[Federal Register Volume 70, Number 92 (Friday, May 13, 2005)]
[Rules and Regulations]
[Pages 25654-25662]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-9349]
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Part II
Department of Agriculture
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Forest Service
Office of the Secretary
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36 CFR Part 294
Special Areas; State Petitions for Inventoried Roadless Area
Management; Roadless Area Conservation National Advisory Committee;
Final Rule and Notice
Federal Register / Vol. 70, No. 92 / Friday, May 13, 2005 / Rules and
Regulations
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 294
RIN 0596-AC10
Special Areas; State Petitions for Inventoried Roadless Area
Management
AGENCY: Forest Service, USDA.
ACTION: Final rule and decision memo.
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SUMMARY: The Department of Agriculture is revising Subpart B of Title
36, Code of Federal Regulations, Protection of Inventoried Roadless
Areas, by adopting a new rule that establishes a petitioning process
that will provide Governors an opportunity to seek establishment of or
adjustment to management requirements for National Forest System
inventoried roadless areas within their States. The opportunity for
submitting State petitions is available for 18 months following the
effective date of this final rule.
Under this final rule, submission of a petition is strictly
voluntary, and management requirements for inventoried roadless areas
would be guided by individual land management plans until and unless
these management requirements are changed through a State-specific
rulemaking. Elsewhere in this part of today's Federal Register, the
Department is announcing the establishment of a national advisory
committee in accordance with the Federal Advisory Committee Act (5
U.S.C. App. II) to assist the Secretary with the implementation of this
rule.
The preamble of this rule includes a discussion of the public
comments received on the proposed rule published July 16, 2004 (69 FR
42636) and the Department's responses to the comments.
DATES: This rule is effective May 13, 2005.
FOR FURTHER INFORMATION CONTACT: Dave Barone, Planning Specialist,
Ecosystem Management Coordination Staff, Forest Service, USDA, (202)
205-1019.
SUPPLEMENTARY INFORMATION:
Background
The U.S. Department of Agriculture (USDA) Forest Service commitment
to land stewardship and public service is the framework within which
the agency manages natural resources as provided by law, regulation,
and other legal authorities. Implicit in this is the agency's
collaboration with public, private, and nonprofit partners. As a leader
in natural resource conservation, the USDA Forest Service provides
leadership in the conservation, management, and use of the Nation's
forests, rangeland, and aquatic ecosystems.
The USDA Forest Service manages National Forest System (NFS) lands
to maintain and enhance the quality of the environment to meet the
Nation's current and future needs. Agency land management assures
sustainable resources by providing for diversity of plant and animal
communities and ecological productivity that supports recreation,
water, timber, minerals, fish, wildlife, wilderness, and aesthetic
values for current and future generations.
State governments are important partners in management of the
Nation's land and natural resources. States, particularly in the West,
own and manage large tracts of land with tremendous social and
biological value. State governments have frequently pioneered
innovative land management programs and policies. State governments
exert considerable influence over statewide economic development and
private land use, both of which significantly affect natural resource
management. In addition, State conservation agencies' relationships
with others offer additional partnership opportunities. Strong State
and Federal cooperation regarding management of inventoried roadless
areas can facilitate long-term, community-oriented solutions.
On January 12, 2001, the Department promulgated the roadless rule
at 36 CFR part 294 (66 FR 3244), which fundamentally changed the Forest
Service's longstanding approach to management of inventoried roadless
areas by establishing nationwide prohibitions generally limiting, with
some exceptions, timber harvest, road construction, and road
reconstruction within inventoried roadless areas on NFS lands.
Concerns were immediately expressed by those most impacted by the
roadless rule's prohibitions. These concerns included the sufficiency
and the accuracy of the information available for public review during
the rulemaking process; the inclusion of an estimated 2.8 million acres
of roaded lands in the inventoried roadless area land base; the denial
of requests to lengthen the public review period; the denial of
cooperating agency status requested by several Western States; the
sufficiency of the range of alternatives considered in the rulemaking
process; the need for flexibility and exceptions to allow for needed
resource management activities; and the changes made in the final rule
after the closure of the public comment period. Concerns were also
expressed about applying one set of standards uniformly to every
inventoried roadless area.
On May 4, 2001, the Secretary of Agriculture expressed the
Administration's commitment to the objective of conserving inventoried
roadless area values in the NFS, and also acknowledged concerns raised
by local communities, Tribes, and States impacted by the roadless rule.
At that time, the Secretary indicated that USDA would move forward with
a responsible and balanced approach to re-examining the roadless rule
in an effort to address those concerns while enhancing roadless area
values and characteristics. To meet this objective, management of
inventoried roadless areas must address those activities having the
greatest likelihood of altering, fragmenting, or otherwise degrading
roadless area values and characteristics. Appropriate management of
inventoried roadless areas must also address reasonable and legitimate
concerns about how the agency provides for the conservation of roadless
areas. For example, providing for outdoor recreation opportunities for
fishing and hunting in remote areas may at times require access and
active management activities to restore or maintain habitat conditions
for the management of some fish and wildlife species.
On July 10, 2001, the Forest Service published an advance notice of
proposed rulemaking (ANPR) (66 FR 35918) seeking public comment
concerning how best to proceed with long-term conservation and
management of inventoried roadless areas. The ANPR acknowledged that
the future management of inventoried roadless areas would depend on a
number of factors, such as court decisions, public comments, and the
consideration of practical options and other administrative tools for
amending the 2001 roadless rule to address inventoried roadless area
protection.
The responses received on the ANPR represented two main points of
view on natural resource management and perspectives on resource
decisionmaking: (1) Emphasis on environmental protection and
preservation, and support for making national decisions; and (2)
emphasis on responsible active management, and support for local
conservation decisions made through the land management planning
process. A summary of the public comment on the ANPR was prepared in
May of 2002, and is
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available on the World Wide Web/Internet on the Forest Service Web site
for Roadless Area Conservation at: http://www.roadless.fs.fed.us.
