[Federal Register Volume 66, Number 9 (Friday, January 12, 2001)]
[Rules and Regulations]
[Pages 3244-3273]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-726]
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Part VI
Department of Agriculture
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Forest Service
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36 CFR Part 294
Special Areas; Roadless Area Conservation; Final Rule
Federal Register / Vol. 66, No. 9 / Friday, January 12, 2001 / Rules
and Regulations
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 294
RIN 0596-AB77
Special Areas; Roadless Area Conservation
AGENCY: Forest Service, USDA.
ACTION: Final rule and record of decision.
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SUMMARY: The Department of Agriculture is adopting this final rule to
establish prohibitions on road construction, road reconstruction, and
timber harvesting in inventoried roadless areas on National Forest
System lands. The intent of this final rule is to provide lasting
protection for inventoried roadless areas within the National Forest
System in the context of multiple-use management.
EFFECTIVE DATE: This rule is effective March 13, 2001.
ADDRESSES: For additional information, refer to the Roadless Area
Conservation website (roadless.fs.fed.us). Written inquiries may be
directed to USDA Forest Service, National Forest System Roadless
Project, P.O. Box 96090, Washington, DC 20090-6090.
FOR FURTHER INFORMATION CONTACT: Scott Conroy, Project Director, Forest
Service (703) 605-5299 or (800) 384-7623.
SUPPLEMENTARY INFORMATION: The following outline displays the contents
of the preamble for this regulation.
Introduction
Purpose and Need for the Roadless Area Conservation Rule
Roadless Area Values and Characteristics
Fiscal Considerations
National Direction vs. Local Decisionmaking
Importance of Watershed Protection
Improving Ecosystem Health
Need for Action
Public Comments on the Proposed Rule
How Was Public Involvement Used in the Rulemaking Process?
What General Issues Were Identified Regarding the Proposed Rule and
Draft Environmental Impact Statement?
Overview Issues Raised by Those Opposed to Prohibitions
Issues Raised by Those Who Favor Prohibitions
Issues Raised by Federal, Tribal, State, and Local Public
Officials
What Specific Issues Were Raised on the Proposed Rule and What
Changes Did the Agency Make From Proposed to Final Rules?
Proposed Sec. 294.10. Purpose
Proposed Sec. 294.11. Definitions
Proposed Sec. 294.12. Prohibition on road construction and
reconstruction in inventoried roadless areas
Final Sec. 294.13. Prohibition on timber cutting, sale, or
removal in inventoried roadless areas
Proposed Sec. 294.13. Consideration of roadless area
conservation during forest plan revision
Proposed Sec. 294.14. Scope and applicability
What Other Issues Were Considered in the Final Environmental Impact
Statement?
Environmental Effects
Forest Dependent Communities
Local Decisionmaking
The Final Rule and Alternatives Considered
What Alternatives and Mitigation Measures Were Considered by the
Agency?
Prohibition Alternatives
Exceptions and Mitigation Measures
Tongass National Forest Alternatives
What is the Environmentally Preferred Alternative?
What is the Final Rule and What Are the Reasons for Selecting that
Alternative?
Prohibition Alternatives
Exceptions
Tongass National Forest Alternatives
Decision Summary
Regulatory Certifications
Regulatory Impacts
Summary of the Results of the Regulatory Impact Analysis
Summary of the Results of the Final Regulatory Flexibility
Analysis
Environmental Impact
The Endangered Species Act of 1973, as Amended
Other Required Disclosures
Controlling Paperwork Burdens on The Public
Unfunded Mandates Reform
No Takings Implications
Civil Justice Reform Act
Federalism and Consultation with Tribal Governments
Introduction
The Department of Agriculture is adopting this final rule to
protect and conserve inventoried roadless areas on National Forest
System lands. This preamble states the basis and purpose of the rule,
includes responses to comments received on the proposed rule, and
serves as the record of decision for this rulemaking. Preparation of
the record of decision is required by the Council on Environmental
Quality regulations (40 CFR 1505.2) implementing the National
Environmental Policy Act (NEPA) (42 U.S.C. 4321). This document sets
forth the reasons supporting the decision to adopt the final rule; the
major policy issues that were raised in public comment; responses to
public comment and changes adopted in response to comments; and the
reasons this final rule was selected from among the alternatives
considered to meet the agency's purpose and need, as described in the
four volume final environmental impact statement (FEIS) and project
record, which are incorporated by reference. Agency responses to
comments on the draft environmental impact statement (DEIS) are
contained in Volume 3 of the Forest Service Roadless Area Conservation
FEIS (November 2000). Responses in Volume 3 relevant to the final rule
are summarized in this document. Throughout this preamble and record of
decision, citations to chapters and pages of the FEIS are provided for
further information regarding the alternatives and effects analysis;
for example, (FEIS Vol. 1, 3-237) refers to volume 1, chapter 3, page
237.
This final rule is available on the Forest Service website
(roadless.fs.fed.us), along with the FEIS and much of the record
supporting the decision for this final rule.
Purpose and Need for the Roadless Area Conservation Rule
The Department of Agriculture is responsible for managing National
Forest System resources to sustain the health, diversity, and
productivity of the nation's forests and grasslands to meet the needs
of present and future generations. As noted in the USDA Forest Service
Strategic Plan (2000 Revision) (www.fs.fed.us/plan, October 2000),
demands for, and supplies of, renewable resources change over time in
response to social values, new technology, and new information. In the
future, expanding urban areas and increased fragmentation of private
lands make it likely that the largest and most extensive tracts of
undeveloped land will be those in public ownership.
This final rule prohibits road construction, reconstruction, and
timber harvest in inventoried roadless areas because they have the
greatest likelihood of altering and fragmenting landscapes, resulting
in immediate, long-term loss of roadless area values and
characteristics. Although other activities may also compromise roadless
area values, they resist analysis at the national level and are best
reviewed through local land management planning. Additionally, the size
of the existing forest road system and attendant budget constraints
prevent the agency from managing its road system to the safety and
environmental standards to which it was built. Finally, national
concern over roadless area management continues to generate
controversy, including costly and time-consuming appeals and litigation
(FEIS Vol. 1, 1-16 to 1-17). This final rule addresses these needs in
the context of a national rulemaking.
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Roadless Area Values and Characteristics
Inventoried roadless areas considered in this rule constitute
roughly one-third of all National Forest System lands, or approximately
58.5 million acres. Although the inventoried roadless areas comprise
only 2% of the land base in the continental United States, they are
found within 661 of the over 2,000 major watersheds in the nation (FEIS
Vol. 1, 3-50) and provide many social and ecological benefits.
As urban areas grow, undeveloped private lands continue to be
converted to urban and developed areas, and rural infrastructure (such
as roads, airports, and railways). An average of 3.2 million acres per
year of forest, wetland, farmland, and open space were converted to
more urban uses between 1992 and 1997. In comparison, 1.4 million acres
per year were developed between 1982 and 1992. The rate of land
development and urbanization between 1992 and 1997 was more than twice
that of the previous decade, while the population growth rate remained
fairly constant (FEIS Vol. 1, 3-12). In an increasingly developed
landscape, large unfragmented tracts of land become more important. For
example, from 1978 to 1994, the proportion of private forest ownerships
of less than 50 acres nearly doubled (Birch, T.W. 1996. Private forest-
land owners of the United States, 1994. Resource Bulletin NE-134.
Radnor, PA: USDA Forest Service, Northeastern Experiment Station. 183
p). Subdivision and other diminishment of tract size of these lands can
discourage long-term stewardship and conservation.
Inventoried roadless areas provide clean drinking water and
function as biological strongholds for populations of threatened and
endangered species. They provide large, relatively undisturbed
landscapes that are important to biological diversity and the long-term
survival of many at risk species. Inventoried roadless areas provide
opportunities for dispersed outdoor recreation, opportunities that
diminish as open space and natural settings are developed elsewhere.
They also serve as bulwarks against the spread of non-native invasive
plant species and provide reference areas for study and research (FEIS
Vol. 1, 1-1 to 1-4).
The following values or features often characterize inventoried
roadless areas (FEIS Vol. 1, 3-3 to 3-7):
High quality or undisturbed soil, water, and air. These three key
resources are the foundation upon which other resource values and
outputs depend. Healthy watersheds catch, store, and safely release
water over time, protecting downstream communities from flooding;
providing clean water for domestic, agricultural, and industrial uses;
helping maintain abundant and healthy fish and wildlife populations;
and are the basis for many forms of outdoor recreation.
Sources of public drinking water. National Forest System lands
contain watersheds that are important sources of public drinking water.
Roadless areas within the National Forest System contain all or
portions of 354 municipal watersheds contributing drinking water to
millions of citizens. Maintaining these areas in a relatively
undisturbed condition saves downstream communities millions of dollars
in water filtration costs. Careful management of these watersheds is
crucial in maintaining the flow and affordability of clean water to a
growing population.
Diversity of plant and animal communities. Roadless areas are more
likely than roaded areas to support greater ecosystem health, including
the diversity of native and desired nonnative plant and animal
communities due to the absence of disturbances caused by roads and
accompanying activities. Inventoried roadless areas also conserve
native biodiversity by serving as a bulwark against the spread of
nonnative invasive species.
Habitat for threatened, endangered, proposed, candidate, and
sensitive species and for those species dependent on large, undisturbed
areas of land. Roadless areas function as biological strongholds and
refuges for many species. Of the nation's species currently listed as
threatened, endangered, or proposed for listing under the Endangered
Species Act, approximately 25% of animal species and 13% of plant
species are likely to have habitat within inventoried roadless areas on
National Forest System lands. Roadless areas support a diversity of
aquatic habitats and communities, providing or affecting habitat for
more than 280 threatened, endangered, proposed, and sensitive species.
More than 65% of all Forest Service sensitive species are directly or
indirectly affected by inventoried roadless areas. This percentage is
composed of birds (82%), amphibians (84%), mammals (81%), plants (72%),
fish (56%), reptiles (49%), and invertebrates (36%).
Primitive, Semi-Primitive Non-Motorized, and Semi-Primitive
Motorized classes of dispersed recreation. Roadless areas often provide
outstanding dispersed recreation opportunities such as hiking, camping,
picnicking, wildlife viewing, hunting, fishing, cross-country skiing,
and canoeing. While they may have many Wilderness-like attributes,
unlike Wilderness the use of mountain bikes, and other mechanized means
of travel is often allowed. These areas can also take pressure off
heavily used wilderness areas by providing solitude and quiet, and
dispersed recreation opportunities.
Reference landscapes. The body of knowledge about the effects of
management activities over long periods of time and on large landscapes
is very limited. Reference landscapes of relatively undisturbed areas
serve as a barometer to measure the effects of development on other
parts of the landscape.
Natural appearing landscapes with high scenic quality. High quality
scenery, especially scenery with natural-appearing landscapes, is a
primary reason that people choose to recreate. In addition, quality
scenery contributes directly to real estate values in nearby
communities and residential areas.
Traditional cultural properties and sacred sites. Traditional
cultural properties are places, sites, structures, art, or objects that
have played an important role in the cultural history of a group.
Sacred sites are places that have special religious significance to a
group. Traditional cultural properties and sacred sites may be eligible
for protection under the National Historic Preservation Act. However,
many of them have not yet been inventoried, especially those that occur
in inventoried roadless areas.
Other locally identified unique characteristics. Inventoried
roadless areas may offer other locally identified unique
characteristics and values. Examples include uncommon geological
formations, which are valued for their scientific and scenic qualities,
or unique wetland complexes. Unique social, cultural, or historical
characteristics may also depend on the roadless character of the
landscape. Examples include ceremonial sites, places for local events,
areas prized for collection of non-timber forest products, or
exceptional hunting and fishing opportunities.
Fiscal Considerations
The Department is also concerned about building new roads in
inventoried roadless areas, when there presently exists a backlog of
about $8.4 billion in deferred maintenance and reconstruction on the
more than 386,000 miles of roads in the Forest Transportation System.
The agency
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estimates that at least 60,000 miles of additional unauthorized roads
exist across National Forest System lands.
The agency receives less than 20% of the funds needed annually to
maintain the existing road infrastructure. As funding needs remain
unmet, the cost of fixing deteriorating roads increases exponentially
every year. Failure to maintain existing roads can also lead to erosion
and water quality degradation and other environmental problems and
potential threats to human safety. It makes little fiscal or
environmental sense to build additional roads in inventoried roadless
areas that have irretrievable values at risk when the agency is
struggling to maintain its existing extensive road system (FEIS Vol. 1,
1-5 and 3-22). The National Forest System was founded more than 100
years ago to protect drinking water supplies and furnish a sustainable
supply of timber. Neither objective is fully achievable given the
present condition of the existing road system. The risks inherent in
building new roads in presently roadless areas threaten environmental,
social, and economic values.
Development activities in inventoried roadless areas often cost
more to plan and implement than on other National Forest System lands.
Some planned timber sales in inventoried roadless areas are likely to
cost more to prepare and sell than they realize in revenues received.
Because of the level of public controversy and analytical complexity,
projects in roadless areas often require development of costly
environmental impact statements for most resource development
activities, including timber harvesting, in inventoried roadless areas.
In some cases, road construction costs are higher due to rugged terrain
or sensitive ecological factors. Many development projects in
inventoried roadless areas are appealed or litigated. These factors
contribute to generally higher costs for the agency to plan and
implement development activities in inventoried roadless areas.
National Direction vs. Local Decisionmaking
At the national level, Forest Service officials have the
responsibility to consider the ``whole picture'' regarding the
management of the National Forest System, including inventoried
roadless areas. Local land management planning efforts may not always
recognize the national significance of inventoried roadless areas and
the values they represent in an increasingly developed landscape. If
management decisions for these areas were made on a case-by-case basis
at a forest or regional level, inventoried roadless areas and their
ecological characteristics and social values could be incrementally
reduced through road construction and certain forms of timber harvest.
Added together, the nation-wide results of these reductions could be a
substantial loss of quality and quantity of roadless area values and
characteristics over time.
In 1972, the Forest Service initiated a review of National Forest
System roadless areas generally larger than 5,000 acres to determine
their suitability for inclusion in the National Wilderness Preservation
System. A second review process completed in 1979, known as Roadless
Area Review and Evaluation II (RARE II), resulted in another nationwide
inventory of roadless areas. In the more than 20 years since the
completion of RARE II, Congress has designated some of these areas as
Wilderness. Additional reviews have been conducted through the land
management planning process and other large-scale assessments. The 58.5
million acres of inventoried roadless areas used as the basis for this
analysis were identified from the most recent analysis for each
national forest or grassland, including RARE II, land and resource
management planning, or other large-scale assessments such as the
Southern Appalachian Assessment.
Of the 58.5 million acres of inventoried roadless areas considered
in the FEIS, approximately 34.3 million acres have prescriptions that
allow road construction and reconstruction. The remaining 24.2 million
acres are currently allocated to management prescriptions that prohibit
road construction; however, protections in these existing plans may
change after future forest plan amendments or revisions.
Over the past 20 years, roads have been constructed in an estimated
2.8 million of those 34.3 million acres of inventoried roadless areas.
The agency anticipates that the trend of building roads in inventoried
roadless areas will gradually decrease in the future even without this
rule due to economic and ecological factors already discussed, changes
in agency policy, increasing controversy and litigation, and potential
listings under the Endangered Species Act. While these anticipated
changes may reduce some of the impact to inventoried roadless areas,
they would not eliminate the future threat to roadless area values
(FEIS Vol. 1, 1-14 to 1-15).
On many national forests and grasslands, roadless area management
has been a major point of conflict in land management planning. The
controversy continues today, particularly on most proposals to harvest
timber, build roads, or otherwise develop inventoried roadless areas.
The large number of appeals and lawsuits, and the extensive amount of
congressional debate over the last 20 years, illustrates the need for
national direction and resolution and the importance many Americans
attach to the remaining inventoried roadless areas on National Forest
System lands (FEIS Vol. 1, 1-16). These disputes are costly in terms of
both fiscal resources and agency relationships with communities of
place and communities of interest. Based on these factors, the agency
decided that the best means to reduce this conflict is through a
national level rule.
Importance of Watershed Protection
Watershed protection is one of the primary reasons Congress
reserved or authorized the purchase of National Forest System lands.
Watershed health and restoration is also one of four emphasis areas in
the agency's Natural Resource Agenda. Protecting the remaining healthy
components of a watershed provides multiple benefits and a strong base
to anchor future restoration in unprotected portions of these
watersheds. Rivers, streams, lakes, and wetlands within a watershed are
the circulatory system of ecosystems, and water is the vital fluid for
inhabitants of these ecosystems, including people (FEIS Vol. 1, 1-1).
Inventoried roadless areas comprise a small fraction of the
national landscape, representing less than 2% of the land base of the
continental United States. They are, however, disproportionately
important to the small percentage of the land base they occupy.
Overall, National Forest System watersheds provide about 14% of the
total water flow of the nation, about 33% of water in the West (FEIS
Vol. 1, 3-46). Of the watersheds on National Forest System land, 661
contain inventoried roadless areas and 354 of those watersheds serve as
source areas of drinking water used by millions of people across the
nation. Therefore, the health of these watersheds is important to
people's health throughout the United States.
Roads have long been recognized as one of the primary human-caused
sources of soil and water disturbances in forested environments (FEIS
Vol. 1, 3-44). For example, while landslides are a natural process,
extensive research and other investigations in the West have closely
associated land management activities, particularly roading and timber
harvest, with accelerated incidence of landslides by several orders of
magnitude (FEIS Vol.
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1, 3-58). A joint study by the Forest Service and Bureau of Land
Management in Oregon and Washington found that of 1,290 landslides
reviewed in 41 sub-watersheds, 52% were related to roads, 31% to timber
harvest, and 17% occurred in undisturbed forest (FEIS Vol. 1, 3-59).
Another evaluation of landslides initiated by the Siuslaw National
Forest found that roads were the source of 41% of landslides, harvest
units less than 20 years old were the source of 36%, while natural
forest processes accounted for the remaining 23%. Without the
disturbance caused by roads and associated activities, stream channels
are more likely to function naturally (FEIS Vol. 1, 3-54). Current road
construction and timber harvest practices reduce the potential for
damage associated with the use of earlier and less sophisticated
techniques. However, even with today's improved design standards for
road construction and timber harvest, these activities can still result
in adverse effects to watersheds. These effects include pollution,
changes to water temperatures and nutrient cycles, and increased
sediment from storm or runoff events that exceed road design standards
(FEIS Vol. 1, 3-45 to 3-50).
Improving Ecosystem Health
Inventoried roadless areas provide large, relatively undisturbed
blocks of important habitat for a variety of terrestrial and aquatic
wildlife and plants, including hundreds of threatened, endangered, and
sensitive species. In addition to their ecological contributions to
healthy watersheds, many inventoried roadless areas function as
biological strongholds and refuges for a number of species and play a
key role in maintaining native plant and animal communities and
biological diversity (FEIS Vol. 1, 3-123 to 3-124). For example, about
60% of unroaded or very low road density sub watersheds within the
Interior Columbia Basin Ecosystem Management Project (ICBEMP)
assessment area are aquatic strongholds for salmonid populations (FEIS
Vol. 1, 3-161). Inventoried roadless areas are key to recovery of
salmon and steelhead stocks in decline, providing habitat to protect
species until longer-term solutions can be developed for migration,
passage, hatchery, and harvest problems associated with the decline of
anadromous fish.
Species richness and native biodiversity are more likely to be
effectively conserved in larger undisturbed landscapes, such as
inventoried roadless areas (FEIS Vol. 1, 3-142). For example,
inventoried roadless areas cover approximately 21% of the centers of
biodiversity for animals and 10% for plants identified in ICBEMP (FEIS
Vol. 1, 3-144 and 3-173). Inventoried roadless areas also provide
reference landscapes that managers can use to gauge the health and
condition of other land areas.
Road construction, reconstruction, and timber harvesting activities
can result in fragmentation of ecosystems, the introduction of non-
native invasive species, and other adverse consequences to the health
and integrity of inventoried roadless areas (FEIS Vol. 1, 3-128 to 3-
136). As human-caused fragmentation increases, the amount of core
wildlife habitat decreases. This fragmentation results in decreased
connectivity of wildlife habitat and wildlife movement, isolating some
species and increasing the risk of local extirpations or extinctions
(FEIS Vol. 1, 3-133). The value of inventoried roadless areas as
habitat for threatened, endangered, and sensitive species and as
biological strongholds can also be diminished due to these activities.
For example, 220 species that are listed as threatened, endangered, or
proposed for listing under the Endangered Species Act and 1,930 agency-
identified sensitive species rely on habitat within inventoried
roadless areas (FEIS Vol. 1, 3-180). The Department of Agriculture
believes that the risks associated with certain development activities
in inventoried roadless areas should be minimized and that these areas
should be conserved for present and future generations.
