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Interim Rule

Department of Agriculture
Forest Service
36 CFR Part 212
0596-AB68

Administration of the Forest Development Transportation System:

Temporary Suspension of Road Construction and Reconstruction in Unroaded Areas
AGENCY: Forest Service, USDA
ACTION: Adoption of interim rule

SUMMARY: This final interim rule temporarily suspends decision making regarding road construction and reconstruction in many unroaded areas within the National Forest System. Its intended effect is to retain resource management options in those unroaded areas subject to suspension from the potentially adverse effects associated with road construction, while the Forest Service develops a revised road management policy. The interim rule also will provide time to refocus attention on the larger issues of public use, demand, expectations, and funding surrounding the National Forest Transportation System. The temporary suspension of road construction and reconstruction will expire upon the adoption of a revised road management policy or 18 months from the effective date of this final interim rule, whichever is sooner.

DATES: This rule is effective March 1, 1999.

FOR FURTHER INFORMATION CONTACT: Gerald (Skip) Coghlan, Engineering Staff, 202-205-1400 or Rhey Solomon, Ecosystem Management Coordination Staff, 202-205-0939.

SUPPLEMENTARY INFORMATION: On January 28, 1998, the Forest Service published an Advance Notice of Proposed Rulemaking (ANPR) (63 FR 4350), giving notice of its intention to revise its regulations for managing roads within the National Forest Transportation System and to address changes in how the road system is funded, developed, used, and maintained. On that same date, at 63 FR 4351, the agency published a proposed interim rule to temporarily suspend road construction and reconstruction in certain roadless areas until new and improved scientific and analytical tools are developed to better evaluate the need for and effects of roads in sensitive areas. Comment was invited.

In response to requests from various individuals, organizations, and elected officials, on February 27, 1998, the agency extended the public comment period on the proposed interim rule for an additional 30 days (63 FR 9980) and announced that it would hold 25 open houses to receive comments on the ANPR and proposed interim rule. An additional six open houses were held in response to local requests. An estimated 2,300 people attended these meetings generating approximately 1,800 comments. Over 53,000 letters, postcards, oral comments, and e-mail messages concerning the proposal were submitted during the 60-day comment period. Comments were received from all 50 states, the District of Columbia, and Puerto Rico. Most comments came from California (14,000 individuals or 26 percent of the total responses) followed by Montana, Oregon, Colorado, Illinois, Idaho, Pennsylvania, Alaska, and Georgia. Of the total written comments submitted on the proposed interim rule, 96 percent were from individuals. Responses from conservation oriented groups accounted for another one percent of comments analyzed, while the remaining three percent were from recreation user groups, wood products companies, other commodity groups, and county, State, and Federal agencies.

Summary of Public Comments
The variety of comments received represented widely differing perceptions and interpretations of the proposed interim rule and reflected regional and specific concerns. However, the majority of concerns fit into two categories: (1) a belief that the interim rule is a policy designed to preserve unroaded areas rather than a temporary measure to suspend road construction and reconstruction in unroaded areas, and (2) the interim rule will lead to fewer roads in the National Forest Transportation System and thus reduce access. Based on the perception that the proposed interim rule was a roadless-area policy, many comments focused on the positive and negative environmental, social, and economic attributes of unroaded areas.

The terms "wilderness" and "roadless areas" were often used interchangeably by respondents. Many respondents asked the agency to designate additional wilderness and suggested that exemptions and other stipulations in the proposed interim rule were concessions to special interest commodity user groups that allegedly influence Forest Service policy. Generally, those supporting the proposed interim rule primarily commented on specific aspects of the proposal, indicating that its measures would protect the environment. However, many respondent that supported the rule opposed the exemption for forest plans that are in or have completed the administrative appeals process and the exemption to the Northwest Forest Plan. Those opposed wrote that the acreage requirements for suspensions or exemptions described in the proposed interim rule were inappropriate. Many respondents, who objected to the proposed interim rule, perceived it to be part of an ongoing process that excludes the public from legitimate uses of public lands. These respondents thought that the Forest Service multiple-use mandate was being substantially eroded.

