[Federal Register Volume 85, Number 210 (Thursday, October 29, 2020)]
[Rules and Regulations]
[Pages 68688-68703]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-23984]
[[Page 68687]]
Vol. 85
Thursday,
No. 210
October 29, 2020
Part III
Department of Agriculture
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Forest Service
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36 CFR Part 294
Special Areas; Roadless Area Conservation; National Forest System Lands
in Alaska; Final Rule
Federal Register / Vol. 85 , No. 210 / Thursday, October 29, 2020 /
Rules and Regulations
[[Page 68688]]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 294
RIN 0596-AD37
Special Areas; Roadless Area Conservation; National Forest System
Lands in Alaska
AGENCY: Forest Service, Agriculture Department (USDA).
ACTION: Final rule and record of decision.
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SUMMARY: The U.S. Department of Agriculture (USDA or Department), is
adopting a final rule to exempt the Tongass National Forest from the
2001 Roadless Area Conservation Rule (2001 Roadless Rule), which
prohibits timber harvest and road construction/reconstruction with
limited exceptions within designated inventoried roadless areas. In
addition, the rule directs an administrative change to the timber
suitability of lands deemed unsuitable, solely due to the application
of the 2001 Roadless Rule, in the 2016 Tongass National Forest Land and
Resource Management Plan (Tongass Forest Plan or Forest Plan), Appendix
A. The rule does not authorize any ground-disturbing activities, nor
does it increase the overall amount of timber harvested from the
Tongass National Forest.
DATES: This rule is effective October 29, 2020.
FOR FURTHER INFORMATION CONTACT: Ken Tu, Interdisciplinary Team Leader,
at 303-275-5156 or [email protected]. Individuals using
telecommunication devices for the deaf (TDD) may call the Federal
Information Relay Services at 1-800-877-8339 between 8 a.m. and 8 p.m.
Eastern Time, Monday through Friday.
SUPPLEMENTARY INFORMATION: The USDA Forest Service manages
approximately 21.9 million acres of federal lands in Alaska, which are
distributed across two national forests (Tongass and Chugach National
Forests). These national forests are characterized by a diverse array
of landscapes, ecosystems, natural resources, and land use activities.
In January 2001, the USDA promulgated a discretionary rulemaking
establishing prohibitions on timber harvesting and road construction on
approximately 58 million acres of the National Forest System (NFS),
including over 14 million acres within Alaska. The 2001 Roadless Rule
has been the subject of litigation for almost two decades. Initially,
the 2001 Roadless Rule was challenged in multiple lawsuits, including a
suit brought by the State of Alaska. Another suit filed by the State of
Alaska in 2015 is still ongoing. Citing various concerns, including
damage to the economic and social fabric of southeast Alaska and
compliance with the Alaska National Interest Lands Conservation Act
(ANILCA) and Tongass Timber Reform Act (TTRA), the State of Alaska
petitioned the USDA to exempt the Tongass National Forest from the 2001
Roadless Rule.
Having carefully considered the petition, public comments on the
proposed rule, and a wide range of alternative approaches to the 2001
Roadless Rule, the USDA is granting the State of Alaska's request to
exempt the Tongass National Forest from the 2001 Roadless Rule. The
Tongass Forest Plan along with other conservation measures, will assure
protection allowing roadless area values to prevail on the Tongass
National Forest while offering additional flexibility to achieve other
multiple-use benefits.
Background
On January 12, 2001, the USDA promulgated the Roadless Area
Conservation Rule (hereafter 2001 Roadless Rule) (66 FR 3244),
establishing nationwide prohibitions on timber harvest, road
construction, and road reconstruction within inventoried roadless areas
(IRAs) with certain limited exceptions. The intent of the 2001 Roadless
Rule is to provide lasting protection for IRAs within the NFS in the
context of multiple-use land management. Based on the State of Alaska's
Roadless Rule Petition (described below) and a review of public
comment, the USDA analyzed rulemaking alternatives addressing whether
and how the national prohibitions on timber harvesting, road
construction, and road reconstruction should apply on the Tongass
National Forest.
In 2001, the State of Alaska filed a lawsuit challenging the USDA's
promulgation of the 2001 Roadless Rule and its application in Alaska.
State of Alaska v. USDA, A01-039 CV (JKS) (D. Alaska). The USDA and the
State of Alaska reached a settlement in 2003, and the USDA subsequently
issued a rule temporarily exempting the Tongass National Forest from
the 2001 Roadless Rule. In 2011, a Federal district court set aside the
Tongass Exemption Rule and reinstated, with clarifying instructions,
the 2001 Roadless Rule on the Tongass National Forest. The district
court's ruling was initially reversed by a three-judge panel of the
Ninth Circuit but was ultimately upheld in a 6-5 en banc ruling in
2015. Consequently, the 2001 Roadless Rule (as provided for in the
district court's Judgment) remains in effect in Alaska and the Forest
Service continues to apply the 2001 Roadless Rule to both the Tongass
and Chugach National Forests.
Currently there are over 21.9 million acres of NFS lands within the
State of Alaska, of which approximately 14.7 million acres (67%) are
designated IRAs as defined by the 2001 Roadless Rule, including both
the Tongass and Chugach National Forests. The Tongass National Forest
is approximately 16.7 million acres of which approximately 9.3 million
(55%) acres are designated IRAs. The Alaska Roadless Rule focuses on
the Tongass National Forest only and does not apply to the Chugach
National Forest.
State of Alaska Petition
In January 2018, then-Commissioner of the Department of Natural
Resources for the State of Alaska, Andrew Mack submitted a petition on
behalf of the State of Alaska to Secretary of Agriculture Sonny Perdue
pursuant to the Administrative Procedure Act (APA). The petition
requested USDA consider creation of a state-specific rule to exempt the
Tongass National Forest from the 2001 Roadless Rule and conduct a
forest plan revision for the Tongass National Forest. In June 2018, the
Secretary of Agriculture accepted the petition and agreed to review the
State's concerns on roadless area management and economic development
opportunities in southeast Alaska through a rulemaking process. The
Secretary directed the Forest Service to begin working with
representatives from the State of Alaska concerning a state-specific
roadless rule. However, the Secretary did not commit to the State's
request for a forest plan revision. On August 2, 2018, the State of
Alaska and the USDA Forest Service signed a memorandum of understanding
concerning the development of a state-specific rule. The Forest Service
initiated its environmental analysis process with the publication in
the Federal Register of a Notice of Intent (NOI) to prepare an
environmental impact statement (EIS) on August 30, 2018 (83 FR 44252).
On September 6, 2018, Governor Walker issued Administrative Order
299 to establish the Alaska Roadless Rule Citizen Advisory Committee
(the committee) to provide an opportunity for Alaskans to advise the
State of Alaska on the future management of Tongass National Forest
roadless areas. The committee was comprised of 13 members, appointed by
Governor
[[Page 68689]]
Walker, intended to represent a diversity of perspectives, including
Alaska Native tribes and corporations, fishing, timber, conservation,
tourism, utilities, mining, transportation, local government, and the
Alaska Division of Forestry. The committee's specific task was to
present a written report on the rulemaking process to the Governor and
State Forester, which included options for a state-specific roadless
rule. The committee met for three in-person meetings during the fall of
2018 (October 2-3 in Juneau; October 24-26 in Ketchikan; and November
6-8 in Sitka). Meetings were open to the public and each meeting
included opportunity for public comment. The committee's report was
submitted to the Governor and State Forester during late November 2018,
and recommendations from the committee informed the State of Alaska
input, as a cooperating agency, to the Forest Service in the
development of the alternatives and comments on the Draft Environmental
Impact Statement (DEIS).
On October 17, 2019, the USDA published a notice of proposed
rulemaking to exempt the Tongass National Forest from the 2001 Roadless
Rule (84 FR 55522). The Office of Federal Activities of the U.S.
Environmental Protection Agency published a Notice of Availability
(NOA) for the DEIS in the Federal Register on October 18, 2019 (84 FR
55952), with corrected end of comment period published on October 25,
2019 (84 FR 57417).
Consideration of the State of Alaska's Petition
In response to the State of Alaska's petition for rulemaking, the
USDA has sought a long-term, durable approach to roadless area
management that accommodates the unique biological, social, and
economic situation found in and around the Tongass National Forest. The
Tongass is unique from other national forests with respect to size,
percentage of IRAs, number of communities dependent on federal lands
(the Tongass comprises almost 80% of southeast Alaska and supports 32
communities), and Alaska and Tongass-specific statutory considerations
(e.g., ANILCA, TTRA).
The USDA and Forest Service believe that both roadless area
conservation and other multiple-use values with important local socio-
economic consequences are meaningfully addressed through local and
regional forest planning on the Tongass, without the 2001 Roadless Rule
prohibitions on timber harvest and road construction/reconstruction.
Decision
The USDA hereby promulgates a regulation exempting the Tongass
National Forest from the 2001 Roadless Rule as described in Alternative
6 of the Rulemaking for Alaska Roadless Areas Final Environmental
Impact Statement (FEIS) (USDA Forest Service, 2020). This decision is
not subject to Forest Service administrative review regulations, which
allow the public to administratively challenge certain agency
decisions. In addition, the final rule directs the Tongass Forest
Supervisor to issue a notice of an administrative change pursuant to 36
CFR 219.13(c) to the timber suitability determination as described in
Appendix A of the Forest Plan. The final regulatory text differs
slightly from the text published with the FEIS, reflecting nontechnical
changes made to conform to the Office of Federal Register's guidelines.
Alternatives Considered
In addition to Alternative 6, the selected alternative, the FEIS
analyzes five other alternatives for managing roadless areas on the
Tongass National Forest. Alternative 1 is the no action alternative and
would result in the continued implementation of the 2001 Roadless Rule
as prescribed in the Alaska District Court's Judgement. Alternative 2
provides limited additional timber harvest opportunity while maximizing
roadless area designations. It removes approximately 142,000 acres from
roadless designation that have been substantially altered by prior road
construction or timber harvest generally conducted during periods of
time the Tongass National Forest was exempted from the 2001 Roadless
Rule. These substantially altered areas are generally known as ``roaded
roadless'' acres, but include additional areas considered to be
substantially altered. Alternative 2 also adds 110,000 acres as Alaska
Roadless Areas. Following an approach similar to that taken for the
other two State-specific roadless rules, Colorado and Idaho, the FEIS
uses the term Alaska Roadless Areas to refer to the areas in which the
Alaska Roadless Rule would apply in Alternatives 2 through 5.
Alternative 3 would increase the available land base from which
timber harvest opportunities could occur by making timber harvest, road
construction, and road reconstruction permissible in areas where
roadless characteristics have already been substantially altered and
areas immediately adjacent to existing roads and past harvest areas.
Adjacent areas are considered to be the logical extensions of the
existing road and/or harvest systems, which would remove approximately
401,000 acres from the roadless classification system. The adjacent
areas represent the most likely locations where future timber harvest
could occur and have the least environmental impacts to overall
roadless characteristics while providing for additional timber harvest
opportunities.
