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Special Areas; Roadless Area Conservation; Applicability to the Tongass National Forest, Alaska
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: July 15, 2003 (Volume 68, Number 135)]
[Proposed Rules]
[Page 41865-41869]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15jy03-29]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 294
RIN 0596-AC04
Special Areas; Roadless Area Conservation; Applicability to the
Tongass National Forest, Alaska
AGENCY: Forest Service, USDA.
ACTION: Notice of proposed rulemaking; request for comment.
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SUMMARY: The Department of Agriculture, Forest Service is proposing to
amend regulations concerning the Roadless Area Conservation Rule
(hereinafter, referred to as the roadless rule) to exempt the Tongass
National Forest (hereinafter, referred to as the Tongass) from
prohibitions against timber harvest, road construction, and
reconstruction in inventoried roadless areas until a final rule is
promulgated as announced by the Forest Service on July 10, 2001, in an
advance notice of proposed rulemaking.
In seeking public comment on this proposal to amend the roadless
rule, the agency is fulfilling part of the Department's obligations
under the June 10, 2003 settlement agreement for State of Alaska v.
USDA, while maintaining the ecological values of inventoried roadless
areas in the Tongass National Forest.
In State of Alaska v. USDA, the State of Alaska and other
plaintiffs alleged that the roadless rule violated a number of federal
statutes, including the Alaska National Interest Lands Conservation Act
of 1980 (ANILCA). Passed overwhelmingly by Congress in 1980, ANILCA
sets aside millions of acres in Alaska for the National Park Service,
Forest Service, National Monuments, National Wildlife Refuges, and
Wilderness Areas with the
[[Page 41866]]
understanding that sufficient protection and balance would be ensured
between protected areas and multiple-use managed areas, and that there
would be no more administrative land withdrawals. The Alaska lawsuit
alleged that USDA violated ANILCA by applying the requirements of the
roadless rule to Alaska's national forests. USDA settled the lawsuit by
agreeing to publish this proposed rule to temporarily exempt the
Tongass from the application of the roadless rule, and to publish the
separate advance notice of proposed rulemaking (located elsewhere in
the same part of today's Federal Register) requesting comment on
whether to exempt permanently the Tongass and the Chugach National
Forests in Alaska from the application of the roadless rule.
Under the settlement, the vast majority of Alaska National Forests
will remain off limits to development. Timber harvest will be
prohibited on more than 95 percent of Alaska National Forests as
required under existing forest plans. Exempting the Tongass National
Forest from the application of the roadless rule would make
approximately 300,000 roadless acres available for forest management--
slightly more than 3 percent of the 9.3 million roadless acres in the
Tongass, or 0.5 percent of the total roadless acres nationwide.
Exempting the Chugach National Forest from the application of the
roadless rule would permit roaded access on approximately 150,000
acres--less than 3 percent of the forest's 5.4 million roadless acres,
or 0.3 percent of the total roadless acres nationwide. The proposals
under the settlement would preserve all old-growth reserves, riparian
buffers, beach fringe buffers, roadless areas, and other protections
contained in the forest plans. The roadless rule would also continue to
apply to the 43.7 million roadless acres in national forests outside of
Alaska.
Public comment is invited and will be considered in the development
of the final rule.
DATES: Comments must be postmarked by August 14, 2003.
ADDRESSES: Send written comments to: Roadless TNF, Content Analysis
Team, USDA Forest Service, P.O. Box 22810, Salt Lake City, UT 84122; by
electronic mail to roadlesstnf@fs.fed.us; or by facsimile to (801) 880-
2808. If you intend to submit comments in batched e-mails from the same
server, please be aware that electronic security safeguards on Forest
Service and Department of Agriculture computer systems intended to
prevent commercial spamming may limit batched e-mail access. The Forest
Service is interested in receiving all comments on this proposed rule,
however, so please call (801) 517-1020 to facilitate transfer of
comments in batched e-mail messages. Please note that all comments,
including names and addresses when provided, will be placed in the
record and will be available for public inspection and copying. The
agency cannot confirm receipt of comments. Individuals wishing to
inspect the comments should call Jody Sutton at (801) 517-1023 to
schedule an appointment.
