Administration of the Forest Development Transportation System: Temporary Suspension of Road Construction in Roadless Areas

DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 212

RIN AB-68-0095

Administration of the Forest Development Transportation System:

Temporary Suspension of Road Construction in Roadless Areas

agency: Forest Service, USDA.

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action: Notice of proposed interim rule; request for comment.

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summary: In an Advanced Notice of Proposed Rulemaking (ANPR) published

elsewhere in today's Federal Register the Forest Service has announced

its intentions to revise its management of the National Forest Road

System. In concert with that ANPR, the Forest Service proposes to

suspend temporarily road construction and reconstruction in most

roadless areas of the National Forest System. The intended effect is to

safeguard the significant ecological values of roadless areas from

potentially adverse effects associated with road construction, while

new and improved analytical tools are developed to evaluate the impact

of locating and constructing roads. The temporary suspension of road

construction and reconstruction would expire upon the application of

the new and improved analysis tools or 18 months, whichever is sooner.

This rulemaking is a component of a larger effort to address a number

of National Forest System transportation issues. Public comment is

invited and will be considered in adoption of an interim rule.

dates: Comments are due by February 27, 1998.

addresses: Send written comments to Director, Ecosystem Management

Coordination Staff, MAIL STOP 1104, Forest Service, USDA, P.O. Box

96090, Washington, D.C. 20090-6090. Comments also may be sent via the

Internet to roads/[email protected].

All comments, including names and addresses when provided, are

placed in the record and are available for public inspection and

copying at the Forest Service National Headquarters Offices, 14th and

Independence Avenue SW, Washington, D.C. Persons wishing to inspect the

comments are encouraged to call ahead (202-205-0895) to facilitate

entrance into the building.

for further information contact: Gerald (Skip) Coghlan, Engineering

Staff, 202-205-1400 or Rhey Solomon, Ecosystem Management Coordination

Staff, 202-205-0939.

supplementary information: This proposed interim rule is being

published in association with an Advance Notice of Proposed Rulemaking

(ANPR) published elsewhere in this separate part in today's Federal

Register. In the ANPR, the Forest Service is giving notice of its

intention to revise the regulations concerning the management of the

National Forest System transportation system to address changes in how

the road system is developed, used, maintained, and funded. As part of

the ANPR, the agency also indicates that the development of improved

scientific and analytical tools for land managers and resource

specialists is an essential element of the comprehensive overhaul of

forest road policy.

As noted in the ANPR, the road system on the National Forest System

is extensive and diverse. It includes an estimated 373,000 miles of

forest system roads. Roads are essential for the active management of

the resources of the National Forests and Grasslands. These roads also

are essential for public use and enjoyment of the National Forest

System.

In addition, the agency estimates that there are more than 60,000

miles of roads created by repeated public use of the National Forests

and Grasslands. Although these roads occur on National Forest System

lands, they are not planned, managed or maintained by the agency or

considered part of the forest road system.

A growing body of scientific information demonstrates that road

construction in sensitive areas, such as roadless areas, may cause the

introduction of exotic plant species, disrupt wildlife habitat, and

otherwise compromise the attributes that make roadless areas

ecologically important and often unique. Roadless areas are often

aquatic strongholds for fish of great recreational and commercial

value. These areas also often provide critical habitat and migration

routes for many wildlife species, and they are particularly important

for those species requiring large home ranges, such as the grizzly bear

and the wolf.

The effects of road construction may persist for decades. Many of

the remaining areas with the National Forest System are in areas with

steep slopes that surround headwater streams. Road construction

increases the risk of erosion, landslides, and slope failure, which may

compromise critically important water quality. Until new and improved

analytical tools can be developed and implemented to evaluate the

positive benefits and adverse impacts of roads, the adoption of an

interim rule to temporarily suspend road construction or reconstruction

within National Forest System roadless areas is viewed as critical to

preserve land and resource management options.

