[Federal Register Volume 70, Number 92 (Friday, May 13, 2005)]
[Rules and Regulations]
[Pages 25654-25662]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-9349]



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Part II





Department of Agriculture





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Forest Service



Office of the Secretary



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36 CFR Part 294



Special Areas; State Petitions for Inventoried Roadless Area 
Management; Roadless Area Conservation National Advisory Committee; 
Final Rule and Notice

  Federal Register / Vol. 70, No. 92 / Friday, May 13, 2005 / Rules and 
Regulations  

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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 294

RIN 0596-AC10


Special Areas; State Petitions for Inventoried Roadless Area 
Management

AGENCY: Forest Service, USDA.

ACTION: Final rule and decision memo.

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SUMMARY: The Department of Agriculture is revising Subpart B of Title 
36, Code of Federal Regulations, Protection of Inventoried Roadless 
Areas, by adopting a new rule that establishes a petitioning process 
that will provide Governors an opportunity to seek establishment of or 
adjustment to management requirements for National Forest System 
inventoried roadless areas within their States. The opportunity for 
submitting State petitions is available for 18 months following the 
effective date of this final rule.
    Under this final rule, submission of a petition is strictly 
voluntary, and management requirements for inventoried roadless areas 
would be guided by individual land management plans until and unless 
these management requirements are changed through a State-specific 
rulemaking. Elsewhere in this part of today's Federal Register, the 
Department is announcing the establishment of a national advisory 
committee in accordance with the Federal Advisory Committee Act (5 
U.S.C. App. II) to assist the Secretary with the implementation of this 
rule.
    The preamble of this rule includes a discussion of the public 
comments received on the proposed rule published July 16, 2004 (69 FR 
42636) and the Department's responses to the comments.

DATES: This rule is effective May 13, 2005.

FOR FURTHER INFORMATION CONTACT: Dave Barone, Planning Specialist, 
Ecosystem Management Coordination Staff, Forest Service, USDA, (202) 
205-1019.

SUPPLEMENTARY INFORMATION: 

Background

    The U.S. Department of Agriculture (USDA) Forest Service commitment 
to land stewardship and public service is the framework within which 
the agency manages natural resources as provided by law, regulation, 
and other legal authorities. Implicit in this is the agency's 
collaboration with public, private, and nonprofit partners. As a leader 
in natural resource conservation, the USDA Forest Service provides 
leadership in the conservation, management, and use of the Nation's 
forests, rangeland, and aquatic ecosystems.
    The USDA Forest Service manages National Forest System (NFS) lands 
to maintain and enhance the quality of the environment to meet the 
Nation's current and future needs. Agency land management assures 
sustainable resources by providing for diversity of plant and animal 
communities and ecological productivity that supports recreation, 
water, timber, minerals, fish, wildlife, wilderness, and aesthetic 
values for current and future generations.
    State governments are important partners in management of the 
Nation's land and natural resources. States, particularly in the West, 
own and manage large tracts of land with tremendous social and 
biological value. State governments have frequently pioneered 
innovative land management programs and policies. State governments 
exert considerable influence over statewide economic development and 
private land use, both of which significantly affect natural resource 
management. In addition, State conservation agencies' relationships 
with others offer additional partnership opportunities. Strong State 
and Federal cooperation regarding management of inventoried roadless 
areas can facilitate long-term, community-oriented solutions.
    On January 12, 2001, the Department promulgated the roadless rule 
at 36 CFR part 294 (66 FR 3244), which 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 road 
reconstruction within inventoried roadless areas on NFS lands.
    Concerns were immediately expressed by those most impacted by the 
roadless rule's prohibitions. These concerns included the sufficiency 
and the accuracy of the information available for public review during 
the rulemaking process; the inclusion of an estimated 2.8 million acres 
of roaded lands in the inventoried roadless area land base; the denial 
of requests to lengthen the public review period; the denial of 
cooperating agency status requested by several Western States; the 
sufficiency of the range of alternatives considered in the rulemaking 
process; the need for flexibility and exceptions to allow for needed 
resource management activities; and the changes made in the final rule 
after the closure of the public comment period. Concerns were also 
expressed about applying one set of standards uniformly to every 
inventoried roadless area.
    On May 4, 2001, the Secretary of Agriculture expressed the 
Administration's commitment to the objective of conserving inventoried 
roadless area values in the NFS, and also acknowledged concerns raised 
by local communities, Tribes, and States impacted by the roadless rule. 
At that time, the Secretary indicated that USDA would move forward with 
a responsible and balanced approach to re-examining the roadless rule 
in an effort to address those concerns while enhancing roadless area 
values and characteristics. To meet this objective, management of 
inventoried roadless areas must address those activities having the 
greatest likelihood of altering, fragmenting, or otherwise degrading 
roadless area values and characteristics. Appropriate management of 
inventoried roadless areas must also address reasonable and legitimate 
concerns about how the agency provides for the conservation of roadless 
areas. For example, providing for outdoor recreation opportunities for 
fishing and hunting in remote areas may at times require access and 
active management activities to restore or maintain habitat conditions 
for the management of some fish and wildlife species.
    On July 10, 2001, the Forest Service published an advance notice of 
proposed rulemaking (ANPR) (66 FR 35918) seeking public comment 
concerning how best to proceed with long-term conservation and 
management of inventoried roadless areas. The ANPR acknowledged that 
the future management of inventoried roadless areas would depend on a 
number of factors, such as court decisions, public comments, and the 
consideration of practical options and other administrative tools for 
amending the 2001 roadless rule to address inventoried roadless area 
protection.
    The responses received on the ANPR represented two main points of 
view on natural resource management and perspectives on resource 
decisionmaking: (1) Emphasis on environmental protection and 
preservation, and support for making national decisions; and (2) 
emphasis on responsible active management, and support for local 
conservation decisions made through the land management planning 
process. A summary of the public comment on the ANPR was prepared in 
May of 2002, and is

[[Page 25655]]

available on the World Wide Web/Internet on the Forest Service Web site 
for Roadless Area Conservation at: http://www.roadless.fs.fed.us.
    Until promulgation of the 2001 roadless rule, the Forest Service 
managed inventoried roadless areas based on individual land management 
plans. These plans have been developed for each unit of the NFS through 
a public notice and comment process, building on years of scientific 
findings, analyses, and extensive public involvement. Land management 
plans typically identify and recommend areas that would be appropriate 
for designation as wilderness by the Congress, and provide guidance on 
activities and uses in these areas.

