[Federal Register Volume 63, Number 18 (Wednesday, January 28, 1998)]
[Proposed Rules]
[Pages 4351-4354]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-1906]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 212

RIN AB-68-0095


Administration of the Forest Development Transportation System: 
Temporary Suspension of Road Construction in Roadless Areas

agency: Forest Service, USDA.


[[Page 4352]]


action: Notice of proposed interim rule; request for comment.

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summary: In an Advanced Notice of Proposed Rulemaking (ANPR) published 
elsewhere in today's Federal Register the Forest Service has announced 
its intentions to revise its management of the National Forest Road 
System. In concert with that ANPR, the Forest Service proposes to 
suspend temporarily road construction and reconstruction in most 
roadless areas of the National Forest System. The intended effect is to 
safeguard the significant ecological values of roadless areas from 
potentially adverse effects associated with road construction, while 
new and improved analytical tools are developed to evaluate the impact 
of locating and constructing roads. The temporary suspension of road 
construction and reconstruction would expire upon the application of 
the new and improved analysis tools or 18 months, whichever is sooner. 
This rulemaking is a component of a larger effort to address a number 
of National Forest System transportation issues. Public comment is 
invited and will be considered in adoption of an interim rule.

dates: Comments are due by February 27, 1998.

addresses: Send written comments to Director, Ecosystem Management 
Coordination Staff, MAIL STOP 1104, Forest Service, USDA, P.O. Box 
96090, Washington, D.C. 20090-6090. Comments also may be sent via the 
Internet to roads/[email protected].
    All comments, including names and addresses when provided, are 
placed in the record and are available for public inspection and 
copying at the Forest Service National Headquarters Offices, 14th and 
Independence Avenue SW, Washington, D.C. Persons wishing to inspect the 
comments are encouraged to call ahead (202-205-0895) to facilitate 
entrance into the building.

for further information contact: Gerald (Skip) Coghlan, Engineering 
Staff, 202-205-1400 or Rhey Solomon, Ecosystem Management Coordination 
Staff, 202-205-0939.

supplementary information: This proposed interim rule is being 
published in association with an Advance Notice of Proposed Rulemaking 
(ANPR) published elsewhere in this separate part in today's Federal 
Register. In the ANPR, the Forest Service is giving notice of its 
intention to revise the regulations concerning the management of the 
National Forest System transportation system to address changes in how 
the road system is developed, used, maintained, and funded. As part of 
the ANPR, the agency also indicates that the development of improved 
scientific and analytical tools for land managers and resource 
specialists is an essential element of the comprehensive overhaul of 
forest road policy.
    As noted in the ANPR, the road system on the National Forest System 
is extensive and diverse. It includes an estimated 373,000 miles of 
forest system roads. Roads are essential for the active management of 
the resources of the National Forests and Grasslands. These roads also 
are essential for public use and enjoyment of the National Forest 
System.
    In addition, the agency estimates that there are more than 60,000 
miles of roads created by repeated public use of the National Forests 
and Grasslands. Although these roads occur on National Forest System 
lands, they are not planned, managed or maintained by the agency or 
considered part of the forest road system.
    A growing body of scientific information demonstrates that road 
construction in sensitive areas, such as roadless areas, may cause the 
introduction of exotic plant species, disrupt wildlife habitat, and 
otherwise compromise the attributes that make roadless areas 
ecologically important and often unique. Roadless areas are often 
aquatic strongholds for fish of great recreational and commercial 
value. These areas also often provide critical habitat and migration 
routes for many wildlife species, and they are particularly important 
for those species requiring large home ranges, such as the grizzly bear 
and the wolf.
    The effects of road construction may persist for decades. Many of 
the remaining areas with the National Forest System are in areas with 
steep slopes that surround headwater streams. Road construction 
increases the risk of erosion, landslides, and slope failure, which may 
compromise critically important water quality. Until new and improved 
analytical tools can be developed and implemented to evaluate the 
positive benefits and adverse impacts of roads, the adoption of an 
interim rule to temporarily suspend road construction or reconstruction 
within National Forest System roadless areas is viewed as critical to 
preserve land and resource management options.