Alternative 3 also establishes a Community Priority category which
allows for small-scale timber harvest and associated road construction
and reconstruction. In addition, it allows for infrastructure
development to connect and support local communities, recreation
opportunities, and traditional Alaska Native cultural uses. Alternative
3 includes the Watershed Priority category, which is more restrictive
than the 2001 Roadless Rule, and applied to approximately 3.26 million
acres primarily identified in the Forest Plan as the Tongass 77
Watersheds and The Nature Conservancy/Audubon Conservation Priority
Areas (T77 and The Nature Conservancy/Audubon Conservation Areas) and
high-priority sockeye salmon watersheds. Approximately 90% of those
3.26 million acres fall within roadless area boundaries identified in
Alternative 3. To provide heightened balance and integrity of watershed
protections and establish management continuity across these high-
priority watersheds, Alternative 3 would also include a prohibition on
old-growth timber harvesting on the portion of the T77 and The Nature
Conservancy/Audubon Conservation Areas that extend beyond roadless
areas boundaries established by Alternative 3. The remaining 4,595,000
acres of Alaska Roadless Areas in Alternative 3 would be managed under
a roadless management category called Roadless Priority, which is
similar to the 2001 Roadless Rule but less restrictive and addresses
Alaska-specific concerns for infrastructure development to connect and
support local communities and access to renewable energy and leasable
minerals.
In addition to roaded roadless and adjacent acres being removed
from the roadless classification system, approximately 854,000 acres
designated as land use designation (LUD) II areas would be removed from
the roadless classification system in Alternative 3. LUD II areas are
statutory land use designations managed in a roadless state to retain
their wildland character as defined in the TTRA (Pub. L. 101-626, Title
II, Section 201) and the National Defense Authorization Act for Fiscal
[[Page 68690]]
Year 2015 (Pub. L. 113-291, 128 Stat. 3729, Section 3720(f)). These
areas are proposed for removal from regulatory roadless classification
because having two layers of protection (statutory and regulatory
direction) that are substantially similar but slightly different does
not make a meaningful difference to the level of conservation provided
and can create confusion for land managers, stakeholder groups, and the
public. Removal of the LUD II areas from regulatory roadless
classification is an attempt to eliminate that confusion while
remaining consistent with the congressionally established management
regime for the LUD II areas. The statutory direction managing in a
roadless state for wildland character within LUD II areas would remain
in effect regardless of which alternative is selected.
Alternative 4 provides additional available land base from which
timber harvest opportunities could occur while maintaining roadless
designations for areas defined in the Tongass Forest Plan as Scenic
Viewsheds, T77 Watersheds, and The Nature Conservancy/Audubon
Conservation Priority Areas. Additional timber harvest opportunities
are provided by removing approximately 401,000 acres of roaded roadless
areas and adjacent extensions, as described in Alternative 3, from
roadless classification. In addition, timber harvest opportunities are
provided by managing approximately 757,000 acres of Timber Production
and Modified Landscape LUDs, as defined in the Tongass Forest Plan, in
a roadless management category called Timber Priority, which allows for
timber harvest, road construction, and road reconstruction.
Alternative 4 designates approximately 7,000 acres as Alaska
Roadless Areas, which were statutorily designated as LUD II areas, but
not included in the 2001 roadless inventory. These 7,000 acres combined
with the LUD II areas included in the 2001 roadless inventory total
854,000 acres that would be designated as roadless with regulatory
direction mirroring the statutory direction.
The remaining 7,363,000 acres of Alaska Roadless Areas in
Alternative 4 would be managed as Roadless Priority, which is similar
to the 2001 Roadless Rule, but less restrictive and addresses Alaska-
specific concerns for infrastructure development to connect and support
local communities and access to renewable energy and leasable minerals.
Alternative 5 maximizes the land base from which timber harvest
opportunities could occur by removing 2.32 million acres from roadless
area designation. Taken together, the six alternatives represent the
spectrum of management regimes identified to the Forest Service through
public comments, public meetings, tribal and Alaska Native corporation
consultations, and cooperating agency input.
The table below displays the acreage changes from the 2001 Roadless
Rule to acreages that would be designated under each of the six
alternatives displayed in the FEIS.
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Alternatives
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1 2 3 * 4 5 6 Final rule
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Total Roadless Acres.................................... 9,368,000 9,336,000 8,224,000 8,975,000 7,047,000 0
Roadless Acres Removed.................................. 0 142,000 1,252,000 401,000 2,321,000 9,368,000
Roadless Acres Added.................................... 0 110,000 107,000 7,000 0 0
Net Acre Change **...................................... 0 -32,000 -1,144,000 -394,000 -2,321,000 -9,368,000
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* Alternative 3 has less total areas designated as roadless than Alternative 4 due to 854,000 of LUD II areas removed but they are still managed for
wildland character based on statutory direction, hence Alternative 3 is more restrictive than Alternative 4.
** Numbers may not appear to sum correctly due to rounding.
Environmentally Preferable Alternative
The environmentally preferable alternative is the alternative that
best promotes the national environmental policy as provided by Section
101 of the National Environmental Policy Act (NEPA), 42 U.S.C. 4331. In
application, the environmentally preferable alternative causes the
least damage to the biological and physical environment. It also best
protects, preserves, and enhances historic, cultural, and natural
resources. It is the alternative that achieves the widest range of
beneficial uses of the environment without degradation, risk to health
and safety, or other undesirable or unintended consequences.
Alternative 2 is the environmentally preferable alternative. While
it represents a slight decrease (approximately 32,000 acres) in total
acres to be managed as Alaska roadless areas, all the acres designated
as Alaska Roadless Areas in Alternative 2 are undeveloped at this time.
Alternative 1 (the 2001 Roadless Rule) includes more total roadless
acres; however, approximately 142,000 acres have been roaded,
harvested, or significantly altered and those lands no longer retain
the roadless characteristics and values the 2001 Roadless Rule is
intended to conserve. In addition, approximately 110,000 acres of
undeveloped land not included in the 2001 Roadless Rule were designated
as Alaska Roadless Areas. Alternative 2 limits timber harvesting, road
construction, and road reconstruction on the most undeveloped roadless
acres of all the alternatives considered. While the Roadless Priority
management category assigned to approximately 5.2 million acres in
Alternative 2 includes more exceptions than Alternative 1, the
Watershed Priority management category, which is more restrictive than
the 2001 Roadless Rule, is applied to approximately 3.3 million acres
in Alternative 2. For all these reasons, Alternative 2 is the
alternative that best protects, preserves, and enhances roadless
characteristics and values on the Tongass National Forest.
Decision Rationale and Important Considerations
On July 12, 2001, the 2001 Roadless Rule was promulgated. Views on
applying roadless restrictions on the Tongass National Forest changed
dramatically over the course of that rulemaking, and since. Originally,
the USDA's proposed rule sought to exclude the Tongass from any
roadless restrictions while promising to revisit the question in five
years. Seven months later, the USDA's Final EIS (FEIS) instead
identified a preferred alternative to apply the roadless prohibitions
after a five-year delay. A mere month later, the final Record of
Decision (ROD) instead elected to apply the regulation's roadless
prohibitions immediately upon the effective date of the rule.
In 2003, USDA settled litigation with the State of Alaska
challenging the promulgation of the 2001 Roadless Rule. The USDA
proposed and finalized a rule temporarily exempting the Tongass
[[Page 68691]]
National Forest from operation of the 2001 Roadless Rule (e.g., Tongass
Exemption Rule--68 FR 75136). However, the Tongass Exemption Rule
itself was judicially set aside in 2011, and the 2001 Roadless Rule was
reinstated under the terms set forth in the final judgment of the U.S.
District Court for the District of Alaska. Since that time, no further
regulatory action regarding this matter has taken place, and the 2001
Roadless Rule remains in effect as to the Tongass National Forest.
Considerable congressional interest has resulted in the
introduction of competing legislative bills designed to alternatively
codify or strike down the operation of the 2001 Roadless Rule, in whole
or in part, since the rule was promulgated. These legislative proposals
have included attempts to legislate an outcome for the rule's
application to the Tongass National Forest, but none of these bills
have been enacted into law.
Combined with the complex, and sometimes even conflicting, judicial
rulings applicable to the 2001 Roadless Rule itself, the recent history
of roadless management on the Tongass National Forest demonstrates that
while differences in opinion seem inevitable, a wide variety of
approaches are available for roadless area management. Roadless area
management, like all multiple-use land management, is fundamentally an
exercise in discretion and policy judgment concerning the best use of
the NFS lands and resources, informed by the underlying facts and
reasonable projections of possible social, economic, and environmental
consequences.
While the Tongass National Forest has endured debate regarding land
and natural resource management for decades, there are common
agreements. Tongass National Forest roadless areas are vast and
valuable. The Tongass National Forest contributes ecological values
locally, regionally, nationally, and internationally. Local communities
are reliant on or impacted by federal land management decisions, and
there is not always consensus, at the local level, on land management
priorities. All acknowledge that there are diverse opinions and views
concerning whether and how road construction and timber harvesting
should be restricted. To be sure, the USDA has received many comments
that highlight differences in views concerning factual matters and
methodologies, as well as general opinions and preferences. The USDA is
grateful for the attention and interest that communities, stakeholder
groups, and individuals have devoted to helping shape and improve the
FEIS for decision-making purposes.
Importantly, the final rule's change in policy does not
fundamentally rest on new factual findings contradicting the factual
findings the USDA made in its 2001 Roadless Rule. Rather, the policy
judgments implemented through this new rulemaking are ultimately the
result of assigning different value or weight to the various multiple
uses. Although many circumstances have changed since 2001, such as the
size and economic role of the timber industry in southeast Alaska, the
nature and role of southeast Alaska's roadless areas have not changed.
The currently-designated roadless areas continue to provide large
tracts of undeveloped land for roadless values, watershed protection,
and ecosystem health even while the Tongass National Forest was
exempted from the 2001 Roadless Rule from 2001 to 2011.
The FEIS carefully analyzes the environmental consequences of both
continued operation of and exemption from the 2001 Roadless Rule. That
analysis reveals only a modest difference in potential environmental
consequences between those (or any) alternatives. For example, although
9.4 million acres would no longer be subject to the 2001 Roadless Rule
with the final rule, only 186,000 more acres would become available for
timber production, and road construction is estimated to increase
Tongass-wide from 994 miles in the no-action alternative to 1,043 miles
in the final rule over the next 100 years. As many commenters have
pointed out, the results of this analysis are attributable to the fact
the 2001 Roadless Rule is not the primary limiting factor for Tongass
National Forest timber harvest, and that the level of timber harvest
defined in the Forest Plan has a greater influence. Similarly, the 2001
Roadless Rule would not seem to be the impediment to certain vital
infrastructure and energy projects as claimed by some, given that some
infrastructure and energy development is allowed under various statutes
and/or the 2001 Roadless Rule.
Under the current Administration, the USDA has refocused policies,
programs, and resources on increasing rural economic opportunity,
decreasing federal regulation, and streamlining federal government
services. The USDA concludes in light of the FEIS that a policy change
for the Tongass National Forest can be made without major adverse
impacts to the recreation, tourism, and fishing industries, while
providing benefits to the timber and mining industries, increasing
opportunities for community infrastructure, and eliminating unnecessary
regulations.