Need for Action
Promulgating this rule is necessary to protect the social and
ecological values and characteristics of inventoried roadless areas
from road construction and reconstruction and certain timber harvesting
activities. Without immediate action, these development activities may
adversely affect watershed values and ecosystem health in the short and
long term, expand the road maintenance backlog which would increase the
financial burden associated with road maintenance, and perpetuate
public controversy and debate over the management of these areas. The
new planning rules provide for review of other activities and allow for
additional protection of roadless areas, if warranted. Adoption of this
final rule ensures that inventoried roadless areas will be managed in a
manner that sustains their values now and for future generations.
Public Comments on the Proposed Rule
How Was Public Involvement Used in the Rulemaking Process?
In January 1998, Forest Service Chief Mike Dombeck proposed to
temporarily suspend road construction and reconstruction in most
inventoried roadless areas and other adjacent unroaded areas, and
provided advance notice of revisions to the regulations governing the
management of the Forest Transportation System. After analyzing public
comments on the proposal, the Agency issued an interim rule at 36 CFR
part 212, Administration of the Forest Development Transportation
System: Temporary Suspension of Road Construction and Reconstruction in
Unroaded Areas (February 12, 1999; 64 FR 7290). This Interim Roads Rule
suspended road construction and reconstruction in certain inventoried
roadless areas for 18 months (March 1999 through August 2000), while a
long-term forest transportation policy was developed. During the public
comment period for the Interim Roads Rule, the Agency received
approximately 119,000 public comments, many of which mentioned the need
for ``permanent protection'' of inventoried roadless areas.
On October 13, 1999, President William J. Clinton directed the
Forest Service to develop and propose for public comment regulations
that would provide appropriate long-term protection for currently
inventoried roadless areas. The public, and all interested parties,
were to have the opportunity to review and comment on the proposed
regulations.
To comply with this presidential directive, the agency published a
notice of intent to prepare a DEIS in the Federal Register (64 FR
56306) on October 19, 1999, and announced the initiation of the public
rulemaking process to propose the protection of certain roadless areas
within the National Forest System. Section 553(a) of the Administrative
Procedures Act exempts public property rules from the public
involvement requirements set forth in section 553. In 1971, the United
States Department of Agriculture published a voluntary waiver of the
exemption from the notice and comments requirements of 5 U.S.C. 553(b)
and (c) (36 FR 13804). Accordingly, the Forest Service published a
proposed rulemaking in the Federal Register and provided opportunity
for public participation during the development of the proposed and
final rules. (See Rodway v. USDA, 514 F.2d 809 (D.C. Cir. 1975)).
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On May 10, 2000, the Forest Service issued a proposed rule in the
Federal Register (65 FR 30276). The notice of availability of the DEIS
was published in the Federal Register on May 19, 2000 (65 FR 31898).
The public comment period on the proposed rule and DEIS closed on July
17, 2000. The notice of availability of the FEIS was published in the
Federal Register on November 17, 2000 (65 FR 69513).
The agency's notice of intent to prepare an environmental impact
statement drew about 16,000 people to 187 public meetings and elicited
more than 517,000 responses. Although the purpose of the notice of
intent was merely to solicit issues that the public thought should be
addressed in the development of a DEIS, the Forest Service provided
maps and other information to address public concerns and questions. On
March 15, 2000, two months before release of the proposed rule and
DEIS, news releases and letters were sent to news media, other Federal,
State, and local government agencies, libraries, and Forest Service
units to explain how to obtain the proposed rule and DEIS in a variety
of electronic and hardcopy formats. The proposed action and other
alternatives, background information, and a schedule of public meetings
were posted on the agency's Roadless Area Conservation website
(roadless.fs.fed.us).
The Forest Service hosted two cycles of meetings during the comment
period on the DEIS and proposed rule--one for information sharing and
discussion and the other to collect oral comments. Written comments
were collected at both meetings. About 430 public meetings were held--
about 230 for information sharing and written comments and about 200
for collecting oral and written comments. Every national forest and
grassland hosted at least two meetings. These meetings drew over 23,000
people nationwide.
The Forest Service also received comments by postal and electronic
mail and by telefax. By the close of the comment period, the agency
received over 1 million postcards or other form letters; 60,000
original letters; 90,000 electronic mail messages; and several thousand
telefaxes (FEIS Vol. 1, 1-7). The Forest Service's Content Analysis
Enterprise Team in Salt Lake City, Utah, organized and analyzed the
comments on the proposal. Some respondents focused their remarks on
provisions of the proposed rule, others concentrated on the
alternatives and analyses contained in the DEIS, and many comments
applied to both documents.
Information from the formal public meetings, letters, emails,
telefaxes, and other sources were all included in the FEIS analysis.
The Forest Service reviewed, analyzed, and responded to those comments.
Responses to comments directly related to the proposed rule are
included in this preamble. An explanation of the comment analysis
process and how the comments were used to clarify text, modify
alternatives or analysis, or augment technical information is included
in Volume 3 of the FEIS.
One of the major process concerns expressed was that the agency did
not give the public and governmental entities, such as Tribes, States,
and counties adequate notice or time to comment on the proposed action.
The agency recognizes that many groups would have preferred additional
time for review and comment. However, the time period was adequate to
allow for more than 1.6 million comments to be received throughout the
process. Throughout the process, the agency's website has provided up-
to-date information for interested parties to learn about the proposed
action. The straightforward nature of the proposed rule and the sheer
volume of comments received are compelling evidence that there was an
adequate opportunity for the public to be heard, and sufficient
information for officials to make a reasoned and informed decision.
Since the publication of the FEIS, the agency has received comments
on the FEIS and the preferred alternative. Generally, these comments
mirror comments received on the NOI and DEIS. The majority of these
respondents asked for the prohibitions to immediately take effect on
the Tongass National Forest, and for additional prohibitions on off-
highway vehicle use, grazing, and mining activities. Some respondents
provided additional information on potential environmental and economic
effects, which the agency has reviewed and determined fall within the
range of effects disclosed in the FEIS. These comments were considered
by the agency in the development of the final rule and are in the
project record.
What General Issues Were Identified Regarding the Proposed Rule and
Draft Environmental Impact Statement?
Overview. Comments on the notice of intent, the proposed rule, and
the DEIS illustrated strongly held individual values and beliefs and a
wide range of views on how to manage inventoried roadless areas. These
comments can be divided into two basic and very different perspectives
(FEIS Vol. 1, 1-8 to 1-9). One perspective is that decisions concerning
management of inventoried roadless areas should be left to the local
responsible official, without national intervention. The other
perspective is that national prohibitions on road construction,
reconstruction, and timber harvest in inventoried roadless areas, along
with a stop to other activities, must occur from a national level, as
local decisionmaking does not always reflect the national significance
of the issues involved. The agency considered and attempted to balance
both perspectives throughout this rulemaking.
These two viewpoints focused on six major categories of issues in
the DEIS as follows: public access, identification of other unroaded
areas, exemptions and exceptions, environmental effects, local
involvement (decisionmaking), and the effect on forest dependent
communities (FEIS Vol. 1, 1-9 to 1-14).
After reviewing and analyzing the public comments received during
the comment period for the proposed rule and DEIS, the agency found
that these major issue categories were still valid. Public comment
within these categories is incorporated in the discussions of specific
issues and comments related to each section of the proposed rule. These
issues also have been used for the following purposes in the rulemaking
process: to determine the scope of the proposal (type of decision to be
made); to develop a range of alternatives; to identify possible
mitigation measures; to direct the analysis of potential environmental,
social, and economic effects; and to ensure that the agency is
operating within its legal authorities.
Issues Raised by Those Opposed to Prohibitions. This group
indicated that inventoried roadless areas should remain available for
road construction and reconstruction to obtain resources, to provide
increased motorized recreation opportunities, and for other uses. These
individuals expressed the viewpoint that roadless areas, with active
and prudent management, could support both intrinsic benefits and
commodity uses, and that local responsible officials should make
management decisions on inventoried roadless areas. This group also
indicated that environmental concerns should not take precedence over
human needs and desired uses, and that maintaining a healthy
environment should not preclude resource production, motorized access,
and developed recreation opportunities.
Many members of this group also stated that conservation requires
active management, such as providing roads for: thinning forest
vegetation, insect and disease treatment, commodity resource
production, hazardous fuels
[[Page 3249]]
reductions, and the development of recreation facilities. They stressed
that the failure to actively manage forests and grasslands could result
in insect infestations and uncharacteristic wildfire effects, and
asserted that prudent management would benefit people and wildlife.
They expressed concern for the impact this rule would have on future
generations that would not be able to participate in a lifestyle that
is dependent on resource use and production. They said that if future
generations would not be able to access the land, they would not value
the land.
Issues Raised by Those Who Favor Prohibitions. These respondents
indicated that they viewed forestlands as whole ecosystems and that
they thought roadless areas should be conserved for their intrinsic
values and for esthetic benefits to humans. In their view, roadless
areas should be allowed to evolve naturally through their own dynamic
processes, although some proponents agreed with the need for limited
stewardship activity. This second group stressed that human desire for
commodity production should take second place to needs for a healthy
environment (both locally and globally), for quiet natural places, for
spiritual and psychological regeneration, and to meet the needs of
other living things. They indicated that the social and economic needs
of forest-dependent users could be met through job retraining, through
development of alternative materials, and by designating already
developed areas for motorized recreation and other ground-disturbing
activities.
Most of the respondents in this second group maintained that the
proposed rule did not prohibit enough development activities. They
stated that the final rule should immediately ban timber harvest, other
commodity production, and motorized recreation from roadless areas
1,000 acres or larger, and that the agency should not defer
conservation of roadless areas to future land management planning
processes. They also stressed that the Tongass National Forest should
be included in this conservation effort, an issue that the agency
specifically requested comment on in the DEIS. Many respondents in this
group expressed a desire that future generations receive the benefits
of clean air and water, habitat adequate to assure species diversity,
and other social and ecological values provided by inventoried roadless
areas.
Issues Raised by Federal, Tribal, State and Local Public Officials.
The agency received many comments from Federal, Tribal, State and local
public officials and agencies across the country. Letters received from
these sources during the comment period on the DEIS are published in
Volume 4 of the FEIS. These comments reflect a cross-section of the
comments received from the public at large.
Many public officials from States and counties concerned about
access to and across National Forest System lands and concerned about
forest dependent communities expressed strong opposition to the
proposed rule, citing negative economic impacts to these communities
and commodity production industries, as well as negative impacts to
rural lifestyles. Access to State-owned lands and impacts to statutory
rights-of-way across public lands were major concerns as well. In
general, those Western States with the greatest roadless acreage (for
example, Idaho, Montana, Nevada, Utah, and Wyoming) tended to generate
the greatest number of negative comments from Governors, agencies, and
officials. Public officials from areas with larger urban populations
generally supported the proposed rule because of their expressed desire
for recreation opportunities, protection of water quality, and
undisturbed landscapes.
The following examples illustrate these different views. In the
State of Washington, some of the officials and agencies writing in
support of the proposed rule included the Governor, King and Spokane
Counties, and the Seattle City Council, while Stevens County, the City
of Forks, and the City of Port Angeles were opposed (FEIS Vol. 4, 573,
579, 583 to 588). In Missouri, the Dent County Commission was opposed
to the proposal while the State's Department of Natural Resources was
supportive (FEIS Vol. 4, 250 to 252).
Comments from agencies also varied according to the anticipated
effects to their management programs. For example, the Florida Fish and
Wildlife Conservation Commission saw the proposed rule as resulting in
positive benefits for native wildlife and plant communities, while the
Virginia Department of Game and Inland Fisheries saw the proposal as
harmful to wildlife and the management of wildlife (FEIS Vol. 4, 79 to
81, 571). Most responding Department of Transportation offices were
concerned over access and maintenance issues.
Letters from Tribal officials provided mixed comments and concerns.
Some Tribes were generally supportive of the proposed rule, with the
provision that traditional uses of the land and access to cultural and
sacred sites be allowed to continue. Other Tribes expressed concern
about how the proposal might affect economic opportunities. Still
others believed that the rule should further restrict certain
activities in inventoried roadless areas that may affect adjacent
Tribal lands.
What Specific Issues Were Raised on the Proposed Rule and What Changes
Did the Agency Make From Proposed To Final Rules?
The following is a section-by-section discussion of issues raised
and comments received on the proposed rule, the agency's response, and
a description of changes made to the rule.
Proposed Sec. 294.10--Purpose. This proposed section identified the
agency's goal of providing lasting protection for inventoried roadless
areas and other unroaded areas of the National Forest System in the
context of multiple-use management.
Comment on Multiple-Use. Some respondents commented that the
proposed rule did not provide for multiple-use of inventoried roadless
areas, since resources cannot always be accessed and developed without
roads and, therefore, for example, forest health issues could not be
addressed.
Response. The Multiple-Use Sustained-Yield Act of 1960 (MUSYA)
provides the Forest Service authority to manage national forest and
grasslands ``for outdoor recreation, range, timber, watershed, and
wildlife and fish purposes.'' The NFMA reaffirmed multiple-use and
sustained-yield as the guiding principles for land management planning
of National Forest System lands (16 U.S.C. 1600, 1604).
In defining ``multiple use,'' the MUSYA, as amended, clearly
provides that under multiple-use management some land will be used for
less than all of the possible resource uses of the national forests and
grasslands. The act also provides that even the establishment of
wilderness areas is consistent with the purposes and provisions of the
act. The Roadless Area Conservation rule, unlike the establishment of
wilderness areas, will allow a multitude of activities including
motorized uses, grazing, and oil and gas development that does not
require new roads to continue in inventoried roadless areas.
Currently, a wide range of multiple uses is permitted in
inventoried roadless areas subject to the management direction in
forest plans. A wide range of multiple uses will still be allowable
under the provisions of this rule. The National Forest System contains
an extensive system of roads measuring approximately 386,000 miles.
This final rule will not close or otherwise block access to any of
those roads; the final rule merely prohibits the construction of new
roads and the
[[Page 3250]]
reconstruction of existing roads in inventoried roadless areas.
Under this final rule, management actions that do not require the
construction of new roads will still be allowed, including activities
such as timber harvesting for clearly defined, limited purposes,
development of valid claims of locatable minerals, grazing of
livestock, and off-highway vehicle use where specifically permitted.
Existing classified roads in inventoried roadless areas may be
maintained and used for these and other activities as well. Forest
health treatments for the purposes of improving threatened, endangered,
proposed, or sensitive species habitat or maintaining or restoring the
characteristics of ecosystem composition and structure, such as
reducing the risk of uncharacteristic wildfire effects, will be allowed
where access can be gained through existing roads or by equipment not
requiring roads. Also, see the response to proposed Sec. 294.12 for
further discussion of the MUSYA.
Comment on Forest Plan Amendments. Many respondents asserted that
the rule would supersede forest plans, the National Forest Management
Act, and land management planning regulations, and thus exceed existing
statutory authority. Others contended that the rule would require an
amendment to forest plans.
Response. The preamble to the recent NFMA planning regulations
identify that ``[p]lanning will be conducted at the appropriate level
depending on the scope and scale of the issues.'' The Department went
on to note that ``[f]undamental to this rule is the notion that there
is a hierarchy of scale to be considered when addressing resource
management issues, and that it is the nature of the issue that guides
the selection of the appropriate scale and level of the organization to
address it'' (65 FR 67523). The use of rulemaking to address the
conservation of inventoried roadless areas is both appropriate and
consistent with the NFMA implementing regulations.
Just as development and approval of forest plans must conform to
existing laws and regulations, new laws or regulations, including this
rule, can supersede existing forest plan management direction. This
rulemaking process does not require amendments or revisions to forest
plans. However, a Forest or Grassland Supervisor may consider whether
an amendment or revision is appropriate given overall circumstances for
a particular administrative unit.
Comment on Roadless Areas in Forest Planning. A few respondents
stated that the purposed section should require the incorporation of
roadless area protection into forest plans.
Response. The recently revised regulations at 36 CFR part 219
guiding the development of forest plans (November 9, 2000; 65 FR 67571)
contain a requirement at Sec. 219.9(b)(8) that provides additional
protection for unroaded and inventoried roadless areas. During the plan
revision process, or at other times as deemed appropriate, the
responsible official must identify and evaluate inventoried roadless
areas and unroaded areas and then determine which, if any, of those
areas warrant additional protection and the level of protection to be
afforded. For this reason, there is no need to add the suggested
language to the purpose section of the final rule. In fact, inclusion
of these procedures in the new planning regulations is why the
procedures proposed at Sec. 294.13 have been removed from this rule.
Summary of Changes in Section 294.10 of the Final Rule. Having
considered the comments received, the agency has retained the purpose
section with two changes: (1) The sentence has been reorganized to
emphasize that the goal of providing lasting protection of roadless
areas must occur within the context of multiple-use management; and (2)
the agency has removed the reference to ``other unroaded areas'' in
this section, since, as already noted, the new land and resource
management planning regulations at 36 CFR part 219 provide for
evaluation of these areas at the time of land and resource management
plan revision (FEIS Vol. 1, 1-16).
Proposed Section 294.11 Definitions. This section set out the terms
and definitions used in the proposed rule. The proposed rule contained
definitions for the following terms: ``inventoried roadless areas,
responsible official, road, classified road, unclassified road, road
construction, road maintenance, road reconstruction, (road)
realignment, (road) improvement, (road) rebuilding, unroaded area,
unroaded portion of an inventoried roadless area.''
Comment on ``Inventoried Roadless Area'' Definition. Some
respondents requested a modification of the definition for
``inventoried roadless area'' to include ``undeveloped areas of 1,000
acres and larger'' rather than ``undeveloped areas exceeding 5,000
acres.'' Others thought that including references to the minimum
criteria for wilderness made the definition too restrictive,
eliminating otherwise deserving areas from protection. Some expressed
confusion over which inventories were used to determine inventoried
roadless areas, and the possibility of error in identifying inventoried
roadless areas.
Response. The proposed definition of inventoried roadless area was
based on a group of roadless areas that were evaluated for wilderness
consideration beginning in the 1970's and through subsequent planning
efforts. With the publication of the DEIS and now the FEIS, the agency
can now define these inventoried roadless areas as those areas
identified in the set of maps contained in Volume 2 of the FEIS or
subsequent revisions. These maps are maintained at the national
headquarters of the Forest Service and are the official maps for the
final rule. In the event a modification to correct any clerical,
typographical, or other technical error is needed, the change will be
made to the national headquarters maps and corrected copies of the maps
made available to other administrative units. This definition does not
apply to future areas that may be inventoried for wilderness
consideration or other purposes. This modification, which removed the
historical context for the definition of inventoried roadless area, has
been included in the final rule.
Comment on ``Unroaded Area'' Definition. The identification of
unroaded areas other than those already inventoried was a major issue.
It was unclear to some respondents whether the presence of unclassified
roads would be a factor in determining whether an area qualified as an
unroaded area. Others thought that the definition of ``unroaded area''
should not include unclassified roads because such areas could not
foster isolation, independence, or an undisturbed setting. Others
suggested that these issues are better resolved through local land
management planning. The public suggested various criteria and
processes for the protection and management of these other unroaded
areas.
Response. These suggestions were considered under procedural
alternatives A through D in the DEIS. Since the comment period on the
DEIS closed, the consideration of other unroaded areas has been
addressed in the context of the final planning regulations at 36 CFR
part 219. The agency agreed with the respondents who believed these
types of planning issues were more appropriately addressed in the
context of the planning rule and local land management planning. Thus,
comments on how to consider and manage these other unroaded areas were
considered in the preparation of the planning rule. As explained in the
discussion of the agency's response to proposed Sec. 294.13
[[Page 3251]]
later in this preamble, the provisions of the proposed rule relevant to
unroaded areas have been removed. Therefore, the term ``unroaded area''
is no longer needed.
Comment on ``Responsible Official'' Definition. Some respondents
wanted to know whether the responsible official for activities within
an inventoried roadless area would be a District Ranger, Forest
Supervisor, or Regional Forester.
Response. The appropriate responsible official, as defined in the
proposed rule, depends on the decision under consideration. For
example, District Rangers often make decisions regarding trail
construction, special use authorizations, and wildlife habitat
improvement projects. Forest Supervisors typically make decisions on
major developed recreation sites, large timber sales, and ski area
developments. This rule does not alter existing delegations of
authority for Forest Service responsible officials. Because the scope
of a proposed decision determines who will make the decision, the
definition of ``responsible official'' must be broad enough to embrace
the various possibilities. Therefore, the final rule retains, without
change, the definition in the proposed rule.
