[Federal Register Volume 65, Number 43 (Friday, March 3, 2000)]
[Proposed Rules]
[Pages 11680-11683]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-5001]



  Federal Register / Vol. 65, No. 43 / Friday, March 3, 2000 / Proposed 
Rules  

[[Page 11680]]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Parts 212, 261, and 295

RIN 0596-AB67


Administration of the Forest Development Transportation System; 
Prohibitions; Use of Motor Vehicles Off Forest Service Roads

AGENCY:  Forest Service, USDA.

ACTION:  Notice of proposed rulemaking; request for comment.

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SUMMARY:  This proposed rule would revise regulations concerning the 
development, use, maintenance, and management of the national forest 
transportation system. This action is needed to reflect changes in 
public demand and use of National Forest resources; to better consider 
scientific information about the adverse environmental impacts of road 
construction; and to efficiently meet present and future management 
objectives in balance with available funding. In concert with the 
proposed revision of Forest Service road system administrative 
direction published elsewhere in this part of today's Federal Register, 
this rule will help ensure that additions to the Forest Service road 
system are those deemed essential for National Forest System resource 
management and use; that, to the extent practicable, construction, 
reconstruction, and maintenance of roads will minimize adverse 
environmental impact; and, finally, that unneeded roads are 
decommissioned and, where indicated, ecological processes are restored. 
The substantive changes are proposed to part 212, which addresses the 
forest transportaiton system. Proposed revisions to parts 261 and 295 
are solely to conform terminology to that proposed to part 212. The 
Forest Service invites written comments and will analyze and consider 
those comments in development of the final rule.

DATES:  Comments must be received in writing by May 2, 2000.

ADDRESSES:  Send written comments to USFS CAET, Attention: Roads, P.O. 
Box 221090, Salt Lake City, UT 84122.
    Send comments electronically to roads/[email protected]. All 
comments received, including names and addresses when provided, are 
placed in the record and are available for public inspection and 
copying at Forest Service, 201 14th Street SW, Washington, D.C. 20250. 
Persons wishing to inspect the comments are encouraged to call 202-205-
1400 to facilitate building entrance.

FOR FURTHER INFORMATION CONTACT:  Heidi Valetkevitch, Office of 
Communication, 202-205-0914.

SUPPLEMENTARY INFORMATION:

Background

    On January 28, 1998, in an Advance Notice of Proposed Rulemaking 
(ANPR) (63 FR 4350), the Forest Service announced its intent to revise 
regulations concerning management of the national forest transportation 
system. Simultaneously, the Forest Service published a proposed interim 
rule (63 FR 4351) to temporarily suspend permanent and temporary road 
construction and reconstruction in certain unroaded areas of National 
Forest System lands. The purpose of the interim rule was to take a 
``timeout'' for 18 months while the Forest Service developed a new 
long-term road management policy and new analytical tools to provide a 
more ecological approach to analyzing existing and future road needs.
    A final interim rule, issued on February 12, 1999, (64 FR 7289), 
temporarily suspended permanent and temporary road construction and 
reconstruction in certain unroaded areas of National Forest System 
lands. The temporary suspension is effective pending development of a 
revised forest transportation system policy, or 18 months from the 
effective date of the interim final rule, whichever is sooner.