Most opponents of the proposed interim rule wrote that it is fundamentally unnecessary. They asserted that a short-term suspension of road construction and reconstruction would have no positive or lasting effects. They commented less on specific parts of the proposal than on the general nature of their resource management concerns and perceived violations of law. Many expressed concern about the possible economic consequences to local communities, including loss of jobs, reduced Federal receipts to counties, and loss of road infrastructure.

Further analysis of public comments identified a number of issues that fit into one of the following categories: (1) need for and purpose of the interim rule, (2) compliance with laws and regulations, (3) social and economic consequences, (4) environmental consequences, (5) public participation, and (6) suggested revisions to the proposed interim rule. The first five of these categories reflect public concern for the effects of implementing the proposed interim rule, while the last reflects concerns directly related to provisions of the proposed interim rule. A summary of these issues and the Department's response to them follows.

Comments About The Need for and Purpose of Action
Issue 1: The need for an interim rule is unclear. Many respondents doubted the need for an interim rule, others cited the environmental, social, or intrinsic values of unroaded areas, or the sheer size of the National Forest Transportation System, as reasons an interim rule is necessary. Some thought that an interim rule would provide a necessary "time-out" to allow for careful consideration of a long-term transportation system policy, while others wrote that a long-term policy could be developed without an interim rule. The latter cited the fact that 434 miles of new roads were constructed in 1997 and, because the National Forest Transportation System includes 373,000 miles of classified roads, additional road construction would not add to problems associated with Forest Service roads.

Response. The interim rule will suspend very little overall planned road construction and reconstruction during the 18-month period and will have a negligible effect on user access and the environment. However, the suspension will apply to unroaded areas that are ecologically important where road construction and reconstruction could have disproportionate and long-term impacts. Therefore, the Department believes a temporary suspension is beneficial and will provide time to develop a revised road management policy.

Issue 2: The interim rule appears to violate the multiple-use mandate. The connection made between road access and use of National Forest System lands, whether for commodity extraction or recreation, led many respondents to broadly discuss the purposes of National Forest System and other public lands, the concept of multiple-use, and society's perceived changing values. They wrote that the national forests belong to and should be protected for everyone, not just those seen as motivated by short-term financial gain. These respondents argued that unroaded areas are the only remaining areas where ecosystem integrity can be preserved; a benefit, in their opinion, to the land and to future generations and satisfying multiple-use in the long-term. Others wrote that the national forests were set aside by the Federal Government to provide a sustained yield of natural resources, that these lands should continue to be managed for that purpose, and that the Forest Service is not sufficiently following that mandate by adopting the interim rule.

Some respondents held that national forest management must balance society's need for commodities, like lumber, beef, and minerals, with protection of water, air, and wilderness recreation opportunities. A few suggested that the multiple-use mandate is not valid because increased human demands for natural resources have exceeded the land's ability to provide all things for all people.

Response. The proposed interim rule does not alter the statutory multiple-use mandate nor the agency's compliance with that mandate. Lands administered by the Forest Service will continue to be managed for a balance of resource uses according to land and resource management plans (forest plans), which are prepared in compliance with the Multiple-Use Sustained-Yield Act of 1960 (16 U.S.C. 528) and the National Forest Management Act of 1976 (16 U.S.C. 1600 et seq.). The proposed interim rule is temporary, only addresses road construction and reconstruction within certain unroaded areas, and does not restrict multiple-uses, although some projects and activities dependent on road construction or reconstruction will be affected. Also, these unroaded areas are not the only areas of the National Forest System where lands are managed to protect their natural state; for example, 35 million acres are in congressionally designated wilderness areas.

Issue 3: The interim rule will expand the Wilderness Preservation System. Some respondents were concerned that the proposed interim rule is a "massive land grab" that will create de facto wilderness in areas otherwise designated for multiple-use management. Some respondents wrote that the proposed interim rule is an inappropriate attempt to create additional wilderness without designation by the Congress or endorsement by the general public. They suggested that the proposed interim rule would actually expand the Wilderness Preservation System. Such responses usually were accompanied by comments that land would be excluded from other uses, at the expense of public access, for the use of a select few.

