cumulative effects of the proposed administrative
designation can be meaningfully analyzed.
Designation of a Special Area
    The responsible official also may designate a special area during
plan development, amendment, or revision. The types of special areas
that the responsible official can designate are those with the
following characteristics: Scenic, geological, botanical, zoological,
paleonotological, historical, and recreational (see FSM 2372).
Designating a special area that simply identifies one or more of these
characteristics, and also includes a plan component developed for that
particular area, may occur without further NEPA analysis and
documentation. For example, a geological area with outstanding
formations or unique geological features of the earth's development
(e.g., caves, fossils, dikes, cliffs, or faults) may be identified and
have a desired condition plan component developed when designated by a
responsible official. See FSH 1909.12, section 11.15, exhibit 1.
    Some proposed special area designations may include a prohibition
on projects or activities in those areas. If the proposed designation
includes a prohibition that commands anyone to refrain from undertaking
projects and activities in the area, or that grants, withholds or
modifies contracts, permits or other formal legal instruments, that
proposed designation will be considered separately from the plan under
Forest Service NEPA procedures. For example, if a proposal did
designate a geological area as a special area that includes a direct
prohibition on rock climbing to protect a plant species, appropriate
NEPA consideration would be required for that proposed designation.
    Examples of plan recommendations for special area designation are:

    The Responsible Official recommends the Blue Gulch area for
Wilderness designation. This area is north of the Bald Mountain
Wilderness area and includes approximately 10,000 acres with a
boundary map attached to this approval document. This recommendation
is a preliminary administrative recommendation that will receive
further review and possible modification by the Chief of the Forest
Service, the Secretary of Agriculture, and the President of the
United States. The Congress has reserved the authority to make final
decisions on wilderness designation.
    The Responsible Official recommends Highway 13 through the Blue
Gulch area as a scenic byway because it possesses outstanding views
and scenic corridor. However, the actual designation authority
resides with the Chief. If the Chief decides to designate the area,
a separate administrative process will be used.

    An example of plan special area designation is:

    The Responsible Official designates the Blue Gulch area as a
geological area because it possesses outstanding caves, fossils, and cliffs.

    Requirements of other laws are not considered plan components under
the 2005 planning rule. However, plans will cross-reference these
requirements to facilitate land management.

Forest Service Review of EISs Completed for Plan Revisions Under the
1982 Planning Rule

    In response to comments on the proposed categorical exclusion, the
Forest Service conducted a review of EISs and RODs for plan revisions
under the 1982 planning rule (see ``Results of the Review of Revised
Land and Resource Management Plan Environmental Impact Statements'' in
the Administrative Record). The following conclusions resulted from the
review.
    ? The reviewed text in the plan EISs focused on hypothetical
projects and activities or on specific prohibitions. Several reviewed
EISs described effects as being related to a plan's management
direction, but the effects were projected effects from hypothetical
projects and activities under various plan alternatives or the effects
of management area prescriptions, in the form of standards that
prohibit activities.
    ? The reviewed RODs and EISs pointed out that a project's
site-specific effects depend on the future proposed project design, the
environmental conditions of the specific location, and the application
of the plan's standards and guidelines to the future proposed project.
It is at this point that the influence of standards and guidelines on
the effects of the future proposed project can be meaningfully evaluated.
    ? Several of the reviewed RODs contained specific final
decisions (e.g., prohibiting motorized cross-country travel,
prohibiting boat use on a specific river segment) that will not
normally be included in development, amendment, or revision of land
management plans under the 2005 planning rule. Those specific final
decisions were identified and their effects analyzed in the plan EIS.

[[Page 75488]]

    The final environmental impact statement (FEIS) review conclusions
further reinforce the Forest Service's determination, based on 27 years
experience with land management planning under the 1982 planning rule,
that plans under the 2005 planning rule that provide broad information
and guidance for project and activity decision-making may appropriately
be categorically excluded from analysis and documentation in an EA or
EIS. It also helped clarify the extraordinary circumstances that would
require further NEPA analysis.

Conclusion

    For the reasons set forth herein, the Forest Service has concluded
that plans may be categorically excluded from documentation in an EA or
EIS as established in these final directives agency NEPA procedures,
absent extraordinary circumstances.
    To further confirm the determination, the Forest Service prepared
an EA for the proposed revision of the Cimarron and Comanche National
Grasslands portion of the Pike and San Isabel National Forest land
management plan. The Grasslands portion of that plan is being revised
using the 2005 planning rule. Based on the EA, the Responsible Official
concluded that the proposed plan revision would have no significant effects
and recorded this finding in a Finding of No Significant Impact (FONSI)
(December 2005, http://www.fs.fed.us/r2/psicc/projects/forest_revision/
draft_gr_ea.pdf). The Grasslands proposed plan dated
December 21, 2005 does not propose approval of any project or activity
or command anyone to refrain from undertaking projects and activities,
or grant, withhold or modify contracts, permits or other formal legal
instruments. The plan components will provide a strategic framework
with broad information and guidance--they will not compel any changes
to the existing environment. Thus, without a proposal for action that
approves projects and activities, or that commands anyone to refrain
from undertaking projects and activities, the plan components cannot be
linked in a cause-effect relationship over time and within the
geographic area to effects on air quality; threatened and endangered
species; significant scientific, cultural, and historic resources;
water quality; nor other resources. Therefore, the plan will not have a
significant effect on the quality of the human environment. The
Grasslands plan will be approved later in calendar year 2007. The
proposed plan and Environmental Assessment and Finding of no
Significant Impact (FONSI) are hereby incorporated into the
administrative record for the categorical exclusion (CE).