Draft Proposed Interim Rule

    The agency proposes to temporarily suspend road construction 
activities, including the construction of temporary roads on National 
Forest System roadless areas, through issuance of an interim rule to a 
new Sec. 212.13 of Part 212 of Title 36 of the Code of Federal 
Regulations. Specifically, the interim rule would apply the temporary 
suspension to roadless areas of 5,000 acres or more inventoried in RARE 
II (Roadless Area Review and Evaluation) and other unroaded areas, 
regardless of size, identified in a forest plan; unroaded areas greater 
than 1,000 acres contiguous to Congressionally-designated Wilderness or 
contiguous to federally-administered components of the National Wild 
and Scenic Rivers System that are classified as ``Wild''; and all 
unroaded areas greater than 1,000 acres contiguous to roadless areas of 
5,000 acres or more on other federal lands. In addition, the suspension 
would apply to two other categories: (1) any National Forest System 
(NFS) area of low-density road development or (2) any other NFS area 
that retains its roadless characteristics which the Regional Forester 
subsequently determines have such special and unique ecological 
characteristics or social values that no road construction or 
reconstruction should proceed. The agency does not anticipate that 
Regional Foresters will create a new inventory of roadless areas that 
meet the criteria of these latter two categories. Rather, it is 
expected that Regional Foresters will apply these categories on a 
project-by-project basis. Examples of areas that might be considered 
under these latter categories are areas needed to protect the values of 
municipal watersheds, including public drinking water sources, or to 
provide habitat for listed or proposed endangered and threatened fish, 
wildlife, or plants. Another example might be the National Forest 
System roadless areas listed in Table 5.1 of the Southern Appalachian 
Area Assessment, Social/Cultural/Economic Technical Report, Report 4 of 
5, July 1996.
    The suspension would remain in effect until any suspended road 
construction could be evaluated using the new analytical tools that are 
being developed, but no longer than 18 months from the effective date 
of the interim rule.
    The proposed interim rule would expressly exempt four categories of 
roadless areas from the temporary suspension of road construction and 
reconstruction:
    1. Roadless areas within National Forests that have a signed Record 
of Decision revising their forest plans and have completed the 
administrative appeal process as of the effective date of the rule.
    2. Roadless areas within National Forests that have a signed Record 
of

[[Page 4353]]

Decision revising their forest plans on which the administrative appeal 
process is underway, but not completed as of the effective date of the 
rule.
    3. Roadless areas in Washington, Oregon, and California within 
those portions of National Forests encompassed by the Northwest Forest 
Plan; and
    4. Road construction or reconstruction in roadless areas needed for 
public safety or to ensure access to private lands pursuant to statute 
or outstanding and reserved rights.
    The exemptions for final revised forest plans and for the Northwest 
Forest Plan recognize the currency of the scientific information, 
evaluations, public participation, and decisions made in these plans 
and the need to minimize disruption in programs of work. The proposed 
interim rule also recognizes the necessity to ensure public safety and 
access to private property. The exemption for revised plans currently 
under appeal also honors exiting decisionmaking and administrative 
appeal processes and seeks to avoid undue interruptions or interference 
with established planning processes. We specifically request comment on 
whether additional measures are needed to implement exemption (b)(2).
    The proposed interim rule would not modify, suspend, or cause to be 
re-examined any existing permit, contract, or other instrument 
authorizing occupancy and use of the National Forest System, any land 
and resource management plan, any land allocation decision, or other 
management activity or use within roadless areas in which road 
construction or reconstruction are temporarily suspended. The intent is 
not to halt active management of roadless areas but to protect their 
values while improved analytical tools are developed to better assess 
the impacts of road construction on roadless area values.

