[Federal Register Volume 68, Number 249 (Tuesday, December 30, 2003)]
[Rules and Regulations]
[Pages 75136-75146]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-32077]


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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: Final rule and record of decision.

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SUMMARY: The Department of Agriculture is adopting this final rule to 
amend regulations concerning the Roadless Area Conservation Rule 
(hereinafter, referred to as the roadless rule) to temporarily exempt 
the Tongass National Forest (hereinafter, referred to as the Tongass) 
from prohibitions against timber harvest, road construction, and 
reconstruction in inventoried roadless areas. This temporary exemption 
of the Tongass will be in effect until the Department promulgates a 
subsequent final rule concerning the application of the roadless rule 
within the State of Alaska, as announced in the agency's second advance 
notice of proposed rulemaking published on July 15, 2003 (68 FR 41864).
    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 understanding that sufficient protection and 
balance would be ensured between protected areas established by the act 
and multiple-use managed areas. 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 a proposed rule which, if adopted, would temporarily exempt the 
Tongass from the application of the roadless rule (July 15, 2003, 68 FR 
41865), and to publish a separate advance notice of proposed rulemaking 
(July 15, 2003, 68 FR 41864) requesting comment on whether to 
permanently exempt the Tongass and the Chugach National Forests in 
Alaska from the application of the roadless rule.
    Under this final rule, the vast majority of the Tongass remains off 
limits to development as specified in the 1997 Tongass Forest Plan. 
Commercial timber harvest will continue to be prohibited on more than 
78 percent of the Tongass as required under the existing forest plan. 
Exempting the Tongass from the application of the roadless rule makes 
approximately 300,000 roadless acres available for forest management--
slightly more than 3 percent of the 9.34 million roadless acres in the 
Tongass, or 0.5 percent of the total roadless acres nationwide. This 
rule also leaves intact all old-growth reserves, riparian buffers, 
beach fringe buffers, and other protections contained in the 1997 
Tongass Forest Plan.
    The preamble of this rule includes a discussion of the public 
comments received on the proposed rule published July 15, 2003 (68 FR 
41865) and the Department's responses to the comments. This final rule 
also serves as the record of decision (ROD) for selection of the 
Tongass Exempt Alternative identified in the November 2000 final 
environmental impact statement for the roadless rule.

EFFECTIVE DATE: This rule is effective January 29, 2004.

FOR FURTHER INFORMATION: 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 (66 FR 3244), the Department published a final 
roadless rule at Title 36 of the Code of Federal Regulations, part 294 
(36 CFR part 294). 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. The draft environmental impact statement (DEIS) 
(May 2000) and final environmental impact statement (FEIS) (November 
2000) included alternatives that specifically exempted the Tongass 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 3-352, 3-371 to 3-392). Nonetheless, the final roadless 
rule's prohibitions were extended to the Tongass.
    Since its promulgation, the roadless rule has been the subject of 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 U.S. District Court for the District of Idaho issued a 
nationwide 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's preliminary ruling 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 (NEPA).
    Subsequently, the U.S. District Court for the District of Wyoming 
held that the Department had violated NEPA and the Wilderness Act in 
promulgating the roadless rule. As relief, the court directed the 
roadless rule be set aside and the agency be permanently enjoined from 
implementing the roadless rule at 36 CFR part 294. An appeal is pending 
in the Tenth Circuit. Several other cases remain pending in other 
Federal district courts.
    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

[[Page 75137]]

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 temporarily exempt 
the Tongass from application of the roadless rule until completion of a 
rulemaking process to make permanent amendments to the roadless rule. 
Also pursuant to the settlement agreement, the Department agreed to 
publish an advance notice of proposed rulemaking (ANPR) to exempt both 
the Tongass and Chugach National Forests from the application of the 
roadless rule. The ANPR and the proposed rule were both published in 
Part II of the Federal Register on July 15, 2003 (68 FR 41864). The 
Department made no representations in the settlement agreement 
regarding the content or substance of any final rule that might result.

Most Southeast Alaska Communities Are Significantly Impacted by the 
Roadless Rule

    There are 32 communities within the boundary of the Tongass. Most 
Southeast Alaska communities lack road and utility connections to other 
communities and to the mainland systems. Because most Southeast Alaska 
communities are nearly surrounded on land by inventoried roadless areas 
of the Tongass, 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. Under this 
final rule, communities in Southeast Alaska can propose road and 
utility connections across National Forest System land that will 
benefit their communities. Any such community proposal would 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 November 2000 FEIS for 
the roadless rule estimated that a total of approximately 900 jobs 
could be lost in the long run in Southeast Alaska due to the 
application of the roadless rule, including direct job losses in the 
timber industry as well as indirect job losses in other sectors.

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. Commercial timber 
harvest and road construction are already prohibited in the vast 
majority of the 9.34 million acres of inventoried roadless areas in the 
Tongass, either through Congressional designation or through the 
Tongass Forest Plan. Application of the roadless rule to the Tongass is 
unnecessary to maintain the roadless values of these areas.
    Congress has designated 39 percent of the Tongass as Wilderness, 
National Monument, or other special designations, which prohibit 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 timber harvest and road construction 
are generally 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 ensure 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, within the State of Alaska as a whole, there is an 
extensive network of federally 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. The Southeast Alaska region contains 21 
million acres of additional protected lands in Glacier Bay National 
Park and Preserve, and the Wrangell-St. Elias National Park and 
Preserve.

Different Approaches Considered for the Tongass National Forest

    The unique situation of the Tongass 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. At each 
stage, however, the option of exempting the Tongass from the rule's 
prohibitions was considered in detail.
    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 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 
not to apply prohibitions on the Tongass, but to determine whether road 
construction should be prohibited in unroaded portions of inventoried 
roadless areas as part of the 5-year review of the Tongass Forest Plan.
    The preferred alternative was revised in the November 2000 FEIS to 
include prohibitions on timber harvest, as well as road construction 
and reconstruction on the Tongass, but with a delay in the effective 
date of the prohibitions until April 2004. This was one of four Tongass 
alternatives analyzed in the FEIS, including the Tongass Exempt 
Alternative, under which the prohibitions of the roadless rule would 
not apply to the Tongass. 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 were exempt from the 
roadless rule prohibitions, loss of habitat and species abundance would 
not pose an unacceptable risk to diversity across the forest.
    However, the final January 12, 2001, roadless rule directed an 
immediate applicability of the nationwide prohibitions on timber 
harvest, road construction and reconstruction on the Tongass, except 
for projects that already had a notice of availability of a draft 
environmental impact statement published in the Federal Register.

Why Is USDA Going Forward With This Rulemaking?

    This final rule has been developed in light of the factors and 
issues described in this preamble, including (1) serious concerns about 
the previously disclosed economic and social hardships that application 
of the rule's prohibitions would cause in communities throughout 
Southeast Alaska, (2) comments received on the proposed rule, and (3) 
litigation over the last two years.