Draft Proposed Interim Rule

The agency proposes to temporarily suspend road construction

activities, including the construction of temporary roads on National

Forest System roadless areas, through issuance of an interim rule to a

new Sec. 212.13 of Part 212 of Title 36 of the Code of Federal

Regulations. Specifically, the interim rule would apply the temporary

suspension to roadless areas of 5,000 acres or more inventoried in RARE

II (Roadless Area Review and Evaluation) and other unroaded areas,

regardless of size, identified in a forest plan; unroaded areas greater

than 1,000 acres contiguous to Congressionally-designated Wilderness or

contiguous to federally-administered components of the National Wild

and Scenic Rivers System that are classified as ``Wild''; and all

unroaded areas greater than 1,000 acres contiguous to roadless areas of

5,000 acres or more on other federal lands. In addition, the suspension

would apply to two other categories: (1) any National Forest System

(NFS) area of low-density road development or (2) any other NFS area

that retains its roadless characteristics which the Regional Forester

subsequently determines have such special and unique ecological

characteristics or social values that no road construction or

reconstruction should proceed. The agency does not anticipate that

Regional Foresters will create a new inventory of roadless areas that

meet the criteria of these latter two categories. Rather, it is

expected that Regional Foresters will apply these categories on a

project-by-project basis. Examples of areas that might be considered

under these latter categories are areas needed to protect the values of

municipal watersheds, including public drinking water sources, or to

provide habitat for listed or proposed endangered and threatened fish,

wildlife, or plants. Another example might be the National Forest

System roadless areas listed in Table 5.1 of the Southern Appalachian

Area Assessment, Social/Cultural/Economic Technical Report, Report 4 of

5, July 1996.

The suspension would remain in effect until any suspended road

construction could be evaluated using the new analytical tools that are

being developed, but no longer than 18 months from the effective date

of the interim rule.

The proposed interim rule would expressly exempt four categories of

roadless areas from the temporary suspension of road construction and

reconstruction:

1. Roadless areas within National Forests that have a signed Record

of Decision revising their forest plans and have completed the

administrative appeal process as of the effective date of the rule.

2. Roadless areas within National Forests that have a signed Record

of

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Decision revising their forest plans on which the administrative appeal

process is underway, but not completed as of the effective date of the

rule.

3. Roadless areas in Washington, Oregon, and California within

those portions of National Forests encompassed by the Northwest Forest

Plan; and

4. Road construction or reconstruction in roadless areas needed for

public safety or to ensure access to private lands pursuant to statute

or outstanding and reserved rights.

The exemptions for final revised forest plans and for the Northwest

Forest Plan recognize the currency of the scientific information,

evaluations, public participation, and decisions made in these plans

and the need to minimize disruption in programs of work. The proposed

interim rule also recognizes the necessity to ensure public safety and

access to private property. The exemption for revised plans currently

under appeal also honors exiting decisionmaking and administrative

appeal processes and seeks to avoid undue interruptions or interference

with established planning processes. We specifically request comment on

whether additional measures are needed to implement exemption (b)(2).

The proposed interim rule would not modify, suspend, or cause to be

re-examined any existing permit, contract, or other instrument

authorizing occupancy and use of the National Forest System, any land

and resource management plan, any land allocation decision, or other

management activity or use within roadless areas in which road

construction or reconstruction are temporarily suspended. The intent is

not to halt active management of roadless areas but to protect their

values while improved analytical tools are developed to better assess

the impacts of road construction on roadless area values.

Regulatory Impact

Under the proposed interim rule, some currently planned land

management projects that are dependent on new road construction, such

as timber sales and ecosystem restoration activities, may not be

implemented in the timeframe currently planned. During the interim

period, some projects may proceed in an altered form and some may be

postponed until such time that the road assessment process is

implemented. Those projects may eventually be altered as a result of

new information provided by the forest road assessment process. It is

difficult to estimate with precision the costs and benefits associated

with deferring projects due to considerable variation in site-specific

factors; the fact that projects are in various stages of development

and readiness to execute; the fact that planning and analysis often

take much longer to complete than originally anticipated; and the fact

that some project work can be shifted to other sites outside roadless

areas.