Comments on the Proposal

    The Forest Service provided a 60-day comment period on the proposed
land management planning categorical exclusion (Planning CE) (70 FR
1062; Jan. 5, 2005). The Forest Service received 55,000 comments in
3,334 responses (letters, form letters, and petitions). All suggestions
and comments have been reviewed and considered in preparation of this
notice of the final amendment. The Planning CE has been modified in
response to comments and the modified text of the CE can be found at
the end of this notice.
    Public comment on the proposed Planning CE addressed a wide range
of topics. Many comments discussed Forest Service management in
general. Other respondents commented on the 2005 planning rule. The
preamble to the 2005 planning rule (70 FR 1023, January 5, 2005)
provides discussion that responds to these comments on the 2005
planning rule.
    Some respondents supported the proposed CE for planning; most did
not. Following are summaries of their comments on the proposed Planning
CE and the Forest Service responses to those comments.

Comments on the Process Used To Promulgate the Categorical Exclusion

    Comment--Extension request for comment period: Several respondents
requested an extension to the 60-day comment period. They requested the
comment period remain open until 60 days after publication of the
interim directives for planning, which were published on March 23, 2005
(see 70 FR 14637). The requestors believed that the extension was
needed so that they could better understand how the 2005 planning rule
and the categorical exclusion proposal relate to each other.
    Response: The 2002 proposed planning rule introduced the concept of
using a categorical exclusion for land management planning. The public
had a 90-day opportunity to comment then on this concept. Therefore,
the Planning CE was not a new idea when the public was asked to comment
on it in the January 5, 2005 Federal Register notice (70 FR 1023,
1062). Accordingly, the Forest Service did not find it necessary to
extend the proposed Planning CE comment period beyond the March 7
closing date.
    Comment--National Environmental Policy Act compliance: Some
respondents claimed that failure to analyze the proposed categorical
exclusion with an environmental impact statement is a violation of the
NEPA. They stated that the impacts of adopting a CE in place of an EIS
for every land management plan are significant. Others stated that the
cumulative effect of the proposed Planning CE, along with other
recently adopted CEs, such as the salvage and Healthy Forest
Restoration Act categorical exclusions, would allow Forest Service
actions to occur without any environmental analysis.
    Response: The CEQ does not direct agencies to prepare a NEPA
analysis or document, including a cumulative effects analysis, before
establishing Agency procedures that supplement the CEQ regulations for
implementing NEPA. The requirements for establishing Agency NEPA
procedures are set forth in CEQ regulations at 40 CFR 1505.1 and
1507.3. The Forest Service provided an opportunity for public review
and consulted with the CEQ during the development of this categorical
exclusion. The determination that establishing categorical exclusions
does not require NEPA analysis and documentation has been upheld in
Heartwood, Inc. v. U.S. Forest Service, 73 F. Supp. 2d 962, 972-73
(S.D. Ill. 1999), aff'd, 230 F.3d 947, 954-56 (7th Cir. 2000).
    The Forest Service believes that the point in the planning process
when direct, indirect and cumulative effects occur and can be
meaningfully analyzed is when projects and activities, or actions that
command anyone to refrain from undertaking projects and activities, or
that grant, withhold or modify contracts, permits or other formal legal
instruments are proposed. The Agency continues to require scoping for
proposed actions even if the proposed action is covered by one of the
categorical exclusions listed within the Forest Service NEPA
procedures. If the Agency determines that there are extraordinary
circumstances that warrant further analysis, then further appropriate
NEPA analysis and documentation is required.
    Comment--Extraordinary circumstance definition: A number of
respondents said that the Forest Service did not clearly define what
extraordinary circumstance would require the Agency to prepare an EA or
EIS when developing, amending, or revising a land management plan. They
also said that without a clear definition, inconsistency would be
guaranteed when determining whether an EIS was required for a land
management plan.
    Response: The Forest Service agrees that the proposed extraordinary
circumstance definition was not clear.

[[Page 75489]]

Accordingly, the Agency is revising the policy section (30.3) in this
final directive to clarify when extraordinary circumstances apply to
land management plan proposals or to proposals for projects or activities,
    In the proposed directive (FSH 1909.15, chapter 30), the Agency
stated that projects or activities proposed as part of plan
development, amendment, or revision may constitute an extraordinary
circumstance. In the final directive, the Agency defined the category
more narrowly to exclude proposed 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 from the scope of the category. The
Agency then adopted the existing definition of extraordinary
circumstances for actions approving plans, plan amendment, and plan
revisions. The Agency also added wording to the existing paragraph 2
further clarifying when extraordinary circumstances exist for a
proposed action: ``The mere presence of one or more of these resource
conditions does not preclude use of a categorical exclusion. It is (1)
The existence of a cause-effect relationship between a proposed action
and the potential effect on these resource conditions and (2) if such a
relationship exists, it is the degree of the potential effect of a
proposed action on these resource conditions that determines whether
extraordinary circumstances exist.'' This added wording clarifies that
a proposed action (a land management plan, plan amendment, or plan
revision, or a project or activity) must involve a determination
whether the proposed action has an effect on any of the listed resource
conditions, and, if so, whether the potential degree of the effect
warrants further analysis and documentation in an EA or an EIS.
    A summary of the changes made to the final directive is found
earlier in this preamble under ``Background.''
    Comment--Independent scientific review: One respondent expressed
the concern that the Forest Service developed the Planning CE without
the benefit of recommendations from a committee of scientists.
    Response: In developing this categorical exclusion, the Forest
Service considered the conclusions from the Committee of Scientists
(COS) 1999 report for a more adaptable approach to planning. Secretary
Glickman chartered the COS on December 11, 1997. The Committee consists
of representatives from a variety of academic disciplines, including
but not limited to, forest and range ecology, fish and wildlife
biology, silviculture, hydrology, natural resource economics,
sociology, public participation and conflict management, ecosystem
management, land management planning, and natural resource law. The
charter for the COS stated that the Committee's purpose was to provide
scientific and technical advice to the Secretary of Agriculture and the
Chief of the Forest Service on improvements that can be made in the
National Forest System land management planning process. The COS
stated, on page 117 of their report:

    [P]erhaps the most difficult problem is that the current EA/EIS
process assumes a onetime decision. The very essence of small
landscape planning is an adaptive management approach, based upon
monitoring and learning. Although small landscape planning can more
readily do real time cumulative effects analysis * * * this kind of
analysis is difficult to integrate with a one-time decision
approach. Developing a decision disclosure and review process that
is ongoing and uses monitoring information to adjust or change
treatments and activities will need to be a high priority * * * At
the same time, its emphasis on onetime decisions is inconsistent
with an adaptive management approach. This problem may require that
a new process for disclosure and review emerge, either through
changes in administrative rules or changes in law * * *

    (Committee of Scientists Report, March 15, 1999, U.S. Department of
Agriculture, Washington, DC 193 pp.) This COS conclusion is one of the
considerations the Forest Service used to revise the 1982 planning
rule. Establishing the Planning CE would further enhance the Agency's
adaptive management and allow timelier plan amendments in response to
monitoring information.

Comments on Public and Other Forest Service Participation

    Comment--Public involvement: Many respondents expressed the
importance of involving the public in all Federal land use decision
processes. Many were concerned that without an environmental impact
statement, opportunities for public involvement and oversight in the
land management planning process will be reduced or eliminated. They
were concerned because specific public involvement requirements in the
CEQ regulations that apply to the EIS process do not apply to CEs. Many
respondents stressed how public comment and review periods are an
important piece of this country's democratic process and request that
the Forest Service not change it. Many others believe that not using
the EIS process would either eliminate, or shorten, the public comment
period from 90 to 30 days. Some respondents stated their belief that
eliminating EISs for land management plans violates the NFMA public
participation requirements. Some indicated a belief that removing the
plans from the NEPA EIS requirements would allow more meaningful public
involvement.
    Response: While categorical exclusions themselves do not require
the same system of public involvement as EISs (i.e., required Notice of
Intent to prepare an EIS and initiate scoping; comment period for a
draft EIS; review period for a final EIS), use of the Planning CE for
land management planning needs to be considered together with the
requirements for public participation and collaboration contained in
the 2005 planning rule (36 CFR 219.9). The 2005 planning rule requires
that a collaborative and participatory approach must be used for land
management planning. There are three formal public comment
opportunities in the land management planning process (36 CFR 219.9):
    1. After a Forest Service unit provides the public the required
notice that it is initiating a plan, plan amendment, or plan revision
and invites the public to comment on the need for change in a plan;
    2. During the 90-day comment period for a proposed plan, plan
amendment, or plan revision; and
    3. During the 30-day objection period prior to approving a plan,
plan amendment, or plan revision.
    The 90-day comment period (36 CFR 219.9(b)) meets the NFMA
requirements for a comment period in the development, review, and
revision of land management plans (16 U.S.C. 1604(d)). In addition, the
2005 planning rule specifically requires that the responsible official
involve the public in developing and updating the comprehensive
evaluation report, establishing the components of the plan, and
designing the monitoring program. Finally, the 2005 planning rule does
not preclude extending the 90-day comment period if necessary.
    While the 1982 planning rule did not preclude this same level of
collaboration, it also did not require it; it only required an
opportunity for the public to comment after a notice of intent was
published and during the three-month comment period on the proposed
plan and accompanying draft EIS. The 2005 planning rule provides
greater opportunities for public notification and comment during the
land management planning process than required for an EIS. It also
requires that a collaborative approach be used in land

[[Page 75490]]

