[Federal Register Volume 66, Number 9 (Friday, January 12, 2001)]
[Rules and Regulations]
[Pages 3206-3218]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-552]
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Part V
Department of Agriculture
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Forest Service
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36 CFR Part 212, et al.
Administration of the Forest Development Transportation System;
Prohibitions; Use of Motor Vehicles Off Forest Service Roads; Final
Rule
Forest Service Transportation; Final Administrative Policy; Notice
Federal Register / Vol. 66, No. 9 / Friday, January 12, 2001 / Rules
and Regulations
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Parts 212, 261, and 295
RIN 0596-AB67
Administration of the Forest Development Transportation System;
Prohibitions; Use of Motor Vehicles Off Forest Service Roads
AGENCY: Forest Service, USDA.
ACTION: Final rule.
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SUMMARY: This final National Forest System Road Management rule revises
regulations concerning the management, use, and maintenance of the
National Forest Transportation System. Consistent with changes in
public demand and use of National Forest System resources and the need
to better manage funds available for road construction, reconstruction,
maintenance, and decommissioning, the final rule removes the emphasis
on transportation development and adds a requirement for science-based
transportation analysis. In concert with the revision of National
Forest System roads administrative direction published elsewhere in
today's Federal Register, the intended effect of this final rule is to
help ensure that additions to the National Forest System network of
roads are those deemed essential for resource management and use; that,
construction, reconstruction, and maintenance of roads minimize adverse
environmental impacts; and, finally, that unneeded roads are
decommissioned and restoration of ecological processes are initiated.
EFFECTIVE DATE: This rule is effective January 12, 2001.
FOR FURTHER INFORMATION CONTACT: Mike Ash, Deputy Director of
Engineering, Engineering Staff, Forest Service, 202-205-1400.
SUPPLEMENTARY INFORMATION: The following outline displays the contents
of the SUPPLEMENTARY INFORMATION section of this rule.
Background
Analysis and Response to Public Comments
General Comments
Natural Resource Agenda
Comments concerning the Natural Resource Agenda
Need for Public Access and Forest Management Access
Comments concerning the need for access
Comments concerning access rights
Cooperating Agencies
Comment concerning cooperating agencies
Forest Trails
Comments concerning the rule's impact on trails
Amount of Road To Be Decommissioned
Comments concerning road decommissioning
Relationship of the Roads Rule, the Roadless Area Conservation Rule,
and the Planning Rule.
Comments concerning the relationship among the three rules.
Levels of Road Management Decisions
Comments concerning the levels at which road management
decisions will be made
Compliance with Existing Laws, Regulations, and Congressional Intent
Comments concerning the rule's compliance with various land
management acts
Comments concerning compliance with environmental laws and
regulations
Comments concerning the Transportation Efficiency Act for the
Twenty-First Century
Comments concerning the Multiple-Use Sustained-Yield Act of 1960
Comments concerning the Administrative Procedures Act and the
Federal Advisory Committee Act
Comments concerning the Rehabilitation Act of 1973 and the
Americans with Disabilities Act
Comments regarding the rule-making process and the National
Environmental Policy Act
Comments concerning the environmental assessment
Comments concerning the rule's requirement for National
Environmental Policy Act analyses
Comments concerning No Takings implications and the Civil
Justice Reform Act \1\
Funding for Implementation of the Final Roads Rule
Comments concerning funding
Specific Comments on Proposed Revisions to 36 CFR Part 212
Comments concerning removing the term ``development''
Comments concerning changes to those sections of 36 CFR Part 212
not mentioned in the proposed rule
Comments regarding proposed Sec. 212.1 Definitions
Overall comment
Comments concerning the term ``Forest transportation atlas''
Comments concerning the term ``Forest transportation facility''
Addition of the term ``new road construction''
Comments concerning the term ``Road''
Modification of the definition for ``classified roads''
Modification of the definition for ``unclassified roads''
Other changes
Comments regarding proposed Sec. 212.2 Forest Transportation Program
Comments concerning which lands are affected by the rule
Comments concerning the contents of the forest transportation
atlas
Comments concerning use of science-based transportation analysis
Comments concerning emergency activities
Comments regarding the proposed Sec. 212.5 Road System Management
Comments concerning the references to officials
Comments concerning the order of road management options
Comments concerning the use of science-based roads analysis
Comments concerning the identification of minimum road systems
Comments concerning coordination with tribal governments
Comments concerning road management and uses
Comments concerning road decommissioning
Proposed changes to Sec. 212.6, Sec. 212.7, Sec. 212.10
Proposed Sec. 212.13 Temporary suspension of road construction in
unroaded areas
Proposed Sec. 212.20 National Forest trail system operation
Overall comment on the trail system
Conforming Amendments to 36 CFR Parts 261 and 295
Regulatory Impact
Unfunded Mandates Reform
Environmental Impact
No Takings Implications
Civil Justice Reform Act
Controlling Paperwork Burdens on the Public
Federalism
Conclusion
Background
On January 28, 1998, in an Advance Notice of Proposed Rulemaking
(ANPR) (63 FR 4350), the Forest Service announced its intent to revise
regulations concerning management of the National Forest Transportation
System. Simultaneously, the Forest Service published a proposed interim
rule (63 FR 4351) to suspend temporarily road construction and
reconstruction in certain unroaded areas of National Forest System
lands. The purpose of the interim rule was to take a ``timeout'' for 18
months while the Forest Service developed a new, long-term road
management final rule and the new analytical tools needed to provide a
more ecological approach to analyzing existing and future road needs.
On March 3, 2000, in Part III of the Federal Register, the Forest
Service issued an overview notice to provide background information on
the need for changes in the agency's national forest development
transportation system. That notice outlined the three primary actions
in a proposed new road management strategy that would help the Forest
Service find an appropriate balance between safe and efficient access
for all forest road users and the protection of healthy ecosystems. The
three primary actions proposed were the following: (1) Develop new
analytical tools to decide if, and when, new and existing roads are
needed to meet resource management objectives; (2)
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aggressively decommission roads that are determined, through forest
planning, implementation of the National Environmental Policy Act, and
other analyses, to be damaging to the environment or to be no longer
necessary for achieving resource management objectives; and (3)
maintain and improve those important roads that do not compromise
healthy lands and waters and are needed for recreation, rural access,
and the sustainable flow of goods and services. The overview notice
made clear that both a proposed revision of Forest Service regulations
on Administration of the Forest Development Transportation System and a
proposed revision of administrative directives are necessary to achieve
these three actions.
Published, also, in Part III of the Federal Register for March 3,
2000, the proposed rule clarified the transportation system information
to be gathered and to be displayed in a new forest transportation atlas
(formerly plan). The rule also proposed: (1) to remove the emphasis on
``road development'' that is in the current rules; (2) to set a
standard that each forest identify the minimum road system required to
balance access objectives with ecosystem health goals; and (3) to use a
science-based roads analysis to identify the road network needed to
serve the public and land administrators.
Comments were invited on the overview notice, the proposed rule,
and the corollary administrative directive, all published in Part III
of the March 3, 2000, Federal Register. Comments were due May 2, 2000.
The comment period was then extended to May 17, 2000, resulting in a 77
day comment period. The Forest Service invited written comments and
considered those comments in preparing this final rule.
The adoption of the final rule modifies 36 CFR part 212 to require
the development of a transportation atlas for each National Forest
System administrative unit, which displays the minimum system of roads,
trails, and airfields needed for the management of National Forest
System lands and for public access. The adoption of the final rule
removes the term ``forest development road'' to signal the shift away
from development and construction of new roads to maintaining needed
roads and decommissioning unneeded roads. The adoption of the final
rule also requires the use of a science-based analysis process to
analyze the National Forest road system. The adoption of the final rule
establishes a standard for the road system, requiring it to be in
compliance with resource objectives, to reflect likely funding, and to
minimize adverse environmental effects associated with road
construction, reconstruction, and maintenance. Equally important is the
rule's requirement to identify unneeded roads that should be
decommissioned, giving priority to decommissioning those roads that
pose the greatest risk to public safety or environmental degradation.
Revisions to 36 CFR parts 261 and 295 are those needed solely to
conform terminology revisions being adopted in 36 CFR part 212.
Analysis and Response to Public Comments
During the comment period, the Forest Service received
approximately 5,900 letters, e-mails, faxes, petitions, postcards, and
other responses to the proposed National Forest System Road Management
rule and policy. The geographic distribution of responses received was
as follows: Western States --2,105; Mountain States --1,607; Central
(Midwestern) States --733; Southeastern States --279; Northeastern
States --541; and Unknown--581. Of the nearly 5900 total responses,
5505 were received from individuals. Groups and organizations
representing forest resource users (grazing, timber, oil/gas/mining,
and recreation) accounted for 134 responses and conservation and
preservation groups submitted another 97. Government agencies and
elected officials accounted for 98 responses and are divided between:
Tribal (6), Federal (16), State (28), county (37), and local (11).