Until promulgation of the 2001 roadless rule, the Forest Service
managed inventoried roadless areas based on individual land management
plans. These plans have been developed for each unit of the NFS through
a public notice and comment process, building on years of scientific
findings, analyses, and extensive public involvement. Land management
plans typically identify and recommend areas that would be appropriate
for designation as wilderness by the Congress, and provide guidance on
activities and uses in these areas.
Litigation History
The 2001 roadless rule has been the subject of nine lawsuits in
Federal district courts in Idaho, Utah, North Dakota, Wyoming, Alaska,
and the District of Columbia. In one of these lawsuits, the U.S.
District Court for the District of Idaho issued a preliminary
injunction prohibiting implementation of the roadless rule on May 10,
2001. The preliminary injunction was reversed by the U.S. Court of
Appeals for the Ninth Circuit.
On June 10, 2003, a settlement agreement was reached in the State
of Alaska v. USDA litigation. As discussed in more detail below, this
settlement agreement led to the adoption of a final rule on December
30, 2003, that temporarily withdrew the Tongass National Forest from
the prohibitions of the roadless rule.
In still another lawsuit, on July 14, 2003, the U.S. District Court
for the District of Wyoming found the roadless rule to be unlawful and
ordered that the rule ``be permanently enjoined.'' That ruling has been
appealed to the Tenth Circuit by intervenors.
Overview
USDA is committed to conserving and managing inventoried roadless
areas and considers these areas an important component of the NFS. The
Department believes that revising 36 CFR part 294 by adopting a new
rule that establishes a State petitioning process that will allow
State-specific consideration of the needs of these areas is an
appropriate solution to address the challenges of inventoried roadless
area management on NFS lands.
States affected by the roadless rule have been keenly interested in
inventoried roadless area management, especially the Western States
where most of the agency's inventoried roadless areas are located.
Collaborating and cooperating with States on the long-term strategy for
the conservation and management or inventoried roadless areas on NFS
lands allows for the recognition of local situations and resolutions of
unique resource management challenges within a specific State.
Collaboration with others who have strong interest in the conservation
and management of inventoried roadless areas also helps ensure balanced
management decisions that maintain the most important characteristics
and values of those areas.
The State petitions under this final rule must include specific
information and recommendations on the management requirements for
individual inventoried roadless areas within that particular State. If
an inventoried roadless area boundary extends into another State, the
petitioning Governor should coordinate with the Governor of the
adjacent State. Petitions must be submitted to the Secretary of
Agriculture within 18 months of the effective date of this final rule.
Petitions will be evaluated, and if accepted, the Secretary would
initiate subsequent rulemaking for inventoried roadless area
conservation and management within that State. The Department's general
petitioning process for the approval, amendment or repeal of rules (7
CFR 1.28) will remain available after expiration of the 18-month
petitioning period.
The Secretary has decided to establish a national advisory
committee to provide advice and recommendations on the implementation
of this State-specific petition for rulemaking process (Sec. 294.15).
This committee is being established in response to comments received
that roadless area management has national aspects that need to be
considered. This point is well taken and a national advisory committee
can fulfill this function. The advisory committee will consist of
members who represent diverse national organizations interested in the
conservation and management of National Forest System inventoried
roadless areas. Elsewhere in today's Federal Register the Department is
announcing the establishment of this committee and requesting
nominations for membership.
Changes Between Proposed Rule and Final Rule
There were some adjustments made to the final rule based in part on
comments received on the proposed rule. Highlights of these changes are
discussed below.
Definition
The final rule definition section (Sec. 294.11) has been changed
because the agency has more up-to-date information on inventoried
roadless areas today available through the land management planning
process than it had in 2000. The 58.5 million acres of inventoried
roadless areas used as the basis for the roadless rule's analysis were
identified from the then most recent analysis for each national forest
or grassland, including the second Roadless Area Review and Evaluation
(RARE II) which was documented in a final environmental impact
statement dated January of 1979, land management plans, and other
large-scale assessments such as the 1996 Southern Appalachian
Assessment. Since publication of the 2001 roadless rule, 22 land
management plans have been revised and 43 are currently in the plan
revision process. These revisions have provided more accurate and
current information regarding inventoried roadless areas.
Advisory Committee
Sections 294.15 and 294.16 of the proposed rule are now sections
294.16 and 294.17, respectively in the final rule in order to introduce
a new section 294.15 in the final rule. This new section recognizes the
Department's decision to establish an advisory committee to provide
advice and recommendations on the implementation of the rule. The
preamble of the proposed rule informed the public that the Secretary
was considering the establishment of such an advisory committee and
requested public comment regarding the establishment of the committee.
Severability
The Department has chosen to add a new section (Sec. 294.18)
concerning the issue of severability to address the possibility that
the rule, or portions of the rule, may be challenged in litigation. It
is the Department's intent that the individual provisions of this rule
be severable from each other. If any provision or the application of
any provision of this regulation to any circumstance is held invalid,
it is the Department's intent that the remainder shall not be affected
and would continue to be operative.
Further, the severability provision also responds to public comment
expressing concerns and confusion regarding the status of the prior
roadless rule that was set aside by the Federal District Court in
Wyoming. The Department believes that adopting this new rule resolves
the matter by
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establishing a new process for addressing inventoried roadless area
management.
The 2001 rulemaking was immediately challenged in multiple
lawsuits, was preliminarily and permanently enjoined, and continues to
be the subject of litigation and divisive argument. Regardless of these
lawsuits, the Department has concluded that the 2001 rule's inflexible
``one-size-fits-all'' nationwide rulemaking approach is flawed and
there are better means to achieve protection of roadless area values.