management planning. Considering all of the available opportunities to
participate, people will not only continue to have access to the land
management planning process, they will have the opportunity to
participate more meaningfully. The 2005 planning rule overview also
discusses public participation in its summary of comments and responses
(70 FR 1046; Jan. 5, 2005).
    Comment--Less opportunity for public participation and for
cooperating agency status: One county official indicates that use of a
categorical exclusion for land management plans would eliminate the
opportunity for counties to use cooperating agency status during the
planning process, which the official considers ``one of the most
effective vehicles for county government to constructively participate
in [Forest Service] planning.'' Other government officials believed
that this categorical exclusion might weaken the ability of the county
and other State and local governments to access the planning process in
a constructive manner. A State fish and game department official noted
its current ability to collaborate with the Forest Service to protect
populations of game and non-game vertebrates on the forests will be
hindered by removing forest planning activities from scrutiny under NEPA.
    Response: The 2005 planning rule provides that ``the Responsible
Official must use a collaborative and participatory approach to land
management planning * * * by engaging the skills and interests of * * *
State and local governments * * *'' (36 CFR 219.9). This requires the
responsible official to take into account the jurisdiction and
responsibilities of interested and affected parties. The rule also
specifically requires the responsible official to meet with and provide
early opportunities for government agencies at all levels to
collaborate, participate, and assist with the planning process (36 CFR
219.9(a)(2)). The Forest Service is very interested in working with
State and local government and elected officials during the planning
process. The Forest Service believes that this special relationship can
continue with State and local governments and agencies as needed. Under
existing authorities, the responsible official may enter into
agreements with State and local governments to cooperate in land
management planning using mechanisms such as memorandums of
understanding, partnership agreements, and other means. The rule does
not set out specific responsibilities, leaving it to the responsible
official to (1) Meet and work with the State and local governments and
(2) determine how those governments can effectively assist in land
management planning.
    Comment--Eliminating the appeal process: Many of the comments
received addressed the appeal process and its relationship to the land
management planning process. Some people stated that because the Forest
Service is not requiring the use of an EIS, no opportunity to appeal
the land management plan would exist. Some people stated that by not
having an appeals process, the Forest Service could ignore substantive
and procedural violations raised by the public. Other people believed
that they would not be able to alert a higher level Forest Service
official about public concerns. Finally, some people predicted that the
objection process would be more expensive to use, as it would result in
more litigation and thus, higher court costs. Some respondents stated
that the Planning CE would reduce the amount of appeals and litigation
compared to the 1982 planning rule process.
    Response: There is no direct relationship between the use of an
objection or appeal process and what form of NEPA documentation (CE,
EA, and EIS) is used for planning. The 2005 planning rule requires the
responsible official to provide an opportunity to object before
approving a plan, plan amendment, or plan revision (36 CFR 219.13). The
Forest Service believes it is better to address public objections
before, rather than after, a plan's approval. It is the Agency's belief
that the opportunity to object in the 2005 planning rule will make
objectors and the responsible official work collaboratively to resolve
concerns before a plan is approved.
    An important characteristic of the objection process is that the
reviewing official is the responsible official's supervisor (36 CFR
219.16). Therefore, the Regional Forester would review objections
associated with a Forest or Grassland Supervisor's plan, plan
amendment, or plan revision. This feature of the rule retains the
higher-level review similar to what the appeals process offered.

Comments on Analysis

    Comment--Disclosure of environmental effects: Many respondents were
concerned that using a CE instead of an EIS for land management
planning eliminates disclosure of environmental effects of a land
management plan. Some were concerned that without disclosure of
environmental effects, scientists and the public would not have a basis
for providing meaningful comments. Some respondents believed that the
proposed categorical exclusion would eliminate cumulative effects
analysis of management activities across the National Forest System in
violation of NEPA.
    Response: A categorical exclusion is one method of complying with
NEPA. A categorical exclusion represents a Forest Service determination
that the actions encompassed by the category ``do not individually or
cumulatively have a significant effect on the human environment'' (40
CFR 1508.4). Plans being developed under the 2005 planning rule
typically will not include 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. Plan components provide a
strategic framework and guidance--they will not compel changes to the
existing environment. Achieving desired conditions depends on future
management decisions that will help effect a change toward or maintain
these desired conditions over time. Thus, without a proposal for action
that approves projects and activities, or that commands anyone to
refrain from undertaking projects and activities, or that grants,
withholds or modifies contracts, permits or other formal legal
instruments, the plan components cannot be linked in a cause-effect
relationship over time and within the geographic area to any resource.
Therefore, the plan will not have a significant effect on the quality
of the human environment.
    A summary of the FEIS review is found earlier in this preamble
under ``Forest Service Review of EISs Completed for Plan Revisions
under the 1982 planning rule''. From this FEIS review, the Forest
Service learned that the environmental analysis in the reviewed plan
EISs typically focused on hypothetical projects and activities. Several
reviewed EISs described effects as being related to a plan's management
direction, but in fact, the effects were projected effects from
hypothetical projects and activities under various plan alternatives or
the effects of management area prescriptions, in the form of standards
that prohibited activities. Plans under the 2005 planning rule
typically will not include 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

[[Page 75491]]