Litigation History

    The 2001 roadless rule has been the subject of nine 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 preliminary 
injunction prohibiting implementation of the roadless rule on May 10, 
2001. The preliminary injunction was reversed by the U.S. Court of 
Appeals for the Ninth Circuit.
    On June 10, 2003, a settlement agreement was reached in the State 
of Alaska v. USDA litigation. As discussed in more detail below, this 
settlement agreement led to the adoption of a final rule on December 
30, 2003, that temporarily withdrew the Tongass National Forest from 
the prohibitions of the roadless rule.
    In still another lawsuit, on July 14, 2003, the U.S. District Court 
for the District of Wyoming found the roadless rule to be unlawful and 
ordered that the rule ``be permanently enjoined.'' That ruling has been 
appealed to the Tenth Circuit by intervenors.

Overview

    USDA is committed to conserving and managing inventoried roadless 
areas and considers these areas an important component of the NFS. The 
Department believes that revising 36 CFR part 294 by adopting a new 
rule that establishes a State petitioning process that will allow 
State-specific consideration of the needs of these areas is an 
appropriate solution to address the challenges of inventoried roadless 
area management on NFS lands.
    States affected by the roadless rule have been keenly interested in 
inventoried roadless area management, especially the Western States 
where most of the agency's inventoried roadless areas are located. 
Collaborating and cooperating with States on the long-term strategy for 
the conservation and management or inventoried roadless areas on NFS 
lands allows for the recognition of local situations and resolutions of 
unique resource management challenges within a specific State. 
Collaboration with others who have strong interest in the conservation 
and management of inventoried roadless areas also helps ensure balanced 
management decisions that maintain the most important characteristics 
and values of those areas.
    The State petitions under this final rule must include specific 
information and recommendations on the management requirements for 
individual inventoried roadless areas within that particular State. If 
an inventoried roadless area boundary extends into another State, the 
petitioning Governor should coordinate with the Governor of the 
adjacent State. Petitions must be submitted to the Secretary of 
Agriculture within 18 months of the effective date of this final rule. 
Petitions will be evaluated, and if accepted, the Secretary would 
initiate subsequent rulemaking for inventoried roadless area 
conservation and management within that State. The Department's general 
petitioning process for the approval, amendment or repeal of rules (7 
CFR 1.28) will remain available after expiration of the 18-month 
petitioning period.
    The Secretary has decided to establish a national advisory 
committee to provide advice and recommendations on the implementation 
of this State-specific petition for rulemaking process (Sec.  294.15). 
This committee is being established in response to comments received 
that roadless area management has national aspects that need to be 
considered. This point is well taken and a national advisory committee 
can fulfill this function. The advisory committee will consist of 
members who represent diverse national organizations interested in the 
conservation and management of National Forest System inventoried 
roadless areas. Elsewhere in today's Federal Register the Department is 
announcing the establishment of this committee and requesting 
nominations for membership.

Changes Between Proposed Rule and Final Rule

    There were some adjustments made to the final rule based in part on 
comments received on the proposed rule. Highlights of these changes are 
discussed below.

Definition

    The final rule definition section (Sec.  294.11) has been changed 
because the agency has more up-to-date information on inventoried 
roadless areas today available through the land management planning 
process than it had in 2000. The 58.5 million acres of inventoried 
roadless areas used as the basis for the roadless rule's analysis were 
identified from the then most recent analysis for each national forest 
or grassland, including the second Roadless Area Review and Evaluation 
(RARE II) which was documented in a final environmental impact 
statement dated January of 1979, land management plans, and other 
large-scale assessments such as the 1996 Southern Appalachian 
Assessment. Since publication of the 2001 roadless rule, 22 land 
management plans have been revised and 43 are currently in the plan 
revision process. These revisions have provided more accurate and 
current information regarding inventoried roadless areas.

Advisory Committee

    Sections 294.15 and 294.16 of the proposed rule are now sections 
294.16 and 294.17, respectively in the final rule in order to introduce 
a new section 294.15 in the final rule. This new section recognizes the 
Department's decision to establish an advisory committee to provide 
advice and recommendations on the implementation of the rule. The 
preamble of the proposed rule informed the public that the Secretary 
was considering the establishment of such an advisory committee and 
requested public comment regarding the establishment of the committee.

Severability

    The Department has chosen to add a new section (Sec.  294.18) 
concerning the issue of severability to address the possibility that 
the rule, or portions of the rule, may be challenged in litigation. It 
is the Department's intent that the individual provisions of this rule 
be severable from each other. If any provision or the application of 
any provision of this regulation to any circumstance is held invalid, 
it is the Department's intent that the remainder shall not be affected 
and would continue to be operative.
    Further, the severability provision also responds to public comment 
expressing concerns and confusion regarding the status of the prior 
roadless rule that was set aside by the Federal District Court in 
Wyoming. The Department believes that adopting this new rule resolves 
the matter by

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establishing a new process for addressing inventoried roadless area 
management.
    The 2001 rulemaking was immediately challenged in multiple 
lawsuits, was preliminarily and permanently enjoined, and continues to 
be the subject of litigation and divisive argument. Regardless of these 
lawsuits, the Department has concluded that the 2001 rule's inflexible 
``one-size-fits-all'' nationwide rulemaking approach is flawed and 
there are better means to achieve protection of roadless area values. 
The Department wishes to make its intent clear that should all or any 
part of this regulation be set aside, the Department does not intend 
that the prior rule be reinstated, in whole or in part.