Comment on ``Road'' Definition. Respondents expressed concern that
the definition of a road was ambiguous and failed to recognize the
primitive travelways used by motorized recreationists. Some respondents
were concerned that the definition indicated permission for the
construction of a travelway over 50 inches wide for off-road vehicles
if the road was determined to be a trail. Other respondents thought
that the definition of classified roads should include Revised Statute
(R.S.) 2477 roads.
Response. For agency consistency, this final rule includes the same
definitions of ``road,'' ``classified road,'' ``unclassified road,''
and ``temporary road'' that are contained in the National Forest System
Road Management regulations (36 CFR part 212) and policy (Forest
Service Manual 7700 and 7710) transmitted on January 4, 2001 for
publication in the Federal Register. Based on consideration of public
comment received on the road management proposal, these definitions
were revised for clarity and a definition for ``temporary road'' was
added.
A trail is established for travel by foot, stock, or trail vehicle,
and can be over, or under, 50 inches wide. Nothing in this paragraph as
proposed was intended to prohibit the authorized construction,
reconstruction, or maintenance of motorized or non-motorized trails
that are classified and managed as trails pursuant to existing
statutory and regulatory authority and agency direction (FSM 2350). Nor
was anything in this paragraph intended to condone or authorize the use
of user created or unauthorized roads or trails. These decisions are
made subject to existing agency regulations and policy and that intent
has been retained in the final rule.
Future claims and existing rights for R.S. 2477 roads would not be
affected by this rule. The agency recognizes valid R.S. 2477 rights-of-
way. However, the validity of R.S. 2477 assertions must be evaluated on
a case-by-case basis. Therefore, there is no need to modify the
definition of classified road for this purpose.
Comment on Road Management Terms. Some respondents thought the
definitions of ``road construction,'' ``maintenance,''
``reconstruction,'' ``realignment,'' ``improvement,'' and
``rebuilding'' were confusing. Others wanted clarification on whether
the terms applied only to classified roads, or to unclassified roads as
well.
Response. As previously noted in this preamble, this final rule
includes the definitions of road management terms adopted in the final
National Forest System Road Management Rule and policy. The definition
of ``rebuilding'' has been removed; the definition of ``road'' has
expanded to include ``temporary road;'' and the other terms were
revised in the final road management policy and are used verbatim in
this rule for consistency.
Comment on ``Unroaded Portion of an Inventoried Roadless Area''
Definition. Many respondents considered the term and definition of
``unroaded portion of an inventoried roadless area'' confusing and
remarked that they did not understand how it would be applied. In
response to the identified preferred alternative in the FEIS, which
would have applied the prohibitions to developed portions of
inventoried roadless areas, respondents questioned why the agency would
seek to protect roadless area values and characteristics in areas that
have already been roaded and had timber harvest, thereby negating the
very characteristics this rule seeks to protect.
Response. One of the primary objectives of this rulemaking was to
resolve the longstanding controversies surrounding management of
inventoried roadless areas. Without additional clarification, the
definition of ``unroaded portion of an inventoried roadless area''
could have begun a new round of land management plan inventories and
controversy about how to identify the boundary between the roaded and
unroaded portions of these areas. This had the potential to increase
rather than reduce the number of appeals and lawsuits surrounding
inventoried roadless area management.
The agency agreed that the terminology and definition in the
proposed rule were confusing. Therefore, it proposed in the FEIS
eliminating this definition and applying the prohibitions to the entire
area within an inventoried roadless area boundary.
To resolve the agency's concern about extending the controversy to
future land management planning and to address the public concern about
precluding timber harvesting in the portions of inventoried roadless
areas that no longer possess roadless characteristics,
Sec. 294.13(b)(4) has been added. This paragraph allows timber to be
cut, sold, or removed in the portions of inventoried roadless areas
where roadless values and characteristics have been substantially
altered due to road construction and subsequent timber harvest after
the area was inventoried. No new road construction would be allowed.
Decisions on whether or not an inventoried roadless area's
characteristics have been substantially altered would occur during
project planning and decisionmaking.
In response to the proposed rule, some respondents questioned why
the agency would only exempt those portions developed after an area was
inventoried, rather than exempting all developed portions regardless of
when the road construction and timber harvest occurred. Some
inventoried roadless areas, particularly those in the East, contained
roads at the time of their inventory and timber may also have been
harvested in these areas. However, the agency assumes that these prior
existing developments and activities did not substantially alter the
areas' roadless values and characteristics, or they would not have been
inventoried for possible wilderness consideration.
For the reasons described, the term ``unroaded portion of an
inventoried roadless area'' is no longer necessary and has been removed
from the definitions in the final rule.
Comment on ``Roadless Area Characteristics.'' Some respondents
wanted additions to the list of roadless area characteristics
identified in proposed Sec. 294.13(a), more specific characteristics
for each inventoried roadless area, clarification as to their meaning,
and to know how they would be used in the evaluation of inventoried
roadless areas and unroaded areas during forest plan revision.
[[Page 3252]]
Response. Although the term ``roadless area characteristics'' was
not defined in the proposed rule, proposed Sec. 294.13 did include the
list of characteristics. While proposed Sec. 294.13 was not retained in
the final rule for reasons described in the section of this preamble
entitled ``Consideration of Roadless Area Conservation During Forest
Plan Revision,'' the roadless area characteristics remain fundamental
to the environmental analysis of the alternatives considered in this
rulemaking and are critical to evaluating whether trees may be cut,
removed, or sold from inventoried roadless areas pursuant to the
provisions at Sec. 294.13(b). For these reasons, the list of roadless
area characteristics has been reformatted with minor changes for
clarification and added to the definitions in Sec. 294.11 of the final
rule.
The definition of roadless area characteristics includes ``other
locally identified unique characteristics'' to capture unique
characteristics specific to individual inventoried roadless areas
identified during local land management planning. Therefore, it is not
necessary to identify, in this rule, characteristics for each
inventoried roadless area or to add to the list in the definition. A
more detailed description of these characteristics is in the section of
this preamble entitled ``Roadless Area Values and Characteristics''.
Summary of Changes in Sec. 294.11 of the Final Rule. The
definitions section of the final rule reflects the preceding responses
to comments received. Revisions have been made in the road management
definitions included in Sec. 294.11 to achieve consistency with the
final National Forest System Road Management Rule as well as with the
provisions of the final National Forest System Land and Resource
Management Planning Rule. The terms ``unroaded portion of an
inventoried roadless area'' and ``unroaded area'' were removed from the
definitions. The first sentence was removed from the proposed rule's
definition of ``inventoried roadless area'' because, while the sentence
provided historical context, it was not necessary for the definition.
The definition of ``roadless area characteristics'' has been added.
Proposed Section 294.12. Prohibition on road construction and
reconstruction in inventoried roadless areas. This section of the
proposed rule identified the road construction and reconstruction
prohibitions, and exemptions and exceptions to the prohibitions.
Paragraph (a) of proposed Sec. 294.12 prohibited road construction and
reconstruction in the unroaded portions of inventoried roadless areas,
except for the circumstances listed in proposed paragraphs (b)(1)
through (b)(4) and paragraph (c).
Comment on Agency Authority. The agency received many comments
questioning whether the Forest Service had the authority to prohibit
road construction through this rulemaking process, and whether the
proposed rule was in conflict with existing environmental and land
management laws and policies.
Response. The Forest Service routinely makes decisions to construct
or not construct roads for a variety of purposes. The Secretary has
clear authority to promulgate this rule, and this rule does not
conflict with existing law and policy. The foundation for any exercise
of power by the Federal government is the United States Constitution.
The Constitutional provision that provides authority for management of
public lands is the Property Clause (Article IV, Section 3). The
Property Clause states that Congress has the power to dispose of and
make all needful rules and regulations respecting land or other
property belonging to the United States. Using this authority, Congress
entrusted the Secretary of Agriculture with broad powers to protect and
administer the National Forest System by passing laws, such as the
Organic Administration Act of 1897 (the Organic Act), the Multiple-Use
Sustained-Yield Act of 1960 (MUSYA), and the National Forest Management
Act of 1976 (NFMA).
The duties that Congress assigned to the Secretary include
regulating the occupancy and use of National Forest System lands and
preserving the forests from destruction (16 U.S.C. 551). Through the
MUSYA, Congress directed the Secretary to administer the National
Forest System for multiple-use and sustained-yield of renewable
resources without impairment of the productivity of the land (16 U.S.C.
528-531), thus establishing multiple-use as the foundation for
management of national forests and grasslands. These multiple uses
include outdoor recreation, range, timber, watershed, and wildlife and
fish purposes. The statute defines ``multiple use'' broadly, calling
for management of the various uses in the combination that will best
meet the needs of the American people (16 U.S.C. 531). Under this
framework, courts have recognized that the MUSYA does not envision that
every acre of National Forest System land be managed for every multiple
use, and does envision some lands being used for less than all of the
resources. As a consequence, the agency has wide discretion to weigh
and decide the proper uses within any area (Wind-River Multiple-use
Advocates v. Espy, 835 F. Supp. 1362, 1372 (D.Wyo.1993)).
In passing the MUSYA, Congress also affirmed the application of
sustainability to the broad range of resources the Forest Service
manages, and did so without limiting the agency's broad discretion in
determining the appropriate resource emphasis and mix of uses. Some of
the agency's past decisions have been challenged in court, leading to
judicial decisions interpreting the extent of Forest Service
discretion, or judgment, in managing National Forest System lands.
Courts have routinely held that the Forest Service has wide discretion
in deciding the proper mix of uses within any area of National Forest
System lands. In the words of the Ninth Circuit Court of Appeals, the
agency's authority pursuant to the MUSYA ``breathes discretion at every
pore.'' (Perkins v. Bergland, 608 F.2d 803, 806 (9th Cir.1979)).
The NFMA reaffirmed multiple-use and sustained-yield as the guiding
principles for land management planning of National Forest System lands
(16 U.S.C. 1600, 1604). Together with other applicable laws, the NFMA
authorizes the Secretary of Agriculture to promulgate regulations
governing the administration and management of the National Forest
Transportation System (16 U.S.C. 1608) and other such regulations as
the Secretary determines necessary and desirable to carry out the
provisions of the NFMA (16 U.S.C. 1613). These laws complement the
long-standing authority of the Secretary to regulate the occupancy and
use of the National Forest System (16 U.S.C. 551).
Comment on National Prohibitions vs. Local Decisionmaking. Many
respondents supported the proposed national prohibition on new road
construction in inventoried roadless areas. Other respondents felt
there should not be a national prohibition because this would eliminate
the option of making local decisions based on public input. Others felt
the decisions regarding construction of roads in inventoried roadless
areas should be made when forest plans are revised.
Response. The agency has addressed this issue in detail at the
outset of this final rule. At the national level, Forest Service
officials have the responsibility to consider the ``whole picture''
regarding the management of the National Forest System, including
inventoried roadless areas. Local land management planning efforts may
not always recognize the national significance of inventoried roadless
areas and the values they represent in an increasingly developed
landscape. If
[[Page 3253]]
management decisions for these areas were made on a case-by-case basis
at a forest or regional level, inventoried roadless areas and their
ecological characteristics and social values could be incrementally
reduced through road construction and certain forms of timber harvest.
Added together, the nation-wide results of these reductions could be a
substantial loss of quality and quantity of roadless area values and
characteristics over time.
On many national forests and grasslands, roadless area management
has been a major point of conflict in land management planning. The
controversy continues today, particularly on most proposals to harvest
timber, build roads, or otherwise develop inventoried roadless areas.
The large number of appeals and lawsuits, and the extensive amount of
congressional debate over the last 20 years illustrates the need for
national direction and resolution and the importance many Americans
attach to the remaining inventoried roadless areas on National Forest
System lands (FEIS Vol. 1, 1-16). These disputes are costly in terms of
both fiscal resources and agency relationships with communities of
place and communities of interest. Based on these factors, the agency
decided that the best means to reduce this conflict is through a
national level rule.
Comment on Access. The agency received many comments questioning
how the proposed rule would affect access to lands that the agency does
not manage, such as State lands or private inholdings, and access
pursuant to the General Mining Law of 1872.
Response. This rule does not affect a State's or private
landowner's right of access to their land. The proposed rule did not
close any roads or off-highway vehicle (OHV) trails. The proposed rule
provided for the construction and reconstruction of roads in
inventoried roadless areas where needed pursuant to existing or
outstanding rights, or as provided for by statute or treaty, including
R.S. 2477 rights, access to inholdings under the Alaska National
Interest Lands Conservation Act (ANILCA) provisions, or circumstances
where a valid right-of-way exists.
The most common right of access to non-federally owned property
surrounded by National Forest System lands is a road constructed or
reconstructed on those National Forest System lands. The final rule at
Sec. 294.12(b)(3) provides for construction or reconstruction of a road
in an inventoried roadless area ``if the Responsible Official
determines that * * * a road is needed pursuant to reserved or
outstanding rights, or as provided for by statute or treaty.'' For
example, the ANILCA provides a landowner a right of access across
National Forest System lands in certain circumstances, and this rule
does not amend or modify that statute.
Title 36 part 251 of the Code of Federal Regulations implements the
ANILCA access provisions and sets forth the procedures by which
landowners may apply for access across National Forest System lands;
this rule does not amend or modify that regulation. Access to non-
Federal land does not have to be a road in all cases, nor does it have
to be the most economical, direct, or convenient for the landowner,
although the agency tries to be sensitive to the cost in time and money
to the inholder. The cost to construct or reconstruct road access to
non-Federal lands is usually the responsibility of the inholder, not
the Forest Service. During the application process for such access,
applicable laws, such as the National Environmental Policy Act and the
Endangered Species Act, still must be considered.
Access for the exploration of locatable minerals pursuant to the
General Mining Law of 1872 is not prohibited by this rule. Nor is
reasonable access for the development of valid claims pursuant to the
General Mining Law of 1872 prohibited. In some cases, access other than
roads may be adequate for mineral activities. This access may include,
but is not limited to, helicopter, road construction or reconstruction,
or non-motorized transport. Determination of access requirements for
exploration or development of locatable minerals is governed by the
provisions of 36 CFR part 228.
Comments on Effect on Fire Suppression. Numerous respondents
expressed concern with the effect of a road construction prohibition on
fire fighter safety and access to suppress wildland fires.
Response. Proposed Sec. 294.12(b)(1) allowed road construction and
reconstruction in inventoried roadless areas when a road is needed to
protect public health and safety in cases of an imminent threat of
flood, fire, or other catastrophic event. In addition, using such
suppression resources as smokejumpers and fire crews delivered by
helicopters, the current fire suppression organization has been
effective in suppressing at a small size approximately 98% of wildland
fire starts in inventoried roadless areas. The agency also typically
prioritizes fighting roadless and wilderness fires lower than fighting
fires in more accessible and populated areas. The Agency has a long
history of successfully suppressing fires in inventoried roadless areas
and this high level of suppression performance is expected to continue.
Furthermore, the agency rarely builds new roads to suppress fires.
Building roads into inventoried roadless areas would likely increase
the chance of human-caused fires due to the increased presence of
people. Fire occurrence data indicates that prohibiting road
construction and reconstruction in inventoried roadless areas would not
cause an increase in the number of acres burned by wildland fires or in
the number of large fires (FEIS Vol. 1, 3-115).
Comment on Including Other Unroaded Areas. Some respondents
asserted that prohibitions should be applied to all roadless areas, not
just inventoried roadless areas.
Response. The agency had adequate information to assess the effects
of implementing the prohibition of road construction and limited timber
harvesting in inventoried roadless areas. There was not sufficient
information to make a decision regarding other uninventoried unroaded
areas. Furthermore, the agency decided that these uninventoried
unroaded areas would be better evaluated in the context of the new
planning regulations at 36 CFR part 219.
Comment on Relationship to Other Rulemakings. Some respondents have
questioned whether the agency has adequately integrated the decision to
prohibit road construction and timber harvesting in inventoried
roadless areas with other agency rulemaking efforts.
Response. The objective of conserving inventoried roadless areas
reflects current scientific understanding of the importance of
inventoried roadless area ecosystems and changing values of society as
evidenced by comments received on this proposal.
This final roadless area conservation rule is entirely consistent
with other Forest Service rulemaking and policy efforts, including the
agency's final planning rule at 36 CFR part 219 (November 9, 2000; 65
FR 67514) and newly adopted National Forest System Road Management
regulations (36 CFR part 212) and policy (Forest Service Manual 7700
and 7710). It is also consistent with the report of Secretaries Babbitt
and Glickman to the President, Managing the Impacts of Wildfire on
Communities and the Environment (September 8, 2000), the agency's
Protecting People and Sustaining Resources in Fire-Adapted Ecosystems:
A Cohesive Strategy (November 9, 2000; 65 FR 67480), and ongoing
efforts to reduce the risk of fire to communities and the environment.
[[Page 3254]]
The planning rule provides the overall framework for planning and
management of the National Forest System. No provisions in the Roadless
Area Conservation rule would require land management or project
planning, although managers may decide to initiate plan revisions.
However, this final rule does complement the key sustainability,
science, and spatial decisionmaking issues raised by the planning rule.
The planning rule also requires that during the plan revision
process, or at other times as deemed appropriate, the responsible
official must identify and evaluate inventoried roadless areas and
unroaded areas and then determine which inventoried roadless areas and
unroaded areas warrant additional protection and the level of
protection to be afforded. This provision is similar to the procedural
requirements proposed in May 2000, as part of the proposed Roadless
Area Conservation Rule. Given their inclusion in the final planning
rule, the procedural provisions have been removed from this final rule.
As disclosed in the DEIS, the proposed procedures do not directly
result in adverse physical or biological environmental effects, nor do
the procedures cause irreversible or irretrievable resource commitments
(DEIS Vol. 1, 3-223). The FEIS disclosed the combined effects of the
final planning rule and the final roadless rule as being complementary,
not additive (FEIS Vol. 1, 3-397; see also 65 FR 67529).
The National Forest System Road Management regulations and policy
are designed to make the agency's existing road system more safe,
responsive to public needs, environmentally sound, and affordable to
manage. Elements of the regulation and policy requiring planning would
be completed using the new planning rules. For example, under the road
management policy, national forests and grasslands would have to
complete an analysis of their existing road system and then incorporate
this analysis into their land management plans. Consistent with the
planning rule, this would be accomplished by using a science-based
analysis procedure and by working cooperatively with other agency
partners and the public.
Together, these requirements ensure that roadless areas and their
important social and ecological characteristics will be conserved for
present and future generations based on the principles of
sustainability, sound science, and collaboration. The Forest Service
has coordinated development of each of these rulemakings to ensure that
the rules are integrated and consistent. In addition, consistency in
the definitions and program emphases has been assured. The resulting
rulemaking efforts efficiently align priorities and resources to
implement the agency's statutory responsibilities (FEIS Vol. 1, 1-18 to
1-20).
Comment on Application to the Tongass National Forest. The agency
received many comments regarding the Tongass National Forest. Many
respondents stated that the Tongass should not be exempt from the
provisions of the proposed rule. Others, concerned that local
communities had already experienced substantial social and economic
effects due to the recent revision of the Tongass Land and Resource
Management Plan and other factors, thought that the Tongass should be
exempt from the provisions of the proposed rule. Some respondents
stated that the Forest Service should defer action on the Tongass
National Forest until the next plan revision.
Response. In both the DEIS and FEIS, using the best available
science and data, the agency has considered the alternatives of
exempting and not exempting the Tongass National Forest, as well as
deferring a decision per the proposed rule. Social and economic
considerations were key factors in analyzing those alternatives, along
with the unique and sensitive ecological character of the Tongass
National Forest, the abundance of roadless areas where road
construction and reconstruction are limited, and the high degree of
ecological health. In developing the proposed action, the agency sought
to balance the extraordinary ecological values of the Tongass National
Forest against the needs of the local forest dependent communities in
Southeast Alaska.
With the recent closure of pulp mills and the ending of long-term
timber sale contracts, the timber economy of Southeast Alaska is
evolving to a competitive bid process. About two-thirds of the total
timber harvest planned on the Tongass National Forest over the next 5
years is projected to come from inventoried roadless areas. If road
construction were immediately prohibited in inventoried roadless areas,
approximately 95 percent of the timber harvest within those areas would
be eliminated (FEIS Vol. 1, 3-202).
The Tongass National Forest is part of the northern Pacific coast
ecoregion, an ecoregion that contains one fourth of the world's coastal
temperate rainforests. As stated in the FEIS, the forest's high degree
of overall ecosystem health is due to its largely undeveloped nature
including the quantity and quality of inventoried roadless areas and
other special designated areas. Alternatives that would immediately
prohibit new road construction and timber harvest in all inventoried
roadless areas would most effectively protect those values. Other
alternatives that exempt, delay, or limit the application of the
prohibitions would offer less protection. The environmental impacts of
these alternatives are disclosed in Chapter 3 of the FEIS.