However, some respondents asked that unroaded areas be given full protection under the Wilderness Act of 1964. These respondents wrote that unroaded areas are the last vestiges of a once vast area, which have somehow escaped inclusion in the Wilderness Preservation System. They suggested that there are not enough designated wilderness areas and advocated using unroaded areas to buffer designated wilderness areas from human activities or, ultimately, to include them in the Wilderness Preservation System. Requests for protection of specific unroaded areas often accompanied the general comments on unroaded area protection.

Response. The proposed interim rule is not a policy to expand the Wilderness Preservation System. It will temporarily suspend road construction and reconstruction in some unroaded areas; it sets no limits on other activities, including timber harvest which may be accomplished without the construction or reconstruction of roads. Recommendations for wilderness area designation and management standards and guidelines for roadless areas are decisions made during the forest planning process and are subject to special procedures under the Wilderness Act. The proposed interim rule does not affect forest planning or land allocation decisions made in the land and resource management plans. It would be inappropriate and infeasible for the Secretary to recommend new wilderness areas in conjunction with this interim rule.

Issue 4: The merits of a new roadless area review are of great concern and interest. The possibility of a new inventory of roadless areas and roads generated more responses than any other topic. Most supporters of the proposed interim rule suggested that the Forest Service expand its suspension of road construction and reconstruction and protect what they view are irreplaceable resources. Some opined that the Roadless Area Review and Evaluation (RARE II), which was prepared in 1979, is an inadequate inventory and should not be used as a basis for identifying roadless areas. Others asked that the suspension not only provide protection of both inventoried and un-inventoried roadless areas, but also that the Forest Service prepare a new inventory.

Response. Road construction and reconstruction in unroaded portions of roadless areas identified in RARE II, as well as those additional roadless areas identified in land and resource management plans, are subject to suspension under the final interim rule. The rule does not change those inventories nor any land allocations made with regard to these lands. The interim rule is not a roadless area inventory process, nor does it propose a new inventory. Land and resource management planning under the National Forest Management Act of 1976 is the established mechanism for determining the need for conducting inventories and facilitating decisionmaking with regard to specific areas.

Comments About Compliance With Laws and Regulations
Issue 5: An environmental impact statement (EIS) should have been prepared. Because the suspension of road construction and reconstruction will be national in scope and was perceived to affect many aspects of forest use, many respondents expressed their expectation that the Forest Service should follow mandated processes of the National Environmental Policy Act (NEPA) and conduct assessments of potential impacts. Some asserted that the agency should have prepared an environmental impact statement before publishing the proposed interim rule.

Response. To determine whether an environmental impact statement is needed, Forest Service officials have prepared an environmental assessment of the possible effects of implementing the proposed interim rule and alternatives. Based on the analysis, the Chief of the Forest Service has made a Finding of No Significant Impact (FONSI). The FONSI discusses the significance of the environmental consequences of the final interim rule and addresses why an EIS is not required. The environmental assessment is available on the World Wide Web at www.fs.fed.us/eng/road_mgt/. Copies are also available upon request by writing the Director of Ecosystem Management Coordination, P.O. Box 96090, Washington, D.C. 20090, or by calling 202-205-0895.

Issue 6: The interim rule appears to violate laws and regulations. Several individuals expressed strong concern about a perceived disregard for natural resource management laws and administrative rulemaking procedures. They wrote that the proposed interim rule violates Constitutional law, including the Fifth and Tenth Amendments that address being deprived of property without compensation and limits of Federal power, respectively. These respondents also alleged violation of various environmental and administrative laws including the Wilderness Act, the National Forest Management Act, the Alaska National Interest Land Conservation Act, the Americans with Disabilities Act, and the Paperwork Reduction Act. Laws most often cited as being violated and the Department's response follows.