Summary of Public Comments and the Department's Responses

    The proposed rule was published in the Federal Register on July 16, 
2004, for a 60-day public comment period (69 FR 42636). Due to public 
requests for additional time, the comment period was extended by 62 
days for a total of 122 days. The Forest Service received approximately 
1.8 million comments from a wide variety of respondents on the proposed 
rule. All comments were considered in reaching a decision on the final 
rule. A narrative document containing a summary of the substantive 
issues raised by respondents is posted at the Forest Service World Wide 
Web/Internet Web site http://www.roadless.fs.fed.us. A summary of 
comments and the Department's responses to them follows.
    Desirability of a National Standard for Roadless Area Conservation: 
Some respondents, including a number of members of Congress and 
Governors, expressed strong support for implementing the roadless rule 
as adopted in January, 2001, which these respondents regard as 
essential to ensure the long-term protection of roadless areas from 
harmful road construction and commercial logging. Other respondents, 
including some Governors, voiced their strong support for the proposed 
rule stating that taking a more localized and collaborative approach to 
developing management requirements for roadless areas is more 
appropriate than taking a national approach.
    Response: Many concerns were expressed about applying the national 
prohibitions of the 2001 roadless rule. Many of these concerns are 
represented by those raised in the various lawsuits that challenged the 
2001 roadless rule. Consistent with these concerns, the U.S. District 
Court for the District of Wyoming permanently enjoined the 2001 
roadless rule. The Department remains committed to providing a 
responsible and balanced approach to address the concerns raised in 
litigation and elsewhere while enhancing roadless area values and 
characteristics. The Department believes that the petitioning 
opportunity in this final rule represents such a balanced approach.
    Management Requirements and the Status Quo: Some respondents felt 
that the proposed rule was not clear and thought that unless a Governor 
submitted a petition there would be no protections for inventoried 
roadless areas.
    Response: The base line management requirements for inventoried 
roadless areas are those that exist in currently approved land 
management plans. These plans, and required revisions to these plans, 
are developed with extensive public involvement and collaboration, 
using the best available local information about resource conditions, 
trends, and issues. It would be these management requirements that 
Governors could petition to adjust. If no petition was submitted, these 
management plan requirements would remain unchanged subject to 
amendment or revision under the National Forest Management Act (NFMA) 
planning procedures at 36 CFR part 219.
    Compliance with Executive Order 13175 and Finding of No ``Tribal 
Implications'': Some Tribal officials commented that the Forest Service 
failed to comply with Executive Order 13175 by not consulting and 
coordinating with Tribes prior to publication of the proposed rule. 
They stated that since consultation had taken place when the 2001 
roadless rule was developed, it should also have taken place with a 
rulemaking that proposed to replace the 2001 roadless rule. In 
addition, some Tribal officials felt that Tribes should be afforded the 
same petitioning opportunities as Governors.
    Response: The 2001 roadless rule established on-the-ground 
management prohibitions that actually superceded management 
requirements in land management plans. In that case, it was appropriate 
to seek advance consultation with Tribes. The State petitioning process 
does not propose any on-the-ground changes to existing management 
requirements. If a petition is accepted by the Secretary and State-
specific rulemaking is undertaken to adjust on-the-ground management 
requirements, consultation with Tribes will take place at that time.
    It is important to note that Congressional reviews of inventoried 
roadless areas for consideration as potential wilderness primarily has 
been conducted on a state-by-state basis for the past 25 years. In 
addition, the Department envisions that before the Secretary would 
approve a petition submitted by a Governor, that the petition would 
have to have been developed in collaboration with local governments, 
Tribes, stakeholders, and other interested parties.
    Volume of Public Comments and Support for the 2001 Roadless Rule: 
Many respondents discussed the volume of public comment received over 
the past 5 years in support of the 2001 roadless rule and that the 
proposed rule goes against the wishes of the American public.
    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 intended to serve as a 
scientifically valid survey process to determine public opinion. The 
emphasis in reviewing public comment is on the content of the comment 
rather than on the number of times a comment was received. The comment 
analysis process is intended to identify unique substantive comments 
relative to the proposal to facilitate their consideration in the 
decisionmaking process. 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.
    Burden to States and Management Responsibility: Some respondents, 
including several Governors, commented that the proposed rule would put 
an undue burden on the States since they do not have the resources to 
engage in this kind of a process. Other respondents felt that the 
Federal government was abandoning its responsibilities in managing 
inventoried roadless areas and disagreed with turning the 
responsibilities over to State government.
    Response: Nothing in the proposed or final rule transfers any 
responsibility for the management of federal lands to the States. These 
are federal lands administered by the USDA Forest Service, and will 
continue to be managed as such. Existing management requirements for 
inventoried roadless