Section-by-Section Explanation of Proposed Revisions to 36 CFR Part 
212

    The Forest Service proposes to revise 36 CFR part 212 to shift the 
emphasis from transportation development to managing access within the 
capability of the land. The proposed revision reflects changes in 
public opinion, demand, and use of National Forest resources and 
considers not only possible economic and social benefits associated 
with road construction and use but also scientific information about 
the adverse environmental impacts of road construction. In the proposed 
revision, emphasis is placed on providing administrative and public 
access and safety within a context of maintaining and restoring healthy 
ecosystems. The proposal shifts the focus of road management from 
development and construction of new roads to maintaining needed roads 
and decommissioning unneeded roads.
    Proposed Change in Nomenclature. Consistent with the intent to 
shift emphasis from road development to environmentally sound access, 
the term ``forest development transportation'' is revised throughout 
Part 212 to remove the word ``development.''
    Proposed Sec. 212.1 Definitions. The term ``forest transportation 
plan'' is revised to refer to ``forest transportation atlas'' to more 
clearly reflect the nature and intent of this document. Also, 
definitions are added for ``road, unclassified road, and classified 
road.'' These terms are necessary to understand and implement the 
requirements of proposed Sec. 212.5 regarding the minimum Forest 
Service road system. The proposed definition of a road is a ``A motor 
vehicle travelway over 50 inches, unless classified and managed as a 
trail. A road may be classified or unclassified.'' The 50-inch 
dimension was derived to generally distinguish between the largest of 
the motorized trail vehicles and the smallest of the highway vehicles. 
This definition would permit some trails to be over 50 inches wide as 
long as they are classified and managed as a trail. The terms 
``classified'' and ``unclassified'' as used in the context of Forest 
Service roads are somewhat new. The term ``unclassified'' was first 
used in the September 1998 draft report, ``The National Forest Road 
System and Its Use,'' which was posted on the Worldwide Web www.fs.us/new/roads. Its intent was to identify for management and analysis 
purposes the existence of those roads that were not intended to be a 
part of the permanent transportation system. The term ``classified 
road'' was used in the Temporary Suspension of Road Construction and 
Reconstruction in Unroaded Areas Interim Rule, 36 CFR part 212 (64 FR 
7289; Feb. 12, 1999) to describe those roads that were constructed or 
maintained for long-term highway use. These definitions were also used 
in the Road Analysis Report (August 1999). Finally, the definitions for 
the terms classified, unclassified, and road as used in this proposal 
have been modified slightly for clarity and to reflect comments 
received. The proposed new road terms and their definitions are not 
intended to have an effect on the disposition of particular roads, only 
on how they are characterized for the purposes of analysis and for 
documentation in the forest transportation atlas.
    Proposed Sec. 212.2 Forest Transportation Program. The proposed 
rule would revise this section to update and clarify the required 
information to be collected and displayed in the forest transportation 
atlas (formerly called the transportation plan). Additionally, the 
section would require the use of a science-based analysis to identify

[[Page 11681]]

needed transportation facilities. The proposed rule also would remove 
paragraph (c), which addresses allocation of funds, because the statute 
on which this paragraph was based has been repealed.
    Proposed Sec. 212.5 Road System Management. This section of the 
proposed rule would direct agency officials to identify the minimum 
transportation system needed to administer and protect National Forest 
System lands using a science-based transportation analysis and 
recognizing likely, realistic funding estimates. Previously, forest 
transportation policy focused on road development and maintenance, and 
only limited attention has been paid to ``decommissioning'' roads. 
Given the shift in the focus of road management, new direction is 
needed to ensure that agency officials identify and decommission 
unneeded roads. This proposed revision to Sec. 212.5 would require that 
if roads are determined to be unneeded, priority should be given to 
decommissioning those roads that pose the greatest risk of 
environmental damage.
    The proposed rule does not establish any specific science-based 
analysis as the standard to be used; rather, it preserves Forest 
Service flexibility to further describe science-based transportation 
analysis in conjunction with other ecosystem analyses and to adjust the 
process in response to new scientific knowledge of road and resource 
management interactions. Science-based road analysis is discussed 
further in the proposed administrative direction published elsewhere in 
this part of today's Federal Register.

Proposed Conforming Amendments to 36 CFR Parts 261 and 295

    The rules at 36 CFR part 261 give notice of prohibited acts on 
National Forest System lands. There are numerous references in these 
prohibitions to ``forest transportation development roads.'' This 
proposed rule would remove the term ``development'' from various 
sections to conform the terminology to that proposed in part 212. Also, 
the rules at 36 CFR part 295 govern use of motor vehicles off forest 
development roads. This proposed rule would remove the term 
``development'' from the heading and sections of Part 295 to conform 
the terminology to that proposed in Part 212. No substantive revisions 
are proposed to these parts.