FOR FURTHER INFORMATION CONTACT: In Washington, DC contact: Dave
Barone, Planning Specialist, Ecosystem Management Coordination Staff,
Forest Service, USDA, (202) 205-1019; and in Juneau, Alaska contact:
Jan Lerum, Regional Planner, Forest Service, USDA, (907) 586-8796.
SUPPLEMENTARY INFORMATION:
Background and Litigation History
On January 12, 2001, the Department published a final rule entitled
``Special Areas; Roadless Area Conservation'' (66 FR 3244) (``the
roadless rule''). The roadless rule was a discretionary rule that
fundamentally changed the Forest Service's longstanding approach to
management of inventoried roadless areas by establishing nationwide
prohibitions generally limiting, with some exceptions, timber harvest,
road construction, and reconstruction within inventoried roadless areas
in national forests. A draft environmental impact statement (DEIS) (May
2000) and final environmental impact statement (FEIS) (November 2000)
were prepared and included consideration of alternatives that
specifically exempted the Tongass National Forest from the roadless
rule's prohibitions. As described in the FEIS, the roadless rule was
predicted to cause substantial social and economic hardship in
communities throughout Southeast Alaska (FEIS Vol. 1, 3-202, 3-326 to
3-350, 3-371 to 3-392). Nonetheless, the final rule extended the rule's
prohibitions to the Tongass National Forest.
The roadless rule has been subject to a number of lawsuits in
Federal district courts in Idaho, Utah, North Dakota, Wyoming, Alaska,
and the District of Columbia. In one of these lawsuits, the District
Court of Idaho issued a nation-wide preliminary injunction prohibiting
implementation of the roadless rule. The preliminary injunction
decision was reversed and remanded by a panel of the Ninth Circuit
Court of Appeals. The Ninth Circuit held that the Forest Service's
preparation of the environmental impact statement for the roadless rule
was in conformance with the general statutory requirements of the
National Environmental Policy Act.
In another lawsuit, the State of Alaska and six other parties
alleged that the roadless rule violated the Administrative Procedure
Act, National Forest Management Act, National Environmental Policy Act,
Alaska National Interest Lands Conservation Act, Tongass Timber Reform
Act and other laws. In the June 10, 2003, settlement of that lawsuit,
the Department committed to publishing a proposed rule with request for
comment that would exempt the Tongass National Forest from application
of the roadless rule. The Department made no representations regarding
the content or substance of any final rule that may result.
If the Tongass National Forest is exempted from the prohibitions in
the roadless rule, the Forest would continue to be managed pursuant to
the 1997 Tongass Forest Plan with non-significant amendments, as
readopted in the February 2003 Record of Decision (2003 Plan) issued in
response to the district court's remand of the 1997 Plan in Sierra Club
v. Rey, (D. Alaska). Both documents were developed through fair and
open planning processes, based on years of extensive public involvement
and thorough scientific review. The 2003 Tongass Forest Plan provides a
full consideration of social, economic, and ecological values in
Southeast Alaska. This rulemaking does not propose to reduce any of the
old-growth reserves, riparian buffers, beach fringe buffers, or other
standards and guidelines of the 2003 Tongass Forest Plan or, in any
way, impact the protections afforded by the plan.
Congress Has Given Specific Direction To Protect the National Interest
in Alaska Public Lands
Congress has provided specific direction to protect the national
interest in the public lands in Alaska. The Alaska National Interest
Lands Conservation Act (ANILCA) of 1980 (16 U.S.C. 3210) established
vast areas of conservation system units, including more than 50 percent
of the combined acreage of all designated wilderness areas in the
Nation. Congress further found that the Act provides sufficient
protection for the national interest in the scenic, natural, cultural,
and environmental values on the public lands in Alaska, and at the same
time provides adequate opportunity for satisfaction of the economic and
social needs of the State of Alaska and its people.
[[Page 41867]]
In 1990, Congress provided additional management direction to
reflect national interests in Alaska by passing the Tongass Timber
Reform Act. The Tongass Timber Reform Act amended ANILCA by directing
the Secretary of Agriculture, subject to certain limitations, to seek
to provide a supply of timber from the Tongass National Forest which
(1) meets the annual market demand for timber and (2) meets the market
demand for timber for each planning cycle.
The Department will consider whether the proposed rule better
implements the national interests proclaimed by Congress for the
Tongass National Forest.
