Forest Service, USDA.
Final rule and record of decision.
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.
This rule is effective March 13, 2001.
For additional information, refer to the Roadless Area Conservation website (
Scott Conroy, Project Director, Forest Service (703) 605–5299 or (800) 384–7623.
The following outline displays the contents of the preamble for this regulation.
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 (
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) (
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.
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):
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
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.
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.
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.
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.
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.
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
On May 10, 2000, the Forest Service issued a proposed rule in the
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 (
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.
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.
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
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.
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.
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.
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
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 § 294.12 for further discussion of the MUSYA.
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.
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.
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, § 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.
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”.
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 (
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.” (
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).
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.
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 § 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.
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,
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).
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
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
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. (
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 § 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
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 § 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).
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
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.
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.
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 § 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.
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 § 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 § 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 § 294.11.
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).
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.
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 § 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
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 § 219.9(b)(8) of the final planning rule (65 FR 67571) to emphasize that the
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 § 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 § 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.
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
Proposed § 294.14(b) made clear that the final rule would not require units to initiate land management plan amendments or revisions.
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.
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
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
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
To replace and serve the same purpose as proposed § 294.13(f), a new § 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 § 294.12 or § 294.13.
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
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 § 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).
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.
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
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 (
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 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.
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.
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
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.
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.
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).
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 § 294.12(b)(3) in the final roadless rule.
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,
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
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
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
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.
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
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.
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.
(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.
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.
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.
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
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.
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
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.
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,
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.
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.
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.
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
Forests and forest products, Highways and roads, Land and resource management planning, National forests, Navigation (air), Recreation and recreation areas, and Wilderness areas.
16 U.S.C. 472, 551, and 1131.
16 U.S.C. 472, 529, 551, 1608, 1613; 23 U.S.C. 201, 205.
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.
The following terms and definitions apply to this subpart:
(1)
(2)
(3)
(1)
(2)
(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.
(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
(c) Maintenance of classified roads is permissible 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 § 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.
(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
(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.