Regulatory Impact

    This proposed rule has been reviewed under USDA procedures and 
Executive Order (E.O.) 12866 on Regulatory Planning and Review. The 
Office of Management and Budget (OMB) has determined that this is a 
significant rule as defined by E.O. 12866 because of the importance of 
the Forest Service road system and the level of public interest 
expressed in the promulgation of the interim rule. Accordingly, OMB has 
reviewed this proposed rule. A cost-benefit analysis has been prepared 
as part of the environmental assessment on this proposal.
    The basic approach is to issue new regulations consistent with 
emerging road management policy which encourages investing limited road 
management funds in a transportation system that best serves the 
current and anticipated management objectives and public uses of 
National Forest System lands. This new policy emphasizes investing in 
the process of decommissioning unneeded roads and reconstructing and 
maintaining the most heavily used roads. New road construction must be 
supported by rigorous analysis. Agency road management costs are not 
expected to change. Although this rule requires that the Agency use a 
new science-based roads analysis when making decisions about road 
construction, the Agency currently conducts some transportation 
analysis in the context of NEPA requirements or other forest planning 
assessments. Thus, the Agency does not expect an incremental increase 
of administrative costs due to new administrative requirements under 
this proposal. Most of the economic effects have not been quantified. 
They have been discussed and evaluated on a qualitative basis. Timber 
harvesting is an exception where quantitative data was reasonably 
available. A summary of the economic effects of the proposed change in 
road management strategy are as follows:
    Roaded Areas: The differences between the no action alternative and 
the proposed action alternative tend to be minor. No significant 
difference in economic benefits or costs is expected for ease of 
access, public safety, law enforcement, timber management, and 
wilderness or heritage resources. Potential positive economic effects 
are expected for fire management, insect and disease management, 
noxious weed control, water and air quality, wildlife and fish values, 
and passive use values. These positive effects result from road 
decommissioning. Different types of recreation use are affected in 
different ways--some positive and some negative.
    Roadless Areas (inventoried roadless and other unroaded areas): The 
differences between the no-action alternative and the proposed action 
alternative would be greatest during the transition phase. No 
differences are expected for access, public safety, and law 
enforcement. The only negative effects expected during the transition 
period would be from reduced timber harvest and mineral exploration and 
extraction. If all road construction were delayed during the transition 
in all of the roadless areas, the maximum potential total reduction in 
timber harvest would be 351 million board feet of timber per year. The 
cost associated with this reduced timber harvest would be $42 million 
annually. Also lost, as a result of decreased timber production, would 
be approximately 3,700 jobs and $10 million in payments-to-states each 
year. This loss in payments-to-states would be partially offset by 
Payments in Lieu of Taxes. Positive effects are expected for fire 
prevention, insect and disease management, noxious weeds, watershed and 
air quality, wildlife and fish, wilderness, and passive use values. 
These positive effects result from lack of new road development. The 
effects on recreation and heritage resources are complex and ambiguous 
and depend upon the type of activity--some are positive and some are 
negative. Less access reduces the level of participation. However, the 
quality of wilderness type recreation use is protected and vandalism of 
heritage sites is lessened.
    In summary, the proposed regulations will permit a reallocation of 
funds to management activities that are consistent with present 
resource management direction. While the agency could not quantify or 
monetize many of the impacts of this proposed rule, the agency 
thoroughly considered both the potential quantified and qualitatively-
discussed costs and benefits. Pursuant to requirements of Executive 
Order 12866, the agency carefully assessed alternative regulatory 
approaches and is proposing this rule only upon making a reasoned 
determination that the benefits justify the costs. See the 
``Environmental Impact'' section which follows for availability of the 
full cost-benefit analysis.
    This proposed rule has been considered in light of the Regulatory 
Flexibility Act (5 USC 601 et seq. This proposed rule primarily 
involves agency terminology and broad principles to guide the planning 
and management of the Forest Service road system and has no direct or 
indirect financial or other impact on small businesses. Therefore, it 
is hereby certified that this action will not have a significant 
economic impact on a substantial number of small entities as defined by 
the Act.

[[Page 11682]]

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 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.

Environmental Impact

    Section 31.1b of Forest Service Handbook 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 Forest Service's assessment is that this proposed 
rule falls within this category of exclusion. Nevertheless, to further 
the intent of the National Environmental Policy Act, the agency has 
elected to prepare an environmental assessment. This document may be 
obtained from the internet at www.fs.fed.us/news/roads/ea2.htm or by 
writing to the Director of Ecosystem Management Coordination, P.O. Box 
96090, Washington, DC 20090. Comments on the environmental assessment 
should be submitted with any comments on the proposed rule.

No Takings Implications

    This proposed rule has been reviewed for its impact on private 
property rights under Executive Order 12630. It has been 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.

Civil Justice Reform Act

    This proposed rule revision has been reviewed under Executive Order 
12988, Civil Justice Reform. The proposed revision would (1) Preempt 
all State and local laws and regulations that are found to be in 
conflict with or that would impede its full implementation; (2) would 
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.

Controlling Paperwork Burdens on the Public

    This proposed rule does not contain any recordkeeping 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, et seq.) and implementing regulations at 5 
CFR part 1320 do not apply.