The proposed rule would have deferred a decision on whether or not
the prohibitions should be applied to the Tongass National Forest until
April 2004. This would have allowed an adjustment period for the timber
program in Southeast Alaska to occur under provisions of the 1999
Record of Decision for the Tongass Land and Resource Management Plan
Revision, but would not have assured long-term protection of the
Forest's unique ecological values and characteristics.
In response to public comments, an optional social and economic
mitigation measure was considered under the Tongass Not Exempt
alternative that would require implementation of the final rule on the
Tongass, but delay this implementation until April 2004, to provide a
transition period for local communities to adjust to changes that would
occur when the prohibitions take effect.
The final rule applies immediately to the Tongass National Forest
but adopts a mitigation measure that both assures long-term protection
and a smooth transition for forest dependent communities. The final
rule provides that the prohibitions do not apply to road construction,
reconstruction, and the cutting, sale or removal of timber from
inventoried roadless areas on the Tongass National Forest where a
notice of availability for a draft environmental impact statement for
such activities has been published in the Federal Register prior to the
date of publication of this rule in the Federal Register. This
mitigation measure allows an adjustment period for the timber program
in Southeast Alaska, but will also assure more certain long-term
protection of the Forest's unique ecological values and
characteristics.
Allowing road construction and reconstruction on the Tongass
National Forest to continue unabated would risk the loss of important
roadless area values. The agency had sufficient information to analyze
the environmental, social, and economic effects of prohibiting road
construction, reconstruction, and limited timber harvesting on the
Tongass National Forest and did not see the value in
[[Page 3255]]
deferring the issue to further study prior to making a decision.
Moreover, this course of action is consistent with the provisions
of the Tongass Timber Reform Act (TTRA). While the TTRA urges the
Forest Service to ``seek to meet market demand'' for timber from the
Tongass National Forest, the TTRA does not envision an inflexible
harvest level, but a balancing of the market, the law, and other uses,
including preservation. (Alaska Wilderness Recreation and Tourism Ass'n
v. Morrison, 67 F.3d 723, 731 (9th Cir. 1995)). The record for this
rulemaking fully supports the imposition of the prohibitions on the
Tongass National Forest. However, in inventoried roadless areas the
Tongass National Forest has 261 MMBF of timber under contract and 386
MMBF under a notice of availability for a DEIS, FEIS, or Record of
Decision. In addition, the Tongass has 204 MMBF available in roaded
areas that is sold, has a Record of Decision, or is currently in the
planning process. This total of 851 MMBF is enough timber volume to
satisfy about 7 years of estimated market demand.
Based on the analysis contained in the FEIS, a decision to
implement the rule on the Tongass National Forest is expected to cause
additional adverse economic effects to some forest dependent
communities (FEIS Vol. 1, 3-326 to 3-350). During the period of
transition, an estimated 114 direct timber jobs and 182 total jobs
would be affected. In the longer term, an additional 269 direct timber
jobs and 431 total jobs may be lost in Southeast Alaska. However, the
Department believes that the long-term ecological benefits to the
nation of conserving these inventoried roadless areas outweigh the
potential economic loss to those local communities and that a period of
transition for affected communities would still provide certain and
long term protection of these lands.
The special provision at Sec. 294.14(d) of the final rule allowing
road construction, reconstruction, and the cutting, sale, or removal of
timber from inventoried roadless areas on the Tongass National Forest
where a notice of availability of a draft environmental impact
statement for such activities has been published in the Federal
Register prior to the date of publication of this rule in the Federal
Register is considered necessary because of the unique social and
economic conditions where a disproportionate share of the impacts are
experienced throughout the entire Southeast Alaska region and
concentrated most heavily in a few communities.
Comment on Exceptions and Conflict with Purpose of the Rule.
Another major issue was whether there should be exemptions or
exceptions from the prohibitions. A few respondents stated that the
exceptions and exemptions to the prohibitions set out in proposed
Sec. 294.12 conflicted with the stated purpose of the rule. A summary
of the major comments on this issue and the agency's responses follow.
Response. The exceptions to the prohibitions on road construction
in inventoried roadless areas found at proposed Sec. 294.12 responded
to specific circumstances where the prohibitions might conflict with
legal responsibilities to provide for public health and safety or
environmental protection (FEIS Vol. 1, 2-13 to 2-14). In some cases,
the exceptions could result in effects contrary to the purpose stated
in the proposed rule, but the agency determined that they were
necessary to honor existing law or address social or economic concerns.
While the exceptions and exemptions place limited restrictions on the
application of the prohibition, the stated purpose of the rule remains
valid. These exceptions were only relevant to FEIS action Alternatives
2 through 4, as Alternative 1 (no action) did not prohibit any
activities.
The public health and safety exception at paragraph (b)(1) in the
final rule applies only when needed to protect public health and safety
in cases of an imminent threat of a catastrophic event that might
result in the loss of life or property. It does not constitute
permission to engage in routine forest health activities, such as
temporary road construction for thinning to reduce mortality due to
insect and disease infestation.
The exception in paragraph (b)(2) permits entry for activities
undertaken pursuant to the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) and other identified statutes.
An example of an allowable CERCLA activity is mitigating the leaching
of toxic chemicals from an abandoned mine.
Paragraph (b)(3) permits the construction and reconstruction of a
road pursuant to rights granted in statute or treaty, or pursuant to
reserved or outstanding rights. These include, but are not limited to,
rights of access provided in ANILCA, highway rights-of-way granted
under R.S. 2477, and rights granted under the General Mining Law of
1872, as amended. Rights of reasonable access for mineral exploration
and development of valid claims would be governed by the General Mining
Law under any of the alternatives considered in the FEIS. These rights
of access may or may not include new road construction as discussed
elsewhere in this preamble. Therefore, rights of access to locatable
mineral exploration and development of valid claims would not be
affected by the final rule or any of the alternatives analyzed in the
FEIS (FEIS Vol. 1, 3-254).
Paragraph (b)(4) in the final rule permits realignment of an
existing classified road when it is found to cause irreparable resource
damage because of its design, location, use, or deterioration. The road
must be essential for public or private access, natural resource
management, or public health and safety. For the realignment exception
to apply, the original road must have caused the resource damage and
the resource damage cannot be corrected or mitigated by maintenance
alone. Following realignment, treatment of the old roadway may include
a variety of methods, such as decommissioning or by converting it to
another use. An example of a situation where realignment may be
appropriate is the presence of a classified road contributing sediment
to a stream that is important spawning or rearing habitat for an
endangered species of fish, and the sediment is having an adverse
impact on the fish or its habitat. Realignment of the classified road
and decommissioning the old roadway to eliminate the sediment caused by
the old roadway is appropriate.
After considering the public comment on the proposed rule and
conducting further analysis, three other exceptions were added to the
final rule at Sec. 294.12(b). New paragraph (5) is an exception to the
prohibition to allow for reconstruction of a classified road if needed
for safety based on accident experience or accident potential on that
road. This exception allows for realignment or improvement in
situations where road location or design is a threat to health or
safety, and reconstruction would reduce that threat. New paragraph (6)
was added to mitigate potential social and economic impacts in response
to comments on the effects this rule might have on some State highway
projects proposed as part of the National Highway System. These
exceptions were not a major consideration in evaluating differences
among the FEIS action alternatives because they apply to all of the
prohibition alternatives. The agency considered other exemptions and
exceptions, but eliminated them from detailed study (FEIS Vol. 1, 2-21
to 2-22).
[[Page 3256]]
An additional optional exception was considered in detail in the
FEIS as a social and economic mitigation measure and was available for
selection with any alternative. This exception would have allowed road
construction or reconstruction where a road is needed for prospective
mineral leasing activities in inventoried roadless areas (FEIS Vol. 1,
2-9). If road construction and reconstruction were allowed for all
future mineral leasing, an estimated 59 miles of new roads could be
constructed in inventoried roadless areas over the next five years.
Road construction or reconstruction in support of future mineral
leasing could continue at this level or in greater amounts into the
foreseeable future. The agency estimates more than 10 million acres of
inventoried roadless area could be roaded for exploration and
development of leasable minerals, although the agency believes it is
unlikely that more than a small percentage of these acres would contain
minerals sufficient for economic development (FEIS Vol. 1, 3-250 to 260
and 313 to 321). Mineral leasing activities not dependent on road
construction, such as directional (slant) drilling and underground
development, would not be affected by the prohibition.
The Department has decided not to adopt the exception for future
discretionary mineral leasing as identified in the FEIS because of the
potentially significant environmental impacts that road construction
could cause to inventoried roadless areas. Existing leases are not
subject to the prohibitions. The Department has decided to adopt a more
limited exception at 36 CFR 294.12(b)(7) to allow road construction
needed in conjunction with the continuation, extension, or renewal of a
mineral lease, on lands that were under lease by the Secretary of the
Interior as of the date of publication of this rule in the Federal
Register. Additionally, road construction needed in conjunction with a
new lease may be allowed on these same lands if the lease is issued
immediately upon expiration of the existing lease. The lessee would be
required to start the process for issuance of a new lease prior to the
expiration of the existing lease. Such road construction or
reconstruction must be conducted in a manner that minimizes effects on
surface resources, prevents unnecessary or unreasonable surface
disturbance, and complies with all applicable lease requirements, land
and resource management plan direction, regulations, and laws. Roads
constructed or reconstructed pursuant to this paragraph must be
obliterated when no longer needed for the purposes of the lease or upon
termination or expiration of the lease, whichever is sooner.
This provision allows, but does not require, road construction and
reconstruction. These decisions would be made through the regular NEPA
process. For example, this paragraph does not supersede land management
plan prescriptions that prohibit road construction. This exception only
applies to lands in inventoried roadless areas that are currently under
mineral lease. The agency has less than 1 million acres of high
potential oil and gas currently under mineral lease. This provision
maintains the status quo for entities that currently hold mineral
leases, while at the same time limiting the potential impacts on
roadless area characteristics within this identified set of lands.
Comment on Potential Misuse of Exceptions. Some respondents felt
there should not be any exceptions to the prohibition on construction
of roads in inventoried roadless areas, out of fear that the exceptions
would be used in situations not intended. These respondents wanted to
know who would review decisions granting the exceptions.
Response. The Department believes that exceptions to the
prohibitions on road construction and reconstruction are warranted to
address legal, social, economic, and environmental concerns. Projects
proposed under any of the exceptions would still have to comply with
all legal requirements and agency policy related to environmental
analysis and public involvement. Depending on the specific
circumstances of a particular exception, decisions would be subject to
administrative appeal or internal review.
Comment on Multiple-Use Exception. Some respondents requested an
additional exception to the road construction prohibition, whereby the
Department would insert ``A road is needed to carry out the multiple-
uses provided for in the authorities cited for these regulations.'' in
Sec. 294.12(b) of the proposed rule.
Response. The addition of the proposed exception would allow road
construction in inventoried roadless areas for any multiple-use
purpose, which would be counter to the purpose of protecting roadless
areas.
Comment on Private Land and Utility Company Exceptions. Some
respondents stated that the construction of roads should be allowed to
access State or private lands and water diversions and dams. Utility
companies expressed concern that they would be unable to access
existing facilities in an emergency, such as a pipeline rupture or a
transmission line toppled by a landslide, and that the exception at
proposed paragraph (b)(1) should be expanded to accommodate access to
utility facilities in order to ensure their safe operation.
Response. The proposed rule did not suspend or modify existing
permits, contracts, or other legal instruments authorizing the use and
occupancy of National Forest System lands. Existing roads or trails
would not have been closed by the proposed rule, and existing rights of
access were recognized. The final rule retains all of the provisions
that recognize existing rights of access and use. Where access to these
facilities is needed to ensure safe operation, a utility company may
pursue necessary authorizations pursuant to the terms of the existing
permit or contract. Additionally, the examples described by the utility
companies could qualify for an emergency exception under paragraph
(b)(1) of the final rule depending on local circumstances and risk to
public health and safety.
Comment on Federal and State Highway Exceptions. Some respondents
stated that the final rule should permit road construction,
realignment, and reconstruction of Federal and State highways.
Response. In response to public comments, the agency has included
an exception that would allow road projects funded under Title 23 of
the United States Code (23 U.S.C. 317) to occur in inventoried roadless
areas. The final rule at Sec. 294.12(b)(6) allows for construction,
reconstruction, or realignment of a Federal Aid Highway where the
Secretary determines that the project is in the public interest or
consistent with the purposes for which the land was reserved or
acquired, is reasonable and prudent, and no other feasible alternative
exists (FEIS Vol. 1, 2-9 to 2-14).
Summary of Changes in section 294.12 of the Final Rule. Paragraph
(a) of the final rule has been revised consistent with the changes in
the definitions of ``inventoried roadless areas'' and ``road'', to
remove the phrases ``the unroaded portions of'' and ``This prohibition
covers classified and unclassified roads,'' respectively.
Paragraph (b) in the final rule sets out certain limited exceptions
to the prohibition on road construction and road reconstruction. The
first four exceptions were adopted essentially as proposed with minor
editing for clarity and three more exceptions were added.
[[Page 3257]]
Paragraph (c) of the proposed rule, which described the rule's
application to the Tongass National Forest, has been removed. This
change immediately applies the prohibitions in the rule to the Tongass
National Forest, except as provided in a new paragraph applicable to
the Tongass National Forest, which is added at Sec. 294.14(d).
Proposed paragraph (d) is redesignated as paragraph (c) in the
final rule. This paragraph permits maintenance activities for
classified roads included in an inventoried roadless area, and is
adopted essentially as proposed but with minor editing for clarity.
Final section 294.13. Prohibition on timber cutting, sale, or
removal in inventoried roadless areas. The final rule adds a new
prohibition on timber harvesting (the cutting, sale, or removal of
timber): except for clearly defined, limited purposes; when incidental
to the implementation of an activity not otherwise prohibited by this
rule; for personal and administrative uses; or where roadless
characteristics have been substantially altered in a portion of an
inventoried roadless area due to the construction of a classified road
and subsequent timber harvest. Both the road construction and
subsequent timber harvest must have occurred after an area was
designated an inventoried area. Even though this provision was not in
the proposed rule, the DEIS analyzed timber harvesting prohibition
alternatives for public comment and the FEIS identified a preferred
alternative that included both timber harvesting and road construction
prohibitions. Therefore, the public had sufficient opportunity to
comment on this provision and there is adequate information to make a
reasoned and informed decision.
Alternative 3 in the FEIS would prohibit timber harvesting except
for stewardship and other limited purposes. Concerns over potential
confusion of the interpretation of ``stewardship'' have led the agency
to clearly define at Sec. 294.13(b)(1) through (b)(4) the limited
circumstances where the cutting, sale, or removal of timber in
inventoried roadless areas is permitted. The final rule embodies
Alternative 3, but, in contrast to the FEIS, the term ``stewardship''
does not appear in the final rule.
The cutting, sale, or removal of trees must be clearly shown
through project level analysis to contribute to the ecological
objectives described in Sec. 294.13(b)(1), or under the circumstances
described in paragraphs (b)(2) through (b)(4). Such management
activities are expected to be rare and to focus on small diameter
trees. Thinning of small diameter trees, for example, that became
established as the result of missed fire return intervals due to fire
suppression and the condition of which greatly increases the likelihood
of uncharacteristic wildfire effects would be permissible.
Because of the great variation in stand characteristics between
vegetation types in different areas, a description of what constitutes
``generally small diameter timber'' is not specifically included in
this rule. Such determinations are best made through project specific
or land and resource management plan NEPA analyses, as guided by
ecological considerations such as those described below.
The intent of the rule is to limit the cutting, sale, or removal of
timber to those areas that have become overgrown with smaller diameter
trees. As described in the FEIS (Vol. 1, 3-76), areas that have become
overgrown with shrubs and smaller diameter trees creating a fuel
profile that acts as a ``fire ladder'' to the crowns of the dominant
overstory trees may benefit ecologically from thinning treatments that
cut and remove such vegetation. The risk of uncharacteristic fire
intensity and spread may thus be reduced, provided the excess ladder
fuels and unutilized coarse and fine fuels created by logging are
removed from the site (FEIS Vol. 1, 3-91). Also, in some situations,
cutting or removal of small diameter timber may be needed for recovery
or conservation of threatened, endangered, proposed or sensitive
species to improve stand structure or reduce encroachment into meadows
or other natural openings.
In any event, all such determinations of what constitutes
``generally small diameter timber'' will consider how the cutting or
removal of various size classes of trees would affect the potential for
future development of the stand, and the characteristics and inter-
relationships of plant and animal communities associated with the site
and the overall landscape. Site productivity due to factors such as
moisture and elevational gradients, site aspect, and soil types will be
considered, as well as how such cutting or removal of various size
classes of standing or down timber would mimic the role and legacies of
natural disturbance regimes in providing the habitat patches,
connectivity, and structural diversity critical to maintaining
biological diversity. In all cases, the cutting, sale, or removal of
small diameter timber will be consistent with maintaining or improving
one or more of the roadless area characteristics as defined in
Sec. 294.11.
Comment on Scope of the Prohibitions. Many respondents urged the
agency to expand the prohibitions to prohibit timber harvesting,
mining, and other activities that harm the undeveloped characteristics
of inventoried roadless areas.
Response. In preparing the FEIS, the scope of prohibited actions
considered in detail was limited to road construction, road
reconstruction, and timber harvesting, because these activities pose
disproportionately greater risks of altering and fragmenting natural
landscapes at regional and national scales (FEIS Vol. 1, 1-15 to 1-16).
In addition, the agency can analyze potential social and ecological
effects based on the five-year timber sale program of each national
forest. Other uses, although potentially as harmful to roadless area
values and characteristics, are not scheduled in such a fashion and are
more appropriately reviewed through land and resource management
planning.
The agency has decided to prohibit timber harvesting because it
provides additional protection for roadless area characteristics beyond
that provided by a prohibition on road construction alone. However, the
agency agrees with those respondents who asserted that science-based
forest management might require some level of vegetative management in
inventoried roadless areas. Thus, the agency has decided to allow some
timber harvesting for clearly defined purposes in the final rule at
294.13(b)(1) through (b)(4).
Comment on Wildlife Habitat Management. Many respondents, including
some State wildlife management agencies, were concerned that a timber
harvest prohibition would preclude all wildlife habitat management
opportunities.
Response. As provided by final 294.13(b)(1), tree cutting for
wildlife habitat improvement could proceed if it is designed to
maintain or help restore ecosystem composition or structure to
conditions within the range of variability that would be expected to
occur under natural disturbance regimes of the current climatic period.
This will allow the agency to manage for the full range of habitat
types needed to support the diversity of native and desired non-native
species.
Comments on Uncharacteristic Wildfire Effects. Of particular
interest to many respondents because of the severity of the 2000 fire
season, was how the agency would manage inventoried roadless areas to
reduce the risk of uncharacteristic wildfire effects.
[[Page 3258]]
Response. The effects of uncharacteristic wildfires often include
unnatural increases in wildfire size, severity, and resistance to
control and the associated impacts to people and property. These
uncharacteristic effects have been caused primarily by past wildfire
suppression, and past timber harvesting and grazing practices. These
have contributed to often-dramatic changes in some areas in wildfire
frequency, size, and severity (FEIS Vol. 1, 3-72 to 3-73). The
vegetative structure, density, and composition of these areas have
changed when compared to less altered ecosystems (FEIS Vol. 1, 3-144).
The use of timber harvesting, as permitted by this rule, and other
fuel management techniques will help maintain ecosystem composition and
structure within its historic range of variability at the landscape
scale. Treatment priorities will be consistent with those identified in
the report Protecting People and Sustaining Resources in Fire-Adapted
Ecosystems: A Cohesive Strategy (November 9, 2000; 65 FR 67480). These
include wildland-urban interface areas, readily accessible municipal
watersheds, and threatened and endangered species habitat. Since
wildland-urban interface areas and readily accessible municipal
watersheds rarely occur in or adjacent to inventoried roadless areas,
most fire hazard reduction work would not begin in inventoried roadless
areas for at least 20 years, the estimated time it would take to
address the extremely hazardous fuel situations outside inventoried
roadless areas (FEIS Vol. 1, 3-78). However, hazardous fuels treatment
in inventoried roadless areas is not prohibited by this rule, so long
as road construction or reconstruction is not necessary. Vegetative
management would focus on removing generally small diameter trees while
leaving the overstory trees intact. The cutting, sale, or removal of
trees pursuant to 294.13(b)(1) must be clearly shown through project
level analysis to contribute to the ecological objectives described.
Such management activities are expected to be rare and to focus on
small diameter trees. Thinning of small diameter trees, for example,
that became established as the result of missed fire return intervals
due to fire suppression and the condition of which greatly increases
the likelihood of uncharacteristic wildfire effects would be
permissible.