There were an additional 34 responses received from groups or
organizations that do not fit into one of the previous categories.
A number of comments received were outside the scope of this
rulemaking effort. These included matters such as comments on the
Forest Service roadless initiative, that was also underway; suggestions
to seek funding from Congress for recreation trails; suggestions to
transfer all public land to the States; suggestions to designate more
Wilderness areas; suggestions to solve jurisdictional disputes in Nye
County, Nevada; suggestions that the agency emphasize public education
to gain support for road needs; suggestions to protect the environment
by land allocation; and a suggestion to conduct an environmental impact
analysis on each road every 10 years. While these comments emerged as a
result of respondents' reviews of the proposal, they are generally not
germane to this regulation. A number of other comments received were
not specific to a particular section, but to the overall proposed rule
and administrative policy. A summary of those comments and the agency's
response to them follows.
General Comments
Natural Resource Agenda
In the overview notice that preceded the proposed road management
rule and proposed administrative policy (65 FR 11676), the Forest
Service explained that the road management initiative was a key element
of the Forest Service Natural Resource Agenda.
Comments concerning the Natural Resource Agenda: Some respondents
were concerned that implementation of the Natural Resource Agenda would
circumvent legal processes, Congressional intent, and public
involvement processes. Others expressed concern that the Natural
Resource Agenda would change the natural resource mission of the Forest
Service and encourage off-budget trust funds.
Agency response: The Natural Resource Agenda identifies long-term
program emphasis areas for the Forest Service. Specifically, it calls
for the agency to emphasize watershed health and restoration,
sustainable forest management, recreation, and roads. The Agenda is the
cornerstone of the agency's Strategic Plan prepared pursuant to the
Forest and Rangeland Renewable Resources Planning Act and the
Government Performance Results Act. The actions and goals articulated
in the Natural Resource Agenda all fall within the mission assigned to
the Forest Service through the Multiple-Use Sustained-Yield Act, the
National Forest Management Act, and the other laws that establish the
agency's mission and activities. While the Natural Resource Agenda does
place new emphasis on some resources and uses, it does not
fundamentally alter the Forest Service's mission nor does it encourage
off-budget trust funds.
Need for Public Access and Forest Management Access
In the preamble of the notice of proposed rulemaking (65 FR 11680),
the Forest Service noted that the proposal gives emphasis to providing
safe administrative and public access within the context of maintaining
healthy ecosystems.
Comments concerning the need for access: The Forest Service
received numerous comments questioning the agency's ability to
effectively manage forest resources for long-term forest health and
wildfire suppression, while reducing road access. Others were concerned
about the potential reduction
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in the number of roads open to the public and the effect fewer roads
would have on public access and recreation use on national forests and
grasslands. A few expressed concern that the agency would use road
maintenance costs or a lack of funding to justify road closures. A few
identified human and natural resource-related emergency access
concerns. Still others were concerned with the concept of road
decommissioning. Specifically, some expressed concern that roads
analysis would delay road decommissioning, while others were concerned
that the agency would not thoroughly analyze options for keeping roads
open before deciding to decommission them.
Agency response: Scientific evidence compiled to date suggests that
roads are a significant source of erosion and sedimentation and are, in
part, responsible for a decline in the quality of fish and wildlife
habitat. The agency recognizes that the National Forest Transportation
System is vitally important for responsible management of the National
Forest System lands and is essential to many rural communities and
recreational users. The agency is responsible for finding a balance
between the need for public and administrative access and the
environmental costs associated with providing that access. The final
rule and administrative policy require the use of a science-based roads
analysis process to identify road needs, issues, and opportunities. The
roads analysis process encourages the agency to actively engage the
public and other state, federal, local and tribal partners in those
discussions. The final rule at 36 CFR Part 212.5(b)(1) requires the
identification of the minimum road system needed for safe and efficient
travel and for administration, utilization, and protection of National
Forest System lands. The identification of the minimum road system
needed includes considerations for forest health, emergency access, and
public access needs. The final road management policy will improve
access by allowing the agency to focus its limited resources on the
roads people need and use.
Comments concerning access rights: Several individuals expressed
concern over the effect of the proposed rule and policy on access
rights, on roads managed by other agencies, and on roads under permit
or other agreements, such as cost-share agreements and special use
permits. Some States, such as North Dakota, were concerned the rule and
policy could circumvent state laws and policies.
Agency response: The final rule and policy do not affect existing
access rights provided by statute, treaty, or pursuant to reserved or
outstanding rights. Moreover, the final rule and policy do not impose
additional requirements on entities that possess access rights on roads
owned privately or by state, county, tribal, or local jurisdictions.
The final rule and policy provide direction regarding how the Forest
Service intends to make road management decisions, not what those
decisions must be. Road management activities on public roads with
easements through the National Forest System, such as state and county
roads, are not affected by this final rule. However, roadwork (such as
realignment or widening) on National Forest System lands outside
granted easements may require some level of roads analysis. The final
rule and policy emphasize involvement with public, federal, state,
local and tribal entities and in no way conflict with state laws.
Cooperating Agencies
Other federal agencies, States, tribal governments, and local
governments are encouraged to participate with the Forest Service in
implementing these regulations.
Comment concerning cooperating agencies: A respondent stated that
the Forest Service continually denies requests for cooperating agency
status for various States and counties.
Agency response: The agency is interested in maximizing cooperation
with all agencies and interests and has established, within the policy,
mechanisms with which to accomplish this objective. Both local agency
and public involvement are key features of the roads analysis
methodology and the National Environmental Policy Act (NEPA)
environmental analysis process. These two public involvement mechanisms
will ensure that local public issues and concerns are fully disclosed
and addressed. The agency believes that participation by state, tribal,
and local governments, as well as by individual citizens, will be
critical to the long-term success in the implementation of this final
rule and related administrative directive.
Forest Trails
The proposed rule did not propose many substantive changes to the
agency's rules on the management of trails. As with the term ``forest
development road,'' the term ``forest development trail'' would be
revised by removing the term ``development.'' Otherwise, all references
to trails were retained as adopted in the July 1, 1999, edition of
Title 36, parts 200-299 of the Code of Federal Regulations.
Comments concerning the rule's impact on trails: Several
respondents requested that the Forest Service explain the relationship
between the proposed road management rule and the management of the
National Forest Trail System. Others wanted to know the distinction
between motorized roads and motorized trails.
Agency response: The road management rule and associated
administrative policy provide direction for the management of the
forest transportation facilities. While forest transportation
facilities include roads, trails, and airfields, this final rule and
administrative policy are specific to road management, not trails.
Roads are managed for use by highway vehicles in compliance with state
laws. Motorized trails are managed for off-highway vehicles not
specifically excluded by local authority. Generaly these trails are
used by motor bikes or all-wheel drive vehicles. The final rule defines
a road as a motor vehicle travel-way more than 50 inches wide, unless
designated and managed as a trail. A trail, therefore, may be more than
50 inches wide and motorized or non-motorized. The roads analysis
process provides the means for the public and managers to address road
and trail access relationships and opportunities.
Amount of Road To Be Decommissioned
The focus of the rule and policy is on determining the need for
proper restoration, maintenance, and decommissioning of roads. The
issue of decommissioning roads received substantial comment from the
public.
Comments concerning road decommissioning: Respondents expressed a
wide range of opinions on the amount of road decommissioning that
should occur. Some stated strong feelings that all unauthorized and
environmentally damaging roads should be decommissioned immediately.
Others expressed strong concerns that if too many roads were
decommissioned, public access needs and demands would not be met.
Agency Response: At about 380,000 miles of classified roads (plus
an estimated additional 60,000 miles of unclassified roads), the forest
transportation system is considered to be largely complete. National
Forest System management's focus, therefore, through implementation of
the roads rule and administrative policy, is shifting from developing
new roads to managing access within the capability of the land. Through
the rule's roads analysis process, responsible officials
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can use local public involvement to identify roads that are needed for
access and those roads that are no longer needed. These unneeded roads
will be prioritized for decommissioning, either to return to a more
natural state or to become a designated trail.
Relationship of the Roads Rule, the Roadless Area Conservation Rule,
and the Planning Rule
In addition to the Road Management Rule, the Forest Service has two
other ongoing and related rulemaking efforts: the Land and Resource
Management Planning Rule and the Roadless Area Conservation Rule.