The Department wishes to make its intent clear that should all or any
part of this regulation be set aside, the Department does not intend
that the prior rule be reinstated, in whole or in part.
Summary of Public Comments and the Department's Responses
The proposed rule was published in the Federal Register on July 16,
2004, for a 60-day public comment period (69 FR 42636). Due to public
requests for additional time, the comment period was extended by 62
days for a total of 122 days. The Forest Service received approximately
1.8 million comments from a wide variety of respondents on the proposed
rule. All comments were considered in reaching a decision on the final
rule. A narrative document containing a summary of the substantive
issues raised by respondents is posted at the Forest Service World Wide
Web/Internet Web site http://www.roadless.fs.fed.us. A summary of
comments and the Department's responses to them follows.
Desirability of a National Standard for Roadless Area Conservation:
Some respondents, including a number of members of Congress and
Governors, expressed strong support for implementing the roadless rule
as adopted in January, 2001, which these respondents regard as
essential to ensure the long-term protection of roadless areas from
harmful road construction and commercial logging. Other respondents,
including some Governors, voiced their strong support for the proposed
rule stating that taking a more localized and collaborative approach to
developing management requirements for roadless areas is more
appropriate than taking a national approach.
Response: Many concerns were expressed about applying the national
prohibitions of the 2001 roadless rule. Many of these concerns are
represented by those raised in the various lawsuits that challenged the
2001 roadless rule. Consistent with these concerns, the U.S. District
Court for the District of Wyoming permanently enjoined the 2001
roadless rule. The Department remains committed to providing a
responsible and balanced approach to address the concerns raised in
litigation and elsewhere while enhancing roadless area values and
characteristics. The Department believes that the petitioning
opportunity in this final rule represents such a balanced approach.
Management Requirements and the Status Quo: Some respondents felt
that the proposed rule was not clear and thought that unless a Governor
submitted a petition there would be no protections for inventoried
roadless areas.
Response: The base line management requirements for inventoried
roadless areas are those that exist in currently approved land
management plans. These plans, and required revisions to these plans,
are developed with extensive public involvement and collaboration,
using the best available local information about resource conditions,
trends, and issues. It would be these management requirements that
Governors could petition to adjust. If no petition was submitted, these
management plan requirements would remain unchanged subject to
amendment or revision under the National Forest Management Act (NFMA)
planning procedures at 36 CFR part 219.
Compliance with Executive Order 13175 and Finding of No ``Tribal
Implications'': Some Tribal officials commented that the Forest Service
failed to comply with Executive Order 13175 by not consulting and
coordinating with Tribes prior to publication of the proposed rule.
They stated that since consultation had taken place when the 2001
roadless rule was developed, it should also have taken place with a
rulemaking that proposed to replace the 2001 roadless rule. In
addition, some Tribal officials felt that Tribes should be afforded the
same petitioning opportunities as Governors.
Response: The 2001 roadless rule established on-the-ground
management prohibitions that actually superceded management
requirements in land management plans. In that case, it was appropriate
to seek advance consultation with Tribes. The State petitioning process
does not propose any on-the-ground changes to existing management
requirements. If a petition is accepted by the Secretary and State-
specific rulemaking is undertaken to adjust on-the-ground management
requirements, consultation with Tribes will take place at that time.
It is important to note that Congressional reviews of inventoried
roadless areas for consideration as potential wilderness primarily has
been conducted on a state-by-state basis for the past 25 years. In
addition, the Department envisions that before the Secretary would
approve a petition submitted by a Governor, that the petition would
have to have been developed in collaboration with local governments,
Tribes, stakeholders, and other interested parties.
Volume of Public Comments and Support for the 2001 Roadless Rule:
Many respondents discussed the volume of public comment received over
the past 5 years in support of the 2001 roadless rule and that the
proposed rule goes against the wishes of the American public.
Response: Every comment received is considered for its substance
and contribution to informed decisionmaking, whether it is one comment
repeated by tens of thousands of people or a comment submitted by only
one person. The public comment process is not intended to serve as a
scientifically valid survey process to determine public opinion. The
emphasis in reviewing public comment is on the content of the comment
rather than on the number of times a comment was received. The comment
analysis process is intended to identify unique substantive comments
relative to the proposal to facilitate their consideration in the
decisionmaking process. All comments are considered, including comments
that support and that oppose the proposal. That people do not agree on
how public lands should be managed is a historical, as well as modern
dilemma faced by resource managers. However, public comment processes,
while imperfect, do provide a vital avenue for engaging a wide array of
the public in resource management processes and outcomes.
Burden to States and Management Responsibility: Some respondents,
including several Governors, commented that the proposed rule would put
an undue burden on the States since they do not have the resources to
engage in this kind of a process. Other respondents felt that the
Federal government was abandoning its responsibilities in managing
inventoried roadless areas and disagreed with turning the
responsibilities over to State government.
Response: Nothing in the proposed or final rule transfers any
responsibility for the management of federal lands to the States. These
are federal lands administered by the USDA Forest Service, and will
continue to be managed as such. Existing management requirements for
inventoried roadless
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areas have been put in place by agency land management planning
procedures and approved by Forest Service officials. If, after
reviewing these existing management requirements in a collaborative
process, a Governor submits a petition, as required by the final rule,
that is accepted by the Secretary, a State-specific rulemaking process
would be conducted by the Forest Service with the final decision
reserved to the Secretary. This rulemaking process will include public
notice and comment procedures and the appropriate level of
environmental analysis.
The Department envisions that Governors considering submitting a
petition to the Secretary for State-specific rulemaking would request
the Forest Service to provide the State with existing information and
management requirements for their review. After collaborating with
local and Tribal governments, stakeholders, and other interested
parties, the Governor may or may not then decide to submit a petition.