[[Page 75138]]

    Given the great uncertainty about the implementation of the 
roadless rule due to the various lawsuits, the Department has decided 
to adopt this final rule, initiated pursuant to the settlement 
agreement with the State of Alaska, to temporarily exempt the Tongass 
National Forest from the prohibitions of the roadless rule. This final 
rule at Sec.  294.14 allows the Forest to continue to be managed 
pursuant to the 1997 Tongass Forest Plan, which includes the non-
significant amendments, 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), until the 2003 Plan 
is revised or further amended. Both documents were developed through 
balanced 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 final rule does not 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. The final rule 
maintains options for a variety of social and economic uses of the 
Tongass, which was a key factor in the previous decision to approve the 
plan in 1997.
    The final rule also addresses the important question of whether the 
rule should apply on the Tongass in the short term if the roadless rule 
were to be reinstated by court order. The Department has determined 
that, at least in the short term, the roadless values on the Tongass 
are sufficiently protected under the Tongass Forest Plan and that the 
additional restrictions associated with the roadless rule are not 
required. Further, reliance on the Tongass Forest Plan in the short 
term does not foreclose options regarding the future rulemaking 
associated with the permanent, statewide consideration of these issues 
for Alaska. Indeed, this final rule reflects a conclusion similar to 
that identified as the preferred alternative in the original proposed 
roadless rule and draft EIS; that is, not to impose the prohibitions 
immediately, but to allow for future consideration of the matter when 
more information may be available.
    Finally, the Department fully recognizes the unusual posture of 
this rulemaking, as it is amending a rule that has been set aside by a 
Federal court. The Department maintains that such an amendment is 
contrary neither to law nor to the court's injunction. Instead, it is a 
reasonable and lawful exercise of the Department's authority to resolve 
policy questions regarding management of National Forest System land 
and resources, especially in light of the conflicting judicial 
determinations. Adopting this final rule reduces the potential for 
conflicts regardless of the disposition of the various lawsuits.

Changes Between Proposed Rule and Final Rule

    Only one substantive change has been made between the proposed rule 
and the final rule. At Sec.  294.14, the proposed rule stated at 
paragraph (d) that the temporary exemption of the Tongass would be in 
effect until the USDA promulgates a revised final roadless area 
conservation rule, for which the agency sought public comments in the 
July 10, 2001, advance notice of proposed rulemaking (66 FR 35918). 
Intervening events necessitate an adjustment, and, therefore, Sec.  
294.14 of the final rule now states at paragraph (d) that the temporary 
exemption of the Tongass National Forest remains in place until the 
USDA promulgates a final rule concerning applicability of 36 CFR part 
294, subpart B within the State of Alaska, as announced in the agency's 
second advance notice of proposed rulemaking published on July 15, 2003 
(68 FR 41864). A minor change also has been made for clarity by adding 
the word ``road'' before ``reconstruction.''
    The Department has previously indicated that it would proceed with 
the roadless rulemakings, while taking numerous factors into 
consideration, including the outcomes of ongoing litigation. The 
Wyoming District Court's setting aside of the roadless rule with the 
admonition that the Department ``must start over'' represents such a 
circumstance. Since the roadless rule has been set aside, the 
Department has determined that the best course of action is to clarify 
that the duration of this Tongass-specific rulemaking will last until 
completion of rulemaking efforts associated with the application of the 
roadless rule in Alaska.

Summary of Public Comments and the Department's Responses

    The proposed rule was published in the Federal Register on July 15, 
2003, for a 30-day public comment period (68 FR 41865). Due to public 
requests for additional time, the comment period was extended by 19 
days for a total of 49 days. The Forest Service received approximately 
133,000 comments on the proposed rule. All comments were considered in 
reaching a decision on the final rule. In addition, appropriate 
sections of Volume 3 of the November 2000 roadless rule FEIS (Agency 
Responses to Public Comments) that addressed the Tongass alternatives 
were also reviewed and considered. A summary of comments and the 
Department's responses to them are summarized as follows.
    General Comments. Virtually all of the Southeast Alaska 
municipalities that responded to the proposed rule expressed strong 
support for it. Many noted that Alaska contains more land in protected 
status than all other States combined, and that applying the roadless 
rule to the Tongass would foreclose opportunities for sustainable 
economic development throughout Southeast Alaska. Several respondents 
asked the Department to discontinue or abandon this rulemaking based on 
their preference to retain the roadless rule prohibitions for the 
Tongass. Others argued that it was illegal for USDA to pursue 
amendments to a rule that has been set aside by a Federal district 
court.
    Respondents expressed different views regarding the roadless rule 
and its applicability to the Tongass. In general, they took one of two 
positions: (1) Some saw the exemption of the Tongass as a positive step 
toward reversing what they consider to be overly restrictive management 
direction imposed by the roadless rule, and therefore they recommended 
the exemption; and (2) others wanted the Forest Service to retain the 
roadless rule as adopted in 2001 because they believed it offers a 
well-balanced approach to forest management that has received 
overwhelming public support.
    Response. The Department believes that the best course of action is 
to complete this rulemaking for the Tongass that would govern should 
the roadless rule come back into effect as a result of the pending 
litigation.
    Environmental Effects of the Proposed Rule. The agency received 
comments regarding the effects the proposed exemption from the roadless 
rule would have on the natural resources of the Tongass. Some 
respondents expressed their view that 70 percent of the highest volume 
timber stands in Southeast Alaska have been harvested, and exempting 
the Tongass from the roadless rule would lead to the harvest of most or 
all of the remainder of such stands. Some regarded the highest volume 
stands as ``the biological heart of the forest,'' and believed any 
additional harvest would have severe adverse effects on the 
environment, especially fish and wildlife habitat. Other respondents 
stated that the Tongass Forest Plan provides stringent environmental 
protection measures that

[[Page 75139]]