Federalism

    The agency has considered this proposed rule under the requirements 
of Executive Order 12612 and has made a preliminary assessment that 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 has determined that no further 
assessment on federalism implications is necessary at this time. In 
addition, the agency has reviewed the consultation requirements under 
Executive Order 13132, effective November 2, 1999. This new Order calls 
for enhanced consultation with State and local governmental officials 
and emphasizes increased sensitivity to their concerns.
    In the spirit of these new requirements, the agency has already 
carefully considered in the development of this proposed rule the 
comments received from States, tribes, and local governments in 
response to the Advanced Notice of Proposed Rulemaking published 
January 28, 1998 (63 FR 4350). In proposed section 212.1, the 
definition of ``forest transportation atlas'' recognizes the need to 
consider forest resources upon which communities depend. Section 212.5 
of the proposed rule would require agency officials to use a science-
based road analysis process and involve the public in identifying the 
Forest Service road system. Also, the proposed rule at section 
212.5(b)(1) calls for consultation with affected State, tribal, and 
local governments in identifying transportation needs. In addition to 
public comments on this Notice, the agency will meet with State, 
tribal, and local government officials to clarify understanding of the 
proposed rule and to understand their concerns. Prior to adopting a 
final rule, the agency will consider the extent to which additional 
consultation is appropriate under Executive Order 13132.

Conclusion

    The Forest Service proposes to revise its regulations concerning 
the national forest transportation system to shift emphasis from 
transportation development to managing access within the capability of 
the land. The proposed revisions to 36 CFR parts 212, 261, and 295, in 
conjunction with proposed administrative direction published elsewhere 
in this part today, will provide the framework for achieving this new 
emphasis. The Forest Service invites written comments and will consider 
those comments in developing the final rule that will be published in 
the Federal Register. Additionally, Forest Supervisors may hold 
meetings to provide an opportunity for local comment and clarification 
of this proposed rulemaking.

List of Subjects

36 CFR Part 212

    Highways and roads, National forests, Public lands--rights-of-way, 
and Transportation.

36 CFR Part 261

    Law enforcement, Investigations, National forests, and Seizures and 
forfeitures.

36 CFR Part 295

    National forests and Traffic regulations.

    For the reasons set forth in the preamble, the Forest Service 
proposes to amend Chapter II of Title 36 of the Code of Federal 
Regulations as follows:

PART 212--ADMINISTRATION OF THE FOREST TRANSPORTATION SYSTEM

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

    Authority: 16 U.S.C. 551. 23 U.S.C. 205.

    2. Revise the heading for Part 212 as set out above.
    3. Remove the words ``forest development'' and, in their place, add 
the word ``forest'' in the following places:
    a. Sec. 212.1(e) heading;
    b. Sec. 212.1(h) text;
    c. Sec. 212.1(i) text;
    d. Sec. 212.1(j) text;
    e. Sec. 212.1(k) text;
    f. Sec. 212.2 heading;
    g. Sec. 212.2(b) text;
    h. Sec. 212.4(a) text; and
    i. Sec. 212.4(b) text.
    4. Amend Sec. 212.1 as follows:
    a. Remove the paragraph designations and arrange the terms in 
alphabetical order.
    b. Remove the definitions for ``forest development transportation 
plan'' and

[[Page 11683]]

``forest development transportation facility,'' and add definitions, in 
alphabetical order, for ``forest transportation atlas,'' ``forest 
transportation facility'' and ``road'' to read as follows:


Sec. 212.1  Definitions.

* * * * *
    Forest transportation atlas. An inventory, description, and display 
of roads, trails, and airfields that are important to the management 
and use of National Forest System lands or to the development and use 
of resources upon which communities within or adjacent to the National 
Forests depend and associated information.
    Forest transportation facility. A classified road, trail, airfield, 
bridge, culvert, parking lot, log transfer facility, road safety and 
other appurtenances in a national forest or grassland transportation 
network and under Forest Service jurisdiction that is all or partly 
within or adjacent to National Forest System lands.
* * * * *
    Road. A motor vehicle travelway over 50 inches wide, unless 
classified and managed as a trail. A road may be classified or 
unclassified.
    (1) Classified road. Roads within National Forest System lands 
planned or managed for motor vehicle access including state roads, 
county roads, private roads, permitted roads, and Forest Service roads.
    (2) Unclassified roads. Roads not intended to be part of, and not 
managed as part of, the forest transportation system, such as temporary 
roads, unplanned roads, off-road vehicle tracks, and abandoned 
travelways.
* * * * *
    5. Amend Sec. 212.2 by removing paragraph (c) and revising 
paragraph (a) to read as follows:


Sec. 212.2  Forest transportation program.