If a petition is submitted and accepted, the rulemaking process would
be conducted by the Forest Service with the State playing a cooperating
agency role in the environmental analysis. The Department does not feel
that this process would pose an undue burden on a State and does not
constitute an unfunded mandate.
Local Decisionmaking in Land Management Planning Process: Some
respondents felt that any rulemaking to establish management
requirements for units of the National Forest System was inappropriate,
and that these requirements should only be established through the
National Forest Management Act (NFMA) land management planning process.
Responses received from several States, in some cases supporting the
proposed State-petitioning rule and in other cases opposing it, also
indicated that it was their intent to work closely with the Forest
Service as land management plans were revised to provide input on
management requirements for inventoried roadless areas.
Response: The Department believes that in most cases the land
management planning process represents the best approach for addressing
the challenges of natural resource management on units of the National
Forest System. Land management plans are developed, amended, and
revised using a collaborative process that considers the integrated
management requirements of the entire unit and the role it plays in the
surrounding area. Some State and local governments actually participate
in the land management plan revision process as cooperating agencies
and the Department encourages and supports this level of involvement.
The Department also believes, however, that in some cases it is
appropriate to allow other approaches, and that the National Forest
Management Act (NFMA) and other statues provide the necessary legal
authority to implement the final rule. This final rule provides an
opportunity to take another approach allowing both national
perspectives and community-level support to accomplish a long-term
solution to roadless area conservation.
Establishment of an Advisory Committee: Some respondents felt that
an advisory committee was needed to assist in the implementation of the
rule, and one group recommended a broader set of responsibilities for
the advisory committee that would include the review of all proposed
management activities in inventoried roadless areas and all management
requirements in proposed plan revisions and amendments. Other
respondents commented that a national advisory committee was not
necessary. Some State responses included comments that such a committee
would duplicate efforts the State would have gone through to develop a
petition in an open public process, and that it would not be
appropriate for such a committee to pass judgment on a State's
petition.
Response: The Department has decided that establishing a national
advisory committee to provide the Secretary with advice and
recommendations would be helpful in implementing this rule. The scope
of the committee's duties would be to review each petition submitted in
light of the rule requirements, and provide the Secretary with advice
and recommendations on each petition, as well as on any subsequent
State-specific rulemaking. The Department believes that a third-party
review of petitions by an advisory committee composed of members
representing national organizations with diverse points of view and
knowledge of contemporary issues involving the conservation and
management of inventoried roadless areas, would be very helpful to the
Secretary.
Local Government Participation: Several respondents commented that
local governments should be a part of the petitioning process, and
should also play a role in any environmental analysis conducted for a
State-specific rulemaking effort.
Response: The Department agrees that local governments should be
included in any collaborative process a Governor conducts in
preparation of submitting a petition. We envision a Governor involving
all interested parties in such a process, including Tribal governments
and adjacent States if some inventoried roadless areas happen to be
located in more than one State. Any subsequent State-specific
rulemaking undertaken by the Forest Service could also include local
government participation in the environmental analysis required by that
rulemaking effort.
Adequacy of the 18-Month Timeframe to Submit a Petition: Some
respondents felt that the 18-month timeframe to submit a petition was
more than adequate. Others commented that more time was needed or that
no time limits should be imposed since this would offer future
Governors an opportunity to submit petitions. One Governor commented
that the reason the State did not support the proposed rule was that
they would rather work with the Forest Service through the land
management planning process. The commenter stated that in the absence
of management requirements established through rulemaking, the
opportunity to adjust these requirements through subsequent plan
revisions and amendments would still be available to Governors in the
future. This Governor was concerned that establishing management
requirements through rulemaking would just represent one Governor's
perspective in one point in time. Several Governors and other
respondents stated that there was no need for such a rule since
Governors already have the right to petition for rulemaking.
Response: Submitting a petition under this final rule would
strictly be voluntary on the part of any State. The Department believes
that 18 months is an adequate amount of time for a State to collaborate
effectively with local and Tribal governments, stakeholders, and other
interested parties to develop a proposal that would consider the full
range of public input. While the petitioning opportunity afforded to
Governors under this final rule would only be available for 18 months,
the Department's general petitioning process for the approval,
amendment, or repeal of rules (7 CFR 1.28) would remain available after
expiration of the 18-month petitioning period. Management requirements
established through the land management planning process would always
be available for review and adjustment through subsequent plan
revisions or amendments.
Adjusting Existing Management Requirements for Inventoried Roadless
Areas: Some respondents opposed the proposed rule because they agreed
with the management requirements that were in place for specific NFS
units and were
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concerned that these would be changed. One respondent stated that
changing management requirements established through the land
management planning process would be a breach of public trust. One
group commented that the proposed petitioning process would conflict
with the land management planning process; would only look at
inventoried roadless areas instead of the entire NFS unit; and may
reduce the perceived need by Governors, State agencies, and the public
to participate in the land management planning process. One Governor
commented that the State had just worked for many years with the Forest
Service on a recent plan revision effort and did not want to have
anything happen that would change that outcome. Other respondents felt
that establishing or adjusting management requirements for inventoried
roadless areas through rulemaking would make these requirements more
permanent and also make them less likely to be changed in the future.