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areas have been put in place by agency land management planning 
procedures and approved by Forest Service officials. If, after 
reviewing these existing management requirements in a collaborative 
process, a Governor submits a petition, as required by the final rule, 
that is accepted by the Secretary, a State-specific rulemaking process 
would be conducted by the Forest Service with the final decision 
reserved to the Secretary. This rulemaking process will include public 
notice and comment procedures and the appropriate level of 
environmental analysis.
    The Department envisions that Governors considering submitting a 
petition to the Secretary for State-specific rulemaking would request 
the Forest Service to provide the State with existing information and 
management requirements for their review. After collaborating with 
local and Tribal governments, stakeholders, and other interested 
parties, the Governor may or may not then decide to submit a petition. 
If a petition is submitted and accepted, the rulemaking process would 
be conducted by the Forest Service with the State playing a cooperating 
agency role in the environmental analysis. The Department does not feel 
that this process would pose an undue burden on a State and does not 
constitute an unfunded mandate.
    Local Decisionmaking in Land Management Planning Process: Some 
respondents felt that any rulemaking to establish management 
requirements for units of the National Forest System was inappropriate, 
and that these requirements should only be established through the 
National Forest Management Act (NFMA) land management planning process. 
Responses received from several States, in some cases supporting the 
proposed State-petitioning rule and in other cases opposing it, also 
indicated that it was their intent to work closely with the Forest 
Service as land management plans were revised to provide input on 
management requirements for inventoried roadless areas.
    Response: The Department believes that in most cases the land 
management planning process represents the best approach for addressing 
the challenges of natural resource management on units of the National 
Forest System. Land management plans are developed, amended, and 
revised using a collaborative process that considers the integrated 
management requirements of the entire unit and the role it plays in the 
surrounding area. Some State and local governments actually participate 
in the land management plan revision process as cooperating agencies 
and the Department encourages and supports this level of involvement. 
The Department also believes, however, that in some cases it is 
appropriate to allow other approaches, and that the National Forest 
Management Act (NFMA) and other statues provide the necessary legal 
authority to implement the final rule. This final rule provides an 
opportunity to take another approach allowing both national 
perspectives and community-level support to accomplish a long-term 
solution to roadless area conservation.
    Establishment of an Advisory Committee: Some respondents felt that 
an advisory committee was needed to assist in the implementation of the 
rule, and one group recommended a broader set of responsibilities for 
the advisory committee that would include the review of all proposed 
management activities in inventoried roadless areas and all management 
requirements in proposed plan revisions and amendments. Other 
respondents commented that a national advisory committee was not 
necessary. Some State responses included comments that such a committee 
would duplicate efforts the State would have gone through to develop a 
petition in an open public process, and that it would not be 
appropriate for such a committee to pass judgment on a State's 
petition.
    Response: The Department has decided that establishing a national 
advisory committee to provide the Secretary with advice and 
recommendations would be helpful in implementing this rule. The scope 
of the committee's duties would be to review each petition submitted in 
light of the rule requirements, and provide the Secretary with advice 
and recommendations on each petition, as well as on any subsequent 
State-specific rulemaking. The Department believes that a third-party 
review of petitions by an advisory committee composed of members 
representing national organizations with diverse points of view and 
knowledge of contemporary issues involving the conservation and 
management of inventoried roadless areas, would be very helpful to the 
Secretary.
    Local Government Participation: Several respondents commented that 
local governments should be a part of the petitioning process, and 
should also play a role in any environmental analysis conducted for a 
State-specific rulemaking effort.
    Response: The Department agrees that local governments should be 
included in any collaborative process a Governor conducts in 
preparation of submitting a petition. We envision a Governor involving 
all interested parties in such a process, including Tribal governments 
and adjacent States if some inventoried roadless areas happen to be 
located in more than one State. Any subsequent State-specific 
rulemaking undertaken by the Forest Service could also include local 
government participation in the environmental analysis required by that 
rulemaking effort.
    Adequacy of the 18-Month Timeframe to Submit a Petition: Some 
respondents felt that the 18-month timeframe to submit a petition was 
more than adequate. Others commented that more time was needed or that 
no time limits should be imposed since this would offer future 
Governors an opportunity to submit petitions. One Governor commented 
that the reason the State did not support the proposed rule was that 
they would rather work with the Forest Service through the land 
management planning process. The commenter stated that in the absence 
of management requirements established through rulemaking, the 
opportunity to adjust these requirements through subsequent plan 
revisions and amendments would still be available to Governors in the 
future. This Governor was concerned that establishing management 
requirements through rulemaking would just represent one Governor's 
perspective in one point in time. Several Governors and other 
respondents stated that there was no need for such a rule since 
Governors already have the right to petition for rulemaking.
    Response: Submitting a petition under this final rule would 
strictly be voluntary on the part of any State. The Department believes 
that 18 months is an adequate amount of time for a State to collaborate 
effectively with local and Tribal governments, stakeholders, and other 
interested parties to develop a proposal that would consider the full 
range of public input. While the petitioning opportunity afforded to 
Governors under this final rule would only be available for 18 months, 
the Department's general petitioning process for the approval, 
amendment, or repeal of rules (7 CFR 1.28) would remain available after 
expiration of the 18-month petitioning period. Management requirements 
established through the land management planning process would always 
be available for review and adjustment through subsequent plan 
revisions or amendments.
    Adjusting Existing Management Requirements for Inventoried Roadless 
Areas: Some respondents opposed the proposed rule because they agreed 
with the management requirements that were in place for specific NFS 
units and were