Comments concerning the relationship among the three rules: Many
respondents expressed concern about the relationships among the
proposed road management policy, the roadless area conservation rule,
and the planning rule and questioned their cumulative effects. Others
complained about the impacts of having to respond to these and other
national policy efforts simultaneously.
Agency response: The proposed planning rule, road management
policy, and roadless area conservation rule are three separate and
distinct Forest Service initiatives that together form a coherent
strategy for dealing with vital conservation issues. The Forest Service
teams writing the rules have coordinated with each other to ensure that
definitions and requirements are consistent across the policies. The
proposed planning rule revisions will incorporate the principles of
ecological, economic, and social sustainability into forest planning.
The proposed roadless area conservation rule addresses how to protect
inventoried roadless areas within National Forest System lands in the
context of multiple-use management.
The planning rule provides the overall framework for planning and
management of the National Forest System. The road management rule and
policy which are implemented through the planning process must adhere
to the sustainability, collaboration, and science provisions of the
planning rule. For example, under the road management policy, national
forests and grasslands must complete an analysis of their existing road
system and then incorporate the analysis into their land management
planning process. The analysis is accomplished by using a science-based
analysis procedure and by working cooperatively with other agency
partners and the public, as required by the planning rule. The road
management rule and policy are intended to ensure that the National
Forest Road System: (1) Meets current and future land and resource
management objectives; (2) provides for public uses of National Forest
System lands; (3) allows for economical and efficient management; and,
(4) minimizes and begins to reverse adverse ecological impacts
associated with the current transportation system.
The planning rule, road management rule and policy, and roadless
area conservation rule all seek to provide for long-term
sustainability, to promote collaboration, and to integrate science into
National Forest System land management decisions. The agency has
provided various public involvement and information meetings, public
hearings, use of draft documents for public, and other opportunities to
engage the public in these rulemaking efforts.
Levels of Road Management Decisions
The Forest Service proposal to revise its national road management
policy continues the practice of making decisions about road management
activities at the local level.
Comments concerning the levels at which road management decisions
will be made: Several individuals indicated a preference for road
decisions to be made at the National level, in the belief that
decisions at the national level would better ensure broad
representation for all Americans. Others suggested that road decisions
are best made at the local level by those most knowledgeable about
resource issues, and these respondents objected to the proposed
service-wide policy. Some were confused by the terms ``line officers,''
``Forest officers,'' ``responsible officials,'' and other terms for
those who would make agency decisions.
Agency response: The road management rule is an appropriate
decision to be made at the national level. Also appropriate for
issuance at the national level are policies that address national
issues or service-wide directives, which establish standards that guide
Forest Service field officials, who administer the funds and resources.
Regional Foresters, Forest Supervisors, and District Rangers are
responsible for implementation of this rule and policy. Within the
national framework, the majority of road decisions, such as whether to
build, close, or decommision a particular road, would likely be made at
the Forest Supervisor level or lower. However, road decisions would be
made using local public involvement to identify needed and uneeded
roads. To help avoid confusion, the final rule uses the term
``Responsible Official.'' (See the subsequent preamble discussion of 36
CFR 212.5.)
Compliance With Applicable Laws and Regulations
Forest Service rules must be in compliance with applicable laws and
regulations. The following comments and agency responses relate to
those requirements.
Comments concerning the rule's compliance with various land
management acts: Many respondents expressed concern that the roads
rule, if implemented, would be contrary to the statutory requirements
set forth in the Forest and Rangeland Renewable Resources Planning Act
(16 U.S.C. 1601-1613), National Forest Management Act, the Organic
Administration Act, National Forest Roads and Trails Act, and the
Federal Land Policy and Management Act. These writers stated that the
violations would be a result of the agency's shift away from the
``continued flow of products'' emphasized in the various land
management acts. They also stated that the shift away from the term
``development,'' as used in regard to forest roads and trails, would
conflict with Sec. 10(b) of the Forest and Rangeland Renewable
Resources Planning Act. In addition, some of these writers believed
that the process being used to initiate the road management rule is
outside the land management planning process and, therefore illegal.
Agency response: Generally, the respondents did not specify what
aspects of the final rule would violate existing laws, nor did they
provide suggestions for modifying or improving the regulations.
Therefore, the agency is unable to address the respondents' concerns
directly. However, the agency is confident that the proposed rule and
policy are compliant with applicable laws. The final rule sets the
guidelines for management of the forest transportation system, but does
not make site-specific decisions or allocate resources. Rather, the
final rule sets in place a process by which decisions about National
Forest System roads are to be informed through a roads analysis
approach that will include active public involvement. Allocation of
forest-land resources will continue to be made through forest planning.
The Forest and Rangeland Renewable Resources Planning Act, Sec. 10(a)
directs the ``installation of a proper system of transportation to
service the National Forest System . . . to meet anticipated needs on
an economical and environmentally sound basis.'' Section 10 (b) of the
act addresses re-vegetation requirements for roads that are not a
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part of the forest development road system. This final rule changes
nomenclature by shifting from a ``forest development road system plan''
to a ``forest transportation atlas,'' but the agency must still comply
with relevant statutes. The final rule and policy are in compliance
with sections 10(a) and 10(b) of the Forest and Rangeland Renewable
Resources Planning Act. This final rule, in fact, was developed in
response to strong public concern about National Forest System road
management issues.
Comments concerning compliance with environmental laws and
regulations: The Forest Service also received several comments
suggesting that if the agency were fully compliant with existing
environmental laws and regulations, such as the Clean Water Act and the
Endangered Species Act, the need to promulgate these regulations would
be negated.
Agency response: As stated previously, the agency must comply with
all applicable laws. The agency believes this final rule balances the
need for public use and safe public access with the protection of
healthy ecosystems.
Comments concerning the Transportation Efficiency Act for the
Twenty-First Century: A few respondents suggested that any major shift
in the road policy should include a reference to the Transportation
Efficiency Act for the Twenty-First Century (TEA-21).
Agency response: The final rule and policy do not materially change
the manner in which the Forest Service cooperates and participates in
highway management programs of the Federal Highway Administration or
the various State Departments of Transportation for highway development
and management as envisioned under TEA-21.
Comments concerning the Multiple-Use Sustained-Yield Act of 1960:
Some respondents felt that the proposed rule and administrative policy
would result in restricting motorized access so broadly as to prevent
sustained yields of forest products and would reduce other multiple
uses and, thus, violate the Multiple-Use Sustained-Yield Act of 1960.
Agency response: The final rule does not alter the statutory
multiple-use mandate or the agency's compliance with that mandate.
Lands administered by the Forest Service must continue to be managed in
consideration of the relative values of the various resource uses in
accordance with land and resource management plans (forest plans),
which are prepared in compliance with the Multiple-Use Sustained-Yield
Act of 1960 (16 U.S.C. 528), the Forest and Rangeland Renewable
Resources Planning Act, as amended by the National Forest Management
Act of 1976 (16 U.S.C. et seq), and the National Environmental Policy
Act.
Comments concerning the Administrative Procedures Act and the
Federal Advisory Committee Act: A few respondents alleged that the
agency had apparently colluded with environmental groups in drafting
the notice of proposed rulemaking, and, if so, this collusion was a
violation of the Administrative Procedures Act and the Federal Advisory
Committee Act. Some felt a statement from the Chief's speech made at
the Commonwealth Club of California and reported in the January 26,
2000, issue of a California newspaper-- ``In the end there will be
fewer roads''-- was a clear indication that the agency had already made
a decision without the opportunity for the public to provide comment.
Agency response: Section 553(c) of the Administrative Procedures
Act directs agencies to give prior notice of proposed rules and to give
an opportunity for the public to comment. The Act requires
consideration of those comments in adoption of a final rule. In order
to obtain that public comment, the agency identifies a proposed action.
There is no prohibition on listening to citizens or groups and
discussing issues or approaches prior to formulating a draft or final
rule. In fact, the Forest Service continually receives correspondence
from, or is asked to meet with, citizens, members of Congress, other
public officials, and interest groups who are asking the agency to take
action on many policy fronts. Letters from, and meetings with, interest
groups can sometimes result in discussions of potential policy changes
and help the agency formulate proposed policies. Moreover, the public
has full opportunity to comment on proposed rules.
The Federal Advisory Committee Act (FACA) is not a bar to all
formal and informal consultations between federal agencies and groups
rendering advice. Recently, the Federal District Court for the District
of Idaho rejected claims alleging violations of FACA regarding
development of its roadless rulemaking and related actions (Boise
County, Idaho v. Glickman, CV-OO-141-S-EJL (D.Id. decided Sept 8,
2000)). The requirements of FACA have not been violated.