or other formal legal instruments. Such proposals will be considered
separately under Forest Service NEPA procedures (i.e., application of a
categorical exclusion or further analysis and documentation in an EA or
EIS).
    The Forest Service is still required to address the cumulative
effects of projects and activities. Those cumulative effects will be
analyzed and disclosed at the time the projects and activities are
proposed, which is the time when the Forest Service has a goal, is
actively preparing to make a decision about one or more alternatives to
achieve that goal, and the effects can be meaningfully evaluated (40
CFR 1508.23).
    Comment--Alternatives: Several respondents commented that by not
using an environmental impact statement for land management planning,
no alternatives will be considered other than the one proposed by the
Forest Service. They were concerned that this would preclude the
consideration of alternatives proposed by the public. Some suggested
that alternatives play an important role in educating the public about
the possible outcomes for national forests and grasslands. Others
believed that evaluating alternatives allows Forest Service managers to
make decisions that are more informed.
    Response: A discussion of how alternatives were required by the
1982 planning rule is found earlier in this preamble under ``History.''
In summary, with the 1982 rule, Forest Service believed the most
efficient planning approach was to integrate the rule's regulatory
requirement to formulate alternatives to maximize net public benefit
with the NEPA alternative requirement (i.e., 40 CFR 1502.14). However,
the new 2005 planning rule does not require alternatives because the
2005 planning rule envisions an iterative approach to plan development,
in which plan options are developed and narrowed successively (36 CFR
219.7(a)(6)). The Agency anticipates that the responsible official and
the public will iteratively develop and review various plan options of
plan components, including options offered by the public. Together,
they will work collaboratively to narrow the options for a proposed
plan instead of focusing on distinct alternatives. The Forest Service
has found that developing and considering distinct alternatives in an
EIS can be divisive because people often rally behind certain
alternatives and maintain adversarial positions rather than working
together to solve problems and reach agreements. The Forest Service
developed this iterative option approach to planning to encourage
people to work together, understand each other's values and interests,
and find common solutions to the important and critical planning issues
the Agency faces.
    When proposed projects and activities are analyzed and documented
in an environmental assessment or environmental impact statement, the
Forest Service will consider alternatives to the proposed action in
accordance with NEPA. Projects and activities including timber sales,
fish habitat or watershed improvement projects, livestock grazing use,
oil and gas surface use plan of operations approval, and travel
management provide the opportunity to evaluate and analyze NEPA
alternatives. Such site-specific decisions may cover different
geographic scales. For instance a travel management decision may be
forest-wide or be limited to one travel route.
    Comment--Use of a CE for wilderness proposals: A few respondents
expressed concern that a categorical exclusion does not provide the
level of analysis required for making recommendations on wilderness and
Wild and Scenic Rivers.
    Response: Wilderness and Wild and Scenic Rivers require
congressional designation. The responsible official may make a
preliminary administrative recommendation for Congressional designation
(e.g. a wilderness or Wild and Scenic Rivers segment) in the plan
approval document. As a matter of Forest Service policy, if the Chief
decides to forward preliminary administrative wilderness
recommendations to the Secretary, an appropriate NEPA document will
accompany the recommendations. Additional discussion of the wilderness
recommendation process can be found earlier in this preamble under
``Preliminary Administrative Recommendation for Congressional Designation.''
    Comment--Effects on project and activity efficiency: Some
respondents believed that categorically excluding land management plans
will increase the analysis necessary for project or activity decisions
and therefore, reduce efficiency gained during the planning process.
Some stated that without a plan EIS, cumulative effects and impacts to
forest-wide resources would now have to be evaluated in each project
decision. One county official suggested that the CE proposal be delayed
until a process can be developed that streamlines planning at all
levels, rather than shift the analysis burden from one planning level
to another. Some commented that the Forest Service should be able to
more actively and efficiently manage the National Forests System lands
with the Planning CE. One respondent suggested that the categorical
exclusion will result in more flexibility to respond to changing
ecosystem conditions.
    Response: Inherent in these comments is the assumption that land
management plan EISs consistently provided useful and up-to-date
information for project or activity analysis including sufficient
cumulative effects analysis for reasonably foreseeable projects and
activities. After 27 years of NFMA planning experience, the Forest
Service has determined that plan EIS cumulative and landscape-level
effects analyses are mostly speculative and quickly out of date (see
the ``Comment--Disclosure of Environmental Effects'' and the Response
above). Landscape conditions, social values, and budget availability
change between when a plan EIS effects analysis occurs and when most
project and activity decisions are made. Large-scale disturbances, such
as drought, insects and disease, fires, and hurricanes dramatically and
unexpectedly change conditions on hundreds to thousands of acres.
Public use of a plan area can change dramatically in a relatively short
time period, as has occurred with off-highway vehicles. Hence, the
Forest Service has found that a plan EIS typically does not provide
useful, current information about potential direct, indirect, and
cumulative impacts of project or activity proposals. Such effects will
be analyzed and disclosed when the Forest Service knows the proposal
design and the environmental conditions of the specific location.
    The 2005 planning rule sets up a process where more up-to-date
information and analyses will be available to inform project and
activity decisions by requiring the Agency to establish an
Environmental Management System (EMS) and prepare comprehensive
evaluation reports, prepare annual evaluation reports, and to perform
on-going monitoring and evaluations. The comprehensive evaluation
report must be completed for plan development and plan revisions and
updated at least every five years (36 CFR 219.6(a)). This comprehensive
evaluation will provide a broad overview of current conditions and
trends relevant to the plan area. This evaluation, supplemented with
information from annual evaluations and information from the EMS will
be part of the continually updated Plan Set of Documents and will be
considered in project or activity design and analysis. These will
provide a more accurate and effective analysis context for project and

[[Page 75492]]

activity environmental effects than had been provided in plan EISs,
thereby making project-level analysis more efficient.

Comments on Compliance With Law and Regulation

    Comment--Tribal trust responsibility: One American Indian group
expressed concern about the Forest Service's tribal trust
responsibilities and indicated that the Planning CE would result in
less environmental evaluation of projects, leading to water quality and
habitat effects on tribal treaty-reserved rights. This group stated
that ``[a] key component of the Forest [Service]'s trust responsibility
is the duty to protect the tribal treaty-reserved resources. This
includes both the resources themselves and the habitat upon which they
depend.'' They also commented that the Planning CE would result in less
evaluation and consideration of the Federal government plan's impacts
on tribal trust resources. They requested that the Forest Service
explain how the Planning CE complies with the Forest Service American
Indian policy.
    Response: The preamble for the proposed Planning CE states that the
categorical exclusion will not significantly affect communities of
Indian tribal governments, primarily because establishing the Planning
CE as part of the Forest Service's NEPA procedures does not directly
affect occupancy and use of land. Regarding consideration of effects on
American Indians, the 2005 planning rule imposes an obligation,
independent of NEPA, on Forest Service officials to consult early with
tribal governments (36 CFR 219.9(a)(3)). The intent is to work
cooperatively with Tribes where planning issues affect their interests.
Given this early consultation, issues regarding tribal treaty-reserved
rights can be identified and resolved as the plan is developed,
amended, or revised. Nothing in this Planning CE changes the Forest
Service responsibility to honor the government-to-government
relationship between Tribes and the Federal Government and conduct the
appropriate consultation and coordination with Indian Tribal
Governments (Executive Order 13175--Consultation and Coordination with
Indian Tribal Governments, dated 6 November 2000).
    Comment--Violation of NEPA because a plan is a major Federal
action: Some respondents believed that land management plans
significantly affect the environment and are therefore, major Federal
actions triggering the NEPA requirements for an EIS (40 CFR 1508.18).
Some stated that the NEPA requirements for an EIS are triggered because
land management plans are included in the category of Federal actions
that are described as ``formal plans'' in the CEQ regulations at
1508.18(b)(2). Some respondents expressed the view that by determining
the types of land uses that will occur within areas of a National
Forest, the Forest Service makes decisions in its land management plans
that ultimately can result in significant effects even though the plans
themselves may not approve specific projects or activities.
    Response: As explained in the overview to the 2005 planning rule
(70 FR 1023; Jan. 5, 2005), the CEQ regulations define ``major Federal
action'' as including ``actions with effects that may be major'' and
state, ``major reinforces but does not have a meaning independent of
significantly'' (40 CFR 1508.18). The CEQ regulation goes on to state
that Federal actions fall within several categories, one of which is
the ``[a]doption of formal plans, such as official documents prepared
or approved by Federal agencies which guide or prescribe alternative
uses of Federal resources'' (40 CFR 1508.18). However, as is further
explained in the 2005 planning rule overview, not all Federal actions
are major Federal actions significantly affecting the quality of the
human environment. Plans developed under the 2005 planning rule
typically will not include 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. As such, plans have no
independent environmental effects. Applicable plan components will
guide the design of projects and activities in the plan area. The
environmental effects of projects and activities will be analyzed under
NEPA when they are a proposal for Agency action:

    ``Proposal'' exists at that stage in the development of an
action when an agency subject to the Act has a goal and is actively
preparing to make a decision on one or more alternative means of
accomplishing that goal and the effects can be meaningfully
evaluated. Preparation of an environmental impact statement on a
proposal should be timed (Sec. 1502.5) so that the final statement
may be completed in time for the statement to be included in any
recommendation or report on the proposal. A proposal may exist in
fact as well as by agency declaration that one exists. (40 CFR 1508.23)

    Plans will be strategic and aspirational in nature and typically
will not direct alternative uses of resources nor determine the types
of land uses that will occur. Plans developed under the 2005 planning
rule will identify areas as generally suitable for uses that are
compatible with desired conditions and objectives for that area. This
identification does not create a right to that use or mean that the use
will ever occur. This identification, also, does not approve specific
activities or prohibit activities that have not been identified as a
generally suitable use for the area. A future proposed project for a
use not identified as a generally suitable use may be approved if
appropriate based on site-specific analysis and if the proposed project
is consistent with other plan components. Although not required for
approval of the future project, the site-specific NEPA analysis and
documentation may lead the responsible official to believe uses of the
type approved are generally suitable for the area and propose an
amendment to the plan to identify such uses as generally suitable for
the area.
    Comment--Court requires EISs for plans: Two respondents cited a
2003 ruling made on the Six Rivers Fire Plan as proof that an
environmental impact statement is required for a plan.
    Response: In Environmental Protection Information Center v. Forest
Service, No. C-02-2708 (N.D.Cal. Sept. 5, 2003), a Federal district
court concluded that the Six Rivers National Forest Fire Management
Plan contained decisions that required NEPA analysis and documentation
in an EA or EIS. The Department believes that the ruling only applied
only to the decisions in the Six Rivers National Fire Management Plan,
and not land management plans prepared pursuant to the 2005 planning rule.
    Comment--Cases do not support categorical exclusion: Some
respondents took issue with reliance on Ohio Forestry Ass'n v. Sierra
Club, 523 U.S. 726 (1988), and Norton v. Southern Utah Wilderness
Alliance, 124 S.Ct. 2382 (2004) (SUWA). Several noted that Ohio
Forestry was simply a ripeness case--the Supreme Court did not hold
that land management plans are inherently unreviewable and noted that
plans that incorporate final decisions have immediate effects and are
reviewable.
    Response: The preamble to the proposed Planning CE noted that plan
development, amendment, and revision is generally not the stage at
which actions are proposed to accomplish the goals contained in land
management plans (70 FR 1064; Jan. 5, 2005). The preamble further
pointed out that this view of land management plans was supported by
the previously cited Supreme Court decisions, Ohio Forestry

[[Page 75493]]