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concerned that these would be changed. One respondent stated that 
changing management requirements established through the land 
management planning process would be a breach of public trust. One 
group commented that the proposed petitioning process would conflict 
with the land management planning process; would only look at 
inventoried roadless areas instead of the entire NFS unit; and may 
reduce the perceived need by Governors, State agencies, and the public 
to participate in the land management planning process. One Governor 
commented that the State had just worked for many years with the Forest 
Service on a recent plan revision effort and did not want to have 
anything happen that would change that outcome. Other respondents felt 
that establishing or adjusting management requirements for inventoried 
roadless areas through rulemaking would make these requirements more 
permanent and also make them less likely to be changed in the future.
    Response: Management requirements established through the land 
management planning process represent the results of a collaborative 
process that included many groups and individuals, and also represent a 
balanced approach for the integrated management for that NFS unit. Not 
everyone necessarily agrees with every management requirement that is 
approved, however. The responsible official who approves a land 
management plan, plan revision, or plan amendment does so through an 
informed decisionmaking process that seeks, but does not always attain, 
consensus. In any process used to adjust existing management 
requirements, be it through a State-specific rulemaking process put in 
place with this final rule, or through future plan revisions or 
amendments, some individuals or groups will agree with the changes and 
some will not. In addition, since any State-specific rulemaking 
envisioned by the final rule will include public notice and comment 
procedures and appropriate National Environmental Policy Act (NEPA) 
environmental analysis procedures, the Secretary will be making an 
informed decision when adopting any final State-specific rule. There is 
no guarantee that the management requirements the Secretary adopts 
through a State-specific rulemaking effort will look exactly like those 
recommended and proposed in a petition submitted by a Governor.
    Relationship of State-specific Rules and Land Management Plans: 
Some respondents raised questions about the relationship of post-
petition rules and existing land management plans.
    Response: First, when a petition is accepted and rulemaking is 
directed, it is crucial to recognize that the subsequent rulemaking 
will be undertaken with full public participation. The Department will 
ensure that the same kinds of considerations that guide development of 
land management plans will be taken into account during such 
rulemakings.
    Second, the Department envisions that petitions and subsequent 
rulemakings may be far more flexible and creative than a simplistic 
prohibition or moratorium. The goal is to improve protection and 
accomplishment of management objectives, but there may be a broad range 
of reasonable alternative variations in context, procedures, duration, 
and structure as to how that goal is achieved. For example, an 
agreement to improve coordination by providing notice when actions will 
be taken within roadless lands on adjoining National Forest System and 
State Forests (whether done by memorandum of understanding or 
rulemaking) would not necessitate adjustment of land management plans. 
Where a rulemaking is undertaken that would alter management direction 
of land management plans, such a rule must be developed with site-
specific information and the same kinds of considerations that apply 
when amending land management plans. This represents a significant 
difference between this final rule and the approach taken in the 2001 
rulemaking. Finally, any rule established pursuant to this system will 
be subject to the Department's general petitioning process set out in 7 
CFR 1.28.
    The Petitioning Process and Public Input: Some respondents felt 
that unless they lived in the State where a petition was submitted to 
the Secretary and a subsequent State-specific rulemaking was undertaken 
that they would not be able to comment on any proposed changes to 
management requirements.
    Response: If the Secretary directs a State-specific rulemaking, a 
proposed rule would be published in the Federal Register for public 
review and comment. As is the case in all rulemaking, public responses 
will be evaluated, considered, and used to inform the decisionmaking 
process for any final rule developed. In addition, individual units of 
the National Forest System have Internet Web sites and mailing lists 
that will also provide notice to interested individuals, whether local 
or not.
    Criteria for Reviewing Petitions: Some comments were received 
requesting that the final rule include a specific standard or criteria 
that the Secretary will apply when reviewing petitions.
    Response: The Department believes this would not be a valuable 
addition. The Department's goal has been to design an improved system 
for protecting roadless areas. There is no single factor that can 
assess how to best accomplish this goal and no one criteria can be 
identified given the diverse circumstances that apply across the 
National Forest System. The Department believes that the overall design 
of the regulation and the required elements of the petition adequately 
reflect what will be considered. Ultimately, the Department will 
consider petitions within the context of Congress' charge that National 
Forest System lands be managed for the multiple use and sustained yield 
of the several goods and services and that due consideration shall be 
given to the relative values of the various resources in particular 
areas. The authority vested by Congress is broad, as is the discretion 
in how such authority is applied.
    Ongoing Management and the Petitioning Process: Some respondents 
sought clarification of how lands would be managed during review of a 
petition and how the petitioning process would operate in conjunction 
with ongoing land management plan revision efforts.
    Response: As noted in Sec.  294.14(a)(4), petitions must describe 
how the proposed changes ``differ from existing applicable land 
management plan(s) or policies related to inventoried roadless area 
management * * *.'' The Department wishes to be clear that its 
intention is that applicable land management plans and policies will 
govern during the pendency of a review of a petition and subsequent 
rulemaking. Further, the Department notes that the July 16, 2004, 
interim directive for the management of inventoried roadless areas (69 
FR 42648) will remain in place until January 16, 2006, and the Forest 
Service may renew the interim directive for an additional 18 months. 
Finally, it is imperative that land management must continue forward on 
a day-to-day basis, even in the midst of land management plan revisions 
and the petitioning process. The agency cannot simply stop making 
decisions. The petitioning process, like land management plan revision, 
must accommodate the fact that land management is an ongoing and 
dynamic process. Indeed, it is possible that some States will elect to 
pursue addressing shared concerns for inventoried roadless area 
management via the plan revision

[[Page 25659]]