Nationwide, the agency estimates that of the total 3.8 billion

board feet planned for FY 1998, the volume of timber actually offered

for sale will be reduced by 100-275 million board feet. Although the

actual amounts are very difficult to estimate, this reduction in timber

volume offered could lead to corresponding reductions in employment and

in payments to states. It is expected that the Intermountain and

Northern Regions of the National Forest System will experience a

disproportionately higher effect from the suspension than other

geographic regions of the country, due to the higher dependence on

roadless areas for timber production in these regions.

While the delay in these projects will have some adverse economic

impact in the short term, these impacts are offset by the benefits to

be gained from the temporary suspension of road construction and

reconstruction in these areas. The benefits would include the

prevention of an increased risk of erosion, landslides, and slope

failure, all of which may compromise critically important water quality

in the headwater streams that are found in many of the covered roadless

areas. The temporary suspension would also help to prevent introduction

of exotic plant species into these areas. The development of a new road

analysis process would also allow currently proposed and future

projects requiring road construction to reflect current scientific

information and resource use trends. This will help managers and the

public better understand the consequences of locating and building

roads in roadless areas.

This proposed interim rule has been reviewed under USDA procedures

and Executive Order 12866 on Regulatory Planning and Review. It has

been determined that this is a significant rule because of the

importance of road policy issues. While this proposed interim measure

would create some costs associated with temporarily suspending actions

on road construction or reconstruction, the suspension is limited to

roadless areas and some low-density roaded areas and is temporary, not

to exceed 18 months. This proposed interim rule will not have an annual

effect of $100 million or more on the economy nor have a significant

adverse effect on productivity, competition, jobs, the environment,

public health or safety, nor State or local governments. Accordingly,

this proposed interim rule has been reviewed by OMB under Executive

Order 12866.

Moreover, this proposed interim rule has been considered in light

of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and it is

hereby certified that this action will not have a significant economic

impact on a substantial number of small entities as defined by that

Act.

Unfunded Mandates Reform

Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2

U.S.C. 1531-1538), the Department has assessed the effects of this

proposed interim rule on State, local, and tribal governments and the

private sector. This proposed interim rule does not compel the

expenditure of $100 million or more by any State, local, or tribal

government or anyone in the private sector. Therefore, a statement

under section 202 of the Act is not required.

Environmental Impact

Section 31.1b of Forest Service Handbook (FSH) 1909.15 (57 FR

43180; September 18, 1992) excludes from documentation in an

environmental assessment or impact statement ``rules, regulations, or

policies to establish Service-wide administrative procedures, program

processes, or instructions.'' The agency's assessment is that this

proposed interim rule falls within this category of actions.

Nevertheless, in furtherance of the purposes of the National

Environmental Policy Act, the agency has elected to undertake

environmental analysis and documentation prior to publication of the

final interim rule. As part of the agency scoping under its NEPA

procedures, public comment is invited.

No Takings Implications

This proposed interim rule has been analyzed in accordance with the

principles and criteria contained in Executive Order 12630, and it has

been determined that the proposed interim rule does not pose the risk

of taking of Constitutionally-protected private property. There are no

Constitutionally-protected private property rights to be affected,

since the proposed interim rule applies only to federal lands and

explicitly ensures access to private property pursuant to statute or to

outstanding or reserved rights.

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Civil Justice Reform Act

This proposed interim rule has been reviewed under Executive Order

12988, Civil Justice Reform. This proposed interim rule (1) preempts

all State and local laws and regulations that are in conflict or which

would impede its full implementation, (2) has no retroactive effect on

existing permits, contracts, or other instruments authorizing the

occupancy and use of the National Forest System, and (3) does not

require administrative proceedings before parties may file suit in

court challenging its provisions.

Controlling Paperwork Burdens on the Public

This proposed interim rule does not contain any recordkeeping or

reporting requirements or other information collection requirements as

defined in 5 CFR 1320 and, therefore, imposes no paperwork burden on

the public. Accordingly, the review provisions of the Paperwork

Reduction Act of 1995 (44 U.S.C. 3501, et seq.) and implementing

regulations at 5 CFR part 1320 do not apply.

List of Subjects in 36 CFR Part 212

Highways and roads, National forests, Rights-of-way, and

Transportation.