Response: Management requirements established through the land
management planning process represent the results of a collaborative
process that included many groups and individuals, and also represent a
balanced approach for the integrated management for that NFS unit. Not
everyone necessarily agrees with every management requirement that is
approved, however. The responsible official who approves a land
management plan, plan revision, or plan amendment does so through an
informed decisionmaking process that seeks, but does not always attain,
consensus. In any process used to adjust existing management
requirements, be it through a State-specific rulemaking process put in
place with this final rule, or through future plan revisions or
amendments, some individuals or groups will agree with the changes and
some will not. In addition, since any State-specific rulemaking
envisioned by the final rule will include public notice and comment
procedures and appropriate National Environmental Policy Act (NEPA)
environmental analysis procedures, the Secretary will be making an
informed decision when adopting any final State-specific rule. There is
no guarantee that the management requirements the Secretary adopts
through a State-specific rulemaking effort will look exactly like those
recommended and proposed in a petition submitted by a Governor.
Relationship of State-specific Rules and Land Management Plans:
Some respondents raised questions about the relationship of post-
petition rules and existing land management plans.
Response: First, when a petition is accepted and rulemaking is
directed, it is crucial to recognize that the subsequent rulemaking
will be undertaken with full public participation. The Department will
ensure that the same kinds of considerations that guide development of
land management plans will be taken into account during such
rulemakings.
Second, the Department envisions that petitions and subsequent
rulemakings may be far more flexible and creative than a simplistic
prohibition or moratorium. The goal is to improve protection and
accomplishment of management objectives, but there may be a broad range
of reasonable alternative variations in context, procedures, duration,
and structure as to how that goal is achieved. For example, an
agreement to improve coordination by providing notice when actions will
be taken within roadless lands on adjoining National Forest System and
State Forests (whether done by memorandum of understanding or
rulemaking) would not necessitate adjustment of land management plans.
Where a rulemaking is undertaken that would alter management direction
of land management plans, such a rule must be developed with site-
specific information and the same kinds of considerations that apply
when amending land management plans. This represents a significant
difference between this final rule and the approach taken in the 2001
rulemaking. Finally, any rule established pursuant to this system will
be subject to the Department's general petitioning process set out in 7
CFR 1.28.
The Petitioning Process and Public Input: Some respondents felt
that unless they lived in the State where a petition was submitted to
the Secretary and a subsequent State-specific rulemaking was undertaken
that they would not be able to comment on any proposed changes to
management requirements.
Response: If the Secretary directs a State-specific rulemaking, a
proposed rule would be published in the Federal Register for public
review and comment. As is the case in all rulemaking, public responses
will be evaluated, considered, and used to inform the decisionmaking
process for any final rule developed. In addition, individual units of
the National Forest System have Internet Web sites and mailing lists
that will also provide notice to interested individuals, whether local
or not.
Criteria for Reviewing Petitions: Some comments were received
requesting that the final rule include a specific standard or criteria
that the Secretary will apply when reviewing petitions.
Response: The Department believes this would not be a valuable
addition. The Department's goal has been to design an improved system
for protecting roadless areas. There is no single factor that can
assess how to best accomplish this goal and no one criteria can be
identified given the diverse circumstances that apply across the
National Forest System. The Department believes that the overall design
of the regulation and the required elements of the petition adequately
reflect what will be considered. Ultimately, the Department will
consider petitions within the context of Congress' charge that National
Forest System lands be managed for the multiple use and sustained yield
of the several goods and services and that due consideration shall be
given to the relative values of the various resources in particular
areas. The authority vested by Congress is broad, as is the discretion
in how such authority is applied.
Ongoing Management and the Petitioning Process: Some respondents
sought clarification of how lands would be managed during review of a
petition and how the petitioning process would operate in conjunction
with ongoing land management plan revision efforts.
Response: As noted in Sec. 294.14(a)(4), petitions must describe
how the proposed changes ``differ from existing applicable land
management plan(s) or policies related to inventoried roadless area
management * * *.'' The Department wishes to be clear that its
intention is that applicable land management plans and policies will
govern during the pendency of a review of a petition and subsequent
rulemaking. Further, the Department notes that the July 16, 2004,
interim directive for the management of inventoried roadless areas (69
FR 42648) will remain in place until January 16, 2006, and the Forest
Service may renew the interim directive for an additional 18 months.
Finally, it is imperative that land management must continue forward on
a day-to-day basis, even in the midst of land management plan revisions
and the petitioning process. The agency cannot simply stop making
decisions. The petitioning process, like land management plan revision,
must accommodate the fact that land management is an ongoing and
dynamic process. Indeed, it is possible that some States will elect to
pursue addressing shared concerns for inventoried roadless area
management via the plan revision
[[Page 25659]]
process rather than the petitioning process.
Adequate Protection of Inventoried Roadless Areas: Several
respondents suggested that the absence of the court-voided roadless
rule left inventoried roadless areas unprotected.
Response: That assertion is not correct. The November 2000 final
environmental impact statement (FEIS) for the roadless rule estimated a
total of 58.5 million acres of inventoried roadless areas, with some
percentage of those lands actually having been developed to at least
some extent. The FEIS also identified that over 24 million of those
acres were already ``off limits'' to road construction under existing
forest plan management direction (along with another 42 million acres
of National Forest System (NFS) lands that are ``off limits'' to road
construction by Congressional designation). Additionally, the remaining
inventoried roadless area acres were subject to the local forest plan
forestwide and area-specific management direction. Finally, it should
be noted that the agency issued an interim directive for the management
of inventoried roadless areas in December of 2001 for 18 months, and
reinstated it again in July of 2004 for another 18 months. This interim
directive reserves to the Chief, except in specific circumstances that
are generally consistent with the prohibition exceptions in the
roadless rule, the authority to make decisions in inventoried roadless
areas regarding: (1) Road construction or road reconstruction on any
NFS unit until a forest-scale roads analysis is completed and
incorporated into a forest plan, or a determination is made that an
amendment is not necessary; and (2) timber harvesting on any NFS unit
until a revision of a forest plan or adoption of a plan amendment that
has considered the protection and management of inventoried roadless
areas. Any suggestion that no protections exist for inventoried
roadless areas is simply inaccurate.