process rather than the petitioning process.
    Adequate Protection of Inventoried Roadless Areas: Several 
respondents suggested that the absence of the court-voided roadless 
rule left inventoried roadless areas unprotected.
    Response: That assertion is not correct. The November 2000 final 
environmental impact statement (FEIS) for the roadless rule estimated a 
total of 58.5 million acres of inventoried roadless areas, with some 
percentage of those lands actually having been developed to at least 
some extent. The FEIS also identified that over 24 million of those 
acres were already ``off limits'' to road construction under existing 
forest plan management direction (along with another 42 million acres 
of National Forest System (NFS) lands that are ``off limits'' to road 
construction by Congressional designation). Additionally, the remaining 
inventoried roadless area acres were subject to the local forest plan 
forestwide and area-specific management direction. Finally, it should 
be noted that the agency issued an interim directive for the management 
of inventoried roadless areas in December of 2001 for 18 months, and 
reinstated it again in July of 2004 for another 18 months. This interim 
directive reserves to the Chief, except in specific circumstances that 
are generally consistent with the prohibition exceptions in the 
roadless rule, the authority to make decisions in inventoried roadless 
areas regarding: (1) Road construction or road reconstruction on any 
NFS unit until a forest-scale roads analysis is completed and 
incorporated into a forest plan, or a determination is made that an 
amendment is not necessary; and (2) timber harvesting on any NFS unit 
until a revision of a forest plan or adoption of a plan amendment that 
has considered the protection and management of inventoried roadless 
areas. Any suggestion that no protections exist for inventoried 
roadless areas is simply inaccurate.
    Roadless Areas on the Tongass National Forest: Some comments 
received indicate that there remains much interest and confusion 
regarding roadless areas on the Tongass National Forest.
    Response: As background, on June 10, 2003, a settlement agreement 
was reached in the State of Alaska v. USDA litigation. In that 
settlement, the Department agreed to propose an amendment to the 
roadless rule to temporarily withdraw the Tongass National Forest in 
Alaska from the provisions of the rule, as well as to issue an advance 
notice of proposed rulemaking to seek public comment on permanently 
withdrawing both the Tongass and the Chugach National Forests from the 
provisions of the roadless rule. On December 30, 2003, the Department 
adopted a final rule that temporarily withdrew the Tongass National 
Forest. Management of inventoried roadless areas on the Tongass is now 
governed by the existing forest plan. The roadless lands on the Tongass 
National Forest have been repeatedly studied and the relative values 
and resources associated with those lands are well appreciated and 
understood. Pursuant to the current forest plans for the Tongass and 
the Chugach National Forests, road construction will not occur on 
approximately 90 percent of roadless area lands and timber management 
will not occur on over 95 percent of roadless area lands. Under the 
approach established in this final rule, management of inventoried 
roadless areas on the Tongass will continue to be governed by the 
existing forest plan. This rule thus negates the need for the further 
Tongass-specific rulemaking anticipated by the 2003 rule.
    Petition's Compliance with Applicable Federal Law: Concerns were 
expressed that petitions might be submitted that do not conform to 
applicable Federal laws. Some respondents worried that petitions would 
seek to impose restrictions beyond those permissible under the law, 
while others expressed concern that petitions would seek to waive 
mandatory requirements. Several respondents were concerned that 
petitions would not respect existing rights to access private property.
    Response: The proposed regulation at Sec.  294.14(a)(4) required 
that petitions identify how the recommended management requirements 
differ from existing management direction while still complying with 
applicable laws and regulations. This requirement has been retained. 
Additionally, the Department is required, under these and any 
circumstances, to assure that rulemakings conform to all applicable 
Federal laws. In addition, the Department has added a new regulatory 
provision at Sec.  294.17(c) identifying that nothing in this rule, nor 
any rule promulgated pursuant to this petitioning process, shall 
prohibit the exercise of any valid existing rights.

Regulatory Certifications

Regulatory Impact

    This final rule has been reviewed under USDA procedures and 
Executive Order 12866 issued September 30, 1993 (E.O. 12866) on 
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 neither 
interfere with an action taken or planned by another agency. Finally, 
this final rule 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 rule raises novel 
legal or policy issues arising from legal mandates or the President's 
priorities, it has been designated as significant and, therefore, has 
been reviewed by the Office of Management and Budget under E.O. 12866.
    Moreover, this final 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.). It 
has been determined that this action will not have a significant 
economic impact on a substantial number of small business entities as 
defined by the Regulatory Flexibility Act. Therefore, a regulatory 
flexibility analysis is not required for this final rule. This 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.
    A cost-benefit analysis has been prepared for this final rule that 
incorporates by reference the November 2000 detailed regulatory impact 
analysis prepared for the roadless rule promulgated in January of 2001. 
A quantitative analysis of costs and benefits associated with this 
final rule is not feasible, however, because there is no experience 
with implementing the roadless rule, and thus there are no data 
available. In addition, many of the effects of this final rule are not 
readily quantifiable in financial terms because they would be based on 
future State-specific rulemaking. For these reasons, the cost-benefit 
analysis prepared for this final rule focuses on the qualitative 
aspects of implementing a State petition process. Detailed quantitative 
analysis would be conducted in the future if and when any State-
specific rulemaking proposals are made.
    The range of potential costs and benefits of this final rule has 
been

[[Page 25660]]

estimated by comparing selected effects of managing 58.5 million acres 
of inventoried roadless areas following the prohibitions for road 
construction and timber management activities in the 2001 roadless 
rule, with managing these same areas in accordance with the existing 
management requirements contained in land management plans. 
Approximately 25 percent of the total acres of inventoried roadless 
areas are in the State of Alaska. About 72 percent of the total is in 
the 11 Western States of Montana, Idaho, Wyoming, Washington, Utah, 
Oregon, New Mexico, Nevada, Colorado, California, and Arizona. The 
remaining 3 percent is scattered among the remaining 26 States and 
Puerto Rico. While it is currently unknown which States may choose to 
submit a petition for State-specific rulemaking, the Department assumes 
that all 38 States and Puerto Rico will do so in the first year the 
rule is implemented. The costs to the Forest Service and the Department 
to evaluate and make a determination on a petition are estimated to 
range from $75,000 to $150,000. Costs could range from $25,000 to 
$100,000 for an individual State submitting a petition. Total costs to 
the States for 39 petitions would range from $975,000 to $3,900,000; 
and total costs to the Government would range from $2,925,000 to 
$5,850,000. The total cost to the Government includes the costs 
associated with an advisory committee that will be established to 
assist the Secretary with implementation of this rule. Total costs of 
the rule are, therefore, estimated to range from $3,900,000 to 
$9,750,000.