will minimize the effects of timber harvest activities on the other 
resources of the Tongass.
    Response. The Tongass has about 9.4 million acres of old-growth 
forest, of which about 5 million acres contain trees of commercial 
size. These 5 million acres are referred to as productive old-growth 
forest. The Tongass Forest Plan allows no timber harvest on nearly 90 
percent of the 5 million acres of existing productive old growth. The 
agency calculates that, at most, 28 percent of the highest volume 
stands have been harvested, not the 70 percent as claimed. The Tongass 
Forest Plan prohibits harvest on the vast majority of the remaining 
highest volume stands.
    Although timber volume has often been used as a proxy for habitat 
quality, a variety of forest attributes and ecological factors 
influence habitat quality, with different attributes being important 
for different species. The Tongass Forest Plan, developed over several 
years with intensive scientific and public scrutiny, takes these and 
other factors into consideration in its old-growth habitat conservation 
strategy. The forest plan includes a system of small, medium, and large 
old growth reserves, well distributed across the Forest, and a 
stringent set of measures to protect areas of high quality wildlife 
habitat, such as areas along streams, rivers, estuaries, and coastline. 
As explained in the 1997 Tongass Forest Plan FEIS and the 2003 
supplemental environmental impact statement (SEIS), good wildlife 
habitat is abundant on the Tongass, on which 92 percent of the 
productive old-growth forest that was present in 1954 remains today. 
Even if timber is harvested for 120 years at the maximum level allowed 
by the Tongass Forest Plan, 83 percent of the productive old-growth 
forest that was present on the Tongass in 1954 would remain. Extensive, 
unmodified natural environments characterize the Tongass and will 
continue to do so. Even with the exemption of the Tongass from the 
prohibitions in the roadless rule, old-growth is and will continue to 
be the predominant vegetative structure on the Tongass.
    Desirability of a National Standard for Roadless Protection. Some 
respondents, including a number of Members of Congress, expressed 
support for the roadless rule as adopted in January, 2001, which these 
respondents regard as a landmark national standard that is essential to 
ensure the long-term protection of roadless values. These respondents 
maintained that the proposed rule would seriously undermine that 
national standard by exempting the largest national forest in the 
country, which contains nearly 16 percent of the acreage protected by 
the roadless rule. Other respondents stated that the ecological, 
geographic, and socioeconomic conditions on the Tongass and among the 
local communities of Southeast Alaska are so different from those on 
national forests outside of Alaska that any nationwide approach, such 
as the prohibitions contained in the roadless rule, would necessarily 
impose undue hardship on the communities of Southeast Alaska.
    Response. The agency recognized the unique situation of the Tongass 
in the discussion of a national roadless policy throughout the 
development of the EIS for the roadless rule. In addition to the range 
of policy alternatives considered in the EIS, the agency developed a 
full range of alternatives specifically applicable to the Tongass, 
ranging from the Tongass Not Exempt Alternative (selected as part of 
the final rule in the 2001 record of decision) to the Tongass Exempt 
Alternative (now proposed for selection). The tradeoffs involved in 
these alternatives are fully evaluated in the roadless rule EIS. The 
comments raised no new issues that are not already fully explored in 
the EIS.
    The Tongass has a higher percentage of roadless acres, over 90 
percent, than nearly any other national forest except the Chugach 
National Forest. The Tongass Forest Plan generally prohibits road 
construction on 74 percent of the roadless acres, which will ensure 
that the Tongass remains one of the most unroaded and undeveloped 
national forests in the system. Even if timber were to be harvested at 
maximum allowable levels for 50 years, at least 80 percent of the 
currently existing roadless areas will remain essentially in their 
natural condition after 50 years of implementing the Forest Plan. 
Roadless areas and their associated values are and will continue to be 
abundant on the Tongass, even without the prohibitions of the roadless 
rule. Southeast Alaska is also unique in that 94 percent of the area is 
Federal land (80 percent Tongass National Forest, 14 percent Glacier 
Bay National Park), and 6 percent is State, Native Corporation, and 
private lands.
    The impacts of the roadless rule on local communities in the 
Tongass are particularly serious. Of the 32 communities in the region, 
29 are unconnected to the nation's highway system. Most are surrounded 
by marine waters and undeveloped National Forest System land. The 
potential for economic development of these communities is closely 
linked to the ability to build roads and rights of ways for utilities 
in roadless areas of the National Forest System. Although Federal Aid 
Highways are permitted under the roadless rule, many other road needs 
would not be met. This is more important in Southeast Alaska than in 
most other States that have a much smaller portion of Federal land. 
Likewise, the timber operators in Southeast Alaska tend to be more 
dependent on resource development opportunities on National Forest 
System land than their counterparts in other parts of the country 
because there are few neighboring alternative supplies of resources for 
Southeast Alaska.
    The agency also recognized the unique situation on the Tongass 
during the development of the roadless rule, and proposed treating the 
Tongass differently from other national forests until the final rule 
was adopted in January 2001. At that time, the Department decided that 
ensuring lasting protection of roadless values on the Tongass 
outweighed the attendant socioeconomic losses to local communities. The 
Department now believes that, considered together, the abundance of 
roadless values on the Tongass, the protection of roadless values 
included in the Tongass Forest Plan, and the socioeconomic costs to 
local communities of applying the roadless rule's prohibitions to the 
Tongass, all warrant treating the Tongass differently from the national 
forests outside of Alaska.
    Scientific Basis for the Proposed Rule. The agency received 
comments that there is no scientific basis for exempting the Tongass 
from the roadless rule, and that the old growth conservation strategy 
included in the 1997 Tongass Forest Plan is scientifically inadequate. 
Indeed, some of the scientists who provided input during the 
development of that plan commented in opposition to exempting the 
Tongass from the roadless rule. Others noted that the 1997 Forest Plan, 
developed with over 10 years of intensive public involvement and 
scientific scrutiny, and embodied an appropriate balance between the 
ecological, social, and economic components of sustainability.
    Response. Science can predict, within certain parameters, the 
impacts of policy choices, but it cannot tell what policy to adopt. The 
1997 Tongass Forest Plan FEIS and roadless rule FEIS describe the 
impacts of a wide range of possible land management policies. The 
science underlying these predictions was subject to rigorous peer 
review. However, ultimately, the role of science is to inform policy 
makers rather than to make policy.
    The Tongass Forest Plan is based on sound science. As an example, 
the forest

[[Page 75140]]

