Rule2023-01483
Special Areas; Roadless Area Conservation; National Forest System Lands in Alaska
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 27, 2023
Effective
January 27, 2023
Issuing agencies
Agriculture DepartmentForest Service
Abstract
The U.S. Department of Agriculture (USDA or Department) is repealing an October 2020 rule (the 2020 Alaska Roadless Rule) that exempted the Tongass National Forest (the Tongass) from the 2001 Roadless Area Conservation Rule (2001 Roadless Rule). Repealing the 2020 Alaska Roadless Rule will reinstate the pre-existing management regime, which prohibited timber harvest and road construction/ reconstruction with limited exceptions within designated Inventoried Roadless Areas (IRAs).
Full Text
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<title>Federal Register, Volume 88 Issue 18 (Friday, January 27, 2023)</title>
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[Federal Register Volume 88, Number 18 (Friday, January 27, 2023)]
[Rules and Regulations]
[Pages 5252-5272]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-01483]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 294
RIN 0596-AD51
Special Areas; Roadless Area Conservation; National Forest System
Lands in Alaska
AGENCY: Forest Service, USDA.
ACTION: Final rule and record of decision.
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SUMMARY: The U.S. Department of Agriculture (USDA or Department) is
repealing an October 2020 rule (the 2020 Alaska Roadless Rule) that
exempted the Tongass National Forest (the Tongass) from the 2001
Roadless Area Conservation Rule (2001 Roadless Rule). Repealing the
2020 Alaska Roadless Rule will reinstate the pre-existing management
regime, which prohibited timber harvest and road construction/
reconstruction with limited exceptions within designated Inventoried
Roadless Areas (IRAs).
DATES: This rule is effective January 27, 2023.
FOR FURTHER INFORMATION CONTACT: Joe Krueger, Interdisciplinary Team
Leader, at 202-649-1189 or <a href="/cdn-cgi/l/email-protection#1566783b73663b747e6771797066666760797055606671743b727a63"><span class="__cf_email__" data-cfemail="3e4d5310584d105f554c5a525b4d4d4c4b525b7e4b4d5a5f10595148">[email protected]</span></a>. Individuals
using telecommunication devices for the deaf
[[Page 5253]]
(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:
Background
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 the 2001 Roadless Rule (66 FR
3244), 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 intent
of the 2001 Roadless Rule is to provide lasting protection for IRAs in
the context of overall multiple-use land management.
During the development of the 2001 Roadless Rule, the Forest
Service analyzed an alternative that would have exempted the Tongass
from the Rule's application, but in the final rulemaking, the
Department applied the Rule to the Tongass, with an additional
mitigation measure designed to protect natural resources and
accommodate an adjustment to the timber program in Southeast Alaska to
focus harvest activities outside of designated inventoried roadless
areas. In 2003, the Department reversed that decision and exempted the
Tongass from the 2001 Roadless Rule (68 FR 75136, December 30, 2003).
The 2003 rulemaking was later overturned by the U.S. District Court for
the District of Alaska and the 2001 Roadless Rule was reinstated on the
Tongass (with special instructions). See Organized Village of Kake v.
USDA, 776 F. Supp. 2d 960 (D. Alaska, 2011). That decision was appealed
by the State of Alaska, and ultimately the District Court's ruling was
upheld by the U.S. Court of Appeals for the Ninth Circuit, and the
Supreme Court declined further review. See Organized Village of Kake v.
USDA, 795 F.3d 956 (9th Cir. 2015) (en banc), cert denied sub. nom
Alaska v. Organized Village of Kake, Alaska, 577 U.S. 1234 (2016).
Following the reinstatement of the 2001 Roadless Rule on the
Tongass in 2011, the State of Alaska filed a new lawsuit in the U.S.
District Court for the District of Columbia challenging the legality of
the 2001 Roadless Rule, both nationwide and as applied within Alaska.