Summary of Changes in new section 294.13 of the Final Rule. The
final rule adds a new prohibition on timber harvesting except for
clearly defined, limited purposes, when incidental to the
implementation of a management activity not otherwise prohibited by
this rule; for personal or administrative use; or where roadless
characteristics have been substantially altered in a portion of an
inventoried roadless area due to the construction of a classified road
and subsequent timber harvest. Paragraph (a) establishes a prohibition
on timber cutting, sale, or removal in inventoried roadless areas
except as provided in paragraph (b). Paragraph (b) makes clear that the
cutting, sale, or removal of timber in inventoried roadless areas is
expected to be infrequent, but allows timber cutting, sale, or removal
as identified in paragraphs (b)(1) through (b)(4).
Paragraph (b)(1) allows generally small diameter timber to be cut,
sold, or removed in inventoried roadless areas where it maintains one
or more of the roadless area characteristics as defined in Sec. 294.11
and: (1) improves habitat for threatened, endangered, proposed or
sensitive species or (2) maintains or restores the characteristics of
ecosystem composition and structure, such as to reduce uncharacteristic
wildfire effects, within the range of variability that would be
expected to occur under natural disturbance regimes of the current
climatic period.
Paragraph (b)(2) allows timber cutting, sale, or removal in
inventoried roadless areas when incidental to implementation of a
management activity not otherwise prohibited by this rule. Examples of
these activities include, but are not limited to trail construction or
maintenance; removal of hazard trees adjacent to classified roads for
public health and safety reasons; fire line construction for wildland
fire suppression or control of prescribed fire; survey and maintenance
of property boundaries; other authorized activities such as ski runs
and utility corridors; or for road construction and reconstruction
where allowed by this rule.
Paragraph (b)(3) allows timber cutting, sale, or removal for
personal or administrative use as provided for at 36 CFR part 223.
Personal use includes activities such as Christmas tree and firewood
cutting. Administrative use includes providing materials for activities
such as construction of footbridges and fences.
Paragraph (b)(4) allows the cutting, sale, or removal of timber
where roadless characteristics have been substantially altered in a
portion of an inventoried roadless area due to the construction of a
classified road and subsequent timber harvest. The road construction
and subsequent timber harvest must have occurred after the area was
designated an inventoried roadless area and prior to the date of
publication of this rule in the Federal Register. Timber may be cut,
sold, or removed only in the substantially altered portion of the
inventoried roadless area. This exception recognizes that road
construction and timber harvesting in inventoried roadless areas may
have altered the roadless characteristics to the extent that the
purpose of protecting those characteristics cannot be achieved. Timber
harvest should not expand the area already substantially altered by
past management. This exception is subject to applicable laws,
regulations, and land and resource management planning direction. Refer
to the previous discussion in ``Comment on Unroaded Portion of an
Inventoried Roadless Area'' in the ``Proposed Sec. 294.11 Definitions''
section of this preamble for more information on this subject.
Proposed 294.13. Consideration of roadless area conservation during
forest plan revision. This section of the proposed rule would have
required the responsible official to evaluate the quality and
importance of roadless area characteristics and determine whether and
how to protect these characteristics in the context of multiple-use
objectives during forest plan revision.
Comment on Integration with the Planning Rule. Respondents from a
cross section of timber industry and business interests, State, county
and Federal representatives, professional associations, and the public
expressed concern that this section did not provide adequate direction
on how to consider and implement the criteria and procedures during
forest plan revision, leading to confusion over integration of this
section with the proposed planning and road management rulemaking
initiatives.
Response on Proposed Section 1294.13. The Department has decided
that the appropriate place for considering protections for inventoried
roadless areas, in addition to those in this rule, and protections for
uninventoried unroaded areas is during the planning process pursuant to
the new planning regulations at 36 CFR part 219, Subpart A.
The framework for planning allows for the development of issues
leading to the proposal of special designations, and also gives ample
opportunity for the public and others to collaborate on the issue at
all levels of planning. Based on public comment, specific requirements
for evaluating inventoried roadless areas and unroaded areas are
included in Sec. 219.9(b)(8) of the final planning rule (65 FR 67571)
to emphasize that the
[[Page 3259]]
responsible official must evaluate these areas during the plan revision
process.
The new planning regulations provide for consideration of roadless
areas in the forest planning process in a fashion similar to that set
out in the proposed rule at Sec. 294.13. Based on the comments received
and reasons stated previously, the Department has determined that those
requirements are better considered in the context of 36 CFR part 219.
Elimination of proposed Sec. 294.13 from the final rule will not have a
significant effect on the purpose or scope of the final rule or on the
protections provided to inventoried roadless areas because evaluation
of inventoried roadless areas and unroaded areas are now integrated
into the final planning rule.
Proposed Section 294.14. Scope and applicability. Proposed
paragraph (a) of this section of the proposed rule provided that
existing contracts, permits, or other legal instruments authorizing the
occupancy and use of National Forest System land would not be suspended
or modified by the rule.
Comment on Existing Authorized Activities. Some respondents were
concerned about the impact of the rule on special uses and requested
clarification regarding the ability to construct or maintain roads in
inventoried roadless areas to access electric power or telephone lines,
pipelines, hydropower facilities, and reservoirs. Some suggested that
proposed Sec. 294.12(b)(3) be revised to read, ``A road is needed
pursuant to reserved or outstanding rights or as permitted by statute,
treaty or other authorities.''
Response. Section 294.14(a) of the proposed rule stated that the
rule would not suspend or modify any existing permit, contract, or
other legal instrument authorizing the use and occupancy of National
Forest System lands. Existing authorized uses would be allowed to
maintain and operate within the parameters of their current
authorization, including any provisions regarding access. Adding the
wording ``other authorities'' to this paragraph is not necessary as the
term ``other legal instrument'' adequately covers other existing
authorizations.
Under paragraph (a), road construction or reconstruction associated
with ongoing implementation of special use authorizations would not be
prohibited. For example, all activities anticipated and described in an
authorized ski area's master plan, such as construction or maintenance
of ski trails and ski runs, the use of over snow vehicles or off-
highway vehicles necessary for ski area operations, including
associated road construction, would not be prohibited even if a
specific decision authorizing road construction has not been made as of
the date of publication of this rule in the Federal Register. Likewise,
activities necessary to a mineral lease authorization issued prior to
the date of publication of this rule would not be prohibited even if a
specific decision authorizing road construction has not been made as of
the date of publication of this rule in the Federal Register. A phrase
has been added to clarify that this paragraph only applies to permits,
contracts, or other legal instruments issued before the date of
publication of this rule in the Federal Register. The term ``revoke''
has been added to this provision to clarify that this final rule will
not revoke existing permits, contracts, or other legal instruments.
Proposed Sec. 294.14(b) made clear that the final rule would not
require units to initiate land management plan amendments or revisions.
Comment on Land Management Plan Amendments. Some respondents
commented that the proposed rule is a ``massive change'' in existing
land management plan direction or land allocation, without amendment or
revision of land management plans as required by the National Forest
Management Act. Some respondents suggested that amendments were
necessary in order to consider site-specific biological and socio-
economic information.
Response. The Secretary has extensive rulemaking authority
governing forest management and development of land management plans.
Just as development and approval of land management plans must conform
to existing laws and regulations, new laws or regulations can supersede
land management plan management direction. Requiring ``conforming
amendments'' to land management plans would be redundant of the
rulemaking process.
Local responsible officials' discretion to initiate land and
resource management plan amendments, as deemed necessary, would not be
limited by this provision. There may be instances where a local
responsible official elects to initiate amendment or revision of forest
and grassland plans following final promulgation of this final rule.
While the analysis undertaken at the national scale is sufficient for
the prohibitions established pursuant to this rulemaking, the
Department appreciates that additional management issues may need to be
addressed, both within and outside of inventoried roadless areas. The
local official is best positioned to assess whether any such adjustment
is necessary. For example, although the local official is not free to
re-examine the prohibitions established by this rule, it may be
appropriate to consider amendments to land and resource management
plans regarding plan decisions that guide the use of inventoried
roadless areas in light of the final rule.
Forest Service officials have several mechanisms that allow for
evaluation of forest and grassland plan implementation, including plan-
specific monitoring provisions, the amendment and revision process, and
project-level decisionmaking. A determination to amend or revise a land
and resource management plan is based on a variety of factors. Forest
Supervisors and Regional Foresters have substantial discretion in
determining whether or not to initiate plan amendments or revisions.
In the early stages of forest plan amendment or revision, or any
decisionmaking process involving land management practices, Regional
Foresters, Forest Supervisors, and District Rangers must actively seek
input and participation by State, local, and Tribal officials and other
affected or interested parties. Therefore, this provision is retained
without change in the final rule.
Paragraph (c), as proposed, provided that the regulation, if
adopted, would not suspend or modify any decision made prior to the
effective date of the final rule.
Comment on Effect on Project Planning. Some respondents questioned
whether implementation of the rule would prohibit projects where
planning is already underway. Most of the comments on this paragraph
were related to current and future ski area development, although other
land uses would be treated in a similar manner. Some respondents
asserted that exemptions from the rule should include all lands or
activities described in existing ski area special use permits or master
development plans. Specifically listed were White Pass, Arapahoe Basin,
Sierra at Tahoe, Pallavicini, Alleys Trails, Mammoth Mountain, June
Mountain, Tamarack Resort and Cross Country Skiing Center, and Mammoth
Snowmobile Adventures. Respondents also stated that the proposed
Pelican Butte Ski Area and expansion of the Sipapu Ski Area should be
allowed to continue their current planning processes and that the
agency should also allow expansion of commercial recreation activities
to benefit local people. Others took an opposing view, stating that the
agency should not exempt from the rule any
[[Page 3260]]
new ski areas or expansion of any existing ski areas at Pelican Butte,
Mount Ashland, Copper Creek, Sherwin, Beaver Creek, Mammoth Mountain,
June Mountain, and others.
Response. Road construction and timber harvest for expansion of ski
areas, resorts, or other recreation developments in inventoried
roadless areas would be allowed under paragraph (a) as previously
discussed, subject to existing Forest Service procedures, if special
use permits are in existence prior to the date of publication of this
rule in the Federal Register and proposed activities take place within
the boundaries established by the special use authorization (FEIS Vol.
1, 3-226). The requirement that a permit be in existence prior to the
effective date of this rule has been changed in the final rule to
require that the permit be in existence prior to the date of
publication of this rule in the Federal Register. This change was
necessary because the effective date of this rule is delayed 60 days
from the date of publication.
Road construction and timber harvest would also be allowed for new
ski areas, or expansions of existing ski areas outside the existing
special use permit boundaries, in inventoried roadless areas provided
that the expansion or construction was approved by a signed Record of
Decision, Decision Notice, or Decision Memorandum before the date of
publication of the rule in the Federal Register (FEIS Vol. 1, 3-226).
Under paragraph (c), project decisions for any activity made prior to
the date of publication of the final rule in the Federal Register would
be altered.
Summary of Changes in Sec. 294.14 of the Final Rule. Under
paragraph (a) of the final rule, road construction, road
reconstruction, and timber harvest associated with ongoing
implementation of special use authorizations are not prohibited. The
term ``revoke'' and the date of publication of this rule in the Federal
Register were added to clarify agency intent.
Paragraph (b) makes clear that the final rule would not require
units to initiate land management plan amendments or revisions and is
adopted without change.
Paragraph (c) states that project decisions made prior to the date
of publication of the final rule in the Federal Register would not be
altered. The term revoke was added to clarify agency intent. The
requirement in the proposed rule that a project decision be in
existence prior to the effective date of this rule has been changed in
the final rule to require that the project decision be in existence
prior to the date of publication of this rule in the Federal Register.
This change was necessary because the effective date of this rule is
delayed 60 days from the date of publication.
Proposed paragraph (d) was a ``severability'' or ``savings''
clause. This provision identifies the Department's intention that, in
the event any provision is determined invalid, the remaining portions
of the rule would remain in force. No comments were received on this
provision; it has been redesignated as paragraph (f) in the final rule
and retained without change.
A new paragraph (d) has been added to the final rule which provides
that the prohibitions in the final rule do not apply to road
construction, reconstruction, or the cutting, sale or removal of timber
from inventoried roadless areas on the Tongass National Forest where a
notice of availability for a draft environmental impact statement for
such activities has been published in the Federal Register prior to the
date of publication of this rule in the Federal Register. This
mitigation measure allows an adjustment period for the timber program
in Southeast Alaska, but will also assure the long-term protection of
the Forest's unique ecological values and characteristics. Refer to the
previous discussion in the section entitled, ``Comment on Application
to the Tongass National Forest,'' in, ``Proposed Sec. 294.12.
Prohibition on road construction and reconstruction in inventoried
roadless areas.''
To replace and serve the same purpose as proposed Sec. 294.13(f), a
new Sec. 294.14(e) has been added to the final rule to address the
recently adopted planning regulations at 36 CFR part 219, which require
the responsible official to determine which inventoried roadless areas
warrant additional protection. Consistent with the original proposal,
this new paragraph (e) makes clear that, in determining whether
additional protections are needed for any inventoried roadless area,
the responsible official cannot reconsider or set aside the
prohibitions established in Sec. 294.12 or Sec. 294.13.
What Other Issues Were Considered in the Final Environmental Impact
Statement?
Environmental Effects. Another major issue among those who
commented on the proposed rule and DEIS was the environmental effects
of the alternatives on inventoried roadless area characteristics. It
was also the most important consideration in selection of an
alternative. The purpose and need for this proposed action is based on
the premise that inventoried roadless areas have characteristics that
should be conserved and maintained. Road construction, reconstruction,
and timber harvesting are the activities most likely to harm the
characteristics that the agency is seeking to protect. The FEIS
documents the contribution of inventoried roadless area characteristics
to watershed health and water quality, to biological strongholds for
terrestrial and aquatic species, and to habitat for threatened,
endangered, and sensitive species. The effects of road construction,
reconstruction, and timber harvesting on those characteristics are also
documented.
Additionally, some respondents commented on the discussion of
spiritual values of inventoried roadless areas in chapter 3 of the
DEIS. Some thought it was inappropriate to discuss spiritual values in
an environmental analysis produced by the Federal government. Others
thought these values were important to consider in the rulemaking
process because inventoried roadless areas provided an important
setting for their personal spiritual renewal. Reconciling divergent
viewpoints on spiritual values is beyond the scope of this proposal.
The decision for this rulemaking was not based on the beliefs or
principles of one religion or another, but based on the science,
policies and laws that guide the decisionmaking process.
Alternative 1 in the FEIS is the no action alternative and, if
selected, would not have restricted activities in inventoried roadless
areas. While it would not fund, authorize, compel, or carry out any
activity in an inventoried roadless area, this alternative does have
the greatest potential for adverse impact on the characteristics the
agency seeks to protect. It allows the most roads to be constructed and
reconstructed and the most timber to be harvested.
Action Alternatives 2, 3, and 4 in the FEIS all provide ecological
benefits from prohibiting road construction and reconstruction. The
major difference among these alternatives is that Alternative 2 does
not restrict timber harvesting; Alternative 3 prohibits timber
harvesting for commodity purposes, but allows timber harvesting for
clearly defined purposes and circumstances; and Alternative 4 prohibits
all timber cutting (except that which may be needed for protection or
recovery of threatened, endangered, or proposed species). In
alternatives 2, 3, and 4, personal and administrative use harvest,
including firewood and Christmas tree cutting, would be permitted.
Limited tree cutting could occur incidental to other management
activities, such as trail construction or
[[Page 3261]]
maintenance, hazard tree removal adjacent to classified roads for
public health and safety reasons, fire line construction for wildland
fire suppression or control of prescribed fire, or survey and
maintenance of property boundaries.
The preferred alternative in the FEIS would prohibit all timber
harvest activities in inventories roadless areas except for clearly
defined purposes. The final rule provides for the cutting, sale or
removal of timber in substantially altered portions of inventoried
roadless areas for any purpose as long as the activities do not require
additional road construction or reconstruction. By allowing some
additional level of timber harvest activity compared to the FEIS
preferred alternative, there is an increase in the likelihood of
related environmental impacts and decrease in the environmental
benefits accrued through the more stringent prohibition in the
preferred alternative.
The DEIS estimated that approximately 2.8 million of the 58.5
million acres of inventoried roadless areas had been roaded since the
areas were designated as inventoried roadless areas. Some portion of
these roaded areas had also been impacted by subsequent management
activities facilitated by the road access. It is unknown exactly what
portion of these 2.8 million acres has sustained sufficient road
construction and timber harvest to substantially alter their roadless
characteristics. The determination of whether roadless characteristics
have been substantially altered is to be made following a site-specific
evaluation. Before any project is authorized that allows the cutting,
sale, or removal of timber in an inventoried roadless area, it will
subject to site-specific analysis following existing laws and
regulations.
Current timber harvesting practices have less impact on the
environment than they have had in the past. Increased knowledge, new
equipment and techniques, and the application of best management
practices have helped to reduce the adverse environmental impacts of
timber harvest activities. However, timber-harvesting practices still
impact roadless area characteristics, contributing to the fragmentation
of habitat and threatening their ability to function as biological
strongholds, reference areas, and provide other roadless values.
The final rule allows timber harvesting of generally small diameter
timber for limited purposes when it maintains or improves one or more
roadless area characteristics and: (1) Improves threatened, endangered,
proposed, and sensitive species habitat or (2) maintains or restores
the characteristics of ecosystem composition and structure, such as to
reduce the risks of uncharacteristic wildfire effects. The final rule
also allows timber to be cut, sold, or removed where roadless
characteristics have been substantially altered in a portion of an
inventoried roadless area due to the construction of a classified road
and subsequent timber harvest, and such road construction and
subsequent timber harvest occurred after the area was designated an
inventoried roadless area. Roadless area characteristics are identified
in Sec. 294.11 as: (1) High quality or undisturbed soil, water, and
air; (2) sources of public drinking water; (3) diversity of plant and
animal communities; (4) habitat for threatened, endangered, proposed,
candidate, and sensitive species and for those species dependent on
large, relatively undisturbed areas of land; (5) primitive, semi-
primitive non-motorized, and semi-primitive motorized classes of
dispersed recreation; (6) reference landscapes; (7) naturally appearing
landscapes with high scenic quality; (8) traditional cultural
properties and sacred sites; and (9) other locally identified unique
characteristics (FEIS Vol. 1, 3-3 to 3-7).
Forest Dependent Communities. Impacts to forest dependent
communities were a major issue among those who commented on the
proposed rule and DEIS. Under Alternative 1 of the FEIS, the flow of
goods and services would continue according to current policies and
land management direction. Alternatives 2 through 4 could reduce future
timber harvest, mineral exploration and development, and other
activities such as ski area development in inventoried roadless areas.
Communities with significant economic activities in these sectors could
be adversely impacted. However, the effects on national social and
economic systems are minor. For example, the total timber volume
affected by this rule is less than 0.5 percent of total United States
production, and the total oil and gas production from all National
Forest System lands is currently about 0.4 percent of the current
national production. None of the alternatives are likely to have
measurable impacts compared to the broader social and economic
conditions and trends observable at these scales, however the effects
of the alternatives are not distributed evenly across the United States
(FEIS Vol. 1, 3-326 to 3-350).
To reduce the economic impact of this decision, the Chief of the
Forest Service will seek to implement one or more of the following
provisions of an economic transition program for communities most
affected by application of the prohibitions in inventoried roadless
areas (FEIS Vol. 1, 2-14):
(1) Provide financial assistance to stimulate community-led
transition programs and projects in communities most affected by
application of the prohibitions in inventoried roadless areas;
(2) Through financial support and action plans, attract public and
private interests, both financial and technical, to aid in successfully
implementing local transition projects and plans by coordinating with
other Federal and State agencies and;
(3) Assist local, State, Tribal and Federal partners in working
with those communities most affected by the final roadless area
decision.
Local Decisionmaking. The potential effect of the proposed rule on
local involvement in decisionmaking was a major issue identified by
many respondents to the DEIS. As described in both the DEIS and FEIS,
Alternative 1 would allow local land managers the discretion on whether
to construct or reconstruct roads or harvest timber for commodity
purposes in inventoried roadless areas. Alternatives 2, 3, and 4 would
remove the local decisionmaking authority only for these specific
activities. All other management decisions regarding inventoried
roadless areas would be made through National Forest System planning
procedures. Under all alternatives, management decisions for unroaded
areas would be made under the provisions of the new planning
regulations at 36 CFR part 219. As explained in the ``National
Direction v. Local Decisionmaking'' discussion, the agency has
determined that national direction is needed to address the issues
regarding road construction, reconstruction, and timber harvesting in
inventoried roadless areas.
The Final Rule and Alternatives Considered
What Alternatives and Mitigation Measures Were Considered by the
Agency?