and SUWA. While the respondents believed that Ohio Forestry is simply a
ripeness case, its implications are in fact quite broad. As the Supreme
Court has noted repeatedly, ripeness is ``peculiarly a matter of
timing'' (Regional Rail Reorganization Act cases, 419 U.S. 102, 140
(1974)). In Ohio Forestry, the Supreme Court held the portion of the
land management plan at issue, which identified logging areas and
goals, did ``not command anyone to do anything or to refrain from doing
anything'' (523 U.S. 733). The plan therefore, was not ripe for review
because the Forest Service had not yet made decisions that approved
actions. However, the Court did acknowledge that plans, or portions of
plans, which include decisions having immediate effects were in a
different category (523 U.S. at 738-39). The Supreme Court repeated
this view in SUWA, stating that ``a land use plan is generally a
statement of priorities; it guides and constrains actions, but does not
(at least in the usual case) prescribe them'' (124 S.Ct. at 2383). Ohio
Forestry and SUWA are, therefore, significant because they acknowledge
the fundamentally strategic nature of planning. In the specific context
of those cases, the strategic nature of planning, contrasted against
the more concrete nature of project-level activity, led the Court to
determine that judicial review of plans was inappropriate.
    The consideration of timing, as well as the contrast between
planning and projects, supports a categorical exclusion for land
management planning. To a greater extent than before, plans under the
2005 planning rule will be strategic and aspirational in nature,
setting desired conditions and objectives and guidance for subsequent
on-the-ground projects or activities. At the point of a proposed
project or activity, the Forest Service can meaningfully evaluate the
project or activity's environmental effects (40 CFR 1508.23). Where a
project or activity is approved in connection with plan development,
amendment, or revision, that approval will be analyzed in an
appropriate NEPA document.
    Thus, Ohio Forestry and SUWA both acknowledge the fundamental
nature of land management plans as tools to guide later decisionmaking
that generally will not have a significant effect on the environment.
    Comment--Violation of NFMA analysis requirements: Several
respondents stated that use of a categorical exclusion for planning
would violate NFMA. These respondents interpret NFMA as requiring the
preparation of EISs for plans and/or precluding the Forest Service from
using a categorical exclusion for land management planning. One
respondent stated that other provisions of NFMA regarding plans, such
as the requirements to specify guidelines for species diversity and
timber harvest, means that plans must have significant environmental
effects which preclude the use of a categorical exclusion, or, at a
minimum, that this determination should be made on a case by case basis.
    Response: The NFMA does not require EISs for plan development,
amendment, or revision. Rather, NFMA requires the Secretary to
promulgate regulations ``specifying procedures to insure that land
management plans are prepared in accordance with [NEPA] including, but
not limited to, direction on when and for what plans an environmental
impact statement * * * shall be prepared'' (16 U.S.C. 1604(g)(1)).
Thus, Congress gave the Secretary the authority to determine ``when and
for what plans'' an EIS is needed.
    The Forest Service has complied with this requirement by specifying
in the 2005 planning rule that land management planning will follow
established Forest Service NEPA procedures and that, absent
extraordinary circumstances, an appropriate categorical exclusion would
be relied upon (36 CFR 219.4). Use of a categorical exclusion is itself
a form of NEPA compliance and nothing in NFMA precludes the use of a
categorical exclusion for land management planning. Indeed, the plain
wording of NFMA at 1604(g)(1) confirms that the Forest Service has the
discretion to determine the appropriate method of NEPA compliance.
    Regarding the concern that NFMA provisions, such as those requiring
the Agency to specify guidelines for diversity, preclude the use of a
CE, the Forest Service believes it meets the NFMA requirement through
plan components under the 2005 planning rule, such as desired
conditions and objectives. For example, a responsible official might
choose to provide for diversity of plant and animal communities, as
provided in 16 U.S.C. 1604(g)(3), by providing guidance in the plan to
improve habitat for a specific species. Such guidance would have no
independent environmental effect. Rather, it could influence the
direct, indirect, and cumulative effects of a future project or
activity to improve habitat that may be proposed by the responsible
official. At that time, the responsible official would use applicable
plan components to determine the design of the project or activity
based on the environmental conditions of the specific location.

Regulatory Certifications

Environmental Impact

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

Regulatory Impact

    This final directive has been reviewed under USDA procedures and
Executive Order 12866, Regulatory Planning and Review. It has been
determined that this is not an economically significant action. This
action to issue agency direction will not have an annual effect of $100
million or more on the economy nor adversely affect productivity,
competition, jobs, the environment, public health or safety, nor State
or local governments. This action will not interfere with an action
taken or planned by another agency. This action will not alter the
budgetary impact of entitlements, grants, user fees, or loan programs
or the rights and obligations of recipients of such programs. Because
of the extensive interest in National Forest System (NFS) planning and
decision-making, this CE for developing,

[[Page 75494]]

amending, and revising land management plans has been designated as
significant and, therefore, is subject to Office of Management and
Budget review under E.O. 12866.

Cost/Benefit Analysis

    A detailed cost-benefit analysis was prepared, approved, and
included in the regulatory impact for the January 5, 2005, Final Rule
(36 CFR 219) for National Forest Land Management Planning. That
analysis included an examination and discussion on key activities in
land management planning for which costs could be estimated under the
1982 and the 2005 planning rules. The 1982 planning rule was used as
the baseline for the analysis because all the land management plan
revisions completed prior to the issuance of the 2005 planning rule
have used the requirements of the 1982 planning rule (i.e., completing
an EIS).
    Since the Forest Service is merely adjusting its NEPA implementing
procedures to carry out the 2005 planning rule, no new assumptions for
a cost-benefit analysis have been created. A review of the data and
information for 2005 planning rule's detailed analysis has concluded
that they are relevant, pertinent, and sufficient in analyzing the
costs and benefits of establishing a new CE. No new information exists
today that would significantly alter the information contained in the
original detailed analysis; therefore, it is hereby incorporated by
reference.
    The detailed analysis for the 2005 planning rule is posted on the
World Wide Web/Internet at http://www.fs.fed.us/emc/nfma/index.htm,
along with other documents associated with that planning rule. The primary
economic effects of the new CE for developing, amending and revising a
land management plan under the 2005 planning rule are changes in costs
for conducting environmental analysis and preparing NEPA documents. The
new CE would reduce agency costs by reducing the NEPA documentation
requirements for land management plans.
    Based on the quantified costs estimated for the 2005 planning rule
compared with continued use of an EIS under the 1982 planning rule, the
average annual undiscounted cost savings for the 2005 planning rule are
estimated to be $22.6 million. This savings focuses on a comparison of
each rule's planning activity centers, which specifically compare
documentation of an EIS or CE for land management planning. It also
demonstrates the savings associated with the streamlined application of
NEPA analysis guidance by using a CE under the 2005 planning rule.
    Many of the benefits and costs associated with using the CE for
plans developed, amended, or revised under the 2005 planning rule are
not quantifiable. Other benefits, including collaborative and
participatory public involvement to more fully address public concerns,
timely environmental analysis, and shortening preparation time for the
environmental documents with those changed conditions, such as
wildfire, indicate a positive effect of using a CE instead of preparing
an EIS.