The Secretary of Agriculture has broad authority to protect and
administer the NFS through regulation as provided by the Organic
Administration Act of 1897 (Organic Act), the Multiple-Use Sustained
Yield Act of 1960, and the National Forest Management Act of 1976
(NFMA). These statutes provide the Secretary of Agriculture with
discretion to determine the proper uses within any area, including the
appropriate resource emphasis and mix of uses. In doing so, USDA
considers the relative values of the various resources and seeks to
provide for the harmonious and coordinated management of all resources
in the combination that will best meet the needs of the American
people. Roadless areas provide real and important values, such as high
quality or undisturbed soil, water and air; sources of public drinking
water; diversity of plant and animal communities; habitat for
threatened, endangered, proposed, candidate, and sensitive species;
primitive and semi-primitive classes of dispersed recreation; reference
landscapes; natural appearing landscapes with high scenic quality;
traditional cultural properties and sacred sites; and other locally
identified unique characteristics. However, roadless values are not the
only values that should be taken into consideration. The Organic Act
and Multiple-Use Sustained Yield Act mandate the Forest Service to
manage NFS lands for multiple uses and sustained yield of the various
renewable surface resources to meet the needs of the American people.
The State of Alaska's Citizens Advisory Committee devoted
considerable time and effort capturing the many and varied aspects of
roadless characteristics from an Alaska-specific viewpoint, and the
USDA is grateful for their dedication and insights. Similarly, tribal
government cooperating agencies expressed concern about removal of the
2001 Roadless Rule but expressed an interest in expanded regulatory
flexibility within their traditional territories. Here too, the USDA is
grateful for their participation as cooperating agencies and for the
knowledge and insights they have brought to the rulemaking.
Unquestionably, there are differences of perspective and opinion as
to how to best shape restrictions that protect a beloved resource while
providing cultural, social, and economic benefit for both local
communities and the nation, which is reflected in the 267,000 comments
received on the proposed
[[Page 68692]]
rule and DEIS (summarized in Appendix H of the FEIS). The USDA's
assessment is that the best mechanism to account for these many and
competing interests is to return the regulatory landscape back to what
it was prior to the promulgation of 2001 Roadless Rule and to allow
land management to be governed through the NFMA forest planning
process.
Alaska-Specific Statutes
The USDA has also considered several Alaska-specific statutes
applicable to the Tongass National Forest in selecting the final rule.
To be clear, all the alternatives considered are within the lawful
discretion of the USDA to select, and all would comply with applicable
statutes. No statute compels or prohibits establishment of any of the
various roadless rule alternatives; these alternatives would all be
within the USDA's discretion.
In assessing roadless management for these lands, the USDA has
considered the Alaska-specific legislation that Congress has enacted
during the past forty years, especially the TTRA and ANILCA.
Tongass Timber Reform Act
The TTRA directs the Forest Service to seek to provide a supply of
timber from the Tongass National Forest that meets annual market demand
and the market demand for each planning cycle to the extent consistent
with providing for the multiple-use and sustained-yield of all
renewable resources and other applicable requirements, including the
NFMA. The Tongass Forest Plan anticipates sufficient timber
availability to meet projected demand as described in the 2016 Forest
Plan FEIS and ROD. In addition, the Tongass Forest Plan provides
guidance to conduct annual monitoring and review of current timber
demand. Similarly, TTRA provides for protection of riparian habitats
and the multiple use and sustained yield of all renewable surface
resources.
Alaska National Interest Lands Conservation Act--Subsistence
Determination
ANILCA, as amended, contains several provisions that apply to
management of the Tongass National Forest. An ANILCA Section 810
evaluation and determination is not required to exempt the Tongass
National Forest from the 2001 Roadless Rule--a rulemaking process and
programmatic-level decision that is not a determination whether to
``withdraw, reserve, lease, or otherwise permit the use, occupancy, or
disposition'' of NFS lands. However, a forest-wide evaluation and
determination is included in this roadless area rulemaking to honor
regional commitments and inform future project-level planning and
decision-making subject to ANILCA Section 810 (16 U.S.C. 3120). An
ANILCA Section 810 subsistence analysis and determination was not
prepared when the 2001 Roadless Rule was promulgated.
The final rule has been evaluated for potential effects on
subsistence uses and needs in a manner consistent with Section 810 of
ANILCA. The FEIS discloses direct, indirect, and cumulative effects on
three subsistence use factors including: (1) Resource distribution and
abundance; (2) access to resources; and (3) competition for the use of
resources (Chapter 3, Subsistence). Importantly, the final rule does
not authorize ground-disturbing activities, but instead offers greater
flexibility in locating future road construction, road reconstruction,
and timber harvest activities. The Tongass Forest Plan will continue to
guide timber harvest and road construction, with the administrative
change prescribed in this rule only serving to conform and clarify the
lands available for timber harvest following the exemption from the
2001 Roadless Rule.
Consequently, total timber harvest volume will remain constant
across alternatives, and the risk of a significant restriction to
subsistence resource abundance and distribution is largely equivalent
across alternatives. The final rule may eventually influence
subsistence resource access due to timber management activities, but
these changes will be addressed on a site-specific basis, including
appropriate public engagement opportunities, as projects are proposed.
Competition for subsistence wildlife and seafood resources near
rural communities is affected by a variety of factors including
regulations, technology, wildlife distribution, modes of access, and
natural decreases in population. The final rule assumes new roads near
communities connected to other communities by ferry or road, combined
with increasing habitat reductions and consistent user demand, will
likely increase subsistence resource competition over time.
Based on the identified assumptions and analysis, the final rule
may eventually indirectly result in a significant restriction of
subsistence use of deer by increasing overall competition for the
subsistence resource by urban and rural residents. This finding is most
applicable to Chichagof, Baranof, and Prince of Wales Islands where
competition for deer and some other land mammals is already high and
habitat capacity has been significantly reduced due to prior timber
harvest and road construction activities. Notably, the predicted
restriction of subsistence use of deer due to increased competition in
the FEIS is substantially similar to Forest Plan subsistence effects
analysis because the Forest Plan will continue to guide total timber
harvest volume.
ANILCA subsistence hearings were conducted for the DEIS and
proposed rule, consistent with Section 810, by: (1) Giving notice to
the appropriate state agency, local committees, and regional councils;
and (2) giving notice of, and holding, ``a hearing in the vicinity of
the area involved.'' As the geographic area of interest is the entire
Tongass National Forest, subsistence hearings were conducted in 18
communities located across southeast Alaska to collect oral testimony
regarding the DEIS and associated subsistence resource and use
analysis.
Section 810 requires that when a use, occupancy, or disposition of
public lands may result in a significant subsistence use restriction, a
determination must be made whether: (A) Such a significant restriction
of subsistence uses is necessary, consistent with sound management
principles for the utilization of the public lands, (B) the proposed
activity will involve the minimal amount of public lands necessary to
accomplish the purposes of such use, occupancy, or other disposition,
and (C) reasonable steps will be taken to minimize adverse impacts upon
subsistence uses and resources resulting from such actions. Each of
these three points are discussed below.
Necessary, Consistent with Sound Management of Public Lands. The
final rule has been examined to determine whether the potential for a
significant restriction of subsistence uses is necessary, consistent
with the sound management of NFS lands. The final rule is designed to
provide a mix of resources and benefits to best meet the needs of the
American people. Some of the resource uses necessary to achieve these
benefits have the potential to adversely affect subsistence uses within
the Tongass National Forest. In light of the Forest Service's multiple-
use mandate and other requirements of law, the Forest Service has
determined that these effects to subsistence uses are necessary and
consistent with the sound management of NFS lands. (The Forest Service
again notes that making this determination is not required for purposes
of issuing this rule, but it is the Department's policy preference to
make this determination, and the other
[[Page 68693]]
determinations explained below related to ANILCA Section 810, on a
voluntary basis in light of the considerations noted above.)
Amount of Public Land Necessary to Accomplish the Purposes of the
Proposed Action. The land area evaluated through this rulemaking is the
Tongass National Forest and the IRAs therein. These lands constitute
the amount of land necessary to assess operation of the 2001 Roadless
Rule within the Tongass National Forest as requested by the State of
Alaska's petition. This rulemaking considered applying various
prohibitions and exceptions to different numbers of acres through the
development and analysis of a range of alternatives. The final rule,
however, removes the 2001 Roadless Rule's land classification system
and associated prohibitions and exceptions, and allows management to
return to operation under the Forest Plan. Accordingly, the final rule
addresses the amount of NFS land necessary to accomplish the proposed
action.
Reasonable Steps to Minimize Adverse Impacts to Subsistence Uses
and Resources. The continuation of subsistence opportunities, and
reasonable steps to minimize effects on subsistence resources, are
provided by Tongass Forest Plan forest-wide standards and guidelines
for subsistence, as well as related standards and guidelines for
riparian areas, fish, and wildlife. Many important subsistence areas
are assigned LUDs that exclude timber harvesting and road construction.
Beach and estuary fringe forest-wide standards and guidelines generally
apply to beach fringe and estuarine areas not under more restrictive
designations. Adverse impacts to subsistence resources and uses are
minimized through these measures. The potential site-specific effects
on subsistence uses, and reasonable ways to minimize these effects,
will be analyzed and considered during project-level design and
decision-making.
The final rule does not authorize ground-disturbing activities, but
instead offers greater flexibility in locating future development
activities on the Tongass National Forest. It is not possible to
substantially reduce timber harvest in some areas by concentrating it
in other areas without affecting subsistence resources and uses
important to other communities. Also, concentrating timber harvest
outside more important subsistence areas while still meeting Tongass
Forest Plan timber harvest goals could not be done without affecting
the natural distribution of wildlife species or without potential
significant effects to watersheds. These potential environmental
effects will be comprehensively studied and disclosed through the
future analysis of Tongass National Forest projects.
2001 Roadless Rule's Original Purpose
The USDA is mindful of the original stated purposes of the 2001
Roadless Rule in lifting the rule's restrictions for the Tongass
National Forest. The stated purposes of the 2001 Roadless Rule included
retention of the largest and most extensive tracts of undeveloped land
for the roadless values, watershed protection, and ecosystem health;
and fiscal considerations, mainly the cost of managing the road system
to safety and environmental standards. Specific to the Tongass, the
2001 Roadless Rule's Record of Decision noted that social and economic
considerations were key factors in analyzing alternatives, along with
the unique and sensitive ecological character of the Tongass National
Forest, the abundance of roadless areas where road construction and
reconstruction are limited, and the high degree of ecological health.
(66 FR 3254). The past 20 years of experience managing the Tongass
National Forest, with and without the rule in operation, provides an
important window for assessing whether the 2001 Roadless Rule's
prohibitions should be maintained.
From 2001 to 2011, the Tongass National Forest was exempt from the
2001 Roadless Rule. During this time, about 4,300 acres of IRAs were
entered for timber harvest and about 19 miles of roads were constructed
in association of that timber harvest. Of that only 300 acres of timber
harvest and 0.5 miles of road were authorized during the exemption
period and the remaining timber harvest and road construction were
authorized prior to the promulgation of the 2001 Roadless Rule. After
the harvest units and roads are buffered in GIS, this accounts for
about one percent of the substantially altered areas (roaded roadless
areas) removed from roadless designation in Alternatives 2 through 5.