plan includes an old growth habitat conservation strategy, outlined in 
the response to comments on environmental effects of the proposed rule 
that is one of the best in the world. The strategy provides habitat to 
maintain well-distributed, viable populations of old-growth-associated 
species across the Forest. The strategy also considers development on 
adjacent State and private lands. Many existing roadless areas were 
also incorporated into reserves using non-development land use 
designations. The strategy was scientifically developed and was 
subjected to independent scientific peer review.
    The science consistency review process used in developing the 1997 
Tongass Forest Plan is seen as a model for science-based management 
that has been emulated in other Forest Service planning efforts. 
Planning is not a process of science, but rather is a process that uses 
scientific information to assist officials in making decisions. Under 
the scientific consistency process, the role of science in planning is 
explicitly defined as requiring that all relevant scientific 
information available must be considered; scientific information must 
be understood and correctly interpreted, including the uncertainty 
regarding that information; and the resource risks associated with the 
decision must be acknowledged and documented. The 1997 Tongass Forest 
Plan meets these criteria, as documented in ``Evaluation of the Use of 
Scientific Information in Developing the 1997 Forest Plan for the 
Tongass,'' published by the Department's Pacific Northwest Research 
Station in 1997. Exempting the Tongass from the prohibitions of the 
roadless rule returns management of the Tongass to the direction 
contained in a forest plan that has undergone thorough scientific 
review, which found the Tongass Forest Plan to be consistent with the 
available science.
    Compliance with Executive Order 13175 and Finding of No ``Tribal 
Implications.'' An Alaska Native community disagreed with the agency's 
finding that the proposed rule does not have ``Tribal implications'' 
under Executive Order 13175. The community's comment included concerns 
about ``catastrophic economic and social losses due to the shutdown of 
the Tongass,'' and noted that more than 200 timber-related jobs have 
been lost in that community since the roadless rule was implemented. 
The comment also outlined Federal law and policy that mandates 
consideration of Tribal economic well-being.
    Response. The agency did not conclude that the roadless policy has 
``no impact'' on Tribes, because clearly the loss of jobs and economic 
opportunity has greatly affected some of them. The stated severe effect 
on the social and economic fabric of life in Southeast Alaska from the 
decline in the timber industry is one of the reasons the Department is 
adopting an exemption to the roadless rule for the Tongass. Exempting 
the Tongass from the prohibitions in the roadless rule will mean that 
more options will be available to alleviate some of these impacts. A 
primary focus of the exemption is to reduce the social and economic 
impacts to Tribes.
    The agency did conclude that the proposed rule to exempt the 
Tongass from the roadless rule would not impinge on Tribal sovereignty, 
would not require Tribal expenditures of funds, and would not change 
the distribution of power between the Federal government and Indian or 
Alaska Native Tribes. It is under this narrow sense of Executive Order 
13175 that the finding of no Tribal implications was made for the 
proposed rule. For this final rule, the Department has determined that 
there could be substantial future direct effects to one or more Tribes, 
and that these effects are anticipated to be positive. A discussion 
regarding consultation and coordination with Indian Tribal Governments 
about this final rule in accordance with Executive Order 13175 can be 
found in the Regulatory Certification section of this preamble.
    Volume of Public Comment and Support for the Roadless Rule. Many 
comments discussed the volume of public comment received over the past 
5 years in support of the roadless rule and its application to the 
Tongass. Some people said that the roadless rule is a landmark 
conservation policy that has been supported by 2.2 million people, and, 
therefore the proposed rule ignored the wishes of the vast majority of 
roadless rule comments supporting protection of roadless areas in all 
national forests, including Alaska's. Other people noted that nearly 
all elected officials in Alaska opposed the roadless rule and supported 
the exemption.
    Response. Every comment received is considered for its substance 
and contribution to informed decisionmaking whether it is one comment 
repeated by tens of thousands of people or a comment submitted by only 
one person. The public comment process is not a scientifically valid 
survey process to determine public opinion. The emphasis in the comment 
review process is on the content of the comment rather than on the 
number of times a comment was received. The comment analysis is 
intended to identify each unique substantive comment relative to the 
proposed rule to facilitate its consideration in the decisionmaking 
process. In matters of controversial national policy, it is impossible 
to please everyone. When those commenting do not see their view 
reflected in the final decision, they should not conclude that their 
comments were ignored. All comments are considered, including comments 
that support and that oppose the proposal. That people do not agree on 
how public lands should be managed is a historical, as well as modern 
dilemma faced by resource managers. However, public comment processes, 
while imperfect, do provide a vital avenue for engaging a wide array of 
the public in resource management processes and outcomes.
    Adequacy of Timber Volume along Existing Roads. The agency received 
comments regarding the effect of the roadless rule's prohibitions on 
supplies to forest product industries in Southeast Alaska. Some 
respondents stated the exemption of the Tongass from the roadless rule 
was not necessary because the roadless rule FEIS projected 50 million 
board feet could be harvested annually in the developed areas along the 
existing road system on the Tongass. Some commented they believed there 
was an adequate amount of national forest timber currently under 
contract to keep the forest products industry supplied for a number of 
years. Other respondents stated the exemption was necessary if forest 
product industries in Southeast Alaska were to have enough timber 
volume to maintain their operations.
    Response. Only 4 percent of the Tongass is available for commercial 
timber harvest under the forest plan. About half of this is in 
inventoried roadless areas. Further reductions in areas available for 
timber harvest to an already very limited timber supply would have 
unacceptable social, aesthetic, and environmental impacts. As was 
disclosed in the roadless rule FEIS, a sustained annual harvest level 
of 50 million board feet would not support all of the timber processing 
facilities in the region.
    The Tongass Timber Reform Act directs the Secretary of Agriculture 
to seek to provide a supply of timber from the Tongass, which (1) meets 
the annual market demand for timber from the forest and (2) meets the 
market demand from the forest for each planning cycle, consistent with 
providing for the

[[Page 75141]]