Most Southeast Alaska Communities Are Significantly Impacted by the
Roadless Rule
There are thirty two communities within the boundary of the Tongass
National Forest. Most Southeast Alaska communities lack road and
utility connections to other communities and to the mainland systems.
Because most Southeast Alaska communities are surrounded on land by
inventoried roadless areas of the Tongass National Forest, the roadless
rule significantly limits the ability of communities to develop road
and utility connections that almost all other communities in the United
States take for granted. If the proposed rule is adopted, communities
in Southeast Alaska would be able to propose road and utility
connections across national forest system land that will benefit their
communities. Any such community proposal would then be evaluated on its
own merits.
In addition, the preponderance of federal land in Southeast Alaska
results in communities being more dependent upon Tongass National
Forest lands and having fewer alternative lands to generate jobs and
economic activity. The communities of Southeast Alaska are particularly
affected by the roadless rule prohibitions. The FEIS estimated that
approximately 900 jobs could be lost in Southeast Alaska due to the
application of the roadless rule.
Roadless Areas Are Common, Not Rare, on the Tongass National Forest
The 16.8 million acre Tongass National Forest in Southeast Alaska
is approximately 90 percent roadless and undeveloped. The vast majority
of the 9.34 million acres of inventoried roadless areas and their
associated values in the Tongass are already either protected through
Congressional designation or through the Tongass Forest Plan.
Congress has designated 39 percent of the Tongass as Wilderness,
National Monument, or other special designations which prohibit
commercial timber harvest and road construction, with certain limited
exceptions. An additional 39 percent of the Tongass is managed under
the Forest Plan to maintain natural settings where commercial timber
harvest and road construction are not allowed. About 4 percent of the
Tongass is designated suitable for commercial timber harvest, with
about half of that area contained within inventoried roadless areas.
The remaining 18 percent of the Forest is managed for various multiple
uses. The Tongass Forest Plan provides high levels of resource
protection, and has been designed to assure ecological sustainability
over time while allowing some development to occur that supports
communities dependent on the management of National Forest System lands
in Southeast Alaska.
In addition, the State of Alaska as a whole has an extensive
network of protected areas. Alaska has the greatest amount of land and
the highest percentage of its land base in conservation reserves of any
state. Federal lands comprise 59 percent of the state and 40 percent of
federal lands in Alaska are in conservation system units.
Different Approaches Considered for the Tongass National Forest
The unique situation of the Tongass National Forest has been
recognized throughout the Forest Service's process for examining
prohibitions in inventoried roadless areas. The process for developing
the roadless rule included different options for the Tongass in each
stage of the promulgation of the rule and each stage of the
environmental impact statement.
In February 1999, the agency exempted the Tongass and other forests
with recently revised forest plans from an interim rule prohibiting new
road construction. The October 1999 Notice of Intent to prepare an
environmental impact statement for the roadless rule specifically
requested comment on whether or not the rule should apply to the
Tongass National Forest in light of the recent revision of the Tongass
Forest Plan and the ongoing economic transition of communities and the
timber program in Southeast Alaska. The May 2000 DEIS for the roadless
rule proposed to postpone making a decision for the Tongass until April
2004, in association with the 5-year review of the Tongass Forest Plan.
The preferred alternative was altered in the November 2000 FEIS to
include prohibitions on timber harvest, as well as road construction
and reconstruction on the Tongass, effective April 2004. The FEIS
recognized that the economic and social impacts of including the
Tongass in the roadless rule's prohibitions could be of considerable
consequence in communities where the forest products industry is a
significant component of local economies. The FEIS also noted that if
the Tongass was exempt from the roadless rule prohibitions, loss of
habitat and species abundance would not pose an unacceptable risk to
diversity across the forest.
The final January 12, 2001 roadless rule directed an immediate
prohibition on timber harvest, road construction, and reconstruction in
roadless areas, except for projects that already had a notice of
availability of a draft environmental impact statement published in the
Federal Register.
Litigation Settlement
In January 2001, the State of Alaska filed a lawsuit against the
United States Department of Agriculture contending the roadless rule
violated the Administrative Procedure Act, National Forest Management
Act, National Environmental Policy Act, Alaska National Interest Lands
Conservation Act, Tongass Timber Reform Act and other laws.