Roadless Areas on the Tongass National Forest: Some comments
received indicate that there remains much interest and confusion
regarding roadless areas on the Tongass National Forest.
Response: As background, on June 10, 2003, a settlement agreement
was reached in the State of Alaska v. USDA litigation. In that
settlement, the Department agreed to propose an amendment to the
roadless rule to temporarily withdraw the Tongass National Forest in
Alaska from the provisions of the rule, as well as to issue an advance
notice of proposed rulemaking to seek public comment on permanently
withdrawing both the Tongass and the Chugach National Forests from the
provisions of the roadless rule. On December 30, 2003, the Department
adopted a final rule that temporarily withdrew the Tongass National
Forest. Management of inventoried roadless areas on the Tongass is now
governed by the existing forest plan. The roadless lands on the Tongass
National Forest have been repeatedly studied and the relative values
and resources associated with those lands are well appreciated and
understood. Pursuant to the current forest plans for the Tongass and
the Chugach National Forests, road construction will not occur on
approximately 90 percent of roadless area lands and timber management
will not occur on over 95 percent of roadless area lands. Under the
approach established in this final rule, management of inventoried
roadless areas on the Tongass will continue to be governed by the
existing forest plan. This rule thus negates the need for the further
Tongass-specific rulemaking anticipated by the 2003 rule.
Petition's Compliance with Applicable Federal Law: Concerns were
expressed that petitions might be submitted that do not conform to
applicable Federal laws. Some respondents worried that petitions would
seek to impose restrictions beyond those permissible under the law,
while others expressed concern that petitions would seek to waive
mandatory requirements. Several respondents were concerned that
petitions would not respect existing rights to access private property.
Response: The proposed regulation at Sec. 294.14(a)(4) required
that petitions identify how the recommended management requirements
differ from existing management direction while still complying with
applicable laws and regulations. This requirement has been retained.
Additionally, the Department is required, under these and any
circumstances, to assure that rulemakings conform to all applicable
Federal laws. In addition, the Department has added a new regulatory
provision at Sec. 294.17(c) identifying that nothing in this rule, nor
any rule promulgated pursuant to this petitioning process, shall
prohibit the exercise of any valid existing rights.
Regulatory Certifications
Regulatory Impact
This final rule has been reviewed under USDA procedures and
Executive Order 12866 issued September 30, 1993 (E.O. 12866) on
Regulatory Planning and Review. It has been determined that this is not
an economically significant rule. This final rule will not have an
annual effect of $100 million or more on the economy nor adversely
affect productivity, competition, jobs, the environment, public health
or safety, nor State or local governments. This final rule will neither
interfere with an action taken or planned by another agency. Finally,
this final rule will not alter the budgetary impact of entitlements,
grants, user fees, or loan programs or the rights and obligations of
recipients of such programs. However, because this rule raises novel
legal or policy issues arising from legal mandates or the President's
priorities, it has been designated as significant and, therefore, has
been reviewed by the Office of Management and Budget under E.O. 12866.
Moreover, this final rule has been considered in light of Executive
Order 13272 regarding proper consideration of small entities and the
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA),
which amended the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). It
has been determined that this action will not have a significant
economic impact on a substantial number of small business entities as
defined by the Regulatory Flexibility Act. Therefore, a regulatory
flexibility analysis is not required for this final rule. This rule
will not impose record keeping requirements; will not affect small
entities' competitive position in relation to large entities; and will
not affect small entities' cash flow, liquidity, or ability to remain
in the market.
A cost-benefit analysis has been prepared for this final rule that
incorporates by reference the November 2000 detailed regulatory impact
analysis prepared for the roadless rule promulgated in January of 2001.
A quantitative analysis of costs and benefits associated with this
final rule is not feasible, however, because there is no experience
with implementing the roadless rule, and thus there are no data
available. In addition, many of the effects of this final rule are not
readily quantifiable in financial terms because they would be based on
future State-specific rulemaking. For these reasons, the cost-benefit
analysis prepared for this final rule focuses on the qualitative
aspects of implementing a State petition process. Detailed quantitative
analysis would be conducted in the future if and when any State-
specific rulemaking proposals are made.
The range of potential costs and benefits of this final rule has
been
[[Page 25660]]
estimated by comparing selected effects of managing 58.5 million acres
of inventoried roadless areas following the prohibitions for road
construction and timber management activities in the 2001 roadless
rule, with managing these same areas in accordance with the existing
management requirements contained in land management plans.
Approximately 25 percent of the total acres of inventoried roadless
areas are in the State of Alaska. About 72 percent of the total is in
the 11 Western States of Montana, Idaho, Wyoming, Washington, Utah,
Oregon, New Mexico, Nevada, Colorado, California, and Arizona. The
remaining 3 percent is scattered among the remaining 26 States and
Puerto Rico. While it is currently unknown which States may choose to
submit a petition for State-specific rulemaking, the Department assumes
that all 38 States and Puerto Rico will do so in the first year the
rule is implemented. The costs to the Forest Service and the Department
to evaluate and make a determination on a petition are estimated to
range from $75,000 to $150,000. Costs could range from $25,000 to
$100,000 for an individual State submitting a petition. Total costs to
the States for 39 petitions would range from $975,000 to $3,900,000;
and total costs to the Government would range from $2,925,000 to
$5,850,000. The total cost to the Government includes the costs
associated with an advisory committee that will be established to
assist the Secretary with implementation of this rule. Total costs of
the rule are, therefore, estimated to range from $3,900,000 to
$9,750,000.