The remaining 99 percent of the roaded roadless areas are from mapping
errors and activities that occurred before 2001 (36%) or were allowed
under the 2001 Roadless Rule (62%).
A significant percentage of the Tongass National Forest remains
undeveloped, providing for large, extensive tracts of undeveloped land,
but much of that is characterized as rock, ice, or muskeg. The final
rule will make an additional 188,000 forested acres available for
timber harvest with the majority characterized as old-growth timber.
The young-growth transition strategy as described in the 2016 Tongass
Forest Plan ROD outlines a glide path to decrease old-growth harvest
annually on the Tongass until it reaches about 5 million board feet
(MMBF) harvest per year, expected to occur in about 2032. After the
young-growth transition is fully implemented, it is unlikely that a
significant portion of the areas previously designated as IRAs would be
considered for harvest because the focus for timber harvesting will
shift to the previously roaded, young-growth areas.
Watershed protection was a prominent aspect in the decision to
adopt the nationwide 2001 Roadless Rule. Looking at the Tongass
National Forest today, watershed protection goals are well provided for
even without the current roadless rule. Large tracts of undeveloped
lands and watershed protections are provided by existing statutory and
forest plan direction, including lands in designated Wildernesses and
National Monuments. In addition, the TTRA (Pub. L. 101-626, Title II,
Section 201) and the National Defense Authorization Act for Fiscal Year
2015 (Pub. L. 113-291, 128 Stat. 3729, Section 3720(f)) designated
approximately 856,000 acres as LUD II areas, which are managed in a
roadless state to retain their wildland character. Approximately 3.6
million acres in key watersheds (defined in the Forest Plan as Tongass
77 Watersheds and The Nature Conservancy/Audubon Conservation Areas)
are managed for no old-growth timber harvest, thus minimizing adverse
impacts to fisheries. Management direction of LUD II areas and key
watersheds would remain unaffected with the final rule.
Ecosystem health was another important element of the 2001
rulemaking. Once again, the FEIS reveals only a moderate difference
between implementation of the 2001 Roadless Rule and the final rule. A
key indicator of ecosystem health for the Tongass National Forest is a
functional and interconnected old-growth ecosystem. Under the final
rule, long-term protection of productive old growth would continue to
occur under the Forest Plan's old-growth habitat conservation strategy.
Connectivity between old-growth reserves would continue to be
maintained through Forest Plan direction for stream buffers, the beach
and estuary fringe, and legacy forest structure. Under the final rule,
the projected amount of old-growth harvest and percent of original
productive old-growth remaining over the next 100 years would remain
unchanged from
[[Page 68694]]
implementation of the 2001 Roadless Rule (Alternative 1--No Action).
Although it may seem counter-intuitive that eliminating the 2001
Roadless Rule's timber harvest restrictions across 9.3 million acres
would not increase old-growth timber harvest, timber harvest levels are
controlled to a far greater extent by other factors, primarily economic
factors. Additionally, the Forest Plan's young-growth transition
strategy will transition harvest locations away from roadless areas
containing old growth and into areas where timber harvest has
previously occurred, avoiding or reducing effects to roadless areas.
The underlying economic considerations and the young-growth transition
strategy are far greater influences than the 2001 Roadless Rule. This
strategy will remain in place, with or without the 2001 Roadless Rule.
Limited road maintenance budgets were another factor cited in
support of the 2001 Roadless Rule. The 2001 Roadless Rule cited fiscal
concerns over building new roads in IRAs due to an $8.4 billion backlog
of deferred maintenance across the NFS transportation system at that
time. Recent deferred maintenance records were reviewed; a sound
comparison could not be made with the deferred maintenance levels of
2001, due to substantial changes in defining and interpreting deferred
maintenance. Since 2001, the inventory methods and roads considered to
be part of deferred maintenance have changed multiple times (2002,
2005, 2007, 2012, and 2013). These changes make a direct comparison
with 2001 deferred maintenance numbers impracticable.
The FEIS projects that about 1,043 miles of new road construction
could occur over the next 100 years across the Tongass National Forest,
mainly to support timber harvest operations, as compared with the
approximately 994 miles of new roads projected forest-wide over the
next 100 years under Alternative 1--No Action. The 994 miles of new
road construction projected for Alternative 1 are outside of
inventoried roadless areas. The final rule is not expected to
materially increase the amount of timber harvested in the Tongass, as
that is prescribed and managed by the Forest Plan. However, the final
rule does impact the location from which the timber may be harvested,
by allowing access to areas that were off limits under the 2001
Roadless Rule.
National Versus Local Decision-Making
For decades, the USDA has worked with states, tribes, local
communities and collaborative groups toward land management solutions
for roadless areas. Sometimes solutions have been found nationally.
Sometimes a state-by-state approach has been the best option. Often,
the solutions are found forest-by-forest or even area-by-area. In this
instance, the national rule's one-size-fits-all approach to roadless
area management is not the best approach for roadless area management
on the Tongass National Forest. Other states, Idaho and Colorado, have
sought and been granted the opportunity for roadless management to be
tailored to their needs. Indeed, the USDA received at least thirteen
individual state petitions seeking various state-specific solutions
during the timeframe in which the 2001 Rule had been judicially
invalidated. The State of Alaska's 2018 rulemaking petition implores
the USDA to recognize that in contrast to the scarcity of undeveloped
lands that occurs in many other states, undeveloped areas are plentiful
in Alaska. Instead, the State of Alaska maintains that the
circumstances of the Tongass National Forest appear to be best managed
through the local planning processes. The Forest Service's 40 years of
experience with forest planning under NFMA, which includes forest plans
subject to periodic review and adjustment, routinely demonstrates the
planning system's capacity to account for both local and national
interests and provide durable and widely accepted solutions providing
for the multiple use and sustained yield of the many goods and services
provided by the NFS.
The final rule would leave the roadless area management issue open
for future consideration in the forest planning process. The forest
planning process is more flexible than the 2001 Roadless Rule's
regulatory approach, because plans are expected to be designed and
attuned to local circumstances and are intended to be periodically
reviewed. The 2001 Rule's prescriptive approach forecloses a full
balancing of interests during future forest planning processes. The
final rule will allow local decision makers the flexibility to address
roadless management based on changed local conditions, new unforeseen
issues, and take into account state and local economic development
plans. In addition, the final rule will provide local discretion during
future forest planning efforts to explore roadless area management
alternatives, unconstrained by the 2001 Roadless Rule, with local
stakeholders, communities, and tribal governments.
In selecting the final rule among the several alternatives
considered, the USDA has given substantial weight to the State of
Alaska's policy preferences as expressed in its Petition. The State of
Alaska's preference to emphasize rural economic development
opportunities is consistent with the findings of the Interagency Task
Force on Agriculture and Rural Prosperity established by Executive
Order 13790 issued April 25, 2017.\1\ The USDA recognizes that ensuring
rural Americans can achieve a high quality of life is one of the
foundations of prosperity.\2\ The State of Alaska's views on how to
balance economic development and environmental protection offer
valuable insight when making management decisions concerning NFS lands
within Alaska.
---------------------------------------------------------------------------
\1\ See Report to the President of the United States from the
Task Force on Agriculture and Rural Prosperity (Oct. 21, 2017),
https://www.usda.gov/sites/default/files/documents/rural-prosperity-report.pdf).
\2\ See id. at 2, 21-25; see also id. at 26-29, 35-42 (calls to
action for supporting a rural workforce and developing the rural
economy).
---------------------------------------------------------------------------
Southeast Alaska's rural communities have relied upon the Tongass
for important natural resources and environmental opportunities
supporting recreation, fishing, and the timber industries. In
particular, the timber industry has historically played an important
economic role in southeast Alaska's rural economy providing jobs in
small and remote communities with high unemployment rates and limited
employment opportunities. In these isolated communities, every job has
impacts at household and community levels. Notably, the timber industry
has faced sustained hardship during the past two decades, with rural
communities suffering the socioeconomic consequences. The final rule
will increase the number of acres available for timber harvest acres
and improve overall flexibility in locating timber sales. In turn, this
would provide additional opportunity for the struggling timber industry
and support rural communities with limited employment opportunities
without increasing the amount of overall timber harvested. USDA and the
State of Alaska believe both roadless area conservation and other
multiple-use values with important local socioeconomic consequences are
meaningfully addressed through local and regional forest planning on
the Tongass National Forest without 2001 Roadless Rule prohibitions on
timber harvest and road construction/reconstruction.
The USDA recognizes that the majority of Alaska Native tribes and
[[Page 68695]]
local communities throughout southeast Alaska support keeping the 2001
Roadless Rule in place, as expressed in the multitude of resolutions
and comment letters received during the 60-day comment period. USDA
appreciates that not all local communities share the State of Alaska's
views and has carefully considered the views and preferences provided
by all the leaders and citizens that have participated through various
public meetings and comment periods. The USDA urges those groups and
individuals to regularly engage with the Tongass National Forest and
Forest Service Alaska Region concerning forest planning efforts and
project design. The lifting of the 2001 Roadless Rule on the Tongass
National Forest in no way impedes citizen participation; rather, it
affords interested parties the opportunity to work with the Forest
Service to seek more efficient solutions that account for all
interests.
Relationship of the Alaska Roadless Rule to the Forest Plan
The NFMA requires the Forest Service to develop, maintain and, as
appropriate, revise land and resource management plans for units of the
NFS. Land management plans provide a framework for integrated resource
management and for guiding project and activity decision-making, but
plans do not authorize projects or activities or commit the Forest
Service to take action. A revised Tongass Forest Plan was issued in
1997 and amended in 2008 and 2016. Forest planning is a distinct and
separate process from USDA's various roadless rulemakings.\3\ Excluding
the Tongass from the 2001 Roadless Rule's prohibitions returns
management discretion to the Agency's standard planning process. The
existing Forest Plan provides adequate direction and protection of
roadless characteristics such that retention of the 2001 Roadless Rule
is not required. Future plan revisions will assure roadless
characteristics are periodically assessed and management direction can
be adjusted if warranted (increased, decreased or blended differently)
in order to account for the best multiple use management possible.
---------------------------------------------------------------------------
\3\ See Kootenai Tribe of Idaho v. Veneman, 313 F. 3d 1094, 1117
n.20 (9th Cir. 2002), abrogated on other grounds by Wilderness
Society v. USFS, 630 F.3d 1173 (9th Cir. 2011); and Wyoming v. USDA,
661 F.3d 1209, 1269-72 (10th Cir. 2011).
---------------------------------------------------------------------------
All forest plans must conform to existing laws and regulations as
well as new laws and regulations. See 36 CFR 219.1(f) and 219.13(c).
The USDA's previous roadless rules, national and state-specific, have
directed that: (1) No amendment or revision of any forest plan was
compelled by promulgation of such rules; (2) subsequent forest planning
decisions could not revise the Secretary's regulatory instructions; and
(3) line officers were to conform project decisions to the prohibitions
and exceptions set forth in the applicable rules. The final rule
continues this approach, with one exception necessitated by a single
element of the 2016 Tongass Forest Plan Amendment.