multiple use and sustained yield of all renewable forest resources, and 
subject to appropriations, other applicable law, and the requirements 
of the National Forest Management Act.
    Benchmark harvest levels displayed in the roadless rule FEIS for 
the Tongass Exempt Alternative were based on a long-term market demand 
estimate of 124 million board feet (MMBF) per year. The procedure used 
to derive this figure is documented in a 1997 report by Forest Service 
economists, which predicted Tongass National Forest timber demand 
through 2010, relying upon such factors as current processing capacity 
in the region and the market share of Southeast Alaskan products in 
their principal markets (Timber Products Output and Timber Harvests in 
Alaska: Projections for 1997 to 2010. Brooks and Haynes, 1997. Pacific 
Northwest Research Station). Copies of this report may be obtained at 
333 Southwest First Avenue, P.O. Box 3890, Portland, OR 97208-3890. 
Three different market scenarios (low, medium, and high) were 
considered, and the 124 MMBF figure represents the average value of the 
low market scenario estimates for the years 2001 through 2010. 
Comparable estimates for the medium and high scenarios are 151 and 184 
MMBF per year, respectively.
    Though the 1999 harvest level, at 146 MMBF, more closely 
approximates the medium market demand scenario, the roadless rule FEIS 
chose the low market for its benchmark analysis, and recent 
developments support this decision. If anything, the low market 
scenario appears optimistic in light of the 48 MMBF of Tongass National 
Forest timber harvested in 2001, the 34 MMBF harvested in 2002, and the 
51 MMBF harvested in 2003 (fiscal years). At the end of fiscal year 
2003, the amount of timber under contract on the Tongass was 193 MMBF, 
although the agency seeks to provide a sustained flow of timber sale 
offerings sufficient to maintain a volume under contract equal to 3 
years of estimated timber demand. Recently, Congress enacted P.L. 108-
108, Department of Interior and Related Agencies Appropriation Act for 
fiscal year 2004. Section 339 of this Act authorizes cancellation of 
certain timber sale contracts on the Tongass National Forest and 
provides that the timber included in such cancelled contracts shall be 
available for resale by the Secretary of Agriculture. Complete 
descriptions of the timber scheduling and pipeline process are found in 
Appendix A of all timber sale project environmental impact statements 
for the Tongass.
    The last three years represent a significant aberration from 
historical harvest levels. The 1980-2002 average harvest was 269 MMBF, 
and in no year prior to 2001 did the harvest level fall below 100 MMBF. 
As recently as 1995, the Tongass National Forest harvests were in 
excess of 200 MMBF, and the average harvest over the 1995-2002 time 
period was approximately 120 MMBF. In light of this historical 
performance, the 124 MMFB low market estimate is not an unreasonable 
expectation for the coming decade, particularly if the current slump is 
merely a cyclical downturn. Of course market conditions may continue to 
deteriorate, and current low or even lower levels of harvest may become 
the norm. But in this case both the ``negative'' impacts of roading in 
roadless areas as well as the ``positive'' impacts related to 
employment would be reduced.
    The Department believes that the roadless rule prohibitions operate 
as an unnecessary and complicating factor limiting where timber 
harvesting may occur. Accomplishment of social, economic, and 
biological goals can best be met through the management direction 
established through the Tongass Forest Plan.
    Need for a Supplemental Environmental Impact Statement. Some 
respondents said a supplemental environmental impact statement (SEIS) 
is necessary before a decision can be made to exempt the Tongass from 
the prohibitions in the roadless rule. They suggested that new 
information or changed circumstances have occurred that have changed 
the effects disclosed in the roadless rule FEIS, so a supplement is 
required. The changes most often cited included the set aside of the 
1999 record of decision (ROD) for the Tongass Forest Plan and the 
changes in timber harvest levels and related employment in Southeast 
Alaska. Others also mentioned the updated roadless area inventory that 
was completed for the 2003 record of decision on wilderness 
recommendations and the pending land exchange with Sealaska, an Alaska 
Native Corporation.
    Response. The determination of whether a supplemental EIS is 
required involves a two-step process. First new information must be 
identified and, second, an analysis of whether the new information is 
significant to the proposed action must be completed. The Forest 
Service has prepared a supplemental information report that describes 
this process, the analysis completed, and the conclusions reached. This 
report is available on the World Wide Web/Internet on the Forest 
Service Roadless Area Conservation Web site at http://www.roadless.fs.fed.us.
    The conclusion in the supplemental information report is that the 
identified new information and changed circumstances do not result in 
significantly different environmental effects from those described in 
the roadless rule FEIS. Such differences as may exist are not of a 
scale or intensity to be relevant to the adoption of this final rule or 
to support selection of another alternative from the roadless rule 
FEIS. Consequently, the overall decisionmaking picture is not 
substantially different from what it was in November 2000, when the 
roadless rule FEIS was completed. The effects of adopting the proposed 
rule as final have been displayed to the public and thoroughly 
considered. For all these reasons, no additional environmental analysis 
is required.
    Economic Effects of the Roadless Rule. The agency received many 
comments regarding the economic effects that the roadless rule has had 
or would have in Southeast Alaska. People who commented were concerned 
about the ability of Southeast Alaska to develop a sustainable economy 
if the Tongass is not exempted from the roadless rule prohibitions. 
Concerns expressed included the limitation of the development of 
infrastructure, such as roads and utilities that are taken for granted 
elsewhere in the United States, the loss of jobs, and the loss of 
opportunity for Southeast Alaska to grow and develop responsibly. Other 
people said that any economic benefits from exempting the Tongass from 
the prohibitions in roadless rule are far smaller than estimated, while 
the adverse effects to the environment will be far greater.
    Response. In the January 2001 record of decision on the roadless 
rule, the Secretary of Agriculture acknowledged the adverse economic 
effects to some forest-dependent communities from the prohibitions in 
the roadless rule. The decision was made to apply the roadless rule to 
the Tongass even though it was recognized there would be adverse 
effects to some communities. Due to serious concerns about these 
previously disclosed economic and social hardships the roadless rule 
would cause in communities throughout Southeast Alaska, the Department 
moved forward to reexamine the rule.
    The Department has concluded that the social and economic hardships 
to Southeast Alaska outweigh the potential long-term ecological 
benefits because the Tongass Forest Plan adequately provides for the 
ecological sustainability

[[Page 75142]]

of the Tongass. Every facet of Southeast Alaska's economy is important, 
and the potential adverse impacts from application of the roadless rule 
are not warranted, given the abundance of roadless areas and 
protections already afforded in the Tongass Forest Plan. Approximately 
90 percent of the 16.8 million acres in the Tongass National Forest is 
roadless and undeveloped. Over three-quarters (78 percent) of these 
16.8 million acres are either Congressionally designated or managed 
under the forest plan as areas where timber harvest and road 
construction are not allowed. About 4 percent are designated suitable 
for commercial timber harvest, with about half of that area (300,000 
acres) contained within inventoried roadless areas.
    As discussed in the roadless rule FEIS (Vol. 1, 3-202, 3-326 to 3-
350, 3-371 to 3-392), substantial negative economic effects are 
anticipated if the roadless rule is applied to the Tongass, which 
include the potential loss of approximately 900 jobs in Southeast 
Alaska. With the adoption of this final rule, the potential negative 
economic effects should not occur in Southeast Alaska. Even if the 
maximum harvest permissible under the Tongass Forest Plan is actually 
harvested, at least 80 percent of the currently remaining roadless 
areas will remain essentially in their natural condition after 50 years 
of implementing the forest plan. If the Tongass is exempted from the 
prohibitions in the roadless rule, the nation will still realize long-
term ecological benefits because of the large area that will remain 
undeveloped and unfragmented, with far less social and economic 
disruption to Southeast Alaska's communities.
    Alaska National Interest Lands Conservation Act (ANILCA). Some 
people said that ANILCA was enacted with the promise that it provided 
sufficient protection for Alaska land and that no further 
administrative withdrawals could be allowed without express 
Congressional approval. Others said that the roadless rule does not 
violate the provisions in ANILCA.
    Response. In passing ANILCA in 1980, Congress established 14 
wildernesses totaling 5.5 million acres on the Tongass, and found that 
this act provided 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 provided adequate opportunity for 
satisfaction of the economic and social needs of the State of Alaska 
and its people. Accordingly, the designation and disposition of the 
public lands in Alaska pursuant to this act were found to represent a 
proper balance between the reservation of national conservation system 
units and those public lands necessary and appropriate for more 
intensive use and disposition. Congress believed that the need for 
future legislation designating new conservation system units, new 
national conservation areas, or new national recreation areas, had been 
obviated by provisions in ANILCA.
    In 1990, Congress enacted the Tongass Timber Reform Act (TTRA) to 
amend 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, consistent with providing for the multiple use and sustained 
yield of all renewable forest resources, and subject to appropriations, 
other applicable laws, and the requirements of the National Forest 
Management Act.
    Further, the TTRA designated 5 new wildernesses and 1 wilderness 
addition on the Tongass, totaling 296,000 acres. The act also 
designated 12 permanent Land Use Designation (LUD) II areas, totaling 
727,765 acres. Congressionally designated LUD II areas are to be 
managed in a roadless state to retain their wildland characteristics; 
however, they are less restrictive on access and activities than 
wilderness, primarily to accommodate recreation and subsistence 
activities and to provide vital Forest transportation and utility 
system linkages, if necessary.
    These statutes provide important Congressional determinations, 
findings, and information relating to management of National Forest 
System lands on the Tongass National Forest, and were considered 
carefully during this rulemaking. Expressions of legal concerns and 
support for the various rulemakings have also been considered. This 
final rule reflects the Department's assessment of how to best 
implement the letter and spirit of congressional direction along with 
public values, in light of the abundance of roadless values on the 
Tongass, the protection of roadless values already included in the 
Tongass Forest Plan, and the socioeconomic costs to local communities 
of applying the roadless rule's prohibitions.
    Roadless areas are common, not rare, on the Tongass National 
Forest, and most Southeast Alaska communities are significantly 
impacted by the roadless rule. The Department believes that exempting 
the Tongass from the prohibitions in the roadless rule is consistent 
with congressional direction and intent in the ANILCA and the TTRA 
legislation.
    Adequacy of the Roadless Rule Concerning NEPA and Other Laws. Some 
people commented that the roadless rule was adopted in violation of 
NEPA because, according to those commenters, the roadless rule EIS 
failed to take the hard look that NEPA requires. Other concerns 
expressed about the roadless rule included alleged violations of the 
National Forest Management Act, Multiple Use Sustained Yield Act, and 
Wilderness Act, and concerns that the roadless rule failed to 
explicitly acknowledge valid and existing access rights to private 
lands.
    Response. The roadless rule continues to be the subject of ongoing 
litigation in the district courts and one Federal appeals court. Hence, 
the validity of the roadless rule is still in question. However, the 
Department believes that application of the roadless rule to the 
Tongass is inappropriate, regardless of whether the roadless rule is 
otherwise found to be valid or lawful. Given the pending litigation, 
the Department believes it is prudent to proceed with a decision on 
temporarily exempting the Tongass from the prohibitions in the roadless 
rule.
    Effects of the Roadless Rule on Construction of Roads and Utility 
Corridors. Some people who commented said that because the roadless 
rule allows construction of Federal Aid Highway projects and roads 
needed to protect public health and safety, there are no significant 
limits on the ability of communities to develop road and utility 
connections in Southeast Alaska. Similarly, they said that utility 
corridors can be built and maintained without roads by using 
helicopters, so the opportunities for utility transmissions would not 
be limited either. Others, including local communities and elected 
officials, said that the roadless rule would impact the development of 
the Southeast Alaska Electrical Intertie System that is planned to 
provide communities throughout the region with clean, reliable, and 
affordable power.
    Response. There is a need to retain opportunities for the 
communities of Southeast Alaska regarding basic access and utility 
infrastructure. This is related primarily to road systems, the State 
ferry system, electrical utility lines, and hydropower opportunities 
that are on the horizon. This need reflects in part the overall 
undeveloped nature of the Tongass and the relationship of the 32 
communities that are found within its boundaries. Most, if not all, of 
the