Therefore, the Forest Service proposes an interim rule amending 36

CFR part 212 as follows:

PART 212--ADMINISTRATION OF THE FOREST DEVELOPMENT TRANSPORTATION

SYSTEM

1. The authority citation for part 212 continues to read as

follows:

Authority: Sec. 1, 30 Stat. 35, as amended sec. 205, 72 Stat.

907; 16 U.S.C. 551, 23 U.S.C. 205, unless otherwise noted.

2. Add a new Sec. 212.13 to read as follows:

Sec. 212.13 Temporary suspension of road construction in roadless

areas.

(a) Suspensions. Except as provided in paragraphs (b) and (c) of

this section, new road construction projects, including temporary

roads, and road reconstruction projects are suspended within the

following areas of the National Forest System:

(1) ALL RARE II inventoried roadless areas of 5,000 acres or more

within the National Forest System and all other roadless areas,

regardless of size, identified in a land and resource management plan;

(2) All National Forest System roadless areas greater than 1,000

acres that are contiguous to Congressionally-designated Wilderness

Areas or that are contiguous to federally-administered components of

the National Wild and Scenic River System (16 U.S.C. 1274) which are

classified as Wild;

(3) All National Forest System roadless areas greater than 1,000

acres that are contiguous to roadless areas of 5,000 acres or more on

other federal lands;

(4) Any National Forest System area, regardless of size, with low-

density road development that essentially retains its roadless

characteristics on which the Regional Forester subsequently determines

that road construction or reconstruction should not proceed, because of

the area's special and unique ecological characteristics or social

values; and

(5) Any other National Forest System area, regardless of size, that

essentially retains its roadless characteristics on which the Regional

Forester subsequently determines that road construction or

reconstruction should not proceed, because of the area's special and

unique ecological characteristics or social values.

(b) Exemptions. Road construction and reconstruction projects

within the following roadless areas are exempt from the suspension

required by paragraph (a) of this section:

(1) Roadless areas within National Forests that have a signed

Record of Decision revising their land and resource management plans

prepared pursuant to the National Forest Management Act (16 U.S.C.

1604(f)(5)) on which the administrative appeals process under 36 CFR

Part 217 has been completed as of the effective date of the final

interim rule;

(2) Roadless areas within a National Forest that has a signed

Record of Decision revising the land and resource management plan

prepared pursuant to the National Forest Management Act (16 U.S.C.

1604(f)(5)) on which the administrative appeals process under 36 CFR

Part 217 is underway as of the effective date of the final interim

rule. (For these forests, issues related to the construction of roads

in roadless areas will be addressed in the appeal decision, when

appropriate.);

(3) Roadless areas within National Forest System lands in

Washington, Oregon, and California, that are encompassed by the

Northwest Forest Plan which is described in the ``Record of Decision

for Amendments to Forest Service and Bureau of Land Management Planning

Documents Within the Range of the Northern Spotted Owl and Standards

and Guidelines for Management of Habitat for Late Successional and Old-

Growth Forest Related Species Within the Range of the Northern Spotted

Owl, April 13, 1994;'' and

(4) Road construction or reconstruction in roadless areas needed

for public safety or to ensure access provided by statute or provided

pursuant to reserved or outstanding private rights.

(c) Scope and applicability. (1) This section does not suspend or

modify any existing permit, contract, or other instrument authorizing

the occupancy and use of National Forest System land. Additionally,

this section does not suspend or modify any existing National Forest

System land allocation decision, nor is this section intended to

suspend or otherwise affect other management activities or uses within

roadless areas in which road construction or reconstruction projects

are suspended pursuant to paragraph (a) of this section.

(2) The suspensions provided by paragraph (a) of this section

remain in effect until any suspended road construction in roadless

areas can be evaluated using new analytical tools, or 18 months, which

ever is first.

(d) Effective date. The suspension of road construction and

reconstruction projects in roadless areas as provided in paragraph (a)

of this section is effective upon the date of publication of the final

interim rule.

Dated: January 22, 1998.

Mike Dombeck,

Chief, Forest Service.

[FR Doc. 98-1906 Filed 1-27-98; 8:45 am]

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