Comments concerning the Rehabilitation Act of 1973 and the
Americans with Disabilities Act: Many respondents expressed concern
that eliminating roads would limit access for those not physically
capable of hiking and that this would result in discriminatory action
on the part of the Federal Government.
Agency response: Title V of the Rehabilitation Act of 1973 and the
Americans with Disabilities Act both cover executive branch actions of
the Federal Government. Title V prohibits discrimination in services
and employment on the basis of handicap and has no bearing on this
final rule, which would not affect employment of persons with
disabilities nor the delivery of federal services to persons with
disabilities. As to compliance with the Americans with Disabilities
Act, it is likely that accessibility to some areas of National Forest
System lands may change in the future, but any such change would follow
an indepth public involvement process during which the concerns of the
disabled wishing access to such areas would be taken into account.
Moreover, a reduction in roads would result in a more focused use of
Forest Service resources for reconstruction that could actually improve
access for the disabled on those roads most suitable to their needs and
desires.
Comments regarding the rule-making process and the National
Environmental Policy Act: Many respondents expressed the belief that
the National Environmental Policy Act mandates preparation of an
environmental impact statement rather than an environmental assessment
prior to this rule's promulgation.
Agency response: In this case, the National Environmental Policy
Act does not require an environmental impact statement or an
environmental assessment. Under the Council on Environmental Quality
regulations at 40 CFR 1501.3(b), agencies may adopt regulations which
establish categories of actions, known as categorical exclusions, which
do not require the preparation of an environmental assessment or impact
statement. Forest Service categorical exclusions are established in
Forest Service Handbook 1909.15, chapter 30. As noted in the proposed
rule, the Forest Service has established a categorical exclusion for
documentation in an environmental assessment or impact statement for
``rules, regulations, or policies to establish Service-wide
administrative procedures, program processes, or instructions.''
Although the agency determined that the rule could be categorically
excluded, to further the goals of the National Environmental Policy
Act, the Forest Service has elected to prepare an environmental
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assessment. The agency has updated the environmental assessment
addressing the reasonably foreseeable environmental impacts of this
final rule and associated policy in response to comments and new
information, and has concluded that an environmental impact statement
is not required.
Comments concerning the environmental assessment: The agency
received numerous comments regarding the National Forest Service Road
Management Strategy Environmental Assessment. Comments included:
requests for clarification of terms, assertions that the environmental
assessment violated the National Environmental Policy Act because a
full range of alternatives was not analyzed, statements that the
assumptions used in the analysis were biased in favor of closing roads,
requests to consider the environmental effects of moving timber
harvests to private lands and other countries, concern that the agency
balance the social, economic, and environmental elements, and many
others.
Agency response: Comments related to the content of the
environmental assessment have been reviewed and addressed. Agency
responses may be found in Appendix G of the National Forest System Road
Management Strategy Environmental Assessment. Comments in that Appendix
are categorized as follows: range of alternatives, adequacy of
analysis, compliance with existing laws, need for environmental impact
statement, and various editorial comments or suggestions.
Comments concerning the rule's requirement for National
Environmental Policy Act analyses: A small number of respondents
expressed the concern that the cost associated with an environmental
impact statement during the transition period for the road policy,
required prior to any road construction or reconstruction in roadless
or specific unroaded areas, could exceed the total value of one's
property or the cost of the road and, thus, constitute a taking of
private land without just compensation.
Agency response: The Forest Service is obliged to comply with all
environmental and administrative laws, including the National
Environmental Policy Act (NEPA). The Council on Environmental Quality
implementing regulations requires the Forest Service to promulgate
procedures for compliance with NEPA, including instructions on the
preparation of environmental impact statements and environmental
assessments. Compliance with applicable laws and regulations in the
review and approval of particular road construction decisions does not
constitute a taking of private property.
Comments concerning No Takings implications and the Civil Justice
Reform Act: Some respondents believe the No Takings implications and
Civil Justice Reform Act statements are incorrect because of inaccurate
RARE II inventories and resultant designations. They also believe the
road management rule will result in taking of private property rights
by restricting access to mining claims, private and native in-holdings,
and other rights of ingress and egress by closing county and permitted
roads through and within National Forest System lands. Others were
concerned that access for other federal, state, and local agencies
would be restricted by decommissioning roads.
Agency response: The agency recognizes that changes have occurred
since the RARE II inventories were completed and that on some forests
portions of inventoried roadless areas have been roaded. This final
rule requires a science-based roads analysis that will identify needed
and unneeded roads, road maintenance priorities, and other road related
resource concerns. Updating existing road inventories will occur as
part of the roads analysis process. The final road management rule and
the accompanying final administrative policy honors access to private
property pursuant to statute, treaty, and outstanding or reserved
rights, including reasonable access to private land inholdings. Also,
the final rule does not retroactively affect existing permits,
contracts, or other instruments authorizing the occupancy and use of
National Forest System lands. Forest Service officials must conduct a
roads analysis to determine the minimum road system needed to achieve
management goals and objectives. As part of that analysis, the agency
requires the responsible official to seek to involve interested and
affected citizens and organizations, including businesses, in the roads
analysis and subsequent National Environmental Policy Act processes.
Road decommissioning decisions will be made on a local basis, with
public involvement, and will take into account access needs of state,
county, and tribal governments.
Funding for Implementation of the Final Roads Rule
In the discussion of the regulatory impact of the proposed rule (65
FR 11691), the agency stated that management costs are not expected to
change significantly as a result of these proposals.
Comments concerning funding: Several respondents were concerned
that the proposed roads analysis requirements would add to the cost of
managing the National Forest Road system and that this would reduce
available road maintenance funding. Others expressed concern that the
agency does not consider roads as assets; and, therefore, the agency
would not consider and compare the cost of maintenance to the cost of
road decommissioning. Still others recognized that the Forest Service's
reduced budgets do not allow for adequate road maintenance and
suggested that avenues to enhance revenue for road maintenance, such as
user fees, be considered. Still others suggested using volunteers or
entering into cooperating maintenance agreements with user groups to
accomplish the needed road maintenance. Some questioned why the agency
requested less funding than what is needed for maintenance in Fiscal
Year 2001.
Agency response: Roads are an integral part of the Forest Service
Natural Resource Agenda and Strategic Plan. The final rule reflects the
agency's realistic capability to manage the operation, use, and
maintenance of the forest transportation system over the long term. The
overview notice (65 FR 11676) acknowledged that the agency has a
continuing problem adequately funding road maintenance. The agency is
exploring the potential benefits of converting selected high use roads
to public roads to qualify more roads for funding from the Federal
Highway Trust Fund. Inventories of forest transportation system
maintenance and restoration needs, which are to be conducted under the
rule and administrative policy, are intended to provide a basis for
future funding requests for road management activities. The Forest
Service is proud of the volunteer relationships that have been
developed and strengthened over time and will continue to use
volunteers as appropriate. Issues of revenue enhancement are beyond the
scope of this final rule.
Specific Comments on Proposed Revisions to 36 CFR Part 212
On March 3, 2000, the Forest Service proposed to revise 36 CFR Part
212 to shift emphasis from transportation development to managing
administrative and public access within the capability of the land. The
proposal would shift the focus of National Forest System road
management from development and construction of new roads to
maintaining and restoring
[[Page 3212]]
needed roads and decommissioning unneeded roads within the context of
maintaining, managing, and restoring healthy ecosystems.
The following is a summary of substantive comments received
pertaining to the proposed rule and the agency's response, including
any changes made in the final rule.
Comments concerning removing the term ``development'': Consistent
with the intent to shift emphasis from road development to managing
access, the proposed rule removed the words ``forest development
roads'' and replaced them with the words ``National Forest System
roads.''
Several respondents objected to the removal of the word
``development'' from the rule as they felt this change indicated a
shift from sustainable forest management and public access. Others
agreed that the change was in alignment with the proposed direction of
the road management policy. Others objected to the use of the terms
``Forest Service'' roads since the respondents felt that roads on
National Forest System lands were not owned by the Forest Service, but
rather are managed by the Forest Service and ``owned'' by the public.
Agency response: The agency believes that this shift from
``development'' to improved stewardship of the transportation system is
both realistic and appropriate. Therefore, as proposed, the term
``development'' is removed in the final rule. In considering comments
on this issue, the agency discovered two other places where the term
``development'' needed to be removed: in the heading of Sec. 212.1(c)
and in the heading and text of Sec. 212.1(d). Also, with regard to the
proposed rule's reference to ``Forest Service'' roads, the agency
agrees with the comments and has changed the terminology in the final
rule from ``Forest Service roads'' to ``National Forest System roads.''