Environmental Impacts
The Department prepared a draft environmental impact statement
(EIS) (May 2000) and a final EIS (November 2000) in association with
promulgation of the 2001 roadless rule. The DEIS and FEIS examined in
detail the no action alternative in which no rule prohibiting
activities in inventoried roadless areas would be issued, and
management of these areas would be governed by existing land management
plans. The environmental impacts associated with not implementing the
enjoined 2001 roadless rule are essentially those disclosed and
discussed for the no action alternative displayed in the FEIS. The FEIS
is available in the document archives section of the Roadless Area
Conservation World Wide Web/Internet site at http://www.roadless.fs.fed.us.
This final rule has been reviewed under the National Environmental
Policy Act (NEPA), 42 U.S.C. 4321-4370f. The Department's publication
of the proposed rule included notice of its expectation that the final
rule would be designated for categorical exclusion.
Categorical exclusions (CEs) are an integral part of the NEPA
scheme and in no way evade compliance with NEPA. In 1983, the Council
on Environmental Quality (CEQ) explained that the use of CEs avoids
unnecessary documentation of minor environmental effects in
environmental assessments (EAs) and allows agencies to focus their
environmental review effort on the major actions that will have a
significant effect on the environment and which are the primary focus
of NEPA (see 48 FR 34, 265-66 (July 28, 1983); see also 40 CFR
1500.4(p) (noting that establishment and use of CEs can reduce
excessive paperwork by eliminating unnecessary preparation of EAs). CEQ
regulations do not require that an agency provide for public comment
when it approves an action under categorical exclusion (see 40 CFR part
1503).
This final rule establishes administrative procedures to allow a
Governor to petition the Secretary of Agriculture to undertake future
rulemaking for the management of inventoried roadless areas within a
specific State. Thus, subsequent State-specific inventoried roadless
area rulemaking may be proposed in the future, at which time, the
Forest Service would fully consider the environmental effects of that
rulemaking in compliance with National Environmental Policy Act (NEPA)
procedures. This final rule is merely procedural in nature and scope
and, as such, has no direct, indirect, or cumulative effect on the
environment. Section 31.1b of Forest Service Handbook (FSH) 1909.15 (57
FR 43208; September 18, 1992) excludes from documentation in an
environmental assessment or impact statement ``rules, regulations, or
policies to establish Service-wide administrative procedures, program
processes, or instructions.''
To be clear, this regulation neither prohibits nor requires any
action that would fund, authorize, or carry out activities on National
Forest System (NFS) lands. As such, the regulation will not force
specific identifiable resource outcomes on NFS lands, and thus, will
not have any discernable effects on the various classes of resources
listed in the agency's NEPA Policy and Procedures that can constitute
extraordinary circumstances. Effectively, the final regulation, in and
of itself, is environmentally neutral and constitutes ``no effect'' to
the environment. Thus, the Department's assessment is that this final
rule falls within FSH 1909.15, Section 31.1b and no extraordinary
circumstances exist which would require preparation of an environmental
assessment or environmental impact statement.
Energy Effects
This final rule has been reviewed under Executive Order 13211,
issued May 18, 2001 (E.O. 13211), ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use.'' It has been
determined that this final rule does not constitute a significant
energy action as defined in the Executive order.
Controlling Paperwork Burdens on the Public
Section 294.14 of this final rule sets out what must be included in
a petition submitted to the Secretary requesting State-specific
rulemaking. The requirements in this section constitute an information
collection as defined by the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.) and implementing regulations at 5 CFR part 1320. These
information collection requirements have been reviewed and approved by
the Office of Management and Budget (OMB). The OMB control number is
displayed in Sec. 294.14, paragraph (b).
Government Paperwork Elimination Act Compliance
The Department is committed to compliance with the Government
Paperwork Elimination Act (44 U.S.C. 3504), which requires Government
agencies to provide the public the option of submitting information or
transacting business electronically to the maximum extent possible.
Federalism
The Department has considered this final rule under the
requirements of Executive Order 13132 issued August 4, 1999 (E.O.
13132), ``Federalism.'' The Department has made an assessment that the
final rule conforms with the Federalism principles set out in this
Executive order; would not impose any significant compliance costs on
the States; and would not have substantial direct effects on the
States, on the relationship between the national government and the
States, nor on the distribution of power and responsibilities among the
various levels of government. Therefore, the Department concludes that
the final rule does not have Federalism implications.
Consultation With Indian Tribal Governments
Pursuant to Executive Order 13175 of November 6, 2000,
``Consultation and Coordination with Indian Tribal
[[Page 25661]]
Governments,'' the Department has assessed the impact of this final
rule on Indian Tribal governments and has determined that the final
rule does not significantly or uniquely affect communities of Indian
Tribal governments. The final rule deals with the establishment of
administrative procedures only and does not make any recommendations
for changes to on-the-ground management of any lands in the National
Forest System. Once a State-specific rulemaking is proposed to
establish or adjust management requirements for inventoried roadless
areas, appropriate consultation and coordination with Indian Trial
Governments will take place at that time.
No Takings Implications
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 12630, issued March 15, 1988,
and it has been determined that the rule does not pose the risk of a
taking of private property as the final rule is limited to the
establishment of administrative procedures.
Civil Justice Reform
This final rule has been reviewed under Executive Order 12988 of
February 7, 1996, ``Civil Justice Reform.'' The Department has not
identified any State or local laws or regulations that are in conflict
with this regulation or that would impede full implementation of this
final rule. After adoption of this final rule: (1) All State and local
laws or regulations that conflict with this rule or that would impede
full implementation would be preempted; (2) no retroactive effect would
be given to this final rule; and (3) the final rule would not require
the use of administrative proceedings before parties could file suit in
court challenging its provisions.
Unfunded Mandates
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), the Department has assessed the effects of this
final rule on State, local, and Tribal governments and the private
sector. This final rule does not compel the expenditure of $100 million
or more by any State, local, or Tribal governments or anyone in the
private sector. Therefore, a statement under section 202 of the act is
not required.