The final rule directs the Tongass Forest Supervisor to issue a
ministerial Notice of Administrative Change pursuant to 36 CFR
219.13(c) identifying plan changes made in conformance with the
regulatory determinations of this subpart; specifically the rescission
of the portion of the December 9, 2016, ROD concerning suitable timber
lands attributed exclusively to implementation of the January 12, 2001,
Roadless Area Conservation Rule (66 FR 3244). This administrative
change is appropriate because the Region took the step in 2016 of
amending the Tongass Forest Plan to directly implement the 2001
Roadless Rule's timber harvesting prohibitions despite the 2001
Roadless Rule's express admonition that it did not compel the amendment
or revision of any land and resource management plan. See 2016 Tongass
Forest Plan, Appendix A, page A-3, Appendix I, page I-177 (indicating
all IRA were removed from the suitable land base during Stage 1 of the
suitability analysis due to the 2001 Roadless Rule) and 36 CFR
294.14(b) (directing that the 2001 Rule does not compel the amendment
or revision of any land and resource management plan). The 2016 Forest
Plan sought to directly implement the 2001 Roadless Rule prohibitions
via the timber suitability analysis. Today's decision to rescind the
2001 rule's prohibition as to the Tongass National Forest makes the
2016 Amendment's effort to implement the 2001 rule's prohibitions
obsolete. Because allowing the inconsistent portion of the 2016
suitability designations to stand would effectively nullify the
Department's regulatory choice to remove the 2001 timber harvest
prohibitions, the final regulation gives an express regulatory
instruction to conform the plan to the new regulatory regime. As
explained in greater detail below, there is no requirement or credible
justification that warrants undertaking additional planning efforts
above and beyond the administrative change directed by this rulemaking.
The administrative change simply provides conformance of the Forest
Plan with the final rule in regard to lands suitable for timber
production and does not change the level of timber harvest, how timber
is harvested on the Tongass, or any other aspects of the Forest Plan.
As previously noted, forest planning is a distinct and separate
process from USDA's various roadless rulemakings. The referenced 2001
Roadless Rule's scope and applicability language was designed to avoid
conflicts between itself and forest plans, as well as avoiding
unnecessary or duplicative administrative processes for the operation
of the 2001 Roadless Rule. Just as it was unnecessary to immediately
install the 2001 Roadless Rule's higher order prohibitions through
individual plan amendments, it is unnecessary here to duplicate these
rulemaking efforts through a separate plan amendment. Fortunately, the
2012 NFMA planning regulations (36 CFR 219.13(c)) make provision for
instances where overriding statutes or regulations change. The planning
regulations direct that plans may be adjusted via notice of
administrative change without resorting to the standard plan amendment
process. The USDA is empowered to prescribe such regulations as it
determines necessary and desirable to carry out the planning process
(16 U.S.C. 1613) as well as to redeem and reconcile its regulations
governing overall multiple use management responsibilities, including
roadless matters.
To promote clarity, transition language has been added to the final
rule. The language is similar as was set out for the other action
alternatives in the DEIS. The operational result will be that 188,000
acres will be returned to the suitable timber base via the
administrative change provision of the planning regulations (36 CFR
219.13(c)). The revised transition language assures that all other
aspects of the Tongass Forest Plan remain operational under the rule
including the goals, objectives, management prescriptions, standards,
guidelines, projected timber sale quantity, projected wood sale
quantity, and the young-growth transition strategy. This includes
direction for non-timber resources including riparian management
standards and guidelines, which provide protection for fisheries with
subsistence and commercial importance. Any timber harvest, including
any timber harvesting in areas formerly designated as IRAs, would be
compelled to adhere to these resource standards and guidelines
including fish habitat, water quality, air, recreation, and other
resources. Consistency with Forest Plan direction continues under all
alternatives.
[[Page 68696]]
Although the Forest Service has broad discretion to amend or revise
forest plans management direction, any change would need to be
consistent with applicable law, regulation, and policies. Any future
forest plan amendments or revisions would include a public involvement
process pursuant to the Agency's planning regulations and NEPA.
Public Comment Process
The Forest Service published an NOI to prepare an EIS for the
Alaska Roadless Rule in the Federal Register (83 FR 44252) on August
30, 2018. The NOI initiated a 45-day scoping period which ended on
October 15, 2018. During this time period, the Forest Service conducted
17 public meetings including meetings in Anchorage, AK; Washington, DC;
and communities throughout southeast AK: Angoon, Craig, Gustavus,
Hoonah, Kake, Ketchikan, Petersburg, Point Baker, Sitka, Tenakee
Springs, Thorne Bay, Wrangell, Yakutat, and two meetings in Juneau.
During the scoping period, just over 144,000 comment letters or emails
were received.
On October 17, 2019, the Department published a notice of proposed
rulemaking in the Federal Register (84 FR 55522) and on October 18,
2019, an NOA for the DEIS was published (84 FR 55952). On October 25,
2019 an amended NOA was published (84 FR 57417) which amended the
comment closing date of the 60-day comment period to December 17, 2019.
During the 60-day comment period, the Forest Service conducted 21
public meetings including Anchorage, Alaska; Washington, DC; and
southeast Alaska communities: Angoon, Craig, Gustavus, Haines, Hoonah,
Hydaburg, Juneau, Kake, Kasaan, Ketchikan, Pelican, Petersburg, Point
Baker, Sitka, Skagway, Tenakee Springs, Thorne Bay, Wrangell, and
Yakutat. Approximately 267,000 comment letters or emails were received
during the 60-day comment period, including 11 petitions containing
about 117,000 signatures.
Cooperating Agencies
On July 30, 2018, the Forest Service invited 32 Alaska federally
recognized tribes to participate as cooperating agencies during the
rulemaking process. Originally six tribes agreed to become cooperating
agencies including Angoon Community Association, Central Council
Tlingit and Haida Indian Tribes of Alaska, Hoonah Indian Association,
Hydaburg Cooperative Association, Organized Village of Kake, and
Organized Village of Kasaan. After the publication of the proposed rule
(October 17, 2019), the Organized Village of Kake withdrew as a
cooperating agency. After the publication of the FEIS (September 25,
2020), the remaining tribal cooperating agencies, Angoon Community
Association, Central Council Tlingit and Haida Indian Tribes of Alaska,
Hoonah Indian Association, Hydaburg Cooperative Association, and
Organized Village of Kasaan withdrew as cooperating agencies.
The State of Alaska agreed to become a cooperating agency on August
2, 2018. Cooperating agencies participated throughout the rulemaking,
providing their knowledge and expertise to design alternatives, analyze
alternatives, and refine the analysis set out in the DEIS and FEIS.
The Forest Service made several trips to several of the villages to
work individually with tribal cooperators, provide technical expertise,
and collect input. All tribal cooperators opposed the proposed rule
(Alternative 6), however, were supportive of additional local control,
increased opportunity for local forest product businesses, and limited
increased access for a variety of local needs.
Based on input from tribal cooperating agencies, USDA considered
the use of the Alaska Native tribes' traditional use areas for the
community use analysis boundaries in the development of the DEIS. USDA
did not utilize the traditional use areas for the impact analysis
because they are considerably larger than the community use areas. The
use of larger analysis areas diffuses the impacts and the Agency wanted
the impacts to be focused by community. The Agency added an appendix
displaying the traditional use areas to recognize the importance of the
traditional use areas to the Alaska Native tribes.
The Agency revisited the analysis boundary issue between the DEIS
and FEIS, and solicited subsistence use data by community from the
State of Alaska. Alaska Department of Fish and Game provided updated
survey information from six communities regarding areas of subsistence
gathering. Data indicate southeast Alaskans are traveling further for
subsistence gathering, meaning the community use areas are larger.
Again, the larger area would diffuse the impacts. The agency determined
this would not be an improvement to the impact analysis and would make
it more difficult for readers to determine the impacts.
The USDA appreciates and recognizes the contributions of the five
Alaska Native tribes who withdrew as cooperating agencies on October
13, 2020. The USDA understands that the final rule is not the outcome
the tribal cooperating agencies had hoped for, and the Department
recognizes the concerns they expressed. The Department and Forest
Service greatly value each tribal cooperating agency. The participation
and advice of tribal cooperating agencies improved the analyses and
alternatives. The Department's hope is that removal of the 2001
Roadless Rule's blanket prohibitions will create space for more
creative solutions that are sensitive to the diverse interests of
Alaskan Native Tribal communities. As the tribal cooperating agencies'
withdrawal letter eloquently suggests, the Department too desires to
invest in solutions that will tend the land and serve the people.
Comments on the Proposed Rule
Approximately 267,000 comments were received on the proposed rule
and DEIS, including 11 petitions containing about 117,000 signatures,
during the 60-day comment period. A large majority of written comments
and oral subsistence testimony supported retaining the 2001 Roadless
Rule on the Tongass National Forest. Notably, a significant proportion
of the 267,000 comments letters were from outside Alaska. A significant
proportion of southeast Alaska municipal and tribal governments
submitted resolutions supporting the 2001 Roadless Rule's application
on the Tongass National Forest. However, many of the State's elected
officials, including the Governor, the federal delegation, and some
municipal governments support changing the 2001 Roadless Rule. The USDA
considered all substantive comments as part of the rulemaking,
including testimony given at the subsistence hearings. The following is
a summary of the comments received relating the final rule and the
agency response. A full detailed response to comments is contained in
Appendix H of the FEIS.
Sec. 294.50 Tongass National Forest. No substantive comments were
received in regard to the rule language for this section. Therefore, no
changes were made to this section.
Sec. 294.51 Chugach National Forest. Comments were received
expressing concerns regarding the proposed administrative correction
and boundary modification provisions for the Chugach National Forest.
Commenters and cooperating agencies were concerned that the proposed
provisions were too broad and could be used by the Forest Service to
open significant portions of the Chugach to additional logging.
Based on the experience of implementing the 2001 Roadless Rule,
[[Page 68697]]
boundary modifications are sometimes needed to account for errors,
better mapping technology, land exchanges, etc. Thus, the two state-
specific roadless rules, Idaho and Colorado, have administrative
correction and modification provisions (36 CFR 294.27 for Idaho and 36
CFR 294.47 for Colorado) that operate differently than the 2001
Roadless Rule. The intent of the administrative correction and
modification provisions for Alternatives 2 through 5 was to align
processes and install a single system for the two National Forests of
Alaska. However, some members of the public expressed alarm that the
provision could be used to entirely undo roadless protections on the
Chugach National Forest. This was never USDA's intent. While alignment
of administrative procedures between all state-specific roadless rules
might have offered some administrative efficiencies for managing
roadless boundaries nation-wide, the final rule gains some
administrative efficiencies by fully removing roadless rule provisions
for the Tongass National Forest.
Section 294.51 has since been retitled as ``Transition,'' and now
includes the instruction to the Tongass Forest supervisor to issue an
administrative change in regard to the lands suitable for timber
production. This provision was inadvertently not included in the
Alternative 6 rule language but was included in Alternatives 2 through
5 rule language and noted in the DEIS as applying to the final rule.
Comments regarding perceived impropriety associated with the
State's petition. Commenters expressed concern that the State developed
the petition and the Secretary accepted the petition without public
involvement, and that the petition was motivated by politics and
outdated timber economics.