Environmental Impacts

    The Department prepared a draft environmental impact statement 
(EIS) (May 2000) and a final EIS (November 2000) in association with 
promulgation of the 2001 roadless rule. The DEIS and FEIS examined in 
detail the no action alternative in which no rule prohibiting 
activities in inventoried roadless areas would be issued, and 
management of these areas would be governed by existing land management 
plans. The environmental impacts associated with not implementing the 
enjoined 2001 roadless rule are essentially those disclosed and 
discussed for the no action alternative displayed in the FEIS. The FEIS 
is available in the document archives section of the Roadless Area 
Conservation World Wide Web/Internet site at http://www.roadless.fs.fed.us.
    This final rule has been reviewed under the National Environmental 
Policy Act (NEPA), 42 U.S.C. 4321-4370f. The Department's publication 
of the proposed rule included notice of its expectation that the final 
rule would be designated for categorical exclusion.
    Categorical exclusions (CEs) are an integral part of the NEPA 
scheme and in no way evade compliance with NEPA. In 1983, the Council 
on Environmental Quality (CEQ) explained that the use of CEs avoids 
unnecessary documentation of minor environmental effects in 
environmental assessments (EAs) and allows agencies to focus their 
environmental review effort on the major actions that will have a 
significant effect on the environment and which are the primary focus 
of NEPA (see 48 FR 34, 265-66 (July 28, 1983); see also 40 CFR 
1500.4(p) (noting that establishment and use of CEs can reduce 
excessive paperwork by eliminating unnecessary preparation of EAs). CEQ 
regulations do not require that an agency provide for public comment 
when it approves an action under categorical exclusion (see 40 CFR part 
1503).
    This final rule establishes administrative procedures to allow a 
Governor to petition the Secretary of Agriculture to undertake future 
rulemaking for the management of inventoried roadless areas within a 
specific State. Thus, subsequent State-specific inventoried roadless 
area rulemaking may be proposed in the future, at which time, the 
Forest Service would fully consider the environmental effects of that 
rulemaking in compliance with National Environmental Policy Act (NEPA) 
procedures. This final rule is merely procedural in nature and scope 
and, as such, has no direct, indirect, or cumulative effect on the 
environment. Section 31.1b of Forest Service Handbook (FSH) 1909.15 (57 
FR 43208; September 18, 1992) excludes from documentation in an 
environmental assessment or impact statement ``rules, regulations, or 
policies to establish Service-wide administrative procedures, program 
processes, or instructions.''
    To be clear, this regulation neither prohibits nor requires any 
action that would fund, authorize, or carry out activities on National 
Forest System (NFS) lands. As such, the regulation will not force 
specific identifiable resource outcomes on NFS lands, and thus, will 
not have any discernable effects on the various classes of resources 
listed in the agency's NEPA Policy and Procedures that can constitute 
extraordinary circumstances. Effectively, the final regulation, in and 
of itself, is environmentally neutral and constitutes ``no effect'' to 
the environment. Thus, the Department's assessment is that this final 
rule falls within FSH 1909.15, Section 31.1b and no extraordinary 
circumstances exist which would require preparation of an environmental 
assessment or environmental impact statement.

Energy Effects

    This final rule has been reviewed under Executive Order 13211, 
issued May 18, 2001 (E.O. 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.

Controlling Paperwork Burdens on the Public

    Section 294.14 of this final rule sets out what must be included in 
a petition submitted to the Secretary requesting State-specific 
rulemaking. The requirements in this section constitute an information 
collection as defined by the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.) and implementing regulations at 5 CFR part 1320. These 
information collection requirements have been reviewed and approved by 
the Office of Management and Budget (OMB). The OMB control number is 
displayed in Sec.  294.14, paragraph (b).

Government Paperwork Elimination Act Compliance

    The Department 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.

Federalism

    The Department has considered this final rule under the 
requirements of Executive Order 13132 issued August 4, 1999 (E.O. 
13132), ``Federalism.'' The Department has made an assessment that the 
final rule conforms with the Federalism principles set out in this 
Executive order; would not impose any significant compliance costs on 
the States; and would not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, nor on the distribution of power and responsibilities among the 
various levels of government. Therefore, the Department concludes that 
the final rule does not have Federalism implications.

Consultation With Indian Tribal Governments

    Pursuant to Executive Order 13175 of November 6, 2000, 
``Consultation and Coordination with Indian Tribal

[[Page 25661]]

Governments,'' the Department has assessed the impact of this final 
rule on Indian Tribal governments and has determined that the final 
rule does not significantly or uniquely affect communities of Indian 
Tribal governments. The final rule deals with the establishment of 
administrative procedures only and does not make any recommendations 
for changes to on-the-ground management of any lands in the National 
Forest System. Once a State-specific rulemaking is proposed to 
establish or adjust management requirements for inventoried roadless 
areas, appropriate consultation and coordination with Indian Trial 
Governments will take place at that time.

No Takings Implications

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 12630, issued March 15, 1988, 
and it has been determined that the rule does not pose the risk of a 
taking of private property as the final rule is limited to the 
establishment of administrative procedures.

Civil Justice Reform

    This final rule has been reviewed under Executive Order 12988 of 
February 7, 1996, ``Civil Justice Reform.'' The Department has not 
identified any State or local laws or regulations that are in conflict 
with this regulation or that would impede full implementation of this 
final rule. After adoption of this final rule: (1) All State and local 
laws or regulations that conflict with this rule or that would impede 
full implementation would be preempted; (2) no retroactive effect would 
be given to this final rule; and (3) the 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), 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 governments or anyone in the 
private sector. Therefore, a statement under section 202 of the act is 
not required.

