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National Forest System Land Management Planning Directive for Wilderness Evaluation

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 [Federal Register: January 31, 2007 (Volume 72, Number 20)]
[Notices]
[Page 4478-4481]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31ja07-24]

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DEPARTMENT OF AGRICULTURE
Forest Service
RIN 0596-AC02

National Forest System Land Management Planning Directive for
Wilderness Evaluation

AGENCY: Forest Service, USDA.
ACTION: Notice of issuance of agency final directive.

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SUMMARY: The Forest Service is issuing a final directive to Forest
Service Handbook 1909.12, chapter 70. Chapter 70 establishes procedures
for wilderness evaluation when carrying out national forest land
management planning regulations at 36 CFR part 219, subpart A,
published in the Federal Register on January 5, 2005 (70 FR 1023). This
directive provides consistent overall guidance to Forest Service line
officers and employees in identifying and evaluating potential
wilderness areas when developing, or revising land management plans for
units of the National Forest System.

DATES: This directive is effective January 31, 2007.

ADDRESSES: Copies of the directive are available on the World Wide Web/
Internet at http://www.fs.fed.us/im/directives/fsh/
1909.12/1909.12_70.doc Exit Disclaimer or on a compact disc (CD). Copies of 
the directive on a CD can be obtained by contacting Regis Terney by e-mail
(rterney@fs.fed.us), by phone at 1-866-235-6652 or 202-205-0895,
or by mail at Regis Terney, USDA Forest Service, Mailstop 1104, EMC,
3 Central, 1400 Independence Avenue, SW., Washington, DC 20050-1104.

FOR FURTHER INFORMATION CONTACT: Regis Terney, Planning Specialist,
Ecosystem Management Coordination Staff (202) 205-0895.

SUPPLEMENTARY INFORMATION:

Background

    On January 5, 2005, the Department adopted final planning
regulations for the National Forest System (NFS) at 36 CFR Part 219,
subpart A (70 FR 1023) (also referred to as the 2005 planning rule).
The 2005 planning rule provides broad programmatic direction in
developing and carrying out land management planning. The rule explicitly
directs the Chief of the Forest Service to establish planning procedures
in the Forest Service directives system (36 CFR 219.1(c)).
    The Forest Service directives consist of the Forest Service Manual
(FSM) and the Forest Service Handbook (FSH), which contain the agency's
policies, practices, and procedures and serve as the primary basis for
the internal management and control of programs and administrative
direction to Forest Service employees. The directives for all agency
programs are set out on the World Wide Web/Internet at 
http://www.fs.fed.us/im/directives. Exit Disclaimer
    Generally, the FSM contains legal authorities, objectives,
policies, responsibilities, instructions, and guidance needed on a
continuing basis by Forest Service line officers and primary staff to
plan and execute programs and activities, while the FSH is generally
the principal source of specialized guidance and instruction for
carrying out the policies, objectives, and responsibilities contained
in the FSM.

Need for Direction

    Procedural and technical details associated with implementing the
2005 planning rule are needed by NFS units to begin consistent plan
amendments or revisions across all NFS units to prevent confusion and
to improve public involvement and decisionmaking associated with
developing, amending, or revising a land management plan.

Public Participation

    On March 23, 2005, the Forest Service issued 12 interim directives
to FSM 1330, 1900, and 1920 and FSH 1909.12 asking for public comment
(70 FR 14637). In addition, on August 8, 2005, the Forest Service
issued an interim directive (ID) 1909.12-2005-10 to FSH 1909.12 to
revise ID 1909.12-2005-8, issued March 23, 2005 to correct a mistake at
section 71.12 (70 FR 45647). On September 7, 2006, the Forest Service
issued an interim directive combining, with no change, the direction
previously issued in ID 1909.12-2005-8 and ID 1909.12-2005-10.
    This notice of issuance involves a final amendment for FSH 1909.12,
chapter 70--Wilderness Evaluation. Directives to FSMs 1900 and 1920 and
FSH 1909.12, chapters zero code, 10, 20, 30, 40, 50, 60 and 80 were
issued on January 31, 2006 (71 FR 5124).
    Comments were submitted by mail, facsimile, and electronically.
During the 90-day comment period (ending on June 21, 2005), the agency
received 69 original responses and 8,727 copies of one form letter that
commented on wilderness evaluation. These responses were analyzed by
the Content Analysis Group and documented in a Content Analysis Report.
Of the 69 original responses, the Forest Service received responses
from 59 individuals and 10 organizations.