The APA and USDA's implementing regulation (7 CFR 1.28) allows any
interested person to petition the Secretary to change a regulation.
There is no prescribed process for developing or responding to a
petition other than that it must be given prompt consideration and the
petitioner will be notified promptly of the disposition made of their
petition. The Secretary has no control over the underlying motivations
or data offered in support of a petition. However, once a petition is
accepted, a rulemaking in response to a petition will be conducted in
compliance with applicable law and regulations. The USDA has conducted
this rulemaking in compliance with all applicable law and carefully
considered the information provided by all those who participated in
the various public meetings and comment periods. The Department has
drawn its own conclusions based on the information provided by all
parties and its own analysis.
Comments on sufficiency of public outreach and involvement.
Commenters raised concerns regarding whether the length of comment
periods and the quantity and locations of public meetings were
sufficient.
The Forest Service conducted two cycles of public comment: the
first was a 45-day scoping period from August 30, 2018, to October 15,
2018, in which about 144,000 comment letters were received; and the
second was a 60-day comment period on the proposed rule and DEIS from
October 18, 2019, to December 17, 2019, which resulted in about 267,000
comment letters. During the scoping period 17 public meetings were held
and during the comment period 21 public meetings were held throughout
southeast AK, Anchorage, AK, and Washington, DC. The USDA recognizes
that many would have desired long scoping and comment periods. The
length of the scoping and comment periods are standard for both the
rulemaking and EIS processes. The robust meeting attendance and the
411,000 total comments received indicates the timing and length were
clearly adequate for many.
Comments on consideration of public input. Commenters were
concerned that input from the public was ignored because a large
majority of comments supported retaining the 2001 Roadless Rule and
opposed the full exemption, which was identified as the proposed rule
and preferred alternative.
The USDA values the comments received, and the concerns expressed
during the rulemaking process. The USDA considered public comments
received, the range of alternatives examined in the DEIS and FEIS, and
input from cooperating agencies and elected officials. Public comments
were utilized to craft the range of alternatives examined in the DEIS
and FEIS, modify the alternatives between DEIS and FEIS, and modify
analyses. The NEPA and rulemaking public comment process are not vote-
counting processes. Every comment has value, whether expressed by one
individual or thousands. The public comment process considers the
substance of each individual comment rather than the number received.
No interest group's views or comments are given preferential treatment
or consideration, and comments are considered without regard to their
origin, commenter's affiliation, or number received. Based on the
comments received, the Secretary reconsidered all alternatives and has
opted for alternative 6, the full exemption alternative.
Comments on tribal government-to-government consultation.
Commenters expressed concern that tribal consultation was inadequate.
In 2018, the Forest Service sent letters to the 32 federally
recognized tribes and 27 Alaska Native corporations in southeast and
southcentral Alaska to invite government-to-government and government-
to-corporation consultation. The in-region consultation invitation was
continuous throughout the rulemaking process.
The Alaska Region and the Tongass National Forest have an ongoing
government-to-government relationship with all federally recognized
tribes in southeast Alaska. The agency will continue to meet its
responsibility to consult with federally recognized tribes and Alaska
Native corporations through government-to-government and government-to-
corporation consultation on all topics. In addition to district
rangers, Regional Office staff also met with tribes, tribal
cooperators, and other interested parties to answer questions and
provide information as requested when feasible. Forest and Regional
Office staff provided briefings, information meetings, supported formal
consultations, and formal public hearings in or within the vicinity of
communities throughout southeast Alaska. Most tribal governments took
advantage of these opportunities. To date, twelve government-to-
government consultations have occurred in association with this
rulemaking effort.
Comments on the State's Citizen Advisory Committee. Commenters
expressed concerns regarding the composition and role of the committee
in the rulemaking process, whether the committee had undue influence,
and whether their involvement violated the Federal Advisory Committee
Act (FACA).
The committee was established by the State of Alaska under an
Administrative Order issued by Governor Walker in September 2018. The
committee was charged with providing recommendations to assist the
State of Alaska in fulfilling its role as a cooperating agency. The
thirteen committee members were selected by Governor Walker, and the
USDA and Forest Service had no part in the selection. The Forest
Service provided an individual to participate on the committee as a
non-voting member to provide procedural and technical information to
the committee.
The committee does not meet the definition of an advisory committee
as
[[Page 68698]]
defined by the FACA implementing regulations at 41 CFR 102-3.25. The
committee was established under state law by the Governor of Alaska.
The committee reported directly to the Governor who submitted the
committee's report to the USDA as part of the State's participation as
a cooperating agency. Intergovernmental coordination with the Governor
or his appointees is not subject to FACA. In any event, the USDA and
Forest Service did not manage or control the committee's operation and
did not utilize its work within the meaning of FACA. USDA's involvement
with the committee was limited to non-voting participation, providing
technical assistance. The committee did not have undue influence over
the rulemaking process.
Comments on support to the State of Alaska. Commenters expressed
concern that granting funds to the State of Alaska to support the
State's involvement in the Alaska roadless rulemaking process was a
misuse of congressional appropriations.
The agency provided the State of Alaska's Forestry Division with $2
million from the fiscal year 2018 Consolidated Program Grant (CPG),
Modification 2, utilizing the State Fire Assistance budget line item as
the source code. The modification discussed the specific use of the
funding, which could be used for: convening and facilitating a group
with a diverse mix of state-specific interests to inform the State's
input as a cooperating agency, public meetings, cooperating agency
support, economic analysis and planning, and to coordinate the proposed
state rule with existing land management planning efforts in progress
within the State of Alaska. A subsequent modification has been executed
utilizing $1.3 million of the funding to undertake wildland fire risk
reduction projects in several Alaska communities, primarily
construction of fuel breaks and maintenance of established fuel breaks.
USDA Office of the Inspector General has been asked to investigate this
matter and the agency is cooperating with the investigation.
Comments on the need to change from the 2001 Roadless Rule.
Commenters highlight that the DEIS projects minimal benefit for the
forest products industry and thus contend that the analysis does not
support the conclusion that eliminating the roadless rule will support
rural economic development. In addition, commenters questioned any need
for change and rationale in the Notice of Proposed Rulemaking to
support a change.
USDA's approach to rural economic development is a long-term multi-
faceted strategy outlined in the Report to the President of the United
States from the Task Force on Agriculture and Rural Prosperity (October
21, 2017), which includes regulatory reform, increasing the production
of natural resources, modernizing rural utilities, and improving
transportation infrastructure. The final rule reduces the regulatory
barrier to achieving these aspects of USDA's strategy for rural
economic development. Although there is only a minimal benefit from the
final rule to the forest products industry at this time, small
incremental change can help achieve rural prosperity over the long-
term. The final rule is a step in the right direction for rural
prosperity.
Comments on a local approach for roadless management. Commenters
questioned the proposed rule's assertion that the Tongass should be
managed locally suggesting it ignores the Forest Service's 2001
conclusion that national rulemaking was needed to protect roadless
areas.
As noted above, the unique circumstances of the Tongass National
Forest have been recognized and assessed since the 2001 rulemaking.
Then, as now, inclusion of the Tongass National Forest under the
national rule was not mandatory but represented a policy choice, as did
the national rule itself. In 2001 the Department eventually opted for
inclusion of the Tongass National Forest. In 2008 and 2012, two other
states requested and were granted the opportunity to discontinue
operation under the national rule. Today, the USDA concludes that the
interests furthered by the national rule are not improperly undone by
exempting a single forest that is now, and will remain for the
foreseeable future, substantially undeveloped and roadless. The
estimate of 49 miles of additional road construction (from 994 to
1,043) spread across 9 million acres of land, over the next 100 years,
will not undo the national rule's underlying goal of protecting
roadless area characteristics within the NFS, and moreover are well
within the USDA's discretion to further in light of the mix of mandates
and policy discretion embodied in the relevant governing statutory
provisions.
Comments on the administrative change procedure. Commenters were
concerned with the administrative change instruction for the lands
suitable for timber production in the Forest Plan, alleging it is
inconsistent with the National Forest System Land Management Planning
regulations at 36 CFR part 219 (2012 Planning Rule) and would require
an amendment. In addition, commenters were concerned that the agency
did not include this aspect of the rule during scoping.
The administrative change provision at 36 CFR 219.13(c) clearly
states that an administrative change includes changes to conform to new
regulatory requirements. Although the provision was not expressly
included in the proposed action during scoping, it was highlighted in
the DEIS and conforms to the requirements of the NEPA implementing
regulations.
Comments on subsistence mitigation. Commenters allege that the
Forest Service violated ANILCA and NEPA by refusing to consider
updating the roadless inventory to include lands important to the
Organized Village of Kake, mitigation measures proposed by Kake, and
allowing a greater management role for Kake in their traditional
territory.
The roadless inventories were updated and additional areas were
included in Alternatives 2 and 3 as designated Alaska Roadless Areas.
All unroaded areas were reviewed and some areas identified in the 2003
and 2008 roadless analyses associated with Tongass forest planning
efforts were included. In addition, small islands previously excluded
from roadless designation were included if not substantially altered.
Mitigation measures such as identifying specific road segments,
selling carbon credits, and workforce development are outside the scope
of the Alaska roadless rulemaking, which is programmatic and does not
evaluate projects or partnerships.
Co-management of the Tongass National Forest with tribal partners
was considered as an alternative but eliminated from detailed analysis
as it does not comport with existing legal authorities.
Comments on the site-specificity and qualitative nature of the
impact analyses. The analyses in the FEIS are a generalized review
which the Council on Environmental Quality recognizes as appropriate
for any broad or high-level NEPA review of proposed policies, plans,
programs, or projects. It is reasonable and efficient to limit detailed
site-specific impact analyses to when specific proposals are brought
before the agency. Locations of potential timber harvest and road
construction are not known at this time. While locations of other
developments, such as a regional energy or transportation project, may
be more predictable based on published information, it is not known if,
when, or specifically where they would occur. When specific timber
harvest or other
[[Page 68699]]
projects are proposed, site-specific NEPA analysis and required pubic
involvement would be conducted at that time. No on-the-ground actions
are authorized by the final rule.
Comments on the adequacy of the impact analyses. Commenters
variously questioned the adequacy of the impact analyses, disagreed
with the conclusions made, and contended that the effects are
understated. Commenters noted the obvious impacts of past timber
harvesting and road construction as evidence the impacts were
understated. In addition, commenters noted that the basis of the 2001
Roadless Rule was the recognition that timber harvesting and road
construction were impactful to roadless area values and
characteristics.
USDA does not dispute that timber harvesting and road construction
impact roadless area values and characteristics. However, the impact
analyses in the Rulemaking for Alaska Roadless Areas DEIS and FEIS do
not analyze the effects of harvesting timber and constructing roads in
a specific roadless area. Rather, the DEIS and FEIS analyze the
difference in effects under the 2001 Roadless Rule, the current Tongass
Forest Plan, and the other action alternatives. The baseline for
comparison of alternatives is not a pristine wilderness. Rather it is
the continuation or adjustment of current management. Under the 2001
Roadless Rule and Tongass Forest Plan, the Forest Service projects the
harvest of about 46 MMBF of timber per year across 227,000 available
acres of old-growth and 334,000 available acres of young-growth lands
with about 994 miles of new road construction across the 100-year
analysis period. Under the final rule (Alternative 6) the agency
projects the harvest of about 46 MMBF of timber per year across 395,000
available acres of old-growth and 354,000 available acres of young-
growth lands with about 1,043 miles of new road construction across the
100-year analysis period.