Regulatory Impact

    Under the proposed interim rule, some currently planned land 
management projects that are dependent on new road construction, such 
as timber sales and ecosystem restoration activities, may not be 
implemented in the timeframe currently planned. During the interim 
period, some projects may proceed in an altered form and some may be 
postponed until such time that the road assessment process is 
implemented. Those projects may eventually be altered as a result of 
new information provided by the forest road assessment process. It is 
difficult to estimate with precision the costs and benefits associated 
with deferring projects due to considerable variation in site-specific 
factors; the fact that projects are in various stages of development 
and readiness to execute; the fact that planning and analysis often 
take much longer to complete than originally anticipated; and the fact 
that some project work can be shifted to other sites outside roadless 
areas.
    Nationwide, the agency estimates that of the total 3.8 billion 
board feet planned for FY 1998, the volume of timber actually offered 
for sale will be reduced by 100-275 million board feet. Although the 
actual amounts are very difficult to estimate, this reduction in timber 
volume offered could lead to corresponding reductions in employment and 
in payments to states. It is expected that the Intermountain and 
Northern Regions of the National Forest System will experience a 
disproportionately higher effect from the suspension than other 
geographic regions of the country, due to the higher dependence on 
roadless areas for timber production in these regions.
    While the delay in these projects will have some adverse economic 
impact in the short term, these impacts are offset by the benefits to 
be gained from the temporary suspension of road construction and 
reconstruction in these areas. The benefits would include the 
prevention of an increased risk of erosion, landslides, and slope 
failure, all of which may compromise critically important water quality 
in the headwater streams that are found in many of the covered roadless 
areas. The temporary suspension would also help to prevent introduction 
of exotic plant species into these areas. The development of a new road 
analysis process would also allow currently proposed and future 
projects requiring road construction to reflect current scientific 
information and resource use trends. This will help managers and the 
public better understand the consequences of locating and building 
roads in roadless areas.
    This proposed interim rule has been reviewed under USDA procedures 
and Executive Order 12866 on Regulatory Planning and Review. It has 
been determined that this is a significant rule because of the 
importance of road policy issues. While this proposed interim measure 
would create some costs associated with temporarily suspending actions 
on road construction or reconstruction, the suspension is limited to 
roadless areas and some low-density roaded areas and is temporary, not 
to exceed 18 months. This proposed interim rule will not have an annual 
effect of $100 million or more on the economy nor have a significant 
adverse effect on productivity, competition, jobs, the environment, 
public health or safety, nor State or local governments. Accordingly, 
this proposed interim rule has been reviewed by OMB under Executive 
Order 12866.
    Moreover, this proposed interim rule has been considered in light 
of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and it is 
hereby certified that this action will not have a significant economic 
impact on a substantial number of small entities as defined by that 
Act.

Unfunded Mandates Reform

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), the Department has assessed the effects of this 
proposed interim rule on State, local, and tribal governments and the 
private sector. This proposed interim 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.

Environmental Impact

    Section 31.1b of Forest Service Handbook (FSH) 1909.15 (57 FR 
43180; September 18, 1992) excludes from documentation in an 
environmental assessment or impact statement ``rules, regulations, or 
policies to establish Service-wide administrative procedures, program 
processes, or instructions.'' The agency's assessment is that this 
proposed interim rule falls within this category of actions. 
Nevertheless, in furtherance of the purposes of the National 
Environmental Policy Act, the agency has elected to undertake 
environmental analysis and documentation prior to publication of the 
final interim rule. As part of the agency scoping under its NEPA 
procedures, public comment is invited.

No Takings Implications

    This proposed interim rule has been analyzed in accordance with the 
principles and criteria contained in Executive Order 12630, and it has 
been determined that the proposed interim rule does not pose the risk 
of taking of Constitutionally-protected private property. There are no 
Constitutionally-protected private property rights to be affected, 
since the proposed interim rule applies only to federal lands and 
explicitly ensures access to private property pursuant to statute or to 
outstanding or reserved rights.

[[Page 4354]]

Civil Justice Reform Act

    This proposed interim rule has been reviewed under Executive Order 
12988, Civil Justice Reform. This proposed interim rule (1) preempts 
all State and local laws and regulations that are in conflict or which 
would impede its full implementation, (2) has no retroactive effect on 
existing permits, contracts, or other instruments authorizing the 
occupancy and use of the National Forest System, and (3) does not 
require administrative proceedings before parties may file suit in 
court challenging its provisions.

Controlling Paperwork Burdens on the Public

    This proposed interim rule does not contain any recordkeeping or 
reporting requirements or other information collection requirements as 
defined in 5 CFR 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.

List of Subjects in 36 CFR Part 212

    Highways and roads, National forests, Rights-of-way, and 
Transportation.