[[Page 75143]]

communities are lacking in at least some of the basic access and 
infrastructure necessary for reasonable services, economic stability, 
and growth that almost all other communities in the United States have 
had the opportunity to develop.
    The roadless rule permits the construction of Federal Aid Highways 
only if the Secretary of Agriculture determines that the project is in 
the public interest and that no other reasonable and prudent 
alternative exists (36 CFR 294.12). Such a finding may not always be 
possible for otherwise desirable road projects.
    Similarly, although some utility corridors can be constructed and 
maintained without a road, others may require a road. Even where a 
utility corridor without a road may be physically possible, it may be 
more expensive or otherwise less desirable than a utility accompanied 
by a service road. If the road construction is inexpensive or needed 
for other reasons, then utility corridors may often adjoin the road 
because of the ease of access for maintenance and repairs of utility 
systems. Indeed, most utility corridors in the United States were 
developed next to a pre-existing road.
    The history of road development in Southeast Alaska since statehood 
is that most State highway additions have been upgraded from roads 
built to harvest timber. In the last 20 years, this has occurred 
predominantly on Prince of Wales Island, better connecting the 
communities of Hollis, Hydaburg, Craig, Klawock, Thorne Bay, Whale 
Pass, Naukati, Kaasan, and Coffman Cove with all-weather highways. 
Without the pioneering work done by the Forest Service in building 
roads to harvest timber, it is unclear whether the State would have 
undertaken the construction of those road connections. By precluding 
the construction of roads for timber harvest, the roadless rule reduces 
future options for similar upgrades, which may be critical to economic 
survival of many of the smaller communities in Southeast Alaska. 
Moreover, roads initially developed for timber or other resource 
management purposes often have value to local communities and sometimes 
become important access links between communities, even if they are 
never upgraded as Federal Aid Highways. By exempting the Tongass from 
the prohibitions in the roadless rule, each utility or transportation 
proposal can be evaluated on its own merit.
    Tongass Roads and Fiscal Considerations. Some people said that 
because the Tongass has a backlog of road maintenance and fish passage 
problems, primarily inadequate culverts, it makes no sense to spend 
money on new roads until these problems are corrected. Others said that 
the funds the Tongass receives from Congress to prepare timber sales 
and do roadwork could be better spent on other needs.
    Response. The Tongass is currently spending about $2 million per 
year to correct fish passage barriers and continues to seek funding and 
opportunities to clear the maintenance backlog. Forest Service roads in 
Alaska are vital to neighboring communities because most areas have at 
most an underdeveloped road system. Permanent Forest Service roads 
(known as classified roads) are often the only roads available to 
communities and for recreation opportunities. The Alaska Region, with 
only 3,600 miles of classified Forest Service roads, has the fewest 
miles of roads of all the regions of the Forest Service, and about one-
third of these are closed to motorized use. New roads will be necessary 
to access sufficient timber to support existing small sawmills. Over 
the years, standards for construction and maintenance of roads have 
changed significantly. Roads and stream crossings built today adhere to 
very high standards designed to protect fisheries, important wetlands, 
unstable soils, wildlife use and habitats, and other resource values.
    Roads on the Tongass are used by the public for a variety of 
reasons, including recreation, subsistence access, and other personal 
uses. The roads are also used by the Forest Service in accomplishing 
work for various resource programs. None of these programs is 
sufficient to provide for all the road maintenance needs. In the 2003 
Tongass Forest-Level Roads Analysis, fish passage and sedimentation 
maintenance needs were identified as the critical categories of the 
deferred maintenance cost schedule.
    Transportation planning is an integral part of the 
interdisciplinary process used to develop site-specific projects on the 
Tongass. The transportation planning process includes collaboration 
between the agency and local communities to identify the minimum road 
system that is safe and responsive to public needs while minimizing 
maintenance costs.
    Relationship of This Rule to Other Rulemaking. One commenter read 
40 CFR 1506.1 as requiring an EIS for the temporary exemption of the 
Tongass. The commenter reasoned that because the agency was considering 
whether to adopt a permanent exemption for the Tongass, the agency may 
not take any action that tends to prejudice the choice of alternatives 
on that decision unless reviewed in a separately sufficient, stand-
alone EIS. One commenter suggested that the effort the agency might put 
into preparing site-specific EISs for timber sales in roadless areas 
under this final rule might prejudice the decision on the advance 
notice of proposed rulemaking. Others viewed the proposed rule as an 
emergency rule that has not been adequately justified by the Forest 
Service, and recommended action be delayed until the permanent 
exemption is resolved.
    Response: The decision to adopt the proposed rule as final is 
supported by the environmental analysis presented in the roadless rule 
FEIS, which considered in detail the alternative of exempting the 
Tongass from the prohibitions of the roadless rule, as well as the 
analysis and disclosure of alternative management regimes for roadless 
lands presented in the 1997 Tongass Forest Plan EIS and the 2003 
Supplemental EIS. The Department has determined that no additional 
environmental analysis is warranted. The Supplemental Information 
Report documenting that decision is available on the World Wide Web/
Internet at http://www.roadless.fs.fed.us. In any event, the temporary 
rules on the Tongass and the proposal set forth in the advance notice 
of proposed rulemaking are separate and have separate utility. The July 
15, 2003, advance notice of proposed rulemaking sought comment on 
whether both forests in Alaska should be exempted permanently from the 
prohibitions of the roadless rule. This final rule has separate utility 
in temporarily preventing socioeconomic dislocation in Southeast Alaska 
while protecting forest resources, regardless of whether the agency 
ultimately decides to exempt both national forests from the 
prohibitions of the roadless rule on a permanent basis.
    Promulgating this final rule would not prejudice the ultimate 
decision on the advance notice of proposed rulemaking. An action 
prejudices the ultimate decision on a proposal when it tends to 
determine subsequent development or limit alternatives. The preparation 
of EISs does neither.
    Finally, this final rule is not an emergency rule. All the 
requirements and procedures for public notice and comment established 
by the Administrative Procedure Act for Federal rulemaking have been 
met with the publication of the proposed rule with request for comment 
and with the subsequent publication of this final rule. Emergency 
rulemaking involves the promulgation of a rule without