In addition, the impact analyses considered the continuation of the
young-growth transition strategy in all alternatives analyzed,
including the no-action alternative and the final rule alternative. The
young-growth transition strategy defines a 16-year period starting in
2016 in which the old-growth contribution to the projected timber sale
quantity decreases over time as young-growth matures and becomes more
economical to harvest. At year 16, the old-growth contribution to the
projected timber sale quantity would stabilize at 5 MMBF per year. The
young-growth transition strategy has a large beneficial environmental
effect on roadless areas because it shifts the focus of the Tongass
timber sale program to young-growth areas which are largely already
roaded. In addition, the smaller contribution of old-growth to the
projected timber sale quantity makes roadless areas less economical
because there are fewer acres of old-growth to off-set the high cost of
road construction in the Tongass National Forest. Old-growth is
generally more profitable than young-growth to harvest due to higher
volume per acre and the higher value of the larger trees. The impact
analyses in the FEIS is reflective of the small change between the
baseline and the action alternatives, and the impact of the young-
growth transition strategy.
Comments on cost-benefit analysis. Commenters expressed concern
about the cost-benefit analysis using changes in suitable old-growth
and young-growth acres as an indicator for potential displacement of
recreationists interested in primitive recreation experiences.
Primitive recreation is a class of recreation utilized to describe and
manage recreation opportunities. Primitive recreation opportunities
occur more than 3 miles from a road or motorized trail; in areas
generally greater than 5,000 acres; where social setting provide for
less than 6 party encounters on a trail; and are non-motorized,
typically include hiking, horse packing, fishing, hunting, and camping.
There was concern about the methodology used to measure adverse visitor
impacts. Commenters sought consideration of scenic values in the cost-
benefit analysis. Commenters also sought a cost-benefit economic
analysis that uses best available science to assess socioeconomic
impacts of each alternative as well as analysis of the socioeconomic
value and impact on fisheries, ecotourism, special use permits,
recreation, game populations, and subsistence resources. Other
commenters expressed concern about the inclusion of harvesting costs
(felling, yarding, and loading) and recreation expenditures, as a
distributional impact, in the cost-benefit analysis.
In response to public comment, the analysis of recreation
visitation related displacement and associated expenditures, in the
Regulatory Impact Analysis (RIA), has been updated based on new
information received during proposed and final rule preparation. Scenic
values, game species, and subsistence are discussed qualitatively in
the RIA and examined in more detail in the EIS. A cost-benefit analysis
has also been included in the RIA with new data and information
received during proposed and final rule preparation. This analysis
includes benefits from a more efficiently managed timber sale program
alongside agency costs, forgone conservation value, and costs of
potentially displaced recreationists. The revised RIA includes
discussion and analysis of costs from felling, yarding, and loading
timber and acknowledges their limited scope alongside other costs to
the timber industry and costs to the agency from road maintenance. In
addition, detail has been added to the RIA, noting that road cost
changes before and after 2011 were twice as high during the exemption,
and the relevance of these costs alongside haul cost savings. Potential
recreation related revenue losses can be considered distributional if
there are substitute opportunities in southeast Alaska or on the
Tongass National Forest. However, in some cases visitors may choose to
not come to southeast Alaska due to impacts from harvesting and road
construction; thus, these estimates are appropriate for inclusion in
the costs and benefits analysis.
Comments on ecosystem services. Commenters sought an effects
analysis disclosing how the rule will directly and indirectly impact
ecosystem services in the region, including economic cost and benefits
related to impacts on ecosystem services. There was concern that
exemption from the rule could lead to removal of trees and damage to
ecosystems which can adversely impact ecosystem services.
In response to the comments received, additional qualitative
information and discussion related to biological and physical ecosystem
services values has been added to the RIA between proposed and final
rule preparation. In addition, the cost-benefit analysis includes
quantitative estimates of forgone conservation value, from peer
reviewed research designed to facilitate the consideration of ecosystem
services in land management. Cost of forgone conservation value are
applied to the net-change in suitable old-growth acres across the
alternatives. While only a portion of suitable acres will be harvested,
the analysis includes an upper estimate of value associated with all
suitable old-growth acres and a lower estimate assuming all suitable
old-growth acres would be harvested over 100 years. This range of
estimates accounts for uncertainty application of value associated with
conservation demand.
Comments on road costs. Commenters sought cost data for road
building and maintenance (per mile) in the areas considered for
exemption from the rule.
The RIA for the final rule includes new information on road costs.
Road construction and decommissioning
[[Page 68700]]
costs are not considered since it is unlikely that they would be paid
by the agency given the influence of the limited export policy. In
2007, the Forest Service approved a limited export policy, and this
boost to appraised values has made rare the construction of roads by
the agency in advance of timber sales. Road maintenance costs are
considered quantitatively in the cost-benefit analysis of the final
rule and regulatory alternatives.
Comments on agency costs. Commenters were concerned that the
reduction in expenses from exempting the Tongass from the 2001 Roadless
Rule were not quantified. In addition, commenters disagreed with the
assertion that the rule would not increase agency costs because it
would not increase timber harvest levels and sought a more
comprehensive estimate of anticipated agency costs and losses from
below-cost timber sales. In addition, commenters asserted that analysis
should include an overall assessment of the Tongass timber program
costs including road costs. In addition, commenters noted the agency
costs section should also include the estimated cost for conducting
this rulemaking.
Details on agency costs from road maintenance have been added to
the RIA for the final rule in the RIA section called ``Agency Costs
including Control of Regulatory Costs''. Detailed analysis of
reductions in environmental compliance cost are not possible. This
final rule and the regulatory alternatives are programmatic, meaning
that they establish direction for broad land areas, rather than
schedule specific activities in specific locations. None of the
alternatives authorize any site-specific projects or other ground-
disturbing activities and, therefore, it is not possible to estimate
future activities and subsequent marginal changes in environmental
activities. However, potential incremental reductions in compliance
costs are noted in the RIA for the final rule. The cost of rulemaking
is the cost of managing NFS lands as a part of normal agency operation
and exists as part of the baseline 2001 roadless rule so there are not
incremental costs.
Comments on recreation and tourism. Some commenters suggested that
the recreation-related assessment provided in the RIA understated
potential impacts to the visitor industry because it considers only
changes in suitable timber acres and does not address indirect effects
to adjacent areas, whereas, timber harvest and road construction have
the potential to affect much larger areas than the area that is logged.
In addition, commenters expressed concern that the Forest Service did
not analyze the corresponding effects on rural communities from the
displacement of outfitters, guides, and tour operators.
The analysis of recreation in the RIA for the final rule is not a
site-specific review; rather, it uses available information to
illustrate broad patterns of use and differentiate between the
regulatory alternatives. It assumes all visitation, and half of
visitation, is displaced under the highest level of timber suitability
designation, under the final rule, to provide an upper- and lower
estimate of displacement, for a broad orders of magnitude comparison
with other costs and benefits. Assuming all visitation is displaced
considers not just effects on visitation occurring physically on lands
suitable for timber production but also effects on visitation in other
areas. The revised analysis also includes assessing the economic
importance of nature-based tourism in southeast Alaska, as measured by
business revenue, from data collected by the University of Alaska,
Anchorage.
Comments on the DEIS climate and carbon analysis. Commenters were
concerned that the DEIS analysis did not utilize the best available
science and the qualitative nature of the analysis is not sufficient.
The climate and carbon analysis in the DEIS and FEIS is based on
the best available science on carbon stocks and fluxes, and is
consistent with the latest literature including the Pacific Northwest
Research Station's Science Findings that became available after
publication of the DEIS (Forestry as a Natural Climate Solution: The
Positive Outcomes of Negative Carbon Emissions, March 2020). The DEIS
and FEIS analysis utilized Forest Inventory and Analysis data sets
specific to the Tongass National Forest to assess forest carbon stocks
and disturbance trends over a recent 20-year period. The influence of
potential future climate on the Forest was detailed using recent global
circulation model projections and relevant scientific literature
detailing climate impacts.
The foreseeable impacts of the final rule on carbon emissions and
forest carbon stocks are extremely small because the level of timber
harvesting is expected to be the same between implementation of the
2001 Roadless Rule and a full exemption. Therefore, a qualitative
approach is appropriate and sufficient.
Comments on the DEIS timber analysis--level of harvest. Commenters
were concerned that the timber analysis assumed no increased level of
timber harvest.
The level of harvest used in the DEIS and FEIS timber analysis is
based on the Forest Plan projected timber sale quantity of 46 MMBF feet
per year. This is a reasonable, conservative assumption for the
analysis because it is based on estimates of long-term market demands.
The Tongass National Forest actual volume sold was approximately 30.9
MMBF in fiscal year 2017, 9.3 MMBF in fiscal year 2018, and 5.6 MMBF in
fiscal year 2019. Thus, 46 MMBF remains a reasonable estimate to
utilize for effects analyses based on volume sold since 2016, when the
forest plan was most recently amended, and more importantly it remains
the agency's best estimate despite a few years of lower harvest levels.
The USDA recognizes the projected timber sale quantity is not a
cap, like the allowable sale quantity from the 1982 Planning Rule. It
is only an estimate, and at this time it is the agency's best estimate.
The agency has no reason to believe harvest levels will increase
from the 2016 Forest Plan annual projected timber sale quantity based
on implementation of the final rule. Although, the final rule will
increase the acres of old-growth available for harvest by about 168,000
acres, this opportunity is likely to be constrained by the
implementation of the young-growth transition strategy and the
economics of timber harvesting in general. As previously mentioned,
after 2032 the transition old-growth timber harvest will be limited to
5 MMBF per year, at which point entry into roadless areas will become
less attractive because there will be fewer high-volume acres to off-
set the cost of new road construction. As the young-growth matures and
becomes a greater proportion of the annual harvest, the Tongass timber
sale program will become more focused on previously roaded areas, where
the majority of the young-growth stands exist. In addition, between
2003 and 2011 when the Tongass National Forest was exempted from the
2001 Roadless Rule, only about 300 acres of timber were harvested
within IRAs. This indicates that there will likely not be a rush to
harvest old growth within roadless areas under the final rule.
Comments on the DEIS timber analysis--distribution of harvest.
Commenters were concerned that the DEIS timber analysis assumed old-
growth and young-growth harvest would be evenly disturbed across
suitable acres. Commenters were concerned this made it difficult to
fully
[[Page 68701]]
understand the impacts of the alternatives to a community.
Based on these concerns, the timber analysis was refined to
estimate where old growth is most likely to be harvested within the
suitable acreage over the next 100 years. Estimates considered timber
sale economics, old-growth volume, and timber sale history on the
Tongass National Forest. The result of the analysis is a shift of
expected timber harvest from the northern ranger districts to the
southern ranger districts. The biggest declines in the north are in the
Sitka and Hoonah ranger districts, and the largest increases are in the
Thorne Bay and Petersburg ranger districts.