Federalism

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

Consultation and Coordination With Indian Tribal Governments

    Pursuant to Executive Order 13175 of November 6, 2000,
``Consultation and Coordination With Indian Tribal Governments,'' the
Agency has assessed the impact of this final directive on Indian Tribal
governments and has determined that the categorical exclusion does not
significantly or uniquely affect communities of Indian Tribal
governments. The final directive deals with requirements for NEPA
analysis and documentation for land management planning activities and,
as such, has no direct effect regarding the occupancy and use of NFS land.
    The Agency has also determined that this final directive does not
impose substantial direct compliance cost on Indian Tribal governments.
This final directive does not mandate Tribal participation in NFS
planning. Rather, the 2005 planning rule, with which this final
directive is associated, imposes an obligation on Forest Service
officials to consult early with Tribal governments and to work
cooperatively with them where planning issues affect Tribal interests.

Civil Rights Impact Analysis

    A civil rights impact analysis was conducted for the 2005 planning
rule (36 CFR part 219 et seq.), which provided for this final directive.
This analysis is posted on the World Wide Web/Internet at http://
www.fs.fed.us/emc/nfma/index.htm, along with other documents associated
with the 2005 planning rule. That analysis found that there are no
adverse civil rights or environmental justice impacts anticipated to
the delivery of benefits or other program outcomes on a national level
for any underrepresented population or to other United States
populations or communities. The final directive would add one category
of actions to Agency NEPA procedures for development, amendment, or
revision of land management plans. This final directive establishes an
agency procedure--it does not in and of itself have effects on the
social, economic, or ecological environment or on public participation
and involvement.

No Takings Implications

    This final directive 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 final directive
does not pose the risk of a taking of Constitutionally protected
private property.

Civil Justice Reform

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

Unfunded Mandates

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), which the President signed into law on March 22,
1995, the Agency has assessed the effects of this final directive on
State, local, and tribal governments and the private sector. This final
directive does not compel the

[[Page 75495]]

expenditure of $100 million or more by any State, local, or tribal
government or anyone in the private sector. Therefore, a statement
under section 202 of the act is not required.

Energy Effects

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

Controlling Paperwork Burdens on the Public

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

Text of Amendment

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

Forest Service Handbook

1909.15--Environmental Policy and Procedures Handbook

Chapter 30--Categorical Exclusion from Documentation
* * * * *
30.3--Policy
    Revise existing paragraph 2, add a new paragraph 4, and redesignate
existing paragraph 4 as paragraph 5 as follows:
    1. A proposed action may be categorically excluded from further
analysis and documentation in an environmental impact statement (EIS)
or environmental assessment (EA) only if there are no extraordinary
circumstances related to the proposed action and if:
    a. The proposed action is within one of the categories in the
Department of Agriculture (USDA) NEPA policies and procedures in Title
7, Code of Federal Regulations, part 1b (7 CFR part 1b), or
    b. The proposed action is within a category listed in section 31.12
or 31.2 of this Handbook.
    2. Resource conditions that should be considered in determining
whether extraordinary circumstances related to a proposed action
warrant further analysis and documentation in an EA or an EIS are:
    a. Federally listed threatened or endangered species or designated
critical habitat, species proposed for Federal listing or proposed
critical habitat, or Forest Service sensitive species.
    b. Flood plains, wetlands, or municipal watersheds.
    c. Congressionally designated areas, such as wilderness, wilderness
study areas, or national recreation areas.
    d. Inventoried roadless areas.
    e. Research natural areas.
    f. American Indian and Alaska Native religious or cultural sites.
    g. Archaeological sites, or historic properties or areas.
    The mere presence of one or more of these resource conditions does
not preclude use of a categorical exclusion. It is (1) The existence of
a cause-effect relationship between a proposed action and the potential
effect on these resource conditions and (2) if such a relationship
exists, it is the degree of the potential effect of a proposed action
on these resource conditions that determines whether extraordinary
circumstances exist.
    3. Scoping is required on all proposed actions, including those
that would appear to be categorically excluded. If the responsible
official determines, based on scoping, that it is uncertain whether the
proposed action may have a significant effect on the environment,
prepare an EA (ch. 40). If the responsible official determines, based
on scoping, that the proposed action may have a significant
environmental effect, prepare an EIS (ch. 20).
    4. If the proposed action is approval of a land management plan,
plan amendment, or plan revision, the public participation requirements
of 36 CFR 219.9 satisfy the scoping requirement of paragraph 3 of this
section.
    5. Section 18 of this Handbook contains related direction regarding
correction, supplementation, or revision of environmental documents and
reconsideration of decisions to take action.
* * * * *
31.2--Categories of Actions for Which a Project or Case File and
Decision Memo Are Required

    Add a new paragraph 16 as follows:
* * * * *
    16. Land management plans, plan amendments and plan revisions
developed in accordance with 36 CFR 219 et seq. that provide broad
guidance and information for project and activity decision-making in a
National Forest System 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.
* * * * *
32.2--Decision Memo Required
    Add the following as a third unnumbered paragraph:
* * * * *
    If the proposed action is approval of a land management plan, plan
amendment, or plan revision, the plan approval document required by 36
CFR 219.7(c) satisfies the decision memo requirements of this section.
* * * * *

    Dated: December 8, 2006.
Dale N. Bosworth,
Chief, Forest Service.
[FR Doc. E6-21370 Filed 12-14-06; 8:45 am]
BILLING CODE 3410-11-P

 
 

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