[[Page 75144]]

providing for notice and public comment prior to adoption, when 
conditions warrant immediate action. That is not the case with this 
final rule.

Alternatives Considered

    The alternatives considered in making this decision are the Tongass 
National Forest Alternatives identified in the November 2000 FEIS for 
the roadless rule, as further described in the rule's record of 
decision (66 FR 3262). These include the Tongass Not Exempt, Tongass 
Exempt, Tongass Deferred, and Tongass Selected Areas alternatives. The 
Tongass Not Exempt Alternative was selected by the Department as set 
out in the final roadless rule in January 2001, with mitigation 
explained in that record of decision. The Tongass Exempt Alternative 
would not apply the prohibitions of the roadless rule to the Tongass. 
Under the Tongass Deferred Alternative, the decision whether to apply 
the prohibitions of the roadless rule to the Tongass would be made in 
2004 as part of the 5-year review of the Tongass Forest Plan. Under the 
Tongass Selected Areas Alternative, the prohibitions on road 
construction and reconstruction would apply only to certain land use 
designations, where commercial timber harvest would not be allowed by 
the forest plan. These areas comprise approximately 80 percent of the 
land in inventoried roadless areas on the Tongass.

The Environmentally Preferable Alternative

    Under the National Environmental Policy Act, the agency is required 
to identify the environmentally preferable alternative (40 CFR 
1505.2(b)). This is interpreted to mean the alternative that would 
cause the least damage to the biological and physical components of the 
environment, and which best protects, preserves, and enhances historic, 
cultural, and natural resources (Council on Environmental Quality, 
Forty Most Asked Questions Concerning CEQ's National Environmental 
Policy Act Regulations, 46 FR 18026).
    The Department concurs in the assessment described in the January 
12, 2001, roadless rule record of decision (66 FR 3263) that the 
environmentally preferable alternative is the portion of Alternative 3 
of the roadless rule FEIS combined with the Tongass Not Exempt 
Alternative, which would apply the roadless rule's prohibitions to the 
Tongass without delay.

Record of Decision Summary

    For the reasons identified in this preamble, the Department has 
decided to select the Tongass Exempt Alternative described in the 
roadless rule FEIS, until the Department promulgates a final rule 
concerning the application of the roadless rule within the State of 
Alaska, to which the agency sought public comments in the July 15, 
2003, second advance notice of proposed rulemaking (68 FR 41864). Until 
such time, the Department is amending paragraph (d) of Sec.  294.14 of 
the Roadless Area Conservation Rule set out at 36 CFR part 294 to 
exempt the Tongass National Forest from prohibitions against timber 
harvest, road construction, and reconstruction in inventoried roadless 
areas.
    The Tongass Not Exempt Alternative (identified as the 
environmentally preferable alternative in the previous section) is not 
selected because the Department now believes that, considered together, 
the abundance of roadless values on the Tongass, the protection of 
roadless values included in the Tongass Forest Plan, and the 
socioeconomic costs and hardships to local communities of applying the 
roadless rule's prohibitions to the Tongass, outweigh any additional 
potential long-term ecological benefits; and therefore, warrant 
treating the Tongass differently from the national forests outside of 
Alaska.
    The Tongass Deferred Alternative is not selected because there is 
no reason to delay a decision until 2004. On the contrary, a decision 
is needed now to reduce uncertainty about future timber supplies, which 
will enable the private sector to make investment decisions needed to 
prevent further job losses and economic hardship in local communities 
in Southeast Alaska.
    The Tongass Selected Areas Alternative is not selected because it 
also would ``be of considerable consequence at local levels where the 
timber industry is a cornerstone of the local economy and where the 
Forest Service has a strong presence,'' as stated in the roadless 
rule's record of decision. While these adverse socioeconomic 
consequences would be less than those under the Tongass Not Exempt 
Alternative, the roadless rule's record of decision states, ``For most 
resources, the effects of this alternative would probably not be 
noticeably different from those under the Tongass Exempt Alternative.'' 
Accordingly, there is no noticeable environmental benefit to selecting 
the Tongass Selected Areas Alternative over the Tongass Exempt 
Alternative that would justify the additional socioeconomic costs.
    This decision reflects the facts, as displayed in the FEIS for the 
roadless rule and the FEIS for the 1997 Tongass Forest Plan that 
roadless values are plentiful on the Tongass and are well protected by 
the Tongass Forest Plan. The minor risk of the loss of such values is 
outweighed by the more certain socioeconomic costs of applying the 
roadless rule's prohibitions to the Tongass. Imposing those costs on 
the local communities of Southeast Alaska is unwarranted.