Comments regarding environmental justice. Commenters expressed
concerns that tribal members rely on roadless areas for food security,
cultural practices, and their traditional way of life and that the
final rule would disproportionately impact them, which would be a
violation of environmental justice principles.
The final rule is programmatic and, as such, does not schedule
specific activities in specific locations. The final rule will increase
the acres available for timber harvest, but harvest levels are expected
to remain the same as they would under the 2001 Roadless Rule. The
amount of new or reconstructed road miles is expected to be similar as
the 2001 Roadless Rule. This makes it challenging to evaluate the
effects of the final rule on communities or populations. However, the
Civil Rights Impact Analysis (Departmental Regulation 4300-004)
recognizes that although the rule itself does not have a
disproportionate effect on any specific population, specific activities
associated with implementation of the Forest Plan within roadless areas
can have environmental justice implications. An opportunity for review
for environmental justice concerns will be available if and when
activities are proposed, and specific locations and extent are defined.
Regulatory Certifications
Regulatory Planning and Review
The OMB determined this rulemaking to be a significant regulatory
action as it may raise novel legal or policy issues arising out of
legal mandates, the President's priorities, or the principles set forth
in Executive Order 12866. The agency has prepared a regulatory
requirements analysis of impacts and discussion of benefits and costs
of the final rule.
The final rule exempting the Tongass National Forest from the 2001
Roadless Rule will provide additional opportunities for timber harvest
and road construction to occur; however, it does not materially affect
the total quantity of timber expected to be harvested or miles of new
roads constructed. As to timber harvest activities, the final rule
would increase the flexibility for land managers to locate and design
timber sales. Improved flexibility could, in turn, improve the Forest
Service's ability to offer economic sales that meet timber industry
needs and contribute to rural economies. While many factors can
influence the cost of timber harvest, areas along existing roads or
those using marine access facilities are typically more economically
efficient, followed by areas where existing roads can be easily
extended. The most expensive harvesting costs are associated with areas
without existing road or marine access facilities.
Cost savings from improved flexibility for timber harvest
activities would accrue alongside other benefits, including reduced
costs for leasable mineral availability and increased potential for
development of renewable energy and transportation projects. While many
of these activities were allowed under the 2001 Roadless Rule, industry
advocates believe that the 2001 Roadless Rule discouraged private
sector investment in projects within roadless areas. Although it is
difficult to estimate the extent of investments that did not occur due
to fear of regulatory burden, the perception of this does affect the
level of investment, and the final rule will eliminate that concern.
Stumpage value benefits are quantified alongside agency road
maintenance costs, cost of forgone conservation value, estimated lost
revenue to outfitters and guides from visitors potentially displaced by
annual harvest of suitable young- and old-growth, and forgone value of
access to recreationists not using outfitter and guides. Dollars spent
by visitors are not necessarily lost but subject to displacement-
related changes. Some businesses may lose revenue if visitors choose
not to travel to southeast Alaska, but others may see increases in
revenue if visitors choose to stay longer or travel to substitute sites
within southeast Alaska. Discounted upper bound estimates of net
present value are positive for the final rule and regulatory
alternatives.
Regulatory Flexibility Act and Consideration of Small Entities
The USDA certifies that the final rule does not have a significant
economic impact on a substantial number of small entities as determined
in the Regulatory Flexibility Analysis because the final rule does not
directly subject small entities to regulatory requirements. Therefore,
notification to the Small Business Administration's Chief Council for
Advocacy is not required pursuant to Executive Order 13272. A number of
small and large entities may experience time or money savings as a
result of flexibility provided by the final rule, or otherwise benefit
from activities on NFS lands under the final rule.
Paperwork Reduction Act
This final rule does not require any additional record keeping,
reporting requirements, or other information collection requirements as
defined in 5 CFR part 1320 that are not already approved for use and,
therefore, imposes no additional paperwork on the public. Accordingly,
the review provisions of the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.) and its implementing regulations at 5 CFR part 1320 do
not apply.
Regulatory Risk Assessment
A risk assessment is only required under 7 U.S.C. 2204e for a
``major'' rule, the primary purpose of which is to regulate issues of
human health, human safety, or the environment. The statute (Pub. L.
103-354, Title III, Section 304) defines ``major'' as any regulation
the Secretary of Agriculture estimates is likely to have an impact on
the U.S. economy of $100 million or more as measured in 1994 dollars.
Economic effects of the final rule are estimated to be less than $100
million per year.
Reducing Regulation and Controlling Regulatory Costs
Executive Order 13771, Reducing Regulation and Controlling
Regulatory Costs, issued January 30, 2017, requires that significant
new regulations shall, to the extent permitted by law, be offset by the
elimination of existing costs associated with at least two prior
regulations.
The final rule has been reviewed in accordance with Executive Order
13771 on reducing regulation and controlling regulatory costs and is
considered an Executive Order 13771 deregulatory action.
Federalism
The USDA has considered the final rule in context of Executive
Order 13132, Federalism, issued August 4, 1999. The USDA has determined
the final rule conforms with federalism principles set out in Executive
Order 13132, would not impose any compliance costs on any state, and
[[Page 68702]]
would not have substantial direct effects on states, on the
relationship between the National Government and the State of Alaska,
or any other state, nor on the distribution of power and
responsibilities among the various levels of government. Therefore, the
USDA concludes that this final rule does not have federalism
implications. The final rule is based on a petition submitted by the
State of Alaska under the APA (5 U.S.C. 553(e)) and pursuant to USDA
regulations at 7 CFR 1.28. The final rule responds to the State of
Alaska's petition, considers public comment received during the Forest
Service's public comment periods, and considers input received from
cooperating agencies. The State of Alaska is a cooperating agency
pursuant to 40 CFR 1501.6 of the Council on Environmental Quality
regulations for implementing the procedural provisions of the NEPA.
No Takings Implications
The USDA has considered the final rule in context with the
principles and criteria contained in Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights, issued March 15, 1988. The USDA has determined that
the final rule does not pose the risk of a taking of private property
because it only applies to management of NFS lands and contains
exemptions that prevent the taking of constitutionally protected
private property.
Consultation With Indian Tribal Governments
On July 30, 2018, the Forest Service initiated government-to-
government consultation with 32 Alaska federally recognized tribes and
27 Alaska Native corporations, and invited them to participate as
cooperating agencies during the rulemaking process. Six tribes
initially agreed to become a cooperating agency including Angoon
Community Association, Central Council Tlingit and Haida Indian Tribes
of Alaska, Hoonah Indian Association, Hydaburg Cooperative Association,
Organized Village of Kake, and Organized Village of Kasaan. The
Organized Village of Kake withdrew as a cooperating agency after
publication of the proposed rule, and the remaining tribal cooperating
agencies withdrew after the publication of the FEIS in collective
protest over the identification of the full exemption alternative as
the preferred alternative in the FEIS. Periodic cooperating agency
meetings were held throughout the rulemaking process that included the
tribal cooperating agencies. Furthermore, government-to-government
consultations occurred by request and twelve consultation meetings were
held throughout the rulemaking process. Two of the twelve government-
to-government consultation meetings were conducted by USDA Under
Secretary James Hubbard and the remaining ten meetings were conducted
by the Alaska Region of the Forest Service.
On July 21, 2020, the Secretary of Agriculture received a petition
from nine southeast Alaska Tribal governments, requesting the United
States government to commence a new rulemaking in collaboration with
Tribes to create a Traditional Homelands Conservation Rule to identify
and protect traditional and customary uses of the Tlingit, Haida, and
Tsimshian peoples in the Tongass National Forest. This petition also
requests the USDA create a new process for engaging in consultation
with Tribes based on the principle of ``mutual concurrence''. The
petition states that it was submitted in response to the Tribes'
experience in the Alaska Roadless Rulemaking process and their belief
that their contributions were not adequately considered. The petition
is currently under review by the Secretary.
The final rule was reviewed in accordance with the requirements of
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments. Executive Order 13175 requires federal agencies to consult
and coordinate with tribes on a government-to-government basis on
policies that have tribal implications, including regulations,
legislative comments, or proposed legislation, and other policy
statements or actions that may have substantial direct effects on one
or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes.
The USDA's Office of Tribal Relations assessed the impact of the
final rule on Indian tribes and determined the final rule has tribal
implications that require continued outreach efforts in the
implementation of the final rule to determine if tribal consultation
under Executive Order 13175 is required. To date, as part of the
regulatory review process noted above, the Forest Service conducted
various outreach efforts to American Indian and Alaska Native tribes,
villages, and corporations regarding the development of this final
rule, and the tribal cooperation in this process.
If a tribe requests consultation, the Forest Service will work with
the USDA Office of Tribal Relations to ensure meaningful consultation
is provided where changes, additions, and modifications identified
herein are not expressly mandated by Congress.
Civil Justice Reform
The USDA reviewed the final rule in context of Executive Order
12988. The USDA has not identified any state or local laws or
regulations that conflict with the final rule or would impede full
implementation of the rules. However, if the rule is adopted, all state
and local laws and regulations that conflict with this rule or would
impede full implementation of this rule would be preempted. No
retroactive effect would be given to this rule, and the final rule
would not require the use of administrative proceedings before parties
could file suit in court.
Unfunded Mandates
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), signed into law on March 22, 1995, the USDA has
assessed the effects of the final rule on state, local, and tribal
governments and the private sector. The 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.
Energy Effects
The USDA has considered the final rule in context of Executive
Order 13211, Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use, issued May 18, 2001. The USDA has
determined the final rule does not constitute a significant energy
action as defined in Executive Order 13211. Therefore, a statement of
energy effects is not required.
E-Government Act
The USDA is committed to complying with the E-Government Act, to
promote the use of the internet and other information technologies to
provide increased opportunities for citizen access to government
information and services, and for other purposes.
List of Subjects in 36 CFR Part 294
National forests, Navigation (air), Recreation areas, Roadless area
management.
0
For the reasons set forth in the preamble, the USDA amends part 294 of
title 36 of the Code of Federal Regulations by adding subpart E,
consisting of Sec. Sec. 294.50 and 294.51, to read as follows:
[[Page 68703]]
PART 294--SPECIAL AREAS
Subpart E--Alaska Roadless Areas Management
Authority: 16 U.S.C. 472, 529, 551, 1608, 1613; 23 U.S.C. 201,
205.
Sec. 294.50 Tongass National Forest.
Subpart B of this part, revised as of July 1, 2001, shall not apply
to the Tongass National Forest.
Sec. 294.51 Transition.
The Tongass Forest Supervisor shall issue a ministerial Notice of
Administrative Change pursuant to 36 CFR 219.13(c) identifying plan
changes made in conformance with the regulatory determinations of this
subpart; specifically, the portion of the December 9, 2016, Record of
Decision concerning suitable timber lands attributed exclusively to
implementation of the January 12, 2001, Roadless Area Conservation Rule
(see 36 CFR part 294, revised as of July 1, 2001) shall be designated
as suitable.
Dated: October 26, 2020.
Stephen Censky,
Deputy Secretary of Agriculture.
[FR Doc. 2020-23984 Filed 10-28-20; 8:45 am]
BILLING CODE 3411-15-P