    (a) For each national forest, grassland, and experimental forest 
and any other unit of the National Forest System, the Forest Supervisor 
or other responsible official must prepare and keep current a forest 
transportation atlas. The purpose of the atlas is to display the system 
of roads, trails, and airfields of the unit. The identification of 
transportation facilities needed for management and public access must 
be based upon a science-based analysis, as cited in the agency 
directive system (36 CFR 200.4). In order to be used to identify 
National Forest System transportation facilities, a science-based 
analysis must provide for consideration of environmental, social, and 
economic effects and also provide for consideration, at various 
ecological scales, of transportation facilities needed to meet resource 
management objectives.
* * * * *


Secs. 212.5, 212.6, 212.7, 212.10  [Amended]

    6. Remove the words ``forest development roads'' and, in their 
place, add the words ``Forest Service road'' in the following places:
    a. Sec. 212.5(a) text;
    b. Sec. 212.6(b) text;
    c. Sec. 212.6(c) text;
    d. Sec. 212.7(a) text; and
    e. Sec. 212.10 heading and text.
    7. Amend Sec. 212.5 by adding paragraph (b) to read as follows:


Sec. 212.5  Road system management.

* * * * *
    (b) Forest Service road system.
    (1) Identification of system. In planning for the management of the 
Forest Service road system for each national forest and grassland, 
agency officials shall identify the minimum road system needed for safe 
and efficient travel and for administration, utilization, and 
protection of National Forest System lands. The road system for each 
unit of the National Forest System must be commensurate with the 
resource objectives adopted in the land and resource management plan, 
reflect likely funding expectations, and, to the extent practicable, 
minimize the adverse environmental impacts associated with road 
construction, reconstruction, and maintenance. To provide essential 
information about road management opportunities within a national 
forest or grassland and to help identify the road system that best 
meets applicable statutory and regulatory requirements, Forest Service 
officials shall conduct a science-based analysis at appropriate scales 
which includes opportunities for public involvement and consultation 
with state, local, and tribal governments.
    (2) Identification of unneeded roads. In identifying the forest 
road system, forest officers also shall identify those roads under 
Forest Service jurisdiction that are not needed to meet forest resource 
management objectives and that, therefore, should be decommissioned. 
Decommissioning roads involves restoring them to a more natural state 
through activities such as reestablishing former drainage patterns, 
stabilizing slopes, and restoring vegetation. In scheduling the 
decommissioning of roads, forest officials shall give priority to 
decommissioning those roads that pose the greatest risk to public 
safety or to environmental quality. Other unneeded roads should be 
scheduled for decommissioning commensurate with their potential risk 
and available funding.
* * * * *
    8. Amend Sec. 212.20 by revising the heading and paragraph (a) to 
read as follows:


Sec. 212.20  National Forest trail system operation.

    (a) Forest Service trails. Forest Service trails shall be 
identified on a map available to the public at the offices of the 
Forest Supervisors and District Rangers and shall be marked on the 
ground by appropriate signs which reasonably bring their location to 
the attention of the public.
* * * * *

PART 261--PROHIBITIONS

    9. The authority citation for Part 261 continues to read as 
follows:

    Authority: 16 U.S.C. 551, 16 U.S.C. 472.

    10. In the following places, remove the words ``forest development 
road'' or ``forest development roads'' and, in their respective places, 
add the words ``Forest Service road'' or ``Forest Service roads'':

    a. Sec. 261.1(a)(1) text;
    b. Sec. 261.1 (a)(3) text;
    c. Sec. 261.2 text;
    d. Sec. 261.10(d)(2) text;
    e. Sec. 261.12 heading;
    f. Sec. 261.50(b) text;
    g. Sec. 261.50(f) text; and
    h. Sec. 261.56 heading and text.

PART 295--USE OF MOTOR VEHICLES OFF FOREST SERVICE ROADS

    11. Revise the heading for Part 295 as set out above.
    12. The authority citation for Part 295 continues to read as 
follows:

    Authority: 30 Stat. 35, as amended (16 U.S.C. 551): 50 Stat. 
525, as amended (7 U.S.C. 1011) E.O. 11644, 11989 (42 FR 26959).

    13. In Sec. 295.1, remove the words ``National Forest development 
roads'' and, in their place, add the words ``Forest Service roads.''
    14. Remove the words ``forest development roads'' and, in their 
place, add ``Forest Service roads'' in the following places:
    (a) Sec. 295.2 heading, and
    (b) Sec. 295.5 heading.

    Dated: February 25, 2000.
Mike Dombeck,
Chief.
[FR Doc. 00-5001 Filed 3-2-00; 8:45 am]
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