The Wilderness Act. Although only Congress may designate wilderness areas, some respondents viewed the proposed interim rule as a step toward circumventing congressional authority. These respondents contend that unroaded lands were released for multiple-use under various wilderness legislation, as well as RARE II, and they see the proposed interim rule as a breach of those laws. Some expressed concern that the proposed interim rule violates release language in State Wilderness Acts, specifically those in Wyoming and Colorado.

Response. The proposed interim rule was not intended as a policy to evaluate or consider National Forest System lands for recommendation as potential wilderness areas. The land and resource planning process under NFMA is the appropriate vehicle for making recommendations for congressional wilderness area designation. The interim rule does not make decisions or recommendations regarding wilderness potential. The interim rule also does not affect activities in unroaded areas except road construction and reconstruction for a temporary period. Unroaded areas released by congress under wilderness statutes are still released for multiple-use management in accordance with the applicable land and resource management plan.

National Forest Management Act (NFMA) Planning. Some respondents indicated that the proposed interim rule alters forest plans without going through the NFMA amendment process. Some also were confused about integration of the proposed interim rule with the forest planning process.

Response. Adoption of the interim rule does not violate NFMA. Together with other applicable laws, NFMA authorizes the Secretary of Agriculture to promulgate regulations governing the administration and management of the National Forest Transportation System and regulations to govern forest plan approval, amendment, and revision (16 U.S.C. 1604, 1608 and 1613). These laws complement the long standing authority of the Secretary to regulate the occupancy and use of national forests (16 U.S.C. 551).

Forest planning and management occur at distinct administrative levels of decisionmaking under the structure established by the NFMA and its implementing regulations. At the programmatic level, and in response to specific public concerns, the Forest Service develops various management options, or alternatives, for an entire national forest. When a land and resource management plan is approved, the project initiation phase begins in which managers propose site-specific actions and assess their environmental consequences and feasibility. The interim rule does not alter the programmatic framework established in land and resource management plans, nor does it amend any plan allocation, standard, or guideline. Although the interim rule may alter the immediate feasibility of some projects, it will not alter the premises on which those projects are based. (For a more detailed discussion of forest plans and project-level decisionmaking see 58 FR 19370-19371.)

Americans with Disabilities Act (ADA). Some respondents were concerned that the proposed interim rule would deny access to National Forest System lands by persons with physical disabilities caused by age, health, or handicaps. Some people rely solely on vehicle access to enjoy their favorite sites and experience the outdoors away from crowded, high-impact camping areas. Respondents wrote that the proposed interim rule could violate the intent of the ADA by denying safe access to the most remote facilities.

Response. Executive branch actions of the Federal government are covered by Title V of the Rehabilitation Act of 1973 and not the Americans with Disabilities Act. A model for the requirements of the ADA, Title V prohibits discrimination in services and employment on the basis of handicap. The proposed interim rule would not violate the letter or the spirit of the ADA. It is possible that users may be denied new road access into some areas because of the temporary suspension of road construction in unroaded areas; however, this would affect all users equally.

Alaska National Interest Land Conservation Act (ANILCA). A number of respondents claim ANILCA will be violated by denying access to private land in-holdings or limiting access through unroaded areas. These respondents also believe that the proposed interim rule violates ANILCA by establishing additional roadless areas without approval of Congress or without going through the land and resource management planning process.

Response. The proposed and final interim rule, expressly state that road construction and reconstruction needed to ensure access provided by statute or pursuant to reserved or outstanding rights will be protected and not subject to provisions of the rule that would suspend road construction or reconstruction . Additionally, as stated previously, this interim rule does not change land and resource management planning decisions or land allocations nor result in a new roadless area inventory.

Revised Statute 2477. Revised Statute 2477 is a reenactment of section 8 of the Mining Act of 1866, which was the primary authority under which many State and county highways in the western United States were constructed and maintained. Such highway construction required no approval from the Federal Government and no documentation in public lands records. With passage of the Federal Land Policy and Management Act of 1976, Revised Statute 2477 was repealed; however, certain rights-of-way granted before 1976 were preserved.