Response to Comments on Wilderness Evaluation

Potential Wilderness Areas

    Comment: The Forest Service should not substitute the phrase
``potential wilderness areas'' for the phrase ``roadless areas'' in the
Forest Service directives' terms because the term is confusing and an
attempt to limit examination of roadless areas only to evaluation of
their potential for wilderness. Roadless areas have their own status as
areas that warrant protection and the planning process should not be
limited to protecting only those areas recommended for wilderness
designation. Roadless areas not recommended for wilderness will be lost
to road building and timber harvest that will destroy their roadless
character forever.
    Response: The term ``potential wilderness areas'' was substituted
for ``roadless areas'' in the interim directives to stress the reason
these areas are identified and evaluated. Many public and internal
comments were received on this issue. In the final directive the term
``potential wilderness areas'' is used to avoid confusion with the term
``inventoried roadless area'' used in the Roadless Area Conservation
Rule (36 CFR 294.11, 66 FR 3244, January 12, 2001). The Roadless Area
Conservation Rule defined ``inventoried roadless areas'' as areas
identified in a set of inventoried roadless area maps in the November
2000 Forest Service Roadless Area Conservation, Final Environmental
Impact Statement, Volume 2 or subsequent update or revision of those
maps. The Roadless Area Conservation Rule definition is different from
the criteria for ``potential wilderness areas'' defined at section 71.1
of the final directive. The two areas (inventoried roadless areas and
potential wilderness areas) may have common boundaries; however, often
the areas are different.

Specific Criteria

    Comment: The Forest Service should include specific criteria for
inventory and evaluation of roadless areas and require a thorough
review of all areas of each national forest, grassland, or prairie,
including the 58.5 million acres of previously inventoried roadless
areas identified in the Roadless Area Conservation Rule or the RARE II
inventory. This new inventory is needed to ensure that areas are
included that may have been missed in past efforts.
    Response: Criteria for identifying lands to evaluate for wilderness
potential are specified in the guidance in FSH 1909.12, chapter 70. The
intent

[[Page 4479]]

is to identify and evaluate all National Forest System (NFS) lands that
meet the definition of wilderness in section 2(c) of the 1964
Wilderness Act (16 U.S.C. 1131 et seq.) The inventory process outlined
in chapter 70 of the handbook requires a thorough review of not only
those areas that were identified in previous inventories, but also
other areas that may meet the criteria. This ``inventory'' of areas is
updated during land management plan revision, and each area meeting
inventory criteria is then evaluated following the policy in FSM 1923
and the procedural guidance in FSH 1909.12, chapter 70. Based on the
evaluation, some potential wilderness areas may be administratively
recommended for wilderness designation. But, only the Congress can
designate an area as wilderness.

Inventory

    Comment: The Forest Service should include in the roadless area
inventory all unroaded areas greater than 1,000 acres in size.
    Response: The criteria for inventory do not include any absolute
size limit on what areas can be in the inventory. Areas less than 5,000
acres can be considered if they meet several criteria for wilderness
characteristics and manageability. The intent is to identify and
evaluate all NFS lands that meet the definition of wilderness in
section 2(c) of the Wilderness Act.

Criteria for Wilderness

    Comment: The Forest Service should revise the Forest Service
directives' criteria for wilderness inventory and evaluation. Some
criteria about evidence of past disturbance, such as old mining roads
or new routes created illegally by off-road vehicle users or watershed
treatments (FSH 1909.12, sec. 71.11) should not be used to eliminate
areas from the roadless inventory. The Wilderness Act does not require
pristine conditions for designation and that use of criteria such as
``sights and sounds'' coming from outside the area are erroneous and
not in line with the will of Congress. The section on capability should
be cut out entirely, including references to solitude, sights and
sounds, challenge, and recreation.
    Response: The directive has been revised to require that all areas
meet the statutory definition of wilderness to be considered for the
inventory of potential wilderness (FSH 1909.12, sec. 71). This includes
providing opportunities for solitude or a primitive and unconfined type
of recreation. All specific references to sights and sounds as
``inventory criteria'' have been removed. The capability analysis
includes an evaluation of an area's ability to provide outstanding
opportunities for solitude or primitive and unconfined recreation,
consistent with the definition of wilderness in the Wilderness Act.
Evaluating the opportunity for solitude appropriately includes
isolation from sights, sounds, the presence of others, development, and
evidence of humans when analyzing an potential wilderness area (FSH
1909.12, sec. 72.1).