    Therefore, the Forest Service proposes an interim rule amending 36 
CFR part 212 as follows:

PART 212--ADMINISTRATION OF THE FOREST DEVELOPMENT TRANSPORTATION 
SYSTEM

    1. The authority citation for part 212 continues to read as 
follows:

    Authority: Sec. 1, 30 Stat. 35, as amended sec. 205, 72 Stat. 
907; 16 U.S.C. 551, 23 U.S.C. 205, unless otherwise noted.

    2. Add a new Sec. 212.13 to read as follows:


Sec. 212.13  Temporary suspension of road construction in roadless 
areas.

    (a) Suspensions. Except as provided in paragraphs (b) and (c) of 
this section, new road construction projects, including temporary 
roads, and road reconstruction projects are suspended within the 
following areas of the National Forest System:
    (1) ALL RARE II inventoried roadless areas of 5,000 acres or more 
within the National Forest System and all other roadless areas, 
regardless of size, identified in a land and resource management plan;
    (2) All National Forest System roadless areas greater than 1,000 
acres that are contiguous to Congressionally-designated Wilderness 
Areas or that are contiguous to federally-administered components of 
the National Wild and Scenic River System (16 U.S.C. 1274) which are 
classified as Wild;
    (3) All National Forest System roadless areas greater than 1,000 
acres that are contiguous to roadless areas of 5,000 acres or more on 
other federal lands;
    (4) Any National Forest System area, regardless of size, with low-
density road development that essentially retains its roadless 
characteristics on which the Regional Forester subsequently determines 
that road construction or reconstruction should not proceed, because of 
the area's special and unique ecological characteristics or social 
values; and
    (5) Any other National Forest System area, regardless of size, that 
essentially retains its roadless characteristics on which the Regional 
Forester subsequently determines that road construction or 
reconstruction should not proceed, because of the area's special and 
unique ecological characteristics or social values.
    (b) Exemptions. Road construction and reconstruction projects 
within the following roadless areas are exempt from the suspension 
required by paragraph (a) of this section:
    (1) Roadless areas within National Forests that have a signed 
Record of Decision revising their land and resource management plans 
prepared pursuant to the National Forest Management Act (16 U.S.C. 
1604(f)(5)) on which the administrative appeals process under 36 CFR 
Part 217 has been completed as of the effective date of the final 
interim rule;
    (2) Roadless areas within a National Forest that has a signed 
Record of Decision revising the land and resource management plan 
prepared pursuant to the National Forest Management Act (16 U.S.C. 
1604(f)(5)) on which the administrative appeals process under 36 CFR 
Part 217 is underway as of the effective date of the final interim 
rule. (For these forests, issues related to the construction of roads 
in roadless areas will be addressed in the appeal decision, when 
appropriate.);
    (3) Roadless areas within National Forest System lands in 
Washington, Oregon, and California, that are encompassed by the 
Northwest Forest Plan which is described in the ``Record of Decision 
for Amendments to Forest Service and Bureau of Land Management Planning 
Documents Within the Range of the Northern Spotted Owl and Standards 
and Guidelines for Management of Habitat for Late Successional and Old-
Growth Forest Related Species Within the Range of the Northern Spotted 
Owl, April 13, 1994;'' and
    (4) Road construction or reconstruction in roadless areas needed 
for public safety or to ensure access provided by statute or provided 
pursuant to reserved or outstanding private rights.
    (c) Scope and applicability. (1) This section does not suspend or 
modify any existing permit, contract, or other instrument authorizing 
the occupancy and use of National Forest System land. Additionally, 
this section does not suspend or modify any existing National Forest 
System land allocation decision, nor is this section intended to 
suspend or otherwise affect other management activities or uses within 
roadless areas in which road construction or reconstruction projects 
are suspended pursuant to paragraph (a) of this section.
    (2) The suspensions provided by paragraph (a) of this section 
remain in effect until any suspended road construction in roadless 
areas can be evaluated using new analytical tools, or 18 months, which 
ever is first.
    (d) Effective date. The suspension of road construction and 
reconstruction projects in roadless areas as provided in paragraph (a) 
of this section is effective upon the date of publication of the final 
interim rule.

    Dated: January 22, 1998.
Mike Dombeck,
Chief, Forest Service.
[FR Doc. 98-1906 Filed 1-27-98; 8:45 am]
BILLING CODE 3410-11-M