The agency identified two methods to conserve the remaining
inventoried roadless areas in the notice of intent for the proposed
rule. The first method evaluated whether road construction,
reconstruction, and timber harvest should be prohibited in inventoried
roadless areas. The second method examined the establishment of
procedures to evaluate and conserve roadless area characteristics
during land
[[Page 3262]]
and resource management plan revisions. These methods were incorporated
into the proposed rule and alternatives analyzed in the DEIS. Since
publication of the proposed rule, the agency has published final Land
and Resource Management Planning Regulations at 36 CFR part 219. The
draft and subsequent final planning regulations also provided direction
to integrate the consideration of roadless area characteristics into
the amendment and revision procedures of land and resource management
plans for National Forest System lands. This detailed direction in the
final planning regulations eliminated the need for the procedures
considered in the Roadless Area Conservation DEIS and proposed rule.
Therefore, these procedures have been omitted from the FEIS and final
rule.
Public comments on the notice of intent identified a variety of
suggestions for alternatives, including different types and
combinations of prohibitions, procedures, and exemptions (Summary of
Public Comment for the Notice of Intent, Content Analysis Enterprise
Team, 2000). Comments on the DEIS and proposed rule provided detailed
ways in which to modify the alternatives (Summary of Public Comment for
the DEIS, Content Analysis Enterprise Team, 2000).
Summaries of public comment on the notice of intent, proposed rule
and the DEIS are part of the record for this rulemaking, and can be
viewed at the agency's roadless website (roadless.fs.fed.us). The
agency's response to comments on the DEIS and proposed rule can be
found in Volume 3 of the FEIS. This information was used in forming the
alternatives in the FEIS (Chapter 2), which frame the choices for this
final rule.
With the removal of the procedures, the agency had two basic
decisions to make, with four alternatives for each decision. The first
decision was whether road construction, reconstruction, or timber
harvesting should be prohibited in National Forest System inventoried
roadless areas, or some combination of the three. The second decision
was whether the proposed national prohibitions should be applied to the
Tongass National Forest or modified to meet the unique situation on the
Tongass.
Four alternatives, including a no action alternative, were
developed to cover the range of possible prohibited activities in
inventoried roadless areas consistent with the stated purpose and need.
Four alternative ways of applying the prohibitions to the Tongass
National Forest were developed as well (FEIS Vol. 1, 2-3 to 2-12).
Various other alternatives were considered but eliminated from detailed
study (FEIS Vol. 1, 2-15 to 2-22).
Prohibition Alternatives. Alternative 1 allowed road construction
and reconstruction to continue, subject to existing land management
plan prescriptions. There was no national restriction on timber
harvesting. This was the no action alternative.
Prohibition Alternative 2 prohibited road construction and
reconstruction activities, including temporary road construction, in
inventoried roadless areas. There was no national restriction on timber
harvesting.
Prohibition Alternative 3 prohibited road construction and
reconstruction activities, including temporary road construction, in
inventoried roadless areas. Timber harvesting was allowed for clearly
defined stewardship purposes only, where harvesting could only be used
when it maintained or improved roadless characteristics and: (1)
improved habitat for threatened, endangered, proposed or sensitive
species, (2) reduced uncharacteristic wildfire effects, or (3) restored
ecological structure, function, process or composition. Timber harvest
for commodity purposes was prohibited.
The definition of timber harvesting for stewardship purposes was
reviewed and refined between the proposed rule and the FEIS to more
clearly state the agency's intent and to ensure effective protection of
roadless characteristics. In the DEIS, timber harvesting for
stewardship purposes could be interpreted to accommodate any non-timber
production resource management objective that required removal of
forest vegetation. Many respondents were concerned about the agency's
broad use of timber harvest for stewardship purposes on National Forest
System lands. They believed that stewardship purpose timber harvest in
inventoried roadless areas needed to be more clearly defined.
The agency agreed that it needed to clearly state the intended
purposes for stewardship harvest in inventoried roadless areas. The
FEIS identified the range of allowable objectives that are consistent
with timber harvesting for stewardship purposes in inventoried roadless
areas. In doing so, local decisions about timber harvesting within
inventoried roadless areas must maintain or improve one or more
roadless characteristics, while focusing on improving threatened,
endangered, proposed, or sensitive species habitat; reducing the risk
of uncharacteristic wildfire effects; or restoring ecological
processes.
Alternative 4 prohibited road construction and reconstruction
activities, including temporary road construction, in inventoried
roadless areas. No timber cutting was allowed for stewardship or
commodity purposes, except where it was necessary for the protection of
threatened or endangered species.
Exceptions and Mitigation Measures. The agency identified an
initial set of exceptions to the prohibition alternatives, as set out
in the DEIS and proposed rule. The exceptions addressed the following
circumstances where the prohibitions did not apply and are set out in
the final rule at Sec. 294.12(b)(1) through (b)(4). These include
circumstances where a road is needed to: (1) protect public health and
safety; (2) to conduct an environmental response action; (3) pursuant
to reserved or outstanding rights or as provided for by statute or
treaty; or (4) road realignment is needed to prevent irreparable
resource damage by a classified road.
Based on comments received on the proposed rule and the DEIS, the
agency developed and considered additional optional exceptions that
mitigated the effects of the prohibition alternatives (FEIS Vol. 1, 2-8
to 2-9). These exceptions were available for selection as part of the
final rule to reduce or eliminate undesirable social and economic
impacts. Any or none of these optional exceptions could have been
selected as part of the final rule. If selected, these exceptions would
state that the responsible official may authorize road construction or
reconstruction in inventoried roadless areas where: (1) reconstruction
is needed to implement road safety improvements; (2) the Secretary
determines that a Federal Aid Highway project is in the public interest
or consistent with the purposes for which the land was reserved or
acquired; or (3) a road is needed for prospective mineral leasing
activities in inventoried roadless areas.
Tongass National Forest Alternatives. The second decision was to
select one of the four alternatives created specifically for the
Tongass National Forest (FEIS Vol. 1, 2-9). Based on public comments
and the agency's decision to integrate procedures for evaluating
roadless area characteristics into the planning rule, some of the
Tongass alternatives presented in the DEIS were modified accordingly.
The Tongass Not Exempt alternative applied the same prohibition
alternative to the Tongass National Forest that applied to the rest of
National Forest System lands. An optional social and
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economic mitigation measure was developed for the Tongass Not Exempt
alternative that delayed implementation of the selected prohibition
alternative on the Tongass National Forest until April 2004 in order to
provide a transition period for communities most affected by changes
that may result if this alternative were enacted.
The Tongass Exempt alternative did not apply a national prohibition
to the Tongass National Forest. It allowed road construction and
reconstruction on the Tongass to continue subject to existing land
management plan prescriptions. Future proposals for road activities in
inventoried roadless areas would be considered on a case-by-case basis.
The Tongass Deferred alternative postponed the decision on whether
to apply prohibitions to the Tongass National Forest until April 2004,
when an evaluation to determine whether the prohibitions against road
construction and reconstruction should apply to any or all inventoried
roadless areas would be conducted as part of the scheduled 5-year
review of the April 1999 Tongass Land and Resource Management Plan.
The Tongass Selected Areas alternative applied the prohibitions on
road construction and reconstruction within inventoried roadless areas
located in certain land use designations (LUDs) identified in the
Tongass Land and Resource Management Plan, specifically those of Old
Growth Habitat, Semi-Remote Recreation, Remote Recreation, and LUD II.
See Appendix E of Volume 1 of the FEIS for a complete description of
these land use designations.
What is the Environmentally Preferred Alternative?
Under the National Environmental Policy Act, the agency is required
to identify the environmentally preferred alternative (40 CFR
1505.2(b)). This is interpreted to mean the alternative that would
cause the least damage to the biological and physical components of the
environment, and, which best protects, preserves, and enhances
historic, cultural, and natural resources (Council on Environmental
Quality, Forty Most Asked Questions Concerning CEQ's National
Environmental Policy Act Regulations, 46 FR 18026). Factors considered
in identifying this alternative include: (1) fulfilling the
responsibility of this generation as trustee of the environment for
future generations, (2) providing for a productive and aesthetically
pleasing environment, (3) attaining the widest range of beneficial uses
of the environment without degradation, (4) preserving important
natural components of the environment, including biodiversity, (5)
balancing population needs and resource use, and (6) enhancing the
quality of renewable resources.
The agency believes the alternative that best meets these
objectives is Alternative 3 combined with the Tongass Not Exempt
alternative, without any social or economic mitigation. Alternative 3
protects inventoried roadless areas from adverse environmental impacts
associated with road construction, reconstruction, and timber
harvesting for commodity purposes, as identified in Chapter 3 of the
FEIS.
Alternative 4, by prohibiting timber cutting of any kind (except
for protection or recovery of threatened, endangered, and proposed
species), does not allow for the array of vegetation management
potentially necessary to maintain or improve roadless characteristics,
reduce the risks of uncharacteristic wildfire effects, or restore
ecological structure, function, processes, or composition. Timber
harvesting for the limited purposes under Alternative 3 would allow
needed biological treatments to promote a healthy forest for future
generations. Alternative 2, although providing for protection from road
construction and reconstruction, would still permit harvesting of trees
for commodity purposes that could conflict with protecting the physical
and biological environment.
Alternative 3, like the other alternatives, contains exceptions
that allow road construction and reconstruction for important human and
environmental protection measures, such as protection of public health
and safety from imminent threats of flood and fire, treatment to clean
up hazardous pollution sites, and road realignment to prevent
irreparable resource damage. These are important exceptions needed to
enhance the productivity and esthetics of the environment. Social and
economic mitigation measures are not part of this environmentally
preferred Alternative 3 because these measures, although important to
reduce the social and economic effects of the action alternatives, do
not contribute to the protection of the physical or biological
environment.
The Tongass National Forest is part of the northern Pacific coast
ecoregion, an ecoregion that contains one fourth of the world's coastal
temperate rainforests. As stated in the FEIS, the forest's high degree
of overall ecosystem health is largely due to its quantity and quality
of inventoried roadless areas and other special designated areas. The
``Tongass Not Exempt'' alternative would immediately apply prohibitions
to all inventoried roadless areas and is the environmentally preferred
alternative. The other Tongass alternatives either delay or limit the
inventoried roadless area land base to which the prohibitions would
apply, or defer the decision regarding prohibitions altogether. The
adverse environmental impacts of these alternatives are disclosed in
Chapter 3 of the FEIS.
What Is in the Final Rule and What Are the Reasons for Selecting That
Alternative?
Selection of an alternative to be adopted in the final rule
requires careful consideration of the environmental effects, including
cumulative, social, and economic impacts, and the relative values of
the various resources to arrive at a fair and reasoned decision to
achieve the stated purpose and need for inventoried roadless area
protection (FEIS Vol. 1, 3-392 to 3-403). As stated previously, courts
have held that the agency has wide discretion in weighing and deciding
the proper administration of National Forest System lands.
The Department's judgment regarding the appropriate administration
of these lands is embodied in the policies described in this final
rule. First and foremost, the Department wants to ensure that
inventoried roadless areas sustain their values for this and future
generations. By sustaining these values, a continuous flow of benefits
associated with healthy watersheds and ecosystems is provided. These
benefits include sources for clean drinking water, fish habitat,
wildlife habitat, biological diversity, and dispersed outdoor
recreational opportunities. Not only are short-term economic and
environmental factors considered, but also the long-term productivity
of these lands which are so critical to strong, productive economies.
Evaluation of these considerations for this decision is based
primarily on these qualitative factors. Quantitative factors, such as
volume of timber offered for sale, or roadless acres protected, were
also considered and are helpful to distinguish and compare the
alternatives (FEIS Vol. 1, 2-24 to 2-38), and their effects (FEIS
Chapter 3).
Prohibition Alternatives. Alternative 1 in the FEIS has the
greatest potential for adverse impact on watershed health and water
quality by allowing increased sedimentation and disruption of
hydrologic processes; the greatest potential for adverse impact on
biodiversity by fragmenting habitat for threatened, endangered, and
sensitive
[[Page 3264]]
species; the greatest potential for adverse impact on aquatic and
terrestrial habitat; and the greatest potential for increase in
competition from invasive non-native species. This alternative was not
selected because it did not meet the specified purpose and need for
this action.
Action Alternatives 2, 3, and 4 in the FEIS all provide ecological
benefits from prohibiting road construction and reconstruction. The
major difference among these alternatives is that Alternative 2 allows
timber harvesting without restriction; Alternative 3 prohibits timber
harvesting for commodity purposes, but allows timber harvesting for
clearly defined purposes and limited circumstances; and Alternative 4
prohibits all timber cutting (except that which may be needed for
protection or recovery of threatened, endangered, or proposed species).
Personal and administrative use harvest, including firewood and
Christmas tree cutting, would be permitted. Tree removal could occur
when associated with management activities not otherwise prohibited by
the final rule, such as trail construction or maintenance, hazard tree
removal adjacent to classified roads for public health and safety
reasons, fire line construction for wildland fire suppression or
control of prescribed fire, or survey and maintenance of property
boundaries.
Alternative 2 was not selected because it posed more risks to
roadless characteristics than Alternatives 3 or 4. Timber harvesting
for clearly defined, limited purposes can be a valuable tool for
conserving and improving roadless area values and should be available
as a management option for the local responsible official. Therefore,
the Department did not select Alternative 4 and is selecting
Alternative 3.
Reducing the risk of uncharacteristic wildfire effects is one way
of restoring ecological processes. The final rule recognizes this by
eliminating ``reducing the risk of uncharacteristic wildfire effects''
as a separate purpose and instead uses it as an example of restoring
ecological processes. Also, to address concern about the meaning and
implementation of stewardship purpose timber harvest that ``restores
ecological structure, function, processes, and composition'' described
in the FEIS, the final rule eliminates use of the term ``stewardship''.
Instead, the rule relies on the purposes specifically listed and
mirrors language from the new planning regulations at 36 CFR part 219
stating that timber harvest is allowed in order to maintain or restore
the characteristics of ecosystem composition and structure within the
range of variability that would be expected to occur under natural
disturbance regimes of the current climatic period.
Alternatives 2 through 4 could reduce future timber harvest,
mineral exploration and development, and other activities such as ski
area development in inventoried roadless areas. Communities with
significant economic activities in these sectors could be adversely
impacted. However, the effects on the social and economic situation
nationally are minor. For example, the reduction in timber harvest from
National Forest System lands is less than 3%, which is less than 0.5
percent of total United States timber production. The total oil and gas
production from all National Forest System lands is about 0.4 percent
of the current national production, and the oil and gas resources
located inside inventoried roadless areas are an insignificant portion
of total resources.
Rights of reasonable access to prospect and explore lands open to
mineral entry and to develop valid claims, would be unaffected under
these alternatives as provided by the General Mining Law. Reasonable
rights of access may include, but are not limited to, road construction
and reconstruction, helicopters, or other nonmotorized access (FEIS
Vol. 1, 3-254). None of the alternatives are likely to have measurable
impacts compared to the broader social and economic conditions and
trends observable at these scales; however, the effects of the
alternatives are not distributed evenly across the United States (FEIS
Vol. 1, 3-329 to 3-350).
Comment was received concerning the cumulative relationship of the
Roadless Area Conservation Rule with the Bureau of Land Management's
proposed rule for Mining Claims Under the General Mining Laws; Surface
Management, published on February 9, 1999 (64 FR 6422). Since that
comment was received, the Mining Claims rule became final (65 FR 69998,
November 21, 2000). Both the final Roadless Area Conservation Rule and
the final Bureau of Land Management mining rule have comparable goals
to prevent unnecessary or undue degradation of public lands. However,
the Roadless Area Conservation Rule at 294.12(b)(3) does not affect
rights of reasonable access to prospect and explore lands open to
mineral entry and to develop valid claims. Reasonable access includes,
road construction or reconstruction for mining activities covered under
the General Mining Law, while the performance standards at proposed
3809.420(c) would require that permitted roads and structures be
designed, constructed, and maintained to control or prevent erosion,
siltation, and air pollution and to minimize impacts to resources.
Cumulative effects of these two rules are expected to be minimal
because of the exception for locatable minerals under Sec. 294.12(b)(3)
in the final roadless rule.
Exceptions. The Department is adopting the exceptions for road
safety projects and for Federal Aid Highway projects. The exception for
road safety projects is a narrow exception that only allows road
reconstruction where past experience or expert opinion has indicated
that the road design would present a threat to public safety. The
Department decided to adopt the Federal Aid Highway exception to allow
road construction based on social considerations and Federal-State
relationships. The Department believes that this exception will have a
very limited application, and the Secretary of Agriculture retains the
discretion to approve or deny authorization when warranted (23 U.S.C.
317). The analysis in the FEIS identified only one application of this
exception in the next five years for a proposed 5.5-mile State highway
relocation project on the Chugach National Forest in Alaska (FEIS Vol.
1, 3-33).
After publication of the FEIS for Roadless Area Conservation, the
Department of Energy (DOE) and the Office of Management and Budget
(OMB) received and shared with the Forest Service several letters from
mining interests outlining their concerns with the preferred
alternative. The Forest Service also received comments directly from
the National Mining Association. DOE provided an analysis of potential
impacts related to oil and gas resources, and compiled information on
coal resources as well. Upon being informed of these concerns, the
Forest Service evaluated the information provided by DOE and others.
The Forest Service also met with and discussed these concerns with DOE.
The FEIS analysis focused on impacts to coal, phosphate, and oil
and gas resources, based on input from the national forests and
grasslands and from public comment on the draft environmental impact
statement (DEIS) and proposed rule (May 10, 2000; 65 FR 30276). Comment
received from DOE on the DEIS was focused only on transmission line
corridors. Potential economic impacts related to existing coal and
phosphate operations with known plans to expand into inventoried
roadless areas were quantified in the FEIS (Vol. 1, pp. 3-308 to 3-
324). Areas of known high potential for coal,
[[Page 3265]]
phosphate, and oil and gas were also discussed (Vol. 1. pp. 3-254 to 3-
260). With respect to oil and gas, no attempt was made to estimate the
proportion of these resources within inventoried roadless areas because
of the high degree of uncertainty of these estimates.
After publication of the FEIS for Roadless Area Conservation, the
Department of Energy (DOE) raised concerns about the potential impacts
on leasable energy minerals, particularly for natural gas and coal, if
the final Roadless Area Conservation Rule did not allow road building
in support of exploration and development for leasable minerals.
Currently, the NFS lands play a minor role in providing natural gas
resources, only about 0.4% of national production (76.4 billion cubic
feet) in 1999. The resource estimates by DOE were made assuming that
the resources are homogenously distributed across play areas, which is
generally not the case with oil and gas resources. It is reasonable to
assume, under the current demand conditions, that there will be
increased interest in development of natural gas resources on federal
lands and elsewhere. Some of these areas are not currently available
for leasing, as a result of leasing decisions or local forest and
grassland plan decisions. Moreover, current access restrictions would
make many of these resources unavailable in the near future. In
addition, the steep terrain that is typical of many inventoried
roadless areas often makes these areas difficult to access for
environmental and/or economic reasons. The likelihood of resources
being recovered from inventoried roadless areas even in the absence of
a final roadless rule is small, except where leases already exist.
Finally, where accessible, exploration and development of these
resources would likely take about 5-10 years before production would
begin.
The FEIS described the coal production from NFS lands as accounting
for about 7% of national production in 1999. The analysis acknowledged
the increasing national demand for coal, particularly the low-sulfur
coal found primarily in the western U.S. About 2.5 million acres of
coal-bearing rock were estimated to occur within inventoried roadless
areas in the interior West.
A concern raised by DOE and others was the potential effect on
users of this low sulfur coal, primarily electric utilities in the
East. According to DOE, many utility and industrial boilers have been
designed to blend the western coal with other higher sulfur coal to
meet their Clean Air Act compliance goals. The DOE analysis did not
provide any information on the availability of substitute sources of
coal if supply from existing mines is reduced.
Overall, the U.S. has abundant coal reserves. Also, alternative
sources of low-sulfur coal do exist, concentrated in the western U.S.,
mostly in Colorado, Montana, and Wyoming. Additionally, the abundant
sources of low cost-coal and available technology, such as scrubbers,
will enable electric utilities to meet their Clean Air Act compliance
goals.
Several commentators on the DEIS, including the Governor of the
State of Utah, had questions about access to state-owned coal. As
discussed in the FEIS, access based on existing rights would not be
affected by the final rule, therefore, access is guaranteed to coal
held under existing rights.
The FEIS identified potential impacts on future phosphate mining on
the Caribou National Forest, the only area of active phosphate mining
on NFS lands. The FEIS acknowledged that phosphate production from the
Caribou accounts for about 12% of national production, and is used to
supply regional producers of phosphate fertilizer products and
elemental phosphorous. The analysis included an estimate of phosphate
resources within inventoried roadless areas of 873.3 million tons, and
a description that about 8,000 acres of the area of Known Phosphate
Lease Areas are within inventoried roadless areas.