Definition

    Comment: The definition of wilderness in the Wilderness Act of
1964, section 2(c) should be in FSH section 71.
    Response: That requirement was in the policy section of the interim
directive at FSM 1923 so there is no need to repeat it in chapter 70 of
FSH 1909.12. But, because of public and internal comment, and to make
it clear that the Forest Service is identifying lands that could
potentially be considered as additions to the National Wilderness
Preservation System, the requirement for satisfying the definition of
wilderness found in section 2(c) of the Wilderness Act has been added
back into section 71.

Pending Wilderness

    Comment: The Forest Service should allow potential wilderness areas
to be managed as wilderness study areas until wilderness designation is
achieved or settled by Congress.
    Response: The term ``wilderness study area'' is a specific term
used in the Eastern Wilderness Act of 1975 (16 U.S.C. 1132(note)) and
other statutes. To clarify, direction has been added at FSH 1909.12,
sec. 71. All areas that meet the definition of wilderness (sec. 2(c) of
the Wilderness Act) and the criteria in FSM 1923 and FSH 1909.12,
chapter 70 are evaluated for wilderness suitability in land management
plan revisions. Those areas administratively recommended for wilderness
or wilderness studies are not available for any use or activity that
may reduce their wilderness potential. Not all areas evaluated will be
found suitable for wilderness.

Wilderness Character

    Comment: The Forest Service should clarify when and how evaluation
for wilderness could take place outside the planning process. FSM 1923
implies that this could happen.
    Response: There was policy direction and guidance in the interim
directives at FSM 1923.12 and section 73.2 of FSH 1909.12, chapter 70
about the requirements for proposals resulting from wilderness studies
not incorporated in land management plans, including legislatively
mandated studies. The direction and guidance remains part of the
amended directives in FSM 1923 and FSH 1909.12, chapter 70. Such a
study could be directed by Congress.

Boundaries for Potential Wilderness Areas

    Comment: The Forest Service should draw boundaries for roadless
areas or potential wilderness areas to the edge of impact. Boundaries
should be on a road, rather than buffered some distance back from the road.
    Response: The directive has been revised to specify that boundaries
of areas being considered for the inventory of potential wilderness be
at prominent natural or semi-permanent human-made features to help ease
on-the-ground identification (FSH 1909.12, secs. 71.12 and 72.1). And,
the directions state that boundaries of areas administratively
recommended for wilderness designation may be adjusted. This includes
setting boundary lines with a setback from features such as roads,
trails, dams, powerlines, pipelines, and bridges. Such setback areas
are frequently needed to provide for the operation, administration, and
management of such features.

Definition of Terms

    Comment: The Forest Service should clarify the meanings of the
terms ``road,'' ``unroaded,'' and ``roadless'' as used in the Forest
Service directives' wilderness review provisions. Old jeep trails and
other routes that are no longer maintained should not be considered
``improved'' roads and their presence should not be used to exclude
areas from the roadless inventory.
    Response: The term ``unroaded'' is not used in the final directive.
The first step in the evaluation of potential wilderness areas is to
identify and inventory all areas within National Forest System (NFS)
lands that satisfy the definition of wilderness found in section 2(c)
of the Wilderness Act. Areas of potential wilderness identified in this
process are called potential wilderness areas. The final amendment to
the directive refers to forest roads using the new agency definition at
Title 36, Code of Federal Regulations, Part 212--Administration of the
Forest Transportation System, section 212.1. A forest road is defined
as a road wholly or partly within or adjacent to and serving the NFS
that the Forest Service determines is necessary for the protection,
administration, and use of the NFS and the use and development of its
resources. One of the criteria that must be met to include an

[[Page 4480]]

area on the inventory is that it does not contain forest roads (36 CFR
212.1) or other permanently authorized roads, except as permitted in
areas east of the 100th meridian.