Some respondents expressed concern about the potential loss or restriction of current or future access to private or State lands that border or are intermingled with National Forest System lands. They expressed fear of the potential loss of traditionally used access routes, many of which they claim should be exempt under Revised Statute 2477.

Response. The proposed interim rule expressly stated that road construction and reconstruction needed to ensure access provided by statute or pursuant to reserved or outstanding rights will be protected. The final interim rule will not limit nor interfere with the exercise of valid existing rights-of-way granted prior to 1976 pursuant to Revised Statute 2477.

Unfunded Mandates Reform Act. A few respondents believe the interim rule violates the Unfunded Mandates Reform Act by shifting economic burdens to local communities, primarily by reducing the timber harvest. These respondents believe that the reduction in direct revenues from payments-to-States and other indirect revenue loses, such as reduced employment, are unfair burdens to local communities and violate the law.

Response. Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), the Department has assessed the possible effects of the final interim rule on State, local, and Tribal governments, and the private sector. The Department recognizes that there will be some level of economic impacts to some communities as a result of the interim rule. The loss of payments-to-States is expected to be $6 to $8 million annually, far less than the threshold of $100 million, and it is not expected to otherwise adversely affect the economy. The interim rule does not compel the expenditure of $100 million or more by any State, local, or Tribal government, or any person or entity in the private sector. Therefore, a statement under section 202 of the Act is not required.

Comments About Social and Economic Consequences
Issue 7: Intrinsic values of unroaded areas. Reflecting an erroneous belief that roadless areas, unroaded areas, and Congressionally designated wilderness areas are the same, many respondents asserted that unroaded areas have a value more important than can be measured economically and, therefore, should be protected. Some wrote that the Forest Service should take every opportunity to expand the Wilderness Preservation System to meet the nation's future needs for watershed protection, wildlife habitat, and recreation. Noting that a suspension of road construction in unroaded areas provides only short-term protection, they worried that a loss of roadless areas will reduce their opportunities to pursue spiritual and emotional renewal. A perception that wild places are disappearing led many reviewers to call for a halt to timber harvesting practices and associated road building projects.

Response. The stated purpose of the proposed interim rule is to ensure that when managers consider proposals to construct or reconstruct roads, they use the best available science in the decisionmaking process. As already noted, the final interim rule will not make land allocation decisions. The Department recognizes the important and unique qualities of unroaded areas and believes that management decisions for those areas are most appropriately addressed in land and resource management plans.

Issue 8: Economic and cumulative economic effects. Some respondents suggested that overall costs to Federal, State, and local governments, as well as to industries that depend on commodity extraction, will surpass $100 million annually, which is the threshold for an economically significant and major rule, especially if direct and indirect cumulative effects on local communities are considered. Further, these reviewers asserted that an economic impact analysis must be completed before a final interim rule is adopted and that the analysis should consider specifically the cumulative effects of other land management planning decisions that have adversely affected rural communities.

Adverse impacts cited include the Northwest Forest Plan, the Interim Strategies for Managing Anadromous Fish Producing Watersheds (PACFISH), the Inland Fish Aquatic Strategy (INFISH), the North American Free Trade Agreement (NAFTA), and new air- and water-quality regulations. Respondents wrote that implementation of decisions like these have adversely affected the economic base of many cities, towns, and rural areas in the Western United States and that past decisions have not adequately considered cumulative economic effects.

Response. In accordance with Departmental requirements, the Forest Service has completed an economic analysis as part of the environmental analysis for the final interim rule. That analysis reveals that the overall effects of the final interim rule will be minor, although some local communities may be affected more than others, specifically some areas in Idaho. Some social and economic effects will occur as an indirect result of temporarily suspending road construction and reconstruction, primarily those associated with timber harvest. Analysis indicates that the final interim rule will have an annual direct effect of $6 to $8 million in lost revenues to local communities from payments-to-States, which is substantially less than $100 million and will not significantly compromise productivity, competition, employment, the environment, public health or safety, or State and local governments. This interim rule is expected to reduce annual employment nationwide by 270 to 420 direct timber jobs per year over 3 years. To the extent that workers who would otherwise fill these jobs do not find alternative employment, local and county revenues would be decreased. However, provisions of the 1998 Supplemental Appropriations Rescission Act (Pub. L. 105-174) will, to some extent, compensate for shortfalls in payments-to-States from revenues generated on National Forest System lands.