Forest roads are administrative roads, authorized by the National
Forest Road and Trail Act. Many of these roads are open to public
travel. However, they are not public roads as defined in 23 U.S.C. 101.
National Forest System roads is a more accurate term since it covers
national grasslands as well as other lands that are part of the
National Forest System.
Comments concerning changes to those sections of 36 CFR Part 212
not mentioned in the proposed rule: Some respondents wanted to know
whether other sections of 36 CFR Part 212 not specifically mentioned in
the proposed rule (such as Sec. 212.3, Sec. 212.8, Sec. 212.9 and
Sec. 212.21) would be adopted as unchanged.
Agency response: Those sections of 36 CFR Part 212 not specifically
mentioned in the proposed rule and this final rule, remain unchanged.
Comments Regarding Proposed Sec. 212.1 Definitions
The proposed rule added new definitions and updated and revised
existing definitions. The agency proposed to remove the term ``forest
transportation plan'' and instead, add the term ``forest transportation
atlas'' to more clearly reflect the nature and intent of the
transportation information being collected. Definitions also were
proposed for ``road,'' ``classified road,'' and ``unclassified road.''
These terms are necessary to understand and implement the requirements
of Sec. 212.5 that provide direction for the identification of needed
and unneeded National Forest System roads.
Overall comment: Several respondents requested that the definitions
be simplified for clarity and understanding. Others were concerned with
apparent conflicts among the definitions of federal, state, and local
jurisdictions. The area of most concern was the definition of a
``road.'' Many people stated that the Forest Service should clarify its
definition of a road and offered suggestions as to what the definition
should be.
Agency response: In the final rule at Sec. 212.1, the definitions
for ``forest transportation atlas,'' ``forest transportation
facility,'' and ``road'' have been revised in response to comments. The
term ``temporary roads and other temporary facilities'' has been
defined and added to the definition of a road. The previous definition
of ``construction'' was replaced with a definition for ``new road
construction'' to be consistent with the revised administrative policy.
Comments concerning the term ``Forest transportation atlas'': Some
respondents expressed the concern that the agency was violating the
Forest and Rangeland Renewable Resources Planning Act by replacing the
term ``forest development transportation plan'' with ``forest
transportation atlas.'' Others wanted to know what the difference was
between a forest transportation atlas and a forest transportation plan.
Agency response: The Agency has not only changed the name from
``forest transportation development plan'' to ``forest transportation
atlas'' but also has more clearly identified the requirements of the
atlas. The forest transportation atlas serves as the repository of road
related information. As part of this final rule, each administrative
unit must prepare and maintain a forest transportation atlas, which
must contain information about the transporation system, such as
inventories, descriptions, and geo-spatial displays of the forest
roads, trails, and airfields. The forest transportation atlas will be
updated, as needed, through ongoing inventories or via project planning
and must be available to the public.
Comments concerning the term ``Forest transportation facility'':
Many respondents felt the proposed revisions in terminology and
definitions were consistent with the change in proposed philosophy.
Other respondents wanted to know how the definition for forest
transportation facility would apply to particular roads, trails, and
airfields.
Agency response: The definition of ``forest transportation
facility'' has been modified to add the word ``designated'' to describe
trails and airfields. The change was necessary because ``classified''
is a term used to describe needed roads and does not apply to trails
and airfields. The description of facility types has been revised by
adding ``devices and other transportation network'' before the word
``appurtenances.'' The description of the lands affected was modified
to include those facilities that are ``wholly or partially within or
adjacent to National Forest System lands'' for consistency with the
administrative policy.
Addition of the term ``new road construction'': No comments were
received regarding the specific definition of construction; however,
for clarity, the definition for ``construction'' has been replaced in
the final rule with the term ``new road construction'' and minor
changes were made to the definition.
Comments concerning the term ``Road'': There were many comments
requesting clarification of the terms ``road,'' ``classified road,''
and ``unclassified road,'' as well as questions about where temporary
roads should be categorized. Others offered suggestions as to what the
definition of ``road'' should be.
Agency response: The agency has revised terms related to roads to
more clearly delineate various categories of roads. The definition for
road has been modified to replace the word ``classified'' with the word
``designated'' when referring to trails. The term ``classified''
describes a needed road and does not apply to trails or airfields. In
addition, the term ``temporary roads'' was added to identify temporary
roads as a subcategory of a road.
Modification of the definition for ``classified roads'': The
definition for classified roads has been modified to
[[Page 3213]]
better describe which roads are classified roads and to fully conform
to the definition of ``Forest Road'' (23 U.S.C. 101) of which
classified roads are a subset.
Modification of the definition for ``unclassified roads'': The
definition for unclassified roads has been modified in the final rule
to clarify that these roads are not managed as part of the forest
transportation system. In addition, the term ``temporary roads'' has
been removed from the definition of unclassified road and has been set
out as a separate subcategory of road to acknowledge that temporary
roads are managed differently than unclassified roads. An example of a
temporary road would be those needed for short-term access to forest
areas for restorative efforts after fires.
Other Changes
In addition to changes made in response to comments, the agency
discovered that it had failed to include a definition for the term
``road decommissioning'' in the proposed rule. A definition had been
included in the final rule and administrative policy at FSM 7705.
Concerns Regarding Proposed Sec. 212.2--Forest Transportation Program
The proposed rule recommended revising Sec. 212.2 to require a
transportation atlas for each National Forest System administrative
unit in lieu of the current ``forest transportation plan.''
Comments concerning which lands are affected by the rule: Some
respondents did not understand what constituted the ``National Forest
System'' and wanted the Forest Service to clarify the lands to which
the rule applied. Others wanted the Forest Service to clarify whether
the proposal applied to National Grasslands as well as National
Forests.
Agency response: Paragraph (a) of proposed Sec. 212.2 identifies
the lands for which transportation atlas must be prepared. Grasslands
are specified when describing the administrative units to which the
final rule applies. However, to ensure that readers understand what
constitutes the ``National Forest System,'' that term has been added at
Sec. 212.1 in the final rule including the definition set out in the
Forest Rangeland Renewable Resources Planning Act. Additionally, for
clarity, the term ``national grassland'' rather than ``grassland,'' is
used in Sec. 212.2(a) of the final rule.
Comments concerning use of science-based transportation analysis:
Paragraph (a) of proposed Sec. 212.2 indicated that the identification
of transportation facilities was required by science-based analysis.
There were many comments in support of the requirement of a science-
based transportation analysis. One organization submitted a ``best
science'' document and requested that this document be given
consideration in the final rule. Other respondents were concerned that
the requirement to carry out a science-based analysis prior to any new
road construction would hamper the ability of the agency to respond
quickly to conditions requiring immediate action, such as fire
emergencies.
Agency response: The agency is pleased with the support for
science-based roads analysis. The requirement to use science-based
analyses has been moved to paragraph Sec. 212.5(b)(1) Identification of
road system to clarify how the analysis would be used.
Comments concerning emergency activities: A number of respondents
wrote to state that emergency activities should be exempt from roads
analysis.
Agency response: The agency has provided for exemptions from roads
analysis for emergency activities in Forest Service Manual 7712.16
[Interim Requirements for road construction/reconstruction in
inventoried roadless and contiguous unroaded areas].
Concerns Regarding the Proposed Sec. 212.5--Road System Management
Paragraph (b) (1) of this section of the proposed rule directed
responsible officials to identify the minimum transportation system
needed to administer, protect, and utilize National Forest System
lands. This section also established a standard that the road system on
each unit must be commensurate with the resource objectives adopted in
forest plans, must reflect likely funding, and, to the extent
practicable, must minimize the adverse environmental impacts associated
with road construction, reconstruction, and maintenance. Finally, to
provide the information necessary to meet these requirements, the
proposed rule required Forest Service officers to conduct a roads
analysis at appropriate scales with opportunities for public
involvement and consultation with state, local, and tribal governments.
Proposed paragraph (b) (2) addressed identification and
decommissioning of roads not needed to meet forest plan resource
objectives. The proposed paragraph also gave direction on scheduling of
decommissioning, giving priority to decommissioning those roads posing
the greatest risk to public safety or to environmental quality.
Comments concerning the references to officials: Several reviewers
found the various references to decision makers, such as ``line
officers,'' ``forest officers,'' and ``responsible official''
confusing.
Agency response: The agency understands how these terms, which are
well understood by Forest Service employees, can be confusing to
others. As a result, in the final rule only the term ``responsible
official'' is used to indicate the decisionmaker.