List of Subjects in 36 CFR Part 294
National Forests, Navigation (air), Recreation and recreation
areas, Wilderness areas, Recordkeeping and reporting requirements.
0
Therefore, for the reasons set forth in the preamble, the Department of
Agriculture amends part 294 of title 36 of the Code of Federal
Regulations as follows:
PART 294--SPECIAL AREAS
0
1. Subpart B is revised to read as follows:
Subpart B--State Petitions for Inventoried Roadless Area Management
Sec.
294.10 Purpose.
294.11 Definition.
294.12 State petitions.
294.13 Petition process.
294.14 Petition contents.
294.15 Advisory committee review.
294.16 State-specific rulemaking.
294.17 Scope and applicability.
294.18 Severability.
Subpart B--State Petitions for Inventoried Roadless Area Management
Authority: 16 U.S.C. 472, 529, 551, 1608, 1613; 23 U.S.C. 201,
205.
Sec. 294.10 Purpose.
The purpose of these administrative procedures is to set forth a
process for State-specific rulemaking to address the management of
inventoried roadless areas in areas where the Secretary determines that
regulatory direction is appropriate based on a petition from the
affected Governor.
Sec. 294.11 Definition.
Inventoried roadless areas--Areas identified in a set of
inventoried roadless area maps, contained in the Forest Service
Roadless Area Conservation, Final Environmental Impact Statement,
Volume 2, dated November 2000, and any subsequent update or revision of
those maps through the land management planning process.
Sec. 294.12 State petitions.
The Governor of any State or territory that contains National
Forest System lands may petition the Secretary of Agriculture to
promulgate regulations establishing management requirements for all or
any portion of National Forest System inventoried roadless areas within
that State or territory. Any such petition must be submitted to the
Secretary of Agriculture not later than November 13, 2006.
Sec. 294.13 Petition process.
(a) Review and consideration of petitions made pursuant to Sec.
294.12 shall be accomplished as follows:
(1) Review. The Secretary shall review petitions and may request
additional information from a petitioner before deciding whether to
accept the petition. If the Secretary requests additional information
from a petitioner, the petition will be considered complete when the
petitioner provides the additional information.
(2) Disposition. The Secretary or the Secretary's designee shall
respond to the petition within 180 days of receipt of a completed
petition. The response shall accept or decline the petition to initiate
a State-specific rulemaking.
Sec. 294.14 Petition contents.
(a) Any petition made pursuant to Sec. 294.12 shall provide the
following:
(1) The location and description of the particular lands for which
the petition is being made, including maps and other appropriate
resources in sufficient detail to enable consideration of the petition;
(2) The particular management requirements recommended for the
lands and any exceptions;
(3) The identification of the circumstances and needs intended to
be addressed by the petition, including conserving roadless area values
and characteristics; protecting human health and safety; reducing
hazardous fuels and restoring essential wildlife habitats; maintaining
existing facilities such as dams, or providing reasonable access to
public and private property or public and privately owned facilities;
and technical corrections to existing maps such as boundary adjustments
to remove existing roaded areas;
(4) A description of how the recommended management requirements
identified in paragraph (a)(2) of this section differ from existing
applicable land management plan(s) or policies related to inventoried
roadless area management, and how they would comply with applicable
laws and regulations;
(5) A description of how the recommended management requirements
identified in paragraph (a)(2) of this section compare to existing
State or local land conservation policies and direction set forth in
any applicable State or local land and resource management plan(s);
(6) A description of how the recommended management requirements
identified in paragraph (a)(2) of this section would affect the fish
and wildlife that utilize the particular lands in question and their
habitat;
(7) A description of any public involvement efforts undertaken by
the petitioner during development of the
[[Page 25662]]
petition, including efforts to engage Tribal and local governments, and
persons with expertise in fish and wildlife biology, fish and wildlife
management, forest management, outdoor recreation, and other important
disciplines; and
(8) A commitment by the petitioner to participate as a cooperating
agency in any environmental analysis for a rulemaking process.
(b) The petition contents described in paragraphs (a)(1) through
(a)(8) of this section constitute an information collection requirement
as defined by 5 CFR part 1320 and have been assigned Office of
Management and Budget control number 0596-0178.
Sec. 294.15 Advisory committee review.
A National Advisory Committee shall review each petition and
provide advice and recommendations to the Secretary within 90 days of
receipt of a completed petition. The committee will also provide advice
and recommendations to the Secretary on any subsequent State-specific
rulemakings.
Sec. 294.16 State-specific rulemaking.
If the Secretary or the Secretary's designee accepts a petition,
the Forest Service shall be directed to initiate notice and comment
rulemaking to address the petition. The Forest Service shall coordinate
development of the proposed rule with the petitioner. The Secretary or
the Secretary's designee shall make the final decision for any State-
specific inventoried roadless area management rule.
Sec. 294.17 Scope and applicability.
(a) The provisions of this subpart apply exclusively to the
development and review of petitions made pursuant to this subpart.
(b) Nothing in this subpart shall be construed to provide for the
transfer to, or administration by, a State or local authority of any
Federally owned lands.
(c) Nothing in this subpart, nor any regulation promulgated
pursuant to this petitioning process, shall prohibit the exercise of
any valid existing rights.
Sec. 294.18 Severability.
In the event that any provision, section, subsection, or phrase of
this subpart is determined by a court or body of competent jurisdiction
to be invalid, unconstitutional, or unenforceable, the remaining
provisions, sections, subsections, or phrases shall remain in full
force and effect.
Dated: May 5, 2005.
Mark Rey,
Under Secretary, Natural Resources and Environment.
[FR Doc. 05-9349 Filed 5-12-05; 8:45 am]
BILLING CODE 3410-11-P