Recent trends of declining timber volumes from National Forest System lands have been recognized in the environmental assessment. The national forests lands encompassed by the Northwest Forest Plan amendments are exempt from suspension of road construction and reconstruction and are, therefore, unaffected by the interim rule. However, national forests within the Columbia River Basin that have experienced a decline in timber harvesting of 7 percent since 1986 and are expected to decline another 5 percent by the end of the decade are also impacted by the interim rule with a further small increment of potential decline in timber production. The impacts from NAFTA on the economics of communities affected by this interim rule are highly speculative and, therefore, have not been accounted for when developing this interim rule. The cumulative economic effects of this interim rule are primarily related to decreases in timber harvesting, but analysis shows that those effects are not significant.

Issue 9: Effects on dependent local communities. Many respondents were concerned that a suspension of decisionmaking with regard to timber sale road construction and reconstruction under the proposed interim rule would adversely affect the financial health of their communities. Lost revenue, fewer new jobs, and escalating unemployment with its attendant social costs were cited as potential negative effects. Noting the loss of high paying jobs and a rising cost of living, many respondents wrote that reduced timber harvest and, to a lesser extent, reduced oil and gas development, will prohibit them from maintaining their lifestyles, lead to a loss of revenue for community infrastructure maintenance, and result in a loss of local community control.

Many asserted strongly that national forests were set aside to provide a sustained yield of goods and services and should continue to do so. Some respondents expressed an opinion that the proposed interim rule will be used by some groups to lobby for a ban on all logging on Federal lands. They asserted that Federally administered lands are economically vital, not just for resource-producing communities, but also for a resource- consuming nation.

Many small communities in resource-dependent counties with substantial acreage in national forest or other Federal ownership responded that they rely on the 25 percent payments-to-States for funding of public schools and for road maintenance. Many wrote that reductions in the amount of Federal timber and other receipts resulting from the proposed interim rule will drastically affect the quality of life in rural communities by shifting a greater financial burden to counties and taxpayers.

Other respondents asserted that jobs will not be lost or that any losses will be offset by the creation of recreation and tourism jobs and employment opportunities from watershed and wildlife habitat restoration efforts. They suggested that communities focus on those opportunities rather than on potential job losses.

Response. As noted earlier, the possible effects of implementing the final interim rule have been evaluated in the environmental assessment and an associated benefit/cost economic analysis. Under the rule, payments-to-States could be reduced by about $6 to $9 million nationally; however, these estimates are uncertain and are greatly dependent on possible changes in planning priorities, budgets, and the timing of implementing projects on the ground. Additionally, the 1998 Supplemental Appropriations Rescission Act (PL 105-174) requires the Forest Service to compensate States for the loss of revenues from scheduled activities that are suspended by this interim rule. It is uncertain what mitigating effect this law will have on payments-to-States until the rule is implemented and scheduled projects are assessed.

The Forest Service anticipates no long-term effects on the production of forest resources as a result of implementing the final interim rule, although some short-term effects are identified and examined in the environmental assessment and benefit/cost analysis. The anticipated temporary effects on local employment supported by national forest timber harvest and other commodity resource production are expected to be minor, but, as stated previously, relatively greater impacts are probable in some Idaho communities. The environmental assessment does anticipate some employment offsets within the same employment sectors in some areas of the country. For instance, where timber harvest reductions occur in the southern States, the Forest Service expects that many of these reductions can be offset by temporary increases in production from non-federal lands. However, in other areas of the country, such as the Pacific Northwest, there is little opportunity for such offsets.

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