Comments concerning the order of road management options: A
respondent noted that the order of possible road management options
varied: from construction, reconstruction, decommissioning, and
maintenance in the Roads Analysis document to decommissioning,
reconstructing, maintaining, and then constructing in the proposed
policy and rule. The respondent stated that though a subtle change,
such a change might be significant.
Agency response: The ordering of road management activities in the
various documents was random and does not signify any importance or
priority of one type of activity over another.
Comments concerning use of science-based roads analysis: There were
many comments in support of the requirement to use a science-based
roads analysis process to identify needed and unneeded roads. One
environmental organization submitted a document that identified the
``latest'' science-based research on roads and related environmental
effects and requested the document be given consideration in the final
rule.
Agency response: This final rule does not establish any specific
science-based roads analysis process as the standard to be used;
rather, it preserves Forest Service flexibility to further describe
science-based roads analysis in conjunction with other ecosystem
analyses and to adjust the process in response to new scientific
information about road and resource management interactions.
Appropriate portions of Sec. 212.5 have been revised to provide
clarifying direction for using a science-based analysis to identify
those transportation facilities needed for the management and access of
National Forest System lands. Science-based roads analysis is discussed
further in the final administrative policy published elsewhere in
today's Federal Register.
Comments concerning the identification of minimum road systems:
Concerned about the proposed direction to identify the minimum road
system needed, many respondents questioned
[[Page 3214]]
the ability of the agency to effectively manage forest resources long-
term while reducing road access. Others objected strongly to the
reduction in roads open to public use because of the effect on public
access and recreation opportunities on National Forest System lands.
Still, others favored and expected to see a reduction in roads on
National Forest System lands as a result of the final rule and
administrative policy. Most of these concerns were linked to opinions
about negative environmental impacts of road construction and to
concerns that roads may not be maintained to safe standards.
Agency response: In the final rule, the agency has clarified the
phrase ``minimum road system'' to mean the road system necessary to
meet resource and other management objectives adopted in the land and
resource management plan, to meet applicable statutory and regulatory
requirements, and, to the extent practicable, to minimize the adverse
environmental impacts associated with road construction,
reconstruction, decommissioning, and maintenance. When identifying the
minimum road system, responsible officials also must consider and be
responsive to expected long-term road funding.
Comments Concerning Coordination With Tribal Governments
Some respondents expressed concern that the proposed rule did not
sufficiently emphasize the importance of communication between agency
and tribal governments.
Agency response: The agency agrees, and in the final rule, the
agency has added ``tribal governments'' Sec. 212.5(b)(1) to the list of
other government entities with whom the responsible official must
consult when conducting a roads analysis.
Comments concerning road management and uses: Some respondents
questioned the need for a process to identify whether new roads are
needed, or to identify which existing roads should be reconstructed,
maintained, or decommissioned. Other respondents questioned whether and
how the road management policy and use of the roads analysis would
allow for the consideration of other motorized and non-motorized uses.
Agency response: The final rule directs the agency to use a roads
analysis to determine the minimum road system needed to meet resource
and other management objectives adopted in forest plans. The roads
analysis is a critical component of the overall road strategy that will
help to ensure that road issues and concerns are fully disclosed and
analyzed. In response to the query about how the roads analysis would
allow for consideration of other travel means, text has been added to
paragraph Sec. 212.5(b)(2) to recognize that roads may be converted to
other uses.
Comments concerning road decommissioning: Some respondents felt
that the term needed to be clarified or better defined. A few
respondents requested more specific information about the end
objectives of decommissioning a road. Others equated decommissioning to
road closure and restricted access to public lands and restricted use
of forest resources.
Agency response: In the final rule, Sec. 212.5(b)(2) has been
expanded to more accurately describe the activities and treatments
encompassed within the term ``decommissioning''. Decommissioning is
described as an activity that restores roads to a more natural state.
Activities used to decommission a road include the following: (1)
reestablishing former drainage patterns, stabilizing slopes, and
restoring vegetation; (2) blocking the entrance to the road, installing
water bars, removing culverts, reestablishing drainage-ways, and
removing unstable fills; (3) pulling back road shoulders; (4)
scattering slash on the roadbed; (5) complete elimination of the
roadbed by restoring natural contours and slopes; and (6) other methods
designed to meet the specific conditions associated with the land
around the unneeded road. Therefore, the agency has adopted Sec. 212.5
as proposed except for the changes noted. It should be noted that in
addition to decommissioning roads, the responsible official may also
convert roads to other uses such as trails.
Proposed Changes to Sec. 212.6, Sec. 212.7, Sec. 212.10
The final rule removes the words ``forest development roads'' from
part 212 and replaces them with the words ``Forest Service roads.''
Proposed Sec. 212.13--Temporary Suspension of Road Construction in
Unroaded Areas
Section 212.13 is the requirement set out in the interim rule (63
FR 4351) that adopted a temporary road building suspension on certain
unroaded lands. The interim rule was designed to expire after 18 months
or upon the publication of a final road management rule, whichever
occured first. Therefore, this section is removed by this final rule.
Proposed Sec. 212.20--National Forest Trail System Operation
The agency proposed a revision to the rule on National Forest
development trail system to remove the reference to development.
Overall comment on the trail system: Some respondents wanted the
Forest Service to clarify the relationship between the road management
rule and management of the National Forest trail system.
Agency response: The Forest Transportation System is composed of
forest roads, trails, airfields, and related facilities. The final
roads management rule and administrative policy focuses on the road
management system because of the intense public controversy surrounding
forest road management and because of the environmental impacts
associated with roads. In addition, there is a critical need to address
the road maintenance backlog on many National Forests. The National
Forest trail system, while an important component of the overall Forest
Transportation System, is not nearly as controversial, nor as
environmentally impacting. Moreover, this rule was designed
specifically to address road management issues. However, the final rule
modifies Sec. 212.20 to require that Forest Service trails be
identified in the forest transportation atlas in recognition of the
importance of displaying the overall forest transportation network. In
the final rule, this section was revised to change the heading from
``National Forest development trail system operation'' to ``National
Forest trail system operation'' to conform to the language in the
remaining sections of part 212.
Conforming Amendments to 36 CFR Parts 261 and 295
The rules at 36 CFR part 261 list prohibited acts on National
Forest System lands. Violations of these acts may lead to a citation or
an arrest, depending on the case and its severity. There were numerous
references in these regulations to ``forest development roads.'' This
final rule replaces ``forest development road(s)'' with ``National
Forest System road(s)'' to conform to the terminology in part 212. The
final rule also replaces ``Forest Development Road System Plan'' at
Sec. 261.2 with ``Forest Transportation Atlas'' to conform with the
terminology in part 212.
The rules at 36 CFR part 295 govern use of motor vehicles off
forest development roads. This final rule replaces the term ``National
Forest development roads'' with ``National Forest System roads'' in the
heading and
[[Page 3215]]
sections of part 295 to conform with the terminology in part 212. No
substantive revisions are proposed to these parts.
No comments were received on 36 CFR part 261 or 295, and,
consequently, the final rule adopts the text of these sections as
proposed.
Conclusion
The Forest Service is adopting this final rule and corresponding
changes in administrative policy to help govern National Forest
Transportation System planning and management. This action is necessary
for the following reasons: (1) to ensure that the National Forest
Transportation System meets current and future land and resource
management objectives and provides for attendant public uses of
National Forest System lands; (2) to provide for safe public access and
travel; (3) to allow for economical and efficient management; and (4)
to the extent practicable, to minimize and begin to reverse adverse
ecological impacts from roads. This revision reflects shifts in public
opinion and changes in demand and use of the National Forest System,
considers possible economic and social benefits associated with road
construction and uses, and utilizes scientific information about the
environmental impacts of road construction. Also, all of the action
items called for in the report to the President on wildlandfires of
2000 are compatible with the final road management policy. The final
road management policy provides local decisionmakers adequate
discretion to authorize needed access to meet resource management
objectives and, is therefore, consistent with the agency's cohesive
fire strategy; ``Protecting People and Sustaining Resources in Fire
Adapted Ecosystems, a Cohesive Strategy.''
Regulatory Impact
This final rule was reviewed under USDA procedures and Executive
Order (E.O.) 12866 on Regulatory Planning and Review. The Office of
Management and Budget (OMB) determined that this is a significant rule
as defined by E.O. 12866 because of the importance of the Forest
Service road system and the level of public interest expressed in the
promulgation of the interim and final rules. A cost-benefit analysis
has been prepared as part of the environmental assessment of this rule.