Areas To Be Evaluated

    Concern: The Forest Service directives should require that all
areas be evaluated according to the criteria described in section 72.41
of its handbook, including those areas east of the 100th meridian.
    Response: The handbook guidance has been corrected at section 72.4
so that it applies to all areas evaluated for their wilderness potential.

Overview of Changes to Content of Chapter 70--Wilderness Evaluation

    The final directive recodes the chapter (parent text) from a 1-
digit chapter to a 2-digit chapter. Interim directive (ID) 1909.12-
2005-8, ID 1909.12-2005-10, and ID 1909.12-2006-1 were issued using the
2-digit coding scheme. The final directive revises and updates the
direction previously contained in the parent text. In addition, the
final directive incorporates direction with adjustments made from
comments on the Interim Directive 1909.12-2005-8 (ID). The digest
contained within the final directive conveys the changes effected in
agency policy and procedures. The major changes between the ID and the
final directive are described below:
    Section 71, paragraph 1, of the final directive adds direction on
the statutory definition of wilderness, and adds at paragraph 2
direction about the term ``potential wilderness area'' and explains
what the identification and inventory of potential wilderness areas
means. In addition paragraph 2, adds a sentence to clarify the
difference in terminology between lands east and west of the 100th
meridian. Paragraph 3 was added to recognize the uniqueness of each
area and the use of local knowledge and judgment in the inventory process.
    In section 71.1, the introductory paragraph clarifies that areas
qualify for placement on the inventory if they meet either criteria 1
and 3 or 2 and 3. In addition, the areas may have improvements if they
meet the criteria in section 71.11, and for areas east of the 100
meridian they must also meet the criteria in 71.12. Clarifies the
intent of enumerated paragraph 2, explaining that it is not necessary
to meet all three criteria within paragraph 2. At paragraph 2, removes
the terms ``physiography or vegetation'' and adds the term ``physical
terrain.'' Revises enumerated paragraph 3, the third criterion
concerning roads, from ``they do not contain improved roads maintained
for travel by standard passenger-type vehicles'' * * * to ``they do not
contain forest roads (36 CFR 212.1) or other permanently authorized
roads.'' The term ``forest roads'' is defined by the new agency
definition at Title 36, Code of Federal Regulations, Part 212--
Administration of the Forest Transportation System, Sec.  212.1. That
is a ``forest road'' is a road wholly or partly within or adjacent to
and serving the National Forest System (NFS) lands that the Forest
Service determines is necessary for the protection, administration, and
use of the NFS and the use and development of its resources.
    Within section 71.12, changes the caption to ``Criteria for
Potential Wilderness East of the 100th Meridian.'' The amendment
incorporates direction on criteria for areas east of the 100th meridian
(formerly in ID) with changes to the introductory paragraph, enumerated
paragraph 5, and other editorial changes. At paragraph 1, the final
directive clarifies that the criteria in section 71.12 are in addition
to the criteria in sections 71.7 and 71.11. At enumerated paragraph 5,
and revises the wording to be consistent with that at section 71.1
concerning forest roads.
    Within section 72.1 revises the principal wilderness
characteristics from those described in the ID (environment, challenge,
outdoor recreation opportunities, special features, manageability) to
those described in the 1964 Wilderness Act: (1) Natural; (2)
undeveloped; (3) outstanding opportunities for solitude or primitive
and unconfined recreation; (4) special features and values; and (5)
manageability. At enumerated paragraph 5, incorporates wording from
section 7.21 of parent text pertaining to how boundaries affect the
manageability of an area (wording had been removed by the ID). However,
at enumerated paragraph 5, did not incorporate the previously coded
paragraph d (formerly in section 7.21 of parent text) about
``boundaries acting as a shield.''
    Within section 73.3 removes the following unnecessary explanatory
information on public hearings previously contained in the ID (formerly
in section 7.33 of parent text): ``Congress, in legislation subsequent
to the Wilderness Act, has considered it necessary to expressly provide
for public involvement by reference to section 3(d) of the original
act. This section applied to those areas that, on the effective date of
the Wilderness Act, were described as primitive. Therefore, there is no
statutory requirement that review of selected areas that may have
likelihood for wilderness designation comply with the public
participation provisions of section 3(d) of the Act. However, the fact
that Congress, in designating wilderness study areas, has required
hearings does imply a desire for public participation in a hearing or
some comparable proceeding, such as a public meeting, in order to
obtain comment about wilderness recommendations while developing or
revising a land management plan.'' Other changes were made throughout
the document for clarity.