In a letter to OMB, the National Mining Association provided
estimates of phosphate reserves in Idaho, Wyoming, Utah, and Montana
potentially impacted by the final rule. The company currently mining on
the Caribou made these estimates. No documentation was provided for the
basis of the estimates. However, their open pit mining estimates for
Idaho were less than the resources identified in the FEIS in
inventoried roadless areas alone.
In conclusion, the information provided by DOE and others provides
additional context to the analysis. However, for coal and phosphate,
the impacts noted in these comments fall within the range of effects
disclosed in the FEIS. For oil and gas, the Forest Service continues to
believe there is a high degree of uncertainty in the available
information. Moreover, it seems likely that even if resources do
underlie inventoried roadless areas, they would be among the last areas
entered for exploration and development for the reasons described
above. After careful review of the information provided by DOE and
private parties, the agency has determined that the information does
not materially alter the environmental analysis disclosed in the FEIS
and does not constitute significant new circumstances or information
relevant to environmental concerns bearing on the rulemaking effort.
The Department has decided not to adopt the exception for future
discretionary mineral leasing because of the potentially significant
environmental impacts that road construction could cause to inventoried
roadless areas, but instead determined a more limited exception is
appropriate. Existing mineral leases are not subject to the
prohibitions, nor is the continuation, extension, or renewal of an
existing mineral lease on lands under lease by the Secretary of the
Interior as of the date of publication of this rule in the Federal
Register. Additionally, road construction or reconstruction may be
authorized for new leases on these same lands in the event that
application for a new lease is made prior to termination or expiration
of the existing lease.
The Department recognizes that this decision may have major adverse
economic impacts on a few communities dependent on mineral leasing from
inventoried roadless areas. However, if road construction and
reconstruction were allowed for future mineral leasing on lands not
under mineral lease as of the date of publication of this rule in the
Federal Register, an estimated 59 miles of new roads would be
constructed in inventoried roadless areas over the next five years.
Road construction or reconstruction in support of future mineral
leasing on lands not presently under mineral lease could continue at
this level or in greater amounts into the foreseeable future. Over an
estimated 10 million acres of inventoried roadless areas could be
roaded for exploration and development of leasable minerals, although
the agency believes it is unlikely that more than a small percentage of
these acres would contain minerals sufficient for economic development.
The effects of road construction over time could substantially
alter valuable roadless area characteristics by fragmenting habitat,
increasing soil disturbance, decreasing water quality, and providing
new avenues for the invasion of non-native invasive species. Mineral
leasing activities not dependent on road construction, such as
directional (slant) drilling and underground development, would not be
affected by the prohibition.
The final rule extends indefinitely the timeframe for which roads
can be
[[Page 3266]]
constructed on areas currently under lease, which are estimated to be
less than 1 million acres in extent, or less than 2 percent of the
total acreage of inventoried roadless areas. The environmental effects
of this extension fall between those described in the FEIS for the
preferred alternative, which would have allowed road construction or
reconstruction only for the duration of an existing lease, and those
described in the FEIS under the potential social and economic
mitigation measures, which would have provided an exception for mineral
leasing activities within all inventoried roadless areas, with no
limitations.
Relative to the preferred alternative, the final rule will somewhat
diminish the potential beneficial effects of the overall prohibition on
road construction and reconstruction in the areas affected by the
minerals leasing exception, due to the greater amount of area
potentially disturbed and the effects of associated activities.
However, by limiting the area potentially affected to only those areas
currently under lease, the potential extent of these activities and
their impacts are identified and limited.
Tongass National Forest Alternatives. The Tongass Exempt
alternative described in the FEIS was not selected. Allowing road
construction and reconstruction on the Tongass National Forest to
continue unabated would risk the loss of important roadless area
values.
The Tongass Deferred alternative was not selected because the
agency presently has sufficient information to make this decision, and
the decisionmaking processes used have identified the environmental,
social, and economic issues that must be addressed. There is no need to
postpone the decision.
The Tongass Selected Areas alternative did not meet the purpose and
need as well as the selected alternative. Important roadless area
values would be lost or diminished because of the road construction,
reconstruction, and timber harvesting activities that this alternative
allowed.
By applying the final rule to the Tongass National Forest
immediately, but allowing road construction, reconstruction, and the
cutting, sale, and removal of timber from inventoried roadless areas
where a notice of availability for a draft environmental impact
statement for such activities has been published in the Federal
Register prior to the date of publication of this rule in the Federal
Register, a period of transition is available to affected communities
while providing certainty for long term protection of these lands.
The Tongass National Forest has 261 MMBF of timber under contract
and 386 MMBF under a notice of availability of a DEIS, FEIS, or Record
of Decision. In addition, the Tongass has 204 MMBF available in roaded
areas that is sold, has a Record of Decision, or is currently in the
planning process. This total of 852 MMBF is enough timber volume to
satisfy about seven years of estimated market demand. During the period
of transition, an estimated 114 direct timber jobs and 182 total jobs
would be affected. In the longer-term, an additional 269 direct timber
jobs and 431 total jobs could be lost in Southeast Alaska if current
demand trends continue and no other adjustments are provided to allow
for more harvest from other parts of the forest. The exception for
projects with a notice of availability for a draft environmental impact
statement on the Tongass National Forest is because of the unique
social and economic conditions where a disproportionate share of the
impacts are experienced throughout the entire Southeast Alaska region
and most heavily in a few communities.
Decision Summary. It is the decision of the Secretary of
Agriculture to select Prohibition Alternative 3 and the Tongass Not
Exempt Alternative identified in the FEIS as the final rule, with
modifications. These modifications include: (1) an exception to the
prohibition on road construction and reconstruction for mineral leasing
in areas under mineral lease as of the date of publication of this rule
in the Federal Register; (2) an exception to the timber harvest
prohibition for the cutting, sale, or removal of timber in portions of
inventoried roadless areas where construction of a classified road and
subsequent timber harvest have substantially altered the roadless
characteristics, and the road construction and subsequent timber
harvest occurred after the area was designated an inventoried roadless
area and prior to the date of publication of this rule in the Federal
Register; and (3) the immediate application of the prohibitions to the
Tongass National Forest with a provision that exempts road
construction, road reconstruction, and the cutting, sale, or removal of
timber if a notice of availability for a DEIS for such activities has
been published in the Federal Register prior to the date of publication
of this rule in the Federal Register. The final rule best meets the
agency's goal of maintaining the health and contributions of existing
inventoried roadless areas by preserving the relatively undisturbed
characteristics of those areas, thereby protecting watershed health and
ecosystem integrity. In evaluating the comments received from the
public, the Department believes that there is adequate relevant
information to assess reasonably foreseeable significant adverse
impacts (40 CFR 1502.22). The FEIS for this final rule documents the
adverse impacts road construction and timber harvesting can have in
inventoried roadless areas. This final rule reduces potential impacts
to a greater degree and with more certainty than Prohibition
Alternatives 1 and 2 and the other Tongass National Forest
alternatives.
The final rule retains the ability to use timber harvesting for
clearly defined purposes where necessary to meet ecological needs,
allowing accomplishment of ecological objectives that Alternative 4
would preclude. Allowing clearly defined, limited timber harvest of
generally small diameter trees will maintain a valuable management
option for the agency to help improve habitat for threatened,
endangered, proposed, or sensitive species recovery and to help restore
ecological composition and structure, such as reducing the risk of
uncharacteristic wildfire effects. As habitat fragmentation,
subdivision, and urbanization of lands continues nationally, this
decision allows the agency to avoid most human-caused fragmentation of
National Forest System inventoried roadless areas to preserve
management options for future generations. Finally, these inventoried
roadless areas will remain available to all Americans for a variety of
dispersed recreation opportunities.
The final rule:
(1) Recognizes that the agency's first and highest priority is to
ensure sustainability for resources under its jurisdiction. It protects
inventoried roadless areas from the activities that most directly
threaten their fundamental characteristics through the alteration of
natural landscapes and fragmentation of forestlands.
(2) Protects public health by promoting watershed health and
maintaining important sources of clean drinking water for current and
future generations.
(3) Responds to the major issues identified in public comments.
(4) Is fiscally responsible, and does not increase the financial
burden by adding expensive roads the agency cannot afford to maintain.
(5) Exemplifies the agency's responsibility as a world leader in
natural resource conservation by setting an example for the global
community.
[[Page 3267]]
(6) Recognizes that some communities, such as those in Southeast
Alaska, bear a disproportionate share of the burden, and offers
assistance to mitigate those impacts.
This decision is expected to cause additional adverse economic
effects to forest dependent communities because of the potential
reduction in future timber harvest, mineral leasing, and other
activities (FEIS Vol. 1, 3-326 to 3-350). However, the Department
believes that the long-term ecological benefits to the nation of
conserving these inventoried roadless areas outweigh the potential
economic loss to those local communities. To reduce the economic
impacts of this decision, the Chief of the Forest Service will seek to
implement one or more of the following provisions of an economic
transition program for communities most affected by application of the
prohibitions in inventoried roadless areas:
(1) Provide financial assistance to stimulate community-led
transition programs and projects in communities most affected by
application of the prohibitions in inventoried roadless areas;
(2) Through financial support and action plans, attract public and
private interests, both financial and technical, to aid in successfully
implementing local transition projects and plans by coordinating with
other Federal and State agencies; and
(3) Assist local, State, Tribal and Federal partners in working
with those communities most affected by the final roadless area
decision.
Regulatory Certifications
This final rule was reviewed under USDA procedures, Executive Order
(E.O.) 12866 on Regulatory Planning and Review, and the major rule
provisions of the Small Business Regulatory Enforcement and Fairness
Act (5 U.S.C. 800). The Office of Management and Budget (OMB) has
determined that this is a major rule, because this rule may have an
annual effect of $100 million or more on the economy or, in some
sectors, may affect productivity, competition, or jobs. Consequently,
the rule is subject to OMB review under E.O. 12866 and a regulatory
impact analysis has been prepared for this final rule. This rule is not
expected to interfere with an action taken or planned by another agency
nor raise new legal or policy issues. 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.
Regulatory Impacts
Summary of the Results of the Regulatory Impact Analysis. Many of
the benefits and costs associated with the final rule were not
quantifiable. Therefore, many of the costs and benefits are described
qualitatively. Although the analysis does not provide a quantitative
measure of net benefits, the Department believes the benefits of the
rule outweigh the costs.
Local-level analysis cannot easily incorporate the economic effects
associated with nationally significant issues. Therefore, the
Department believes the aggregate transactions costs (costs associated
with the time and effort needed to make decisions) of local level
decisions would be much higher than the transactions costs of a
national policy, because of the controversy surrounding roadless area
management.
National Forest System lands provide a variety of goods and
services to the American public. Use of the national forests and
grasslands for both commodities and amenity services varies over time,
in response to changing market conditions, consumer preferences, and
other factors. For the purpose of this analysis, the baseline describes
the likely mix of goods and services from the national forests and
grasslands in the near future in the absence of the final rule, which
is likely to affect some goods and services, while having no effect on
others. Details on the environmental effects of the final rule can be
found in the Forest Service Roadless Area Conservation Final
Environmental Impact Statement (FEIS).
Most of the benefits of the rule result from maintaining roadless
areas in their current state, and, therefore, maintaining the current
stream of benefits from these areas. The costs are primarily associated
with lost opportunities, since the final rule would limit some types of
development activities that might have occurred in the future without
this rule. Table 1 summarizes the potential benefits and costs of the
rule.
Potential Benefits Of The Roadless Rule. Undisturbed landscapes
provide a variety of monetary and non-monetary benefits to the public.
Many of these benefits are associated with the protection of
ecological, social, and economic values in inventoried roadless areas.
Air and water quality would be maintained at a higher level than
under the baseline. Higher water quality provides a higher level of
protection for drinking water sources, reduces treatment costs for
irrigation, reservoirs, and other downstream facilities and maintains
the value of water-based recreation activities. Higher air quality
protects not only values associated with human health, but also
improves visibility and benefits recreation and adjacent private
property values.
A greater degree of protection of biological diversity and
threatened and endangered species would occur if roads and commodity
timber harvest were prohibited in inventoried roadless areas as opposed
to the baseline. As a result, ecological values would be maintained.
Passive use values related to the existence of biological diversity and
threatened and endangered species would be maintained, as well as
values associated with protecting these areas for future generations.
A number of other benefits are associated with maintaining healthy
wildlife and fish populations at a level higher than under the
baseline. Some game species are likely to benefit from this protection,
which would maintain quality hunting and fishing experiences both
within inventoried roadless areas and beyond. Other types of recreation
experiences, such as wildlife viewing, also would benefit.
Inventoried roadless areas are important in providing remote
recreation opportunities. A greater number of acres in these recreation
settings would be maintained than under the baseline. Remote areas are
also important settings for many outfitter and guide services.
Maintaining these areas increases the ability of the agency to
accommodate additional demand for these types of recreation special use
authorizations.
Inventoried roadless areas provide a remote recreation experience
without the activity restrictions of Wilderness (for example, off-
highway vehicle use and mountain biking). Maintaining roadless areas
would likely lessen visitation pressure on Wilderness compared to the
baseline.
The risk of introducing non-native invasive species would be
reduced if road access were not available. This is beneficial to
grazing permittees with allotments in inventoried roadless areas, and
to collectors of non-timber forest products by maintaining forage
quality and quantity, and forest products that cannot compete with
invasive species. The reduced probability of introduction would also
benefit forest health in inventoried roadless areas and would
contribute to the maintenance of biological diversity.
Some planned timber sales in inventoried roadless areas are likely
to cost more to prepare and sell than they realize in revenues
received. To the extent that these sales will not take
[[Page 3268]]
place, a financial efficiency savings would be realized. Implementing
the rule could result in agency cost savings. First, local appeals and
litigation about some management activities in roadless areas could be
reduced, which would avoid future costs. Secondly, the reduction in new
miles of roads constructed would reduce the number of miles the agency
is responsible for maintaining in the future, resulting in avoiding up
to an additional $219,000 per year of costs.
Potential Costs Of The Roadless Rule. The prohibition on road
construction, reconstruction, and timber harvest except for clearly
defined, limited purposes would reduce development of roaded access to
resources within inventoried roadless areas compared to the baseline.
Roads are required for most timber sales to be economically feasible.
For those sales that are financially profitable, the rule would reduce
net revenues. In addition to lost revenue, there would be an estimated
immediate impact of 461 fewer timber jobs and 841 total jobs, with an
associated annual loss of $20.7 million in direct income and $36.2
million in total income. In the longer term, an additional 269 timber
jobs and 431 total jobs could be affected from harvest reductions on
the Tongass National Forest. The longer-term income effect was
estimated at $12.4 million in direct income and $20.2 million in total
income. A reduction in the timber program could also affect about 160
Forest Service jobs, with an additional 100 jobs affected on the
Tongass in the longer term.
Jobs associated with road construction and reconstruction for
timber harvest and other activities would also be fewer than under the
baseline. Initially, between 43 and 51 direct jobs and between 88 and
104 total jobs could be affected by reduced road construction and
reconstruction. An additional 39 direct jobs and 78 total jobs could be
affected by harvest reductions on the Tongass National Forest in the
longer term.
The impact on mineral resources will vary, depending on factors
such as prices, technology change, and substitutes. Reasonable access
to conduct exploration and development of valid claims for locatable
minerals (metallic and nonmetallic minerals subject to appropriation
under the General Mining Law of 1872) would continue. Such access may
involve some level of road construction that, depending on the stage of
exploration or development, could range from helicopters, temporary or
unimproved roads, more permanent, improved roads, or nonmotorized
transport.
Exploration for and development of leasable minerals (such as oil,
gas, coal, and geothermal) on areas not already under lease would
likely be limited because roads are often needed for these activities.
In the short-term, up to 546 direct and 3,095 total jobs could be
affected, with direct annual income effects of $36 million and total
income effects of $128 million. Payments to states could be reduced by
about $3.2 million per year. Between 308 and 1,371 million tons of coal
resources on the Grand Mesa, Uncompahgre, and Gunnison and Manti-LaSal
National Forests could be unavailable for development as a result of
this rule. About 873 million tons of phosphate resources on the Caribou
National Forest may also be unavailable. Other inventoried roadless
areas may contain additional coal and phosphate resources. An estimated
mean of 11.3 trillion cubic feet of undiscovered natural gas and 550
million barrels of undiscovered oil resources could also be affected.
Effects on saleable minerals (such as sand, gravel, stone, and pumice)
are expected to be negligible.
New roads have the potential to reduce current operating costs for
other users, for example grazing permittees and collectors of non-
timber forest products, by allowing faster and easier access. These
potential cost reductions would not be realized if road construction is
prohibited. The agency, however, builds few roads for recreation,
grazing, or collection of non-timber forest products, and this pattern
is unlikely to change. New roads built for other purposes may provide
additional access for recreationists, including hunters and anglers.
Prohibiting construction of new roads would have minimal impacts on
these groups, since all temporary roads and many of the other planned
roads would be closed once the intended activity is concluded.
Therefore, the number of additional road miles that would be available
for recreational or other uses would be small.
Opportunities for some types of recreation special uses may be
limited in the future. Developed recreation use and road-based
recreation uses in general are more likely to occur at higher densities
outside of inventoried roadless areas than under the baseline, since
expansion into inventoried roadless areas would not occur. However,
roads are rarely constructed into inventoried roadless areas for
recreation purposes. The development of new ski areas within
inventoried roadless areas would be unlikely. Other, new non-recreation
special uses may be limited in the future as well. Such special uses
include communication sites and energy-related transmission uses (such
as ditches and pipelines, and electric transmission lines).
There could be a slight increase in the risk from uncharacteristic
wildland fire or insect and disease as a result of reduced
opportunities for forest health treatments. However, the Forest Service
would likely treat few acres of inventoried roadless areas regardless
of the issuance of the Roadless Rule, since moderate and high risk
forests in inventoried roadless areas would be given a low priority for
treatment, unless there was an imminent threat to public safety,
private property, water quality, or threatened and endangered species.
While overall fire hazard can still be reduced without roads,
restricted road access would likely increase the cost of treatments,
which would result in fewer acres treated. Some fuel treatment
techniques available under the baseline would not be economically or
logistically feasible. Of the 14 million acres in inventoried roadless
areas identified as potentially requiring fuel treatment, 6.5 million
could still be treated with prescribed fire without mechanical
pretreatment. The use of timber harvest for fuel management would be
limited to those activities that reduce uncharacteristic wildfire
effects through the cutting, sale, or removal of small diameter timber
that maintains or improves one or more of the roadless characteristics.
For the next five years, about 22,000 acres could be treated by the
limited timber harvest allowed under the final rule. Although this is a
significant decline in treatment acres compared to acres that would
have been harvested under the baseline, the total acreage affected is
less than 1 percent of all inventoried roadless area that potentially
require mechanical pretreatment.
Agency costs could increase compared to the baseline for some types
of activities. Fuel treatment and other ecological restoration
treatment costs in inventoried roadless areas would likely increase,
but the impact on agency costs is likely to be negligible since
treatment in most inventoried roadless areas is a lower priority.
The goods and services that could not be produced from inventoried
roadless areas without road construction are likely to be produced
either on other parts of National Forest System land or on other lands.
Substitute production could result in adverse environmental effects on
these other lands. The following Table 1 summarizes the costs and
benefits of the final rule.
[[Page 3269]]
Table 1.--Summary of Costs and Benefits of the Roadless Area
Conservation Rule Compared to the Baseline
------------------------------------------------------------------------
Category Baseline Final rule
------------------------------------------------------------------------
Air quality \1\............. Potential increase Air quality is
in dust, vehicle maintained in
emissions inventoried
associated with roadless areas.
road use and
management
activities in
inventoried
roadless areas.
Water quality \1\........... Potential increase Water quality is
in sediment maintained in
associated with inventoried
roads and roadless areas.
management
activities in
inventoried
roadless areas.
Land base available for Decrease in remote Current land base
dispersed recreation settings, increase for remote and
activities \1\. in developed developed settings
settings on is maintained on
National Forest National Forest
System lands. System lands.
Quality of fishing and Potential habitat Existing hunting and
hunting for recreation, degradation, fishing quality and
commercial, and subsistence increase in roaded access in
users \1\.. access, and inventoried
decrease in remote roadless areas
hunting and fishing maintained.
opportunities. Opportunities for
remote experiences
are maintained.
Forage quality for livestock Increased risk of Existing forage
grazing \1\. non-palatable quality is
invasive species. maintained.
Non-timber forest products Increased risk of Non-timber forest
\1\. invasive species products maintained
displacing desired at current levels.
products.