Issuing new regulations consistent with emerging road management
policy will provide a transportation system that best serves current
and anticipated management objectives and public uses, including
access, of National Forest System lands. This final rule emphasizes
investing in the reconstruction and maintenance of the most heavily
used roads and establishing priorities for decommissioning unneeded
roads. This final rule requires that the agency use a roads analysis
prior to making decisions about road construction, reconstruction, and
decommissioning. The agency currently conducts transportation analysis
in association with forest planning, ecosystem assessments, and other
analyses. Thus, the agency does not expect an incremental increase of
administrative costs due to new administrative requirements under this
final rule.
The costs and benefits associated with this final rule were
described primarily in qualitative terms. Since the rule does not
result in any land management decisions, the effect of the rule on the
flow of goods and services will be further evaluated in the roads
analysis and other planning analyses. Implementation of the final rule
is expected to improve water quality, air quality, and wildlife and
fish habitat. The spread of noxious weeds and invasive plants should be
reduced. Increased emphasis on road decommissioning may reduce
recreation access in some situations. However, this reduction in access
would likely be offset by increased emphasis on maintaining existing
roads and improving access in other areas. Remote recreation settings
found in contiguous unroaded areas will be protected during the interim
requirement period.
During the interim requirement period, access that requires roads
will be limited in contiguous unroaded areas. Timber harvest and
exploration and development of minerals are likely to be impacted in
this interim period. If all planned timber harvest in contiguous
unroaded areas was foregone, approximately 65 million board feet of
timber per year could be affected. Up to 433 direct and 797 total jobs
could be affected. These effects would expect to be of short duration,
since the interim requirements period ends once comprehensive road
inventory and forest-scale roads analysis is completed and incorporated
as appropriate into the forest plan.
The cost-benefit analysis can be found in: National Forest System
Road Management Strategy Environmental Assessment. This document can be
obtained from the Internet at www.fs.fed.us/news/roads for 1 year
following publication of the final rule or by writing to the Director
of Ecosystem Management Coordination, P.O. Box 96090, Washington, D.C.
20090.
In summary, this final rule provides direction that emphasizes a
science-based approach to addressing road management activities. While
the agency cannot quantify many of the impacts of this final rule, the
agency thoroughly considered both the potential and qualitative costs
and benefits. Pursuant to requirements of Executive Order 12866, the
agency carefully assessed alternative regulatory approaches and made a
reasoned determination that the benefits justify the costs.
This final rule also has been considered in light of the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.). This final rule primarily
involves revising agency terminology and broad principles to guide the
planning and management of the Forest Service road system and has no
significant direct or indirect financial or other impact on small
businesses. Therefore, it is hereby certified that this action does not
have a significant economic impact on a substantial number of small
entities as defined by the Act.
Unfunded Mandates Reform
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), the agency has assessed the effects of this final
rule on State, local, and tribal governments, and on the private
sector. This final rule does not compel the expenditure of $100 million
or more by any State, local, or tribal government, or anyone in the
private sector. Therefore, a statment under Sec. 202 of the Act is not
required.
Environmental Impact
Section 31.1b of Forest Service Handbook 1909.15 (57 FR 43180;
September 18, 1992) excludes from documentation in an environmental
assessment or environmental impact statement ``rules, regulations, or
policies to establish Service-wide administrative procedures, program
processes, or instructions.'' The Forest Service's assessment is that
this final rule falls within this category of exclusion. Nevertheless,
the agency has prepared an environmental assessment. The agency
received numerous comments regarding the National Forest Service Road
Management Strategy Environmental Assessment. Comments included:
requests for clarification of terms, assertions that the environmental
assessment violated the National Environmental Policy Act because a
full range of alternatives was not analyzed, statements that the
assumptions used in the analysis were biased in favor of closing roads,
requests to consider the environmental effects of moving timber
[[Page 3216]]
harvests to private lands and other countries, concern that the agency
balance the social, economic, and environmental elements, and many
others.
Comments related to the content of the environmental assessment
have been reviewed and addressed. Agency responses may be found in
Appendix G of the National Forest System Road Management Strategy
Environmental Assessment. The agency has updated the environmental
assessment addressing the environmental effects of this rule and
associated policy in response to the comments and new information, and
has concluded that an environmental impact statement is not required.
The environmental assessment can be obtained from the Internet at
www.fs.fed.us/news/roads for 1 year following publication of the final
rule or by writing to the Director of Ecosystem Management
Coordination, P.O. Box 96090, Washington, D.C. 20090.
No Takings Implications
This final rule has been reviewed for its impact on private
property rights under Executive Order 12630. It has been determined
that this final rule does not pose a risk of taking Constitutionally-
protected private property; in fact, the final rule honors access to
private property pursuant to statute, treaty, and to outstanding or
reserved rights.
Civil Justice Reform Act
This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. The revision would (1) preempt all state and
local laws and regulations that are found to be in conflict with or
that would impede its full implementation; (2) would not retroactively
affect existing permits, contracts, or other instruments authorizing
the occupancy and use of National Forest System lands; and (3) does not
require administrative proceedings before parties may file suit in
court challenging these provisions.
Controlling Paperwork Burdens on the Public
This final rule does not contain any record keeping or reporting
requirements or other information collection requirements as defined in
5 CFR Part 1320 and, therefore, imposes no paperwork burden on the
public. Accordingly, the review provisions of the Paperwork Reduction
Act of 1995 (44 USC 3501, et seq.) and implementing regulations at 5
CFR Part 1320 do not apply.
Federalism and Consultation with Tribal Governments
The agency has considered this final rule under the requirements of
Executive Order 12612 and concluded that the final rule does not have
substantial direct effects on the States, on 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 at this time.
In addition, the agency has reviewed the consultation requirements
under Executive Order 13132, effective November 2, 1999. This order
calls for enhanced consultation with federal, state and local
governmental officials and emphasizes increased sensitivity to their
concerns. In the spirit of these requirements, the agency has carefully
considered, in the development of this final rule, the comments
received from States, federal agencies, tribal governments, and local
governments in response to the Advanced Notice of Proposed Rulemaking
published January 28, 1998 (63 FR 4350) and National Forest System Road
Management and Transportation System; Proposed Rule and Notices
published March 3, 2000 (65 FR 11680). In Sec. 212.2, the definition of
``forest transportation atlas'' recognizes the need to consider forest
resources upon which communities depend. Section 212.5 of the final
rule requires agency officials to use a science-based roads analysis
process and actively engage the public in identifying the Forest
Service road system. The final rule at Sec. 212.5(b)(1) calls for
consultation with affected federal agencies, State, tribal, and local
governments in identifying transportation needs. In addition to public
comments on the proposed rule and policy, the agency also contacted
many federal, state, tribal, and local government officials to clarify
provisions of the proposed rule and to understand their concerns.
Although the Forest Service did not mandate that evey field unit
had to consult with other government agencies and tribes, many Regional
Foresters and Forest Supervisors met with representatives of these
governmental entities to discuss their ideas and concerns about the
proposals. Some 98 governmental entities submitted formal comments on
the road management proposals. In the final rule, the agency has added
``tribal governments'' Sec. 212.5(b)(1) to the list of other
governmental entities with whom the responsible official must consult
when conducting a roads analysis.
This final rule provides the broad framework for managing National
Forest System roads. Instructions for complying with these revisions
are set out in a final revision of the Forest Service Manual Title 7700
that appears elsewhere in this part of today's Federal Register. The
final revisions to 36 CFR parts 212, 261, and 295, in conjunction with
final administrative direction published elsewhere in this notice
today, provide the framework for achieving this new emphasis.
List of Subjects
36 CFR Part 212
Highways and roads, National forests, Public lands--rights-of-way,
and Transportation.
36 CFR Part 261
Law enforcement, Investigations, National forests, and Seizures and
forfeitures.
36 CFR Part 295
National forests and Traffic regulations.
For the reasons set forth in the preamble, the Forest Service
amends Chapter II of Title 36 of the Code of Federal Regulations to
read as follows:
PART 212--ADMINISTRATION OF THE FOREST TRANSPORTATION SYSTEM
1. The authority citation for Part 212 continues to read as
follows:
Authority: 16 U.S.C. 551, 23 U.S.C. 205.
2. Revise the heading for Part 212 as set out above.
3. Remove the words ``forest development'' and, in their place, add
the word ``forest'' in the following places:
a. Sec. 212.1 (c) heading
b. Sec. 212.1 (d) heading, text
c. Sec. 212.1(e) heading;
d. Sec. 212.1(i) text;
e. Sec. 212.1(j) text;
f. Sec. 212.1(k) text;
g. Sec. 212.2 heading;
h. Sec. 212.2(a) text;
i. Sec. 212.2(b) text;
j. Sec. 212.2(c) text;
k. Sec. 212.4(a) text;
l. Sec. 212.4(b) text.