Regulatory Certifications

Environmental Impact

    This final directive provides the detailed direction to agency
employees necessary to carry out the provisions of the final 2005
planning rule adopted at 36 CFR part 219 governing land management
planning. Section 31.12 of FSH 1909.15 (57 FR 43208; Sept. 18, 1992)
excludes from documentation in an environmental assessment or impact
statement ``rules, regulations, or policies to establish Service-wide
administrative procedures, program processes, or instructions.'' The
agency's conclusion is that this final directive falls within this
category of actions and that no extraordinary circumstances exist as
currently defined that require preparation of an environmental
assessment or an environmental impact statement.

Regulatory Impact

    This directive has been reviewed under USDA procedures. The final
directive would not have an annual effect of $100 million or more on
the economy nor adversely affect productivity, competition, jobs, the
environment, public health or safety, nor state or local governments.
The directive would not interfere with an action taken or planned by
another agency nor raise new legal or policy issues. Finally, the
directive would not alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
of such programs.
    Moreover, the directive 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.). No
direct or indirect financial impact on small businesses or other
entities has been identified. Therefore, it is hereby certified that
this final directive will not have a significant

[[Page 4481]]

economic impact on a substantial number of small entities as defined by
the act.

No Takings Implications

    This final directive has been analyzed in accordance with the
principles and criteria contained in Executive Order 12360,
Governmental Actions and Interference with Constitutionally Protected
Property Rights, and it has been determined that it would not pose the
risk of a taking of private property as they are limited to the
establishment of administrative procedures.

Energy Effects

    This final directive has been analyzed under Executive Order 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. It has been determined that it does not
constitute a significant energy action as defined in the Executive order.

Civil Justice Reform

    This final directive has been reviewed under Executive Order 12988,
Civil Justice Reform. This final directive will direct the work of
Forest Service employees and is not intended to preempt any state and
local laws and regulations that might be in conflict or that would
impede full implementation of this directive. The directive would not
retroactively affect existing permits, contracts, or other instruments
authorizing the occupancy and use of National Forest System lands and
would not require the institution of administrative proceedings before
parties may 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 effects of this final directive on state, local, and tribal
governments, and on the private sector have been assessed and do 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.

Federalism

    The agency has considered this final directive under the
requirements of Executive Order 13132, Federalism. The agency has made
an assessment that the final directive conforms with the federalism
principles set out in this Executive order; would not impose any
significant compliance costs on the states; and would not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government. Moreover,
this final directive addresses the land management planning process on
national forests, grasslands, or other units of the National Forest
System, which do not directly affect the states.

Consultation and Coordination With Indian Tribal Governments

    This final directive does not have tribal implications as defined
by Executive Order 13175, Consultation and Coordination with Indian
Tribal Governments, and therefore, advance consultation with tribes is
not required.

Controlling Paperwork Burdens on the Public

    This final directive does not contain any record keeping or
reporting requirements or other information collection requirements as
defined in 5 CFR part 1320 and, therefore, impose 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.

Conclusion

    This final directive provides consistent interpretation of the 2005
planning rule for line and staff officers, and interdisciplinary teams.
Therefore, the agency can fulfill its commitment to improve public
involvement and decisionmaking associated with developing, amending, or
revising a land management plan.
    The full text of this handbook is available on the World Wide Web
at http://www.fs.fed.us./im/directives. Exit Disclaimer Single paper copies 
are available upon request from the address and telephone numbers 
listed earlier in this notice as well as from the nearest regional office, 
the location of which are also available on the Washington Office
headquarters homepage on the World Wide Web at http://www.fs.fed.us.
Exit Disclaimer

    Dated: December 21, 2006.
Dale N. Bosworth,
Chief, Forest Service.
[FR Doc. E7-1554 Filed 1-30-07; 8:45 am]
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