In fulfillment of one of its obligations under the settlement
agreement for State of Alaska v. USDA, and after consideration of the
circumstances surrounding the development and promulgation of the
roadless rule relative to the Tongass and the implications of
implementing the rule, the Department is seeking public comment on this
proposal to amend the roadless rule. This proposed rule has been
developed in light of the factors and issues described in this
preamble, including serious concerns about the previously disclosed
economic and social hardships the application of the rule's
prohibitions would cause in communities throughout Southeast Alaska.
Conclusion
For the reasons identified in this preamble, the Department is
proposing to amend paragraph (d) of Sec. 294.14 of the Roadless Area
Conservation Rule to exempt the Tongass National Forest from
prohibitions against timber harvest, road construction, and
reconstruction in inventoried roadless areas until the Department
promulgates a revised final roadless area conservation rule as
announced in the
[[Page 41868]]
July 10, 2001, advance notice of proposed rulemaking (66 FR 35918).
Regulatory Certifications
Regulatory Impact
This proposed rule has been reviewed under USDA procedures and
Executive Order (E.O.) 12866, Regulatory Planning and Review, and
designated as significant by the Office of Management and Budget (OMB).
OMB has reviewed this proposed rule since it raises novel legal or
policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in E.O. 12866.
A cost-benefit analysis has been conducted on the impact of this
proposed rule and incorporates by reference the detailed regulatory
impact analysis prepared for the January 12, 2001, roadless rule, which
included the Tongass Exempt Alternative. Much of this analysis was
discussed and disclosed in the FEIS for the roadless rule. A review of
the data and information from the original analysis and the information
disclosed in the FEIS found that it is still relevant, pertinent, and
sufficient in regards to exempting the Tongass from the application of
the roadless rule. The Department has concluded that no new information
exists today that would significantly alter the results of the original
analysis.
Moreover, this proposed rule has been considered in light of
Executive Order 13272 regarding proper consideration of small entities
and the Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA), which amended the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.). An initial and final regulatory flexibility analysis was
conducted on the proposed and final roadless area conservation rule,
which included the effects associated with the Tongass National Forest.
An initial small entities flexibility assessment for this proposed rule
has been made and it has been determined that this action will not have
a significant economic impact on a substantial number of small entities
as defined by SBREFA. This proposed rule will not impose record keeping
requirements; will not affect small entities' competitive position in
relation to large entities; and will not affect small entities' cash
flow, liquidity, or ability to remain in the market.
Environmental Impact
The Department prepared a Draft EIS (May 2000) and Final EIS
(November 2000) in association with promulgation of the roadless area
conservation rule. The DEIS and FEIS examined in detail sets of
Tongass-specific alternatives. In the DEIS the Department proposed the
Tongass Deferred Alternative, which would not have applied the rule's
prohibitions to the Tongass National Forest but would have required
that the agency make a determination as part of the five-year plan
review whether to prohibit road construction in unroaded portions of
inventoried roadless areas, and would have directed that an evaluation
of whether and how to protect roadless characteristics, in the context
of multiple use management, be conducted during the next Tongass Forest
Plan revision. In the FEIS, the Department identified the Tongass ``Not
Exempt'' as the Preferred Alternative, which would have treated the
Tongass National Forest the same as all other national forests, but
delayed implementation of the rule's prohibitions untilApril 2004. This
delay would have served as a social and economic mitigation measure by
providing a transition period for communities most affected by changes
in management of inventoried roadless areas in the Tongass. In the
final rule published on January 12, 2001, however, the Department
selected the Tongass ``Not Exempt'' alternative which immediately
applied the rule's prohibitions to inventoried roadless areas on the
Tongass, but allowed 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 was published in the Federal Register
prior to January 12, 2001.
In February 2003, in compliance with the district court's order in
Sierra Club v. Rey (D. Alaska), the Forest Service issued a Record of
Decision (ROD) and a Supplemental Environmental Impact Statement (SEIS)
to the 1997 Revised Tongass Forest Plan that examined the site-specific
wilderness and non-wilderness values of the inventoried roadless areas
on the Forest as part of the forest planning process. The February 2003
ROD readopted the 1997 Tongass Forest Plan with non-significant
amendments as the current forest plan. Congress has prohibited
administrative or judicial review of the February 2003 ROD. Section 335
of the 2003 Omnibus Appropriations Act provides that the ROD for the
2003 SEIS for the 1997 Tongass Land Management Plan shall not be
reviewed under any Forest Service administrative appeal process, and
its adequacy shall not be subject to judicial review by any court in
the United States.