4. Amend Sec. 212.1 as follows:
a. Remove the paragraph designations (a)-(k) and arrange the terms
in alphabetical order.
b. Remove the definition for ``forest transportation plan'', add
the definition for ``forest transportation atlas'' and revise the
definition for ``forest transportation facility.''
[[Page 3217]]
c. Remove the term and definition for ``construction'' and add
definitions in alphabetical order, for ``new road construction,''
``National Forest System,'' ``road decommissioning'', ``road
reconstruction,'' and ``road'' to read as follows:
Sec. 212.1 Definitions.
* * * * *
Forest Transportation Atlas. An inventory, description, display,
and other associated information for those roads, trails, and airfields
that are important to the management and use of National Forest System
lands or to the development and use of resources upon which communities
within or adjacent to the National Forests depend.
Forest Transportation Facility. A classified road, designated
trail, or designated airfield, including bridges, culverts, parking
lots, log transfer facilities, safety devices and other transportation
network appurtenances under Forest Service jurisdiction that is wholly
or partially within or adjacent to National Forest System lands.
National Forest System. As defined in the Forest Rangeland
Renewable Resouces Planning Act, the ``National Forest System''
includes all National Forest lands reserved or withdrawn from the
public domain of the United States, all National Forest lands acquired
through purchase, exchange, donation, or other means, the National
Grasslands and land utilization projects administered under title III
of the Bankhead-Jones Farm Tennant Act (50 Stat. 525, 7 U.S.C. 1010-
1012), and other lands, waters or interests therein which are
administered by the Forest Service or are designated for administration
through the Forest Service as a part of the system.
New Road Construction. Activity that results in the addition of
forest classified or temporary road miles.
Road. A motor vehicle travelway over 50 inches wide, unless
designated and managed as a trail. A road may be classified,
unclassified, or temporary.
(1) Classified Roads. Roads wholly or partially within or adjacent
to National Forest System lands that are determined to be needed for
long-term motor vehicle access, including State roads, county roads,
privately owned roads, National Forest System roads, and other roads
authorized by the Forest Service.
(2) Temporary Roads. Roads authorized by contract, permit, lease,
other written authorization, or emergency operation not intended to be
part of the forest transportation system and not necessary for long-
term resource management.
(3) Unclassified Roads. Roads on National Forest System lands that
are not managed as part of the forest transportation system, such as
unplanned roads, abandoned travelways, and off-road vehicle tracks that
have not been designated and managed as a trail; and those roads that
were once under permit or other authorization and were not
decommissioned upon the termination of the authorization.
Road Decommissioning. Activities that result in the stabilization
and restoration of unneeded roads to a more natural state.
Road Reconstruction. Activity that results in improvement or
realignment of an existing classified road as defined below:
(1) Road Improvement: Activity that results in an increase of an
existing road's traffic service level, expands its capacity, or changes
its original design function.
(2) Road Realignment: Activity that results in a new location of an
existing road or portions of an existing road and treatment of the old
roadway.
* * * * *
5. Amend Sec. 212.2 by removing paragraph (c) and revising
paragraph (a) to read as follows:
Sec. 212.2 Forest transportation system.
(a) For each national forest, national grassland, experimental
forest, and any other unit of the National Forest System as defined in
Sec. 212.1 and listed in 36 CFR part 200, subpart A, the Forest
Supervisor or other responsible official must develop and maintain a
forest transportation atlas, which is to be available to the public at
administrative headquarters units. The purpose of the atlas is to
display the system of roads, trails, and airfields of the unit. The
atlas consists of the geo-spatial, tabular, and other data to support
analysis needs and resource management objectives identified in land
management plans. The atlas is a dynamic document that changes in
response to new information on the existence and condition of roads,
trails, and airfields of the unit. The atlas does not contain
inventories of temporary roads, which are tracked by the project or
activity authorizing the temporary road. The content and maintenance
requirements for the atlas are identified in the Forest Service
directive system (36 CFR 200.1).
* * * * *
Sec. 212.5, 212.6, 212.7, 212.10 [Amended]
6. Remove the words ``forest development roads'' and, in their
place, add the words ``National Forest System roads'' in the following
places:
(a) Sec. 212.5(a) text;
(b) Sec. 212.6(b) text;
(c) Sec. 212.6(c) text;
(d) Sec. 212.7(a) text; and
(e) Sec. 212.10 heading and text.
7. Amend Sec. 212.5 by adding paragraph (b) to read as follows:
Sec. 212.5 Road system management.
(a) * * *
(b) Road system--(1) Identification of road system. For each
national forest, national grassland, experimental forest, and any other
units of the National Forest System (Sec. 212.1), the responsible
official must identify the minimum road system needed for safe and
efficient travel and for administration, utilization, and protection of
National Forest System lands. In determining the minimum road system,
the responsible official must incorporate a science-based roads
analysis at the appropriate scale and, to the degree practicable,
involve a broad spectrum of interested and affected citizens, other
state and federal agencies, and tribal governments. The minimum system
is the road system determined to be needed to meet resource and other
management objectives adopted in the relevant land and resource
management plan (36 CFR part 219), to meet applicable statutory and
regulatory requirements, to reflect long-term funding expectations, to
ensure that the identified system minimizes adverse environmental
impacts associated with road construction, reconstruction,
decommissioning, and maintenance.
(2) Identification of unneeded roads. Responsible officials must
review the road system on each National Forest and Grassland and
identify the roads on lands under Forest Service jurisdiction that are
no longer needed to meet forest resource management objectives and
that, therefore, should be decommissioned or considered for other uses,
such as for trails. Decommissioning roads involves restoring roads to a
more natural state. Activities used to decommission a road include, but
are not limited to, the following: reestablishing former drainage
patterns, stabilizing slopes, restoring vegetation, blocking the
entrance to the road, installing water bars, removing culverts,
reestablishing drainage-ways, removing unstable fills, pulling back
road shoulders, scattering slash on the roadbed, completely eliminating
the roadbed by restoring natural contours and slopes, or other methods
designed to meet the specific conditions associated with the unneeded
road. Forest officials should
[[Page 3218]]
give priority to decommissioning those unneeded roads that pose the
greatest risk to public safety or to environmental degradation.
* * * * *
Sec. 212.13 [Removed]
8. Remove entire Sec. 212.13.
9. Amend Sec. 212.20 by revising the heading and paragraph (a) to
read as follows:
Sec. 212.20 National Forest trail system operation.
(a) National Forest System trails. National Forest System trails
must be identified in the forest trail atlas and on maps, which are to
be available to the public at Forest Supervisor and District Ranger
offices. Trails must be clearly marked on the ground.
* * * * *
PART 261--PROHIBITIONS
10. The authority citation for Part 261 continues to read as
follows:
Authority: 16 U.S.C. 551, 16 U.S.C. 472.
11a. Remove the words ``forest development'' and in their place add
the words ``National Forest System'' in the following:
Subpart A--General Prohibitions
a. 261.1(a)(1) text;
b. 261.1(a)(3) text;
c. 261.10(d)(2) text;
d. 261.12 heading;
e. 261.13 introductory text;
Subpart B--Prohibitions in Areas Designated by Order
f. 261.50(b) text;
g. 261.50(f) text;
h. 261.54 heading;
i. 261.56 heading and text.
11b. In Sec. 261.2, remove the definitions for ``forest development
road'' and ``forest development trail,'' and add the following
definitions in correct alphabetical order:
Sec. 261.2 Definitions.
* * * * *
National Forest System road means a road wholly or partly within or
adjacent to and serving a part of the National Forest System and which
has been included in a forest transportation atlas.
National Forest System trail means a trail wholly or partly within
or adjacent to and serving a part of the National Forest System and
which has been included in a forest transportation atlas.
* * * * *
PART 295--USE OF MOTOR VEHICLES OFF FOREST SERVICE ROADS
12. Revise the heading for Part 295 as set out above.
13. The authority citation for Part 295 continues to read as
follows:
Authority: 30 Stat. 35, as amended (16 U.S.C. 551): 50 Stat.
525, as amended (7 U.S.C. 1011) E.O. 11644, 11989 (42 FR 26959).
Sec. 295.1 [Amended]
14. In Sec. 295.1, replace the words ``National Forest development
roads'' with ``National Forest System roads.''
15. Replace the words ``forest development roads'' with ``National
Forest System roads'' in the following places:
Sec. 295.2 [Amended]
(a) Sec. 295.2 heading, and
Sec. 295.5 [Amended]
(a) Sec. 295.5 heading.
Dated: January 4, 2001.
Mike Dombeck,
Chief, Forest Services.
[FR Doc. 01-552 Filed 1-5-01; 4:30 pm]
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