Existence and bequest values Potential decrease Values maintained at
\1\. due to loss of existing levels due
biological to conservation of
diversity and biological
increased risks to diversity and
threatened and habitat for
endangered species threatened and
habitat in endangered species
inventoried in inventoried
roadless areas. roadless areas.
Agency costs associated with No change in current Savings in costs
planning activities \1\. costs associated associated with
with appeals and appeals and
litigation on litigation on
roadless area roadless area
management. management.
Agency cost associated with Increase up to No increase in road
road maintenance \2\. $219,000 per year maintenance costs
in maintenance cost in inventoried
associated with new roadless areas.
roads in
inventoried
roadless areas.
Projected timber harvest 146.7 million board 74.3 million board
(average annual) from feet. feet.
inventoried roadless areas
\3\.
Timber related jobs \4\..... No change to current Estimated job loss
estimates of future of 461 direct jobs
timber associated and 841 total jobs.
direct and total An additional 269
jobs. direct and 431
total jobs could be
affected in Alaska
in the longer term.
Timber related income \4\... No change to current Estimated annual
estimates of future income loss of
timber associated about $20.7 million
direct and total direct income and
income. $36.2 million total
income. An
additional $12.4
million direct
income and $20.2
million total
income could be
affected in Alaska
in the longer term.
Road construction jobs \5\.. No change to current Projected annual job
estimates of future loss ranging from
road construction 43 to 51 direct
direct jobs. jobs and between 88
and 104 total jobs.
An additional 39
direct and 78 total
jobs could be
affected in Alaska
in the longer term.
Exploration and development Existing mineral Access continues
for locatable minerals availability subject to General
(gold, silver, lead, etc.) continues subject Mining Law of 1872.
\1\. to General Mining
Law of 1872.
Exploration and development Existing mineral Exploration and
for leasable minerals (oil, availability development in
gas, coal, etc.) \1\. continues along areas not under
with current lease as of the
exploration and date of publication
development costs. of this rule and
requiring roads
would be precluded.
Leasable minerals related No change to current Potential effect on
jobs \6\. estimates of future mining related
mineral associated employment is a
direct and indirect decrease of 546
jobs. direct and 3,095
total jobs.
Leasable minerals related No change to current Potential effect on
income \6\. estimates of future mining related
minerals associated annual income is
direct and total $36.2 million less
income. direct and $127.8
million less total
income.
Payments to states for Payments will Payments associated
leasable minerals. continue to vary as with coal and
extraction varies phosphate could be
over time. reduced by $3.2
million per year.
Leasable mineral resources.. No change to current About 873 million
estimates of tons of phosphate
available leasable and 308 to 1,371
resources. million tons of
coal would likely
be unavailable for
development. About
11.3 trillion cubic
feet of
undiscovered gas
and 550 million
barrels of
undiscovered oil
resources may be
unavailable.
Exploration and development Existing mineral In a few isolated
for salable minerals (sand, availability cases, development
stone, gravel, pumice, continues along requiring roads may
etc.) \1\. with current be precluded or
exploration and costs may increase.
development costs.
Operating costs for grazing Increased access can No change in
permittees \1\. potentially operating costs.
decrease cost.
[[Page 3270]]
Operating costs for Increased access can No change in
collectors of non-timber potentially operating costs.
products \1\. decrease cost.
Special-use authorizations Current use and Current use and
(such as communications occupancies. occupancies not
sites, electric affected, future
transmission lines, developments
pipelines) \1\. requiring roads
excluded in
inventoried
roadless areas
unless one of the
exceptions applies.
Forest health \1\........... Potential lower cost Slightly increased
of treatment due to risk because of
increased access. fewer treatment
opportunities. Cost
of current
treatments remains
unchanged.
------------------------------------------------------------------------
\1\ Analysis based on qualitative discussion.
\2\ Analysis based on historic Agency data on expenditures.
\3\ Analysis based on forest-level data on projected timber volumes in
inventoried roadless areas.
\4\ Analysis based on Agency data from Timber Sales Program Information
System Reporting System (TSPIRS) and IMPLAN model multipliers.
\5\ Analysis based on Agency estimates of historic expenditures and
IMPLAN model multipliers.
\6\ Analysis based on Agency production estimates and IMPLAN model
multipliers.
Summary of the Results of the Final Regulatory Flexibility
Analysis. The Department is promulgating a final rule for roadless area
conservation that does not impose regulations on small entities. The
rule would not suspend or modify any existing permit, contract, or
other legal instrument authorizing the occupancy and use of National
Forest System land.\1\ The rule could affect future opportunities for
small entities, but the agency cannot predict at any given time what
authorized uses a small entity might want to pursue on National Forest
System lands.
---------------------------------------------------------------------------
\1\ Because the roadless rule does not directly regulate small
entities, the Department does not believe the Regulatory Flexibility
Act applies to this rule.
---------------------------------------------------------------------------
Data are limited for linking the proposed rule to effects on small
businesses. The agency does not typically collect information about the
size of businesses that seek permission to operate on National Forest
System lands. The agency sought information to the extent possible by
specifically requesting additional information in the initial
regulatory flexibility analysis.
The rulemaking has the potential to affect a subset of small
businesses that may seek opportunities on National Forest System lands
in the future. The primary effect of the rule on small businesses is
the potential to affect the future supply of commodity outputs or
commercial opportunities for businesses. The change in resource
availability is expected to be small across most regions in the
country. Therefore, future business opportunities are not likely to be
reduced to any great extent in comparison to continuation of current
management policies. However, the effects may be more pronounced in the
Intermountain and Alaska Regions, with the effects in Alaska increasing
in the longer term.
Small businesses in the wood products sector most likely to be
affected are logging and sawmill operations. Reductions in the harvest
of softwood sawtimber, particularly in the western U.S., are most
likely to affect small businesses, since these sectors are dominated by
small business. With the exception of the Intermountain (Utah, Nevada,
western Wyoming, and southern Idaho) and Alaska Regions, reductions in
harvest are estimated to range from less than one percent to four
percent. The reduction in the Intermountain Region is estimated to be
nine percent. Harvest effects on the Tongass National Forest will be
reduced about 18 percent in the short-term, but in the longer-term,
harvest could be reduced by about 60 percent absent further adjustments
to the Tongass Land and Resource Management Plan.
In the mining sector, small businesses most likely to be affected
are businesses involved in the exploration and development of leasable
minerals. The final Roadless Area Conservation rule will affect
exploration and development for leasable minerals in inventoried
roadless areas in the future where road construction is required,
except in areas presently under lease.
The potential effects on small businesses involved in livestock
grazing and the collection of non-timber forest products are expected
to be negligible. There will be fewer roads available for use in the
future under the final rule, but the number of miles that would have
been built in the next five years and that would have remained open for
use is minor compared to the entire National Forest System road system.
Special use authorizations on National Forest System land could be
affected by the final rule, if road access is required. Most of the
special uses potentially affected are dominated by large businesses,
such as businesses in communication, electric services, gas production
and distribution, and resort development. Small businesses with
outfitter and guide permits are expected to benefit from the final
rule, since these businesses are often dependent on providing services
to recreationists interested in remote recreation activities that are
often found in inventoried roadless areas.
The effect of the final rulemaking on small governmental
jurisdictions is tied to possible reductions in commodity outputs in
cases where some portion of federal receipts is returned to the states
for distribution to counties, and to changes in the jurisdiction's
economic base from changes in employment and business opportunities
related to National Forest System outputs and management. Payments to
states from timber receipts will be unaffected by the final Roadless
Rule through 2006 because the ``Secure Rural Schools and Community
Self-Determination Act of 2000'' was signed into law on October 30
(Pub. L. 106-393). This legislation allows counties to select a payment
based on historic payment levels rather than payments based on current
receipts. However, this legislation does not affect revenue sharing of
federal receipts from mineral leasing on national grasslands and from
public domain lands of the national forests. Therefore, the final rule
may result in a reduction in those receipts in the future, which would
affect revenues shared with states and counties. The agency has also
chosen to pursue funds to assist communities undergoing economic
transition resulting from implementation of the final Roadless Rule.
Such assistance could include financial assistance to stimulate
community-led transition programs and projects, support to attract
public and
[[Page 3271]]
private interests in implementing local transition projects,
coordination with other Federal and State agencies, and assisting
local, State, Tribal, and Federal partners to work with the most
affected communities. The Forest Service will pursue a six-year
economic transition program. The Economic Adjustment Program will be
used to fund or support projects that will be specific to the needs of
individual communities and important to the national forest or
grassland. The Forest Service anticipates requesting $72.5 million in
support of these activities between fiscal years 2001 and 2006.
Environmental Impact
The Endangered Species Act of 1973, As Amended. A biological
evaluation was prepared which analyzed the potential effects of the
action alternatives on threatened, endangered, and proposed species.
This evaluation, along with other supporting documentation for the
rule, was provided to the U.S. Fish and Wildlife Service and the
National Marine Fisheries Service as part of consultation and
conferencing under the Endangered Species Act. Both agencies concurred
with the determination in the biological evaluation that all of the
action alternatives analyzed in the biological evaluation may affect,
but are not likely to adversely affect threatened or endangered species
or adversely modify designated critical habitat; are not likely to
jeopardize proposed species or adversely modify proposed critical
habitat; and may beneficially affect threatened, endangered, and
proposed species and critical habitat. Copies of these letters of
concurrence are in the project record and can be viewed at the Roadless
Area Conservation project website.
Other Required Disclosures. The agency has prepared a final
environmental impact statement in concert with this rule. In it, the
direct, indirect, and cumulative effects of the final rule and
alternatives are disclosed. None of the prohibition alternatives are an
action that requires consultation under the Fish and Wildlife
Coordination Act because they do not require water to be impounded or
diverted. The FEIS may be obtained from various sources as indicated in
the ADDRESSES section of this document.
The Indiana Department of Natural Resources (IDNR) questioned
whether the agency had adequately taken into account effects on
historic properties and expressed concern that the rule would cause
``neglect of historic properties.'' The IDNR urged the Forest Service
to consult with the Indiana State Historic Preservation Officer
pursuant to Section 106 of the National Historic Preservation Act
(NHPA). First, the FEIS does evaluate and display the effects of the
final rule regarding cultural resources (FEIS Vol. 1, 3-232 to 3-237).
The FEIS also makes clear that the prohibitions will not inhibit
existing access to historic sites. As for the Section 106 NHPA process,
this rulemaking does not constitute an ``undertaking'' as defined in 36
CFR 800.16. The regulations established by the Advisory Council for
Historic Preservation make clear that once an agency determines that it
has no undertaking, or that its undertaking has no potential to affect
historic properties, the agency has no further Section 106 obligations.
Controlling Paperwork Burdens on the Public
This 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 U.S.C. 3501, et seq.) and implementing regulations at 5
CFR part 1320 do not apply.
Unfunded Mandates Reform
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), the Department has assessed the effects of this
proposed rule on State, local, and Tribal governments, and on the
private sector. This proposed 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 statement under Section 202
of the Act is not required.
No Takings Implications
This rule has been reviewed for its impact on private property
rights under Executive Order 12630. The Department determined that this
proposed rule does not pose a risk of taking Constitutionally protected
private property; in fact, the proposed rule honors access to private
property pursuant to statute and to outstanding or reserved rights.
Civil Justice Reform Act
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. The proposed revision: (1) preempts all State and local
laws and regulations that are found to be in conflict with or that
would impede its full implementation; (2) does 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.
Federalism and Consultation with Tribal Governments
The agency considered this rule under the requirements of Executive
Order 12612 and found the rule will 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 determined that
no further assessment on federalism implications is necessary at this
time. In addition, the consultation requirements under Executive Order
13132, effective November 2, 1999 were reviewed. This new Order calls
for enhanced consultation with State and local government officials and
emphasizes increased sensitivity to their concerns.
Forest Service line officers in the field were asked to make
contact with Tribes to ensure awareness of the initiative and of the
rulemaking process. Outreach to Tribes has been conducted at the
national forest and grassland level, which is how Forest Service
government-to-government dialog with Tribes is typically conducted.
Outreach to State and local governments has taken place both in the
field and Washington offices. Forest Service officials have contacted
State and local governmental officials and staffs to explain the notice
of intent and the rulemaking process. The agency met with and responded
to a variety of information requests from local officials and State
organizations, such as the National Governors Association and the
Western Governors Association.
In the development of this rule comments received from States,
Tribes, and local governments in response to the notice of intent to
prepare an environmental impact statement published October 19, 1999
(64 FR 56306) were carefully considered. Following publication of the
proposed rule, the agency met with State, Tribal, and local government
officials to explain and clarify the proposed rule and the accompanying
environmental impact statement. The extent to which additional
consultation was appropriate under Executive Order 13132 was
considered. In addition, the Forest Service responsible official will
seek input and participation by State, local, and Tribal officials in
the early stages of forest and project planning regarding
[[Page 3272]]
subsequent decisions for inventoried roadless areas.
List of Subjects in 36 CFR Part 294
Forests and forest products, Highways and roads, Land and resource
management planning, National forests, Navigation (air), Recreation and
recreation areas, and Wilderness areas.
For the reasons set forth in this preamble, part 294 of Title 36 of
the Code of Federal Regulations is amended as follows:
PART 294--SPECIAL AREAS
1. Add and reserve Secs. 294.3-294.9, designate Secs. 294.1 through
294.9 as subpart A, and add a subpart heading to read as follows:
Subpart A--Miscellaneous Provisions
2. Remove the authority citations that follow Secs. 294.1 and 294.2
and add an authority citation for the newly designated Subpart A to
read as follows:
Authority: 16 U.S.C. 472, 551, and 1131.
3. Add a new Subpart B to read as follows:
Subpart B--Protection of Inventoried Roadless Areas
Sec.
294.10 Purpose.
294.11 Definitions.
294.12 Prohibition on road construction and road reconstruction in
inventoried roadless areas.
294.13 Prohibition on timber cutting, sale, or removal in
inventoried roadless areas.
294.14 Scope and applicability.
Authority: 16 U.S.C. 472, 529, 551, 1608, 1613; 23 U.S.C. 201,
205.
Subpart B--Protection of Inventoried Roadless Areas
Sec. 294.10 Purpose.
The purpose of this subpart is to provide, within the context of
multiple-use management, lasting protection for inventoried roadless
areas within the National Forest System.
Sec. 294.11 Definitions.
The following terms and definitions apply to this subpart:
Inventoried roadless areas. Areas identified in a set of
inventoried roadless area maps, contained in Forest Service Roadless
Area Conservation, Final Environmental Impact Statement, Volume 2,
dated November 2000, which are held at the National headquarters office
of the Forest Service, or any subsequent update or revision of those
maps.
Responsible official. The Forest Service line officer with the
authority and responsibility to make decisions regarding protection and
management of inventoried roadless areas pursuant to this subpart.
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 road. A road wholly or partially within or adjacent
to National Forest System lands that is 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) Unclassified road. A road on National Forest System lands that
is 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.
(3) Temporary road. A road 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.
Road construction. Activity that results in the addition of forest
classified or temporary road miles.
Road maintenance. The ongoing upkeep of a road necessary to retain
or restore the road to the approved road management objective.
Road reconstruction. Activity that results in improvement or
realignment of an existing classified road defined as follows:
(1) Road improvement. Activity that results in an increase of an
existing road's traffic service level, expansion of its capacity, or a
change in 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.
Roadless area characteristics. Resources or features that are often
present in and characterize inventoried roadless areas, including:
(1) High quality or undisturbed soil, water, and air;
(2) Sources of public drinking water;
(3) Diversity of plant and animal communities;
(4) Habitat for threatened, endangered, proposed, candidate, and
sensitive species and for those species dependent on large, undisturbed
areas of land;
(5) Primitive, semi-primitive non-motorized and semi-primitive
motorized classes of dispersed recreation;
(6) Reference landscapes;
(7) Natural appearing landscapes with high scenic quality;
(8) Traditional cultural properties and sacred sites; and
(9) Other locally identified unique characteristics.
Sec. 294.12 Prohibition on road construction and road reconstruction
in inventoried roadless areas.
(a) A road may not be constructed or reconstructed in inventoried
roadless areas of the National Forest System, except as provided in
paragraph (b) of this section.
(b) Notwithstanding the prohibition in paragraph (a) of this
section, a road may be constructed or reconstructed in an inventoried
roadless area if the Responsible Official determines that one of the
following circumstances exists:
(1) A road is needed to protect public health and safety in cases
of an imminent threat of flood, fire, or other catastrophic event that,
without intervention, would cause the loss of life or property;
(2) A road is needed to conduct a response action under the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) or to conduct a natural resource restoration action under
CERCLA, Section 311 of the Clean Water Act, or the Oil Pollution Act;
(3) A road is needed pursuant to reserved or outstanding rights, or
as provided for by statute or treaty;
(4) Road realignment is needed to prevent irreparable resource
damage that arises from the design, location, use, or deterioration of
a classified road and that cannot be mitigated by road maintenance.
Road realignment may occur under this paragraph only if the road is
deemed essential for public or private access, natural resource
management, or public health and safety;
(5) Road reconstruction is needed to implement a road safety
improvement project on a classified road determined to be hazardous on
the basis of accident experience or accident potential on that road;
(6) The Secretary of Agriculture determines that a Federal Aid
Highway project, authorized pursuant to Title 23 of the United States
Code, is in the public interest or is consistent with the purposes for
which the land was reserved or acquired and no other reasonable and
prudent alternative exists; or
(7) A road is needed in conjunction with the continuation,
extension, or
[[Page 3273]]
renewal of a mineral lease on lands that are under lease by the
Secretary of the Interior as of January 12, 2001 or for a new lease
issued immediately upon expiration of an existing lease. Such road
construction or reconstruction must be conducted in a manner that
minimizes effects on surface resources, prevents unnecessary or
unreasonable surface disturbance, and complies with all applicable
lease requirements, land and resource management plan direction,
regulations, and laws. Roads constructed or reconstructed pursuant to
this paragraph must be obliterated when no longer needed for the
purposes of the lease or upon termination or expiration of the lease,
whichever is sooner.
(c) Maintenance of classified roads is permissible in inventoried
roadless areas.
Sec. 294.13 Prohibition on timber cutting, sale, or removal in
inventoried roadless areas.
(a) Timber may not be cut, sold, or removed in inventoried roadless
areas of the National Forest System, except as provided in paragraph
(b) of this section.
(b) Notwithstanding the prohibition in paragraph (a) of this
section, timber may be cut, sold, or removed in inventoried roadless
areas if the Responsible Official determines that one of the following
circumstances exists. The cutting, sale, or removal of timber in these
areas is expected to be infrequent.
(1) The cutting, sale, or removal of generally small diameter
timber is needed for one of the following purposes and will maintain or
improve one or more of the roadless area characteristics as defined in
Sec. 294.11.
(i) To improve threatened, endangered, proposed, or sensitive
species habitat; or
(ii) To maintain or restore the characteristics of ecosystem
composition and structure, such as to reduce the risk of
uncharacteristic wildfire effects, within the range of variability that
would be expected to occur under natural disturbance regimes of the
current climatic period;
(2) The cutting, sale, or removal of timber is incidental to the
implementation of a management activity not otherwise prohibited by
this subpart;
(3) The cutting, sale, or removal of timber is needed and
appropriate for personal or administrative use, as provided for in 36
CFR part 223; or
(4) Roadless characteristics have been substantially altered in a
portion of an inventoried roadless area due to the construction of a
classified road and subsequent timber harvest. Both the road
construction and subsequent timber harvest must have occurred after the
area was designated an inventoried roadless area and prior to January
12, 2001. Timber may be cut, sold, or removed only in the substantially
altered portion of the inventoried roadless area.
Sec. 294.14 Scope and applicability.
(a) This subpart does not revoke, suspend, or modify any permit,
contract, or other legal instrument authorizing the occupancy and use
of National Forest System land issued prior to January 12, 2001.
(b) This subpart does not compel the amendment or revision of any
land and resource management plan.
(c) This subpart does not revoke, suspend, or modify any project or
activity decision made prior to January 12, 2001.
(d) This subpart does not apply to road construction,
reconstruction, or the cutting, sale, or removal of timber in
inventoried roadless areas on the Tongass National Forest if a notice
of availability of a draft environmental impact statement for such
activities has been published in the Federal Register prior to January
12, 2001.
(e) The prohibitions and restrictions established in this subpart
are not subject to reconsideration, revision, or rescission in
subsequent project decisions or land and resource management plan
amendments or revisions undertaken pursuant to 36 CFR part 219.
(f) If any provision of the rules in this subpart or its
application to any person or to certain circumstances is held invalid,
the remainder of the regulations in this subpart and their application
remain in force.
Dated: January 5, 2001.
Dan Glickman,
Secretary.
[FR Doc. 01-726 Filed 1-5-01; 3:45 pm]
BILLING CODE 3410-11-P