[Federal Register Volume 68, Number 135 (Tuesday, July 15, 2003)]
[Proposed Rules]
[Pages 41865-41869]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-17420]


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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 [email protected]; 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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