Regulatory Certifications

Regulatory Impact

    This final rule has been reviewed under USDA procedures and 
Executive Order (E.O.) 12866, Regulatory Planning and Review. It has 
been determined that this is not an economically significant rule. This 
final rule will 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. 
This final rule will not interfere with an action taken or planned by 
another agency. Finally, this action will not alter the budgetary 
impact of entitlements, grants, user fees, or loan programs or the 
rights and obligations of recipients of such programs. However, because 
this final rule raises novel legal or policy issues arising from legal 
mandates or the President's priorities, it has been designated as 
significant and, therefore, is subject to Office of Management and 
Budget (OMB) review in accordance with the principles set forth in E.O. 
12866.
    A cost-benefit analysis has been conducted on the impact of this 
final 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 final environmental impact statement 
(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 regard to 
exempting the Tongass from the application of the roadless rule. As 
documented in the Supplemental Information Report, the Department has 
concluded that no new information exists today that would significantly 
alter the results of the original analysis.
    Moreover, this final rule has been considered in light of E.O. 
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.). A final 
regulatory flexibility

[[Page 75145]]

analysis conducted on the roadless rule included the effects associated 
with the Tongass National Forest. The agency solicited comments on the 
regulatory flexibility analysis for the roadless rule. Although 
numerous comments were provided that indicated a concern about the 
roadless rule's impacts on small entities, only a small portion 
provided data documentation on their status as a small entity and the 
likely effects of the roadless rule. In many cases, the agency was 
unable to determine the effects quantitatively, based on comments on 
the regulatory flexibility analysis. However, all of the businesses in 
Southeast Alaska engaged in timber harvest and processing of Tongass 
timber are small businesses. Therefore, this final rule would be 
expected to have future positive impacts on the small entities in 
Southeast Alaska due to the increased opportunity to remain viable in 
the marketplace. This opportunity would be reduced if the prohibitions 
in the roadless rule are applied to the Tongass.
    Therefore, based on the final regulatory flexibility analysis 
conducted for the roadless rule, which is available electronically on 
the World Wide Web/Internet on the Forest Service Roadless Area 
Conservation Web site at http://www.roadless.fs.fed.us, a small 
entities flexibility assessment has been made for this final rule. It 
has been determined that this action will not have a significant 
negative economic impact on a substantial number of small entities as 
defined by SBREFA. This final 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

    A draft environmental impact statement (DEIS) was prepared in May 
2000 and a final environmental impact statement (FEIS) was prepared in 
November 2000 in association with promulgation of the roadless area 
conservation rule (January 12, 2001 (66 FR 3244). The DEIS and FEIS 
examined in detail sets of Tongass-specific alternatives. In the DEIS, 
the agency considered alternatives 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 5-year 
plan to review whether to prohibit road construction in unroaded 
portions of inventoried roadless areas. 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 would have delayed implementation of the rule's 
prohibitions until April 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 without any provision for delayed implementation. 
Therefore, the rule's prohibition applied immediately to inventoried 
roadless areas on the Tongass, but the rule also allowed road 
construction, road reconstruction, and the cutting, sale, and removal 
of timber from inventoried roadless areas on the Tongass where a notice 
of availability for a DEIS for such activities was published in the 
Federal Register prior to January 12, 2001.
    In February 2003, in compliance with a district court's order in 
Sierra Club v. Rey (D. Alaska), the Forest Service issued a record of 
decision and a supplemental environmental impact Statement (SEIS) to 
the 1997 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 roadless rule included an alternative 
to exempt the Tongass National Forest from the provisions of the 
roadless rule, the decision to adopt this final rule may be based on 
the FEIS, as long as there are no significant changed circumstances or 
new information relevant to environmental concerns bearing on the 
proposed action or its impacts that would warrant additional 
environmental impact analysis. The Forest Service reviewed the 
circumstances related to this rulemaking and any new information made 
available since the FEIS was completed; including the SEIS and public 
comments received on the proposed rule, and documented the results in a 
Supplemental Information Report (SIR), dated October 2003. The agency 
concluded--and the Department agrees--that no significant new 
circumstances or information exist, and that no additional 
environmental analysis is warranted. The SIR and the FEIS are available 
on the World Wide Web/Internet on the Forest Service Roadless Area 
Conservation Web site at http://www.roadless.fs.fed.us. The Tongass 
Forest Plan is available at http://www.fs.fed.us/r10/tlmp, and the 2003 
SEIS is available at http://www.tongass-seis.net/.

No Takings Implications

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 12360, and it has been 
determined that the final rule does not pose the risk of a taking of 
private property, as the rule is limited to temporarily exempting the 
applicability of the roadless rule to the Tongass National Forest.

Energy Effects

    This final 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 final rule does 
not constitute a significant energy action as defined in the Executive 
order.

Civil Justice Reform

    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. After adoption of this final rule, (1) all State 
and local laws and regulations that conflict with this rule or that 
would impede full implementation of this rule will be preempted; (2) no 
retroactive effect will be given to this final rule; and (3) this final 
rule 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 final rule on 
State, local, and Tribal governments and the private sector. This final 
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.

[[Page 75146]]

Federalism

    The Department has considered this final rule under the 
requirements of Executive Order 13132, Federalism. The agency has made 
an 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 a review of the comments 
received on the proposed rule, the Department has determined that no 
additional consultation is needed with State and local governments 
prior to adopting this final rule, because virtually all comments 
received from State and local governments supported the proposed rule.

Consultation and Coordination With Indian Tribal Governments

    This final rule has Tribal implications as defined by Executive 
Order 13175, Consultation and Coordination with Indian Tribal 
Governments. Forest Service line officers in the field have contacted 
Tribes to ensure their awareness of this rulemaking, provide an 
overview of this final rule, and conduct government-to-government 
dialog with interested Tribes. A letter from the Alaska Regional 
Forester (Region 10) was sent on July 15, 2003, to Tribal officials via 
e-mail notifying them that the proposed rule to temporarily exempt the 
Tongass from the prohibitions of the roadless rule was published in the 
Federal Register that same day. A follow up informational meeting was 
requested and held with Sitka Tribal officials. One comment was 
received on the proposed rule from the Metlakatla Indian Community 
regarding the catastrophic economic and social losses due to the 
shutdown of the Tongass was in reference to the roadless rule. This 
final rule to temporarily exempt the Tongass from the prohibitions of 
the roadless rule would potentially reduce the social and economic 
impacts the Tribe noted. Therefore, the Department has determined that 
there could be substantial future direct effects to one or more Tribes, 
and that these effects are anticipated to be positive.

Controlling Paperwork Burdens on the Public

    This final rule does not contain any record keeping 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.

Government Paperwork Elimination Act Compliance

    The Department of Agriculture is committed to compliance with the 
Government Paperwork Elimination Act (44 U.S.C 3504), 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.

0
Therefore, for the reasons set forth in the preamble, the Department of 
Agriculture is amending part 294 of Title 36 of the Code of Federal 
Regulations as follows:

PART 294--SPECIAL AREAS

Subpart B--Protection of Inventoried Roadless Areas

0
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.


0
2. Revise paragraph (d) of Sec.  294.14 to read as follows:


Sec.  294.14  Scope and applicability.

* * * * *
    (d) Until the USDA promulgates a final rule concerning application 
of this subpart within the State of Alaska [to which the agency 
originally sought public comments in the July 15, 2003, second advance 
notice of proposed rulemaking (68 FR 41864)], this subpart does not 
apply to road construction, road reconstruction, or the cutting, sale, 
or removal of timber in inventoried roadless areas on the Tongass 
National Forest.
* * * * *

    Dated: December 23, 2003.
David P. Tenny,
Deputy Under Secretary, Natural Resources and Environment.
[FR Doc. 03-32077 Filed 12-23-03; 4:47 pm]
BILLING CODE 3410-11-P