Because the 2000 FEIS for the final roadless area conservation rule
considered exempting the Tongass National Forest as a detailed
alternative, the decision to issue this proposed amendment is expected
to be based on the FEIS, unless the Department finds that there are
significant new circumstances or information relevant to environmental
concerns and bearing on this alternative or its impacts that would
warrant additional environmental impact analysis. A final determination
will be made before adoption of the final rule. The FEIS is available
in the document archives section of the Roadless Area Conservation
internet site at http://www.roadless.fs.fed.us. 
No Takings Implications
This proposed rule has been analyzed in accordance with the
principles and criteria contained in Executive Order 12360, and it has
been determined that the proposed rule will not pose the risk of a
taking of a Constitutionally-protected private property, as the rule is
limited to exempting temporarily the applicability of the roadless area
conservation rule to the Tongass National Forest.
Energy Effects
This proposed rule has been analyzed under Executive Order 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. It has been determined that this proposed rule
does not constitute a significant energy action as defined in the
Executive order.
Civil Justice Reform
This proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. The Department has not identified any State or
local laws or regulations that are in conflict with this action or that
would impede full implementation of this rule. Nevertheless, in the
event that such a conflict was to be identified, the proposed rule, if
implemented, would preempt the State or local laws or regulations found
to be in conflict. However, in that case, (1) no retroactive effect
would be given to this proposed rule; and (2) the Department would not
require the use of administrative proceedings before parties could file
suit in court challenging its provisions.
Unfunded Mandates
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), which the President signed into law on March 22,
1995, the Department has assessed the effects of this proposed rule on
State, local and tribal governments and the private sector. This
proposed rule does not
[[Page 41869]]
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.
Federalism and Consultation and Coordination With Indian Tribal
Governments
The Department has considered this proposed rule under the
requirements of Executive Order 13132, Federalism. The agency has made
a preliminary assessment that the rule conforms with the federalism
principles set out in this Executive order; would not impose any
compliance costs on the States; and would not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Based on
comments received on this proposed rule, the Department will consider
if any additional consultation will be needed with State and local
governments prior to adopting a final rule.
Moreover, this proposed rule does not have tribal implications as
defined by Executive Order 13175, Consultation and Coordination with
Indian Tribal Governments. However, Forest Service line officers in the
field have been asked to make contact with Tribes to ensure awareness
of this proposed rule and conduct government-to-government dialog.
Controlling Paperwork Burdens on the Public
This proposed rule does not contain any record keeping, reporting
requirements, or other information collection requirements as defined
in 5 CFR part 1320, and therefore imposes no paperwork burden on the
public. Accordingly, the review provisions of the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501, et seq.) and implementing regulations at 5
CFR part 1320 do not apply.
Government Paperwork Elimination Act Compliance
The Forest Service is committed to compliance with the Government
Paperwork Elimination Act, which requires Government agencies to
provide the public the option of submitting information or transacting
business electronically to the maximum extent possible.
List of Subjects in 36 CFR Part 294
National Forests, Navigation (air), Recreation and recreation
areas, Wilderness areas.
Therefore, for the reasons set forth in the preamble, the
Department of Agriculture proposes to amend part 294 of title 36 of the
Code of Federal Regulations as follows:
PART 294--SPECIAL AREAS
Subpart B--Protection of Inventoried Roadless Areas
1. The authority citation for subpart B continues to read as
follows:
Authority: 16 U.S.C. 472, 529, 551, 1608, 1613; 23 U.S.C. 201,
205.
2. Revise paragraph (d) of Sec. 294.14 to read as follows:
Sec. 294.14 Scope and applicability.
* * * * *
(d) Until the USDA promulgates a revised final roadless area
conservation rule [to which the agency originally sought public
comments in the July 10, 2001, advance notice of proposed rulemaking
(66 FR 35918)], this subpart does not apply to road construction,
reconstruction, or the cutting, sale, or removal of timber in
inventoried roadless areas in the Tongass National Forest.
* * * * *
Dated: July 2, 2003.
Joel D. Holtrop,
Acting Chief.
[FR Doc. 03-17420 Filed 7-14-03; 8:45 am]
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