List of Subjects in 36 CFR Part 294

    National Forests, Navigation (air), Recreation and recreation 
areas, Wilderness areas, Recordkeeping and reporting requirements.


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

PART 294--SPECIAL AREAS

0
1. Subpart B is revised to read as follows:
Subpart B--State Petitions for Inventoried Roadless Area Management
Sec.
294.10 Purpose.
294.11 Definition.
294.12 State petitions.
294.13 Petition process.
294.14 Petition contents.
294.15 Advisory committee review.
294.16 State-specific rulemaking.
294.17 Scope and applicability.
294.18 Severability.

Subpart B--State Petitions for Inventoried Roadless Area Management

    Authority: 16 U.S.C. 472, 529, 551, 1608, 1613; 23 U.S.C. 201, 
205.


Sec.  294.10  Purpose.

    The purpose of these administrative procedures is to set forth a 
process for State-specific rulemaking to address the management of 
inventoried roadless areas in areas where the Secretary determines that 
regulatory direction is appropriate based on a petition from the 
affected Governor.


Sec.  294.11  Definition.

    Inventoried roadless areas--Areas identified in a set of 
inventoried roadless area maps, contained in the Forest Service 
Roadless Area Conservation, Final Environmental Impact Statement, 
Volume 2, dated November 2000, and any subsequent update or revision of 
those maps through the land management planning process.


Sec.  294.12  State petitions.

    The Governor of any State or territory that contains National 
Forest System lands may petition the Secretary of Agriculture to 
promulgate regulations establishing management requirements for all or 
any portion of National Forest System inventoried roadless areas within 
that State or territory. Any such petition must be submitted to the 
Secretary of Agriculture not later than November 13, 2006.


Sec.  294.13  Petition process.

    (a) Review and consideration of petitions made pursuant to Sec.  
294.12 shall be accomplished as follows:
    (1) Review. The Secretary shall review petitions and may request 
additional information from a petitioner before deciding whether to 
accept the petition. If the Secretary requests additional information 
from a petitioner, the petition will be considered complete when the 
petitioner provides the additional information.
    (2) Disposition. The Secretary or the Secretary's designee shall 
respond to the petition within 180 days of receipt of a completed 
petition. The response shall accept or decline the petition to initiate 
a State-specific rulemaking.


Sec.  294.14  Petition contents.

    (a) Any petition made pursuant to Sec.  294.12 shall provide the 
following:
    (1) The location and description of the particular lands for which 
the petition is being made, including maps and other appropriate 
resources in sufficient detail to enable consideration of the petition;
    (2) The particular management requirements recommended for the 
lands and any exceptions;
    (3) The identification of the circumstances and needs intended to 
be addressed by the petition, including conserving roadless area values 
and characteristics; protecting human health and safety; reducing 
hazardous fuels and restoring essential wildlife habitats; maintaining 
existing facilities such as dams, or providing reasonable access to 
public and private property or public and privately owned facilities; 
and technical corrections to existing maps such as boundary adjustments 
to remove existing roaded areas;
    (4) A description of how the recommended management requirements 
identified in paragraph (a)(2) of this section differ from existing 
applicable land management plan(s) or policies related to inventoried 
roadless area management, and how they would comply with applicable 
laws and regulations;
    (5) A description of how the recommended management requirements 
identified in paragraph (a)(2) of this section compare to existing 
State or local land conservation policies and direction set forth in 
any applicable State or local land and resource management plan(s);
    (6) A description of how the recommended management requirements 
identified in paragraph (a)(2) of this section would affect the fish 
and wildlife that utilize the particular lands in question and their 
habitat;
    (7) A description of any public involvement efforts undertaken by 
the petitioner during development of the

[[Page 25662]]

petition, including efforts to engage Tribal and local governments, and 
persons with expertise in fish and wildlife biology, fish and wildlife 
management, forest management, outdoor recreation, and other important 
disciplines; and
    (8) A commitment by the petitioner to participate as a cooperating 
agency in any environmental analysis for a rulemaking process.
    (b) The petition contents described in paragraphs (a)(1) through 
(a)(8) of this section constitute an information collection requirement 
as defined by 5 CFR part 1320 and have been assigned Office of 
Management and Budget control number 0596-0178.


Sec.  294.15  Advisory committee review.

    A National Advisory Committee shall review each petition and 
provide advice and recommendations to the Secretary within 90 days of 
receipt of a completed petition. The committee will also provide advice 
and recommendations to the Secretary on any subsequent State-specific 
rulemakings.


Sec.  294.16  State-specific rulemaking.

    If the Secretary or the Secretary's designee accepts a petition, 
the Forest Service shall be directed to initiate notice and comment 
rulemaking to address the petition. The Forest Service shall coordinate 
development of the proposed rule with the petitioner. The Secretary or 
the Secretary's designee shall make the final decision for any State-
specific inventoried roadless area management rule.


Sec.  294.17  Scope and applicability.

    (a) The provisions of this subpart apply exclusively to the 
development and review of petitions made pursuant to this subpart.
    (b) Nothing in this subpart shall be construed to provide for the 
transfer to, or administration by, a State or local authority of any 
Federally owned lands.
    (c) Nothing in this subpart, nor any regulation promulgated 
pursuant to this petitioning process, shall prohibit the exercise of 
any valid existing rights.


Sec.  294.18  Severability.

    In the event that any provision, section, subsection, or phrase of 
this subpart is determined by a court or body of competent jurisdiction 
to be invalid, unconstitutional, or unenforceable, the remaining 
provisions, sections, subsections, or phrases shall remain in full 
force and effect.

    Dated: May 5, 2005.
Mark Rey,
Under Secretary, Natural Resources and Environment.
[FR Doc. 05-9349 Filed 5-12-05; 8:45 am]
BILLING CODE 3410-11-P