Ultimately, the District Court ruled that the State had not shown that
USDA violated any Federal statute in promulgating the 2001 Roadless
Rule, see Alaska v. USDA, 273 F. Supp. 3d 102 (D.D.C. 2017). The State
appealed the ruling, but the appeal was subsequently held in abeyance
(temporarily placed on hold) pending resolution of the State's
rulemaking petition discussed immediately below. Following promulgation
of the 2020 Alaska Roadless Rule, the Federal Government filed a motion
with the D.C. Circuit to dismiss the appeal and vacate the underlying
District Court ruling on the basis of mootness. On November 16, 2021,
the D.C. Circuit dismissed the State of Alaska's challenge to the 2001
Roadless Rule, directing that Alaska's claims regarding application of
the Roadless Rule to the Tongass be dismissed as moot, those portions
of the District Court's decision regarding the Tongass be vacated, and
the remaining claims on appeal (regarding the Chugach National Forest)
be dismissed for lack of standing, see Alaska v. USDA, 17 F.4th 1224
(D.C. Cir. 2021).
On January 19, 2018, the State of Alaska submitted a rulemaking
petition to Secretary of Agriculture Sonny Perdue pursuant to the
Administrative Procedure Act (APA). In the petition, the State
requested that USDA consider creation of a state-specific rule to
exempt the Tongass from the 2001 Roadless Rule and conduct a forest
plan revision or amendment for the Tongass. In June 2018, Secretary
Perdue accepted the State's petition and agreed to review the State's
concerns on roadless area management. The Secretary then directed the
Forest Service to move forward with a State-specific roadless rule. The
Secretary did not commit to the State's request for a forest plan
revision or amendment. A proposed state-specific rule and draft
environmental impact statement (DEIS) were issued in October 2019. USDA
released a final environmental impact statement (FEIS) in September
2020 (the 2020 FEIS) and published the final rule exempting the Tongass
from the 2001 Roadless Rule on October 29, 2020 (85 FR 68688, part 294
of title 36 of the Code of Federal Regulations (CFR), subpart E). That
rule will be referred to as the ``2020 Alaska Roadless Rule.''
At the time of rulemaking in 2020, USDA stated that land use
designations, standards, and guidelines in the 2016 Tongass Land
Management Forest Plan (2016 Forest Plan), along with other
conservation measures, would assure protection of roadless values on
the Tongass while offering modest additional flexibility to achieve
other multiple-use benefits.
On January 20, 2021, President Biden directed all executive
departments and agencies to immediately review and, as appropriate and
consistent with applicable law, take action to address the promulgation
of Federal regulations during the prior four years that may conflict
with important national objectives including protecting the
environment, and to immediately commence work to confront the climate
crisis (Executive Order 13990). On January 26, 2021, President Biden
directed all Federal agencies to review Tribal consultation policies
and practices and recommit to more robust nation-to-nation
relationships and respect for our Federal trust responsibilities
(Memorandum on Tribal Consultation and Strengthening Nation-to-Nation
Relationships). On November 23, 2021 (86 FR 66498), the USDA proposed
to repeal the 2020 Alaska Roadless Rule. The USDA published a notice of
proposed rulemaking (NOPR) for repeal of the 2020 Alaska Roadless Rule
and requested comments, thus initiating a comment period ending January
24, 2022 (86 FR 66498, November 23, 2021). Approximately 112,000
comment documents were received, of which about 9,000 were unique
submissions; the majority of these comments were in favor of the
proposed repeal. In addition to the comments, 14 petitions with over
130,000 names attached were received, all in favor of repeal. The
Department of Agriculture and the Forest Service invited consultation
with 19 tribes in Southeast Alaska regarding the repeal of the 2020
Alaska Roadless Rule. Four formal consultation sessions were held
beginning in July 2021 with 12 of the 19 tribes represented in at least
one session. The Tribes represented at these consultations expressed
their desire to return to the 2001 Roadless Rule as quickly and
expeditiously as administratively possible.
Decision
The USDA hereby repeals the 2020 Alaska Roadless Rule and returns
roadless management on the Tongass to the regulatory regime previously
in force, resulting in the reinstatement of the 2001 Roadless Rule as
provided for in the U.S. District Court for the District of Alaska's
Judgement in Organized Village of Kake v. USDA, 776 F. Supp. 2d 960 (D.
Alaska 2011). This rulemaking is not subject to pre-decisional
administrative objection regulations set out in 36 CFR part 218 or 219
as it is neither a project nor plan level decision.
[[Page 5254]]
Alternatives Considered
As discussed below in the section titled ``National Environmental
Policy Act,'' the USDA has determined that the 2020 FEIS adequately
analyzes the environmental effects of this final rule and has relied on
that FEIS in issuing this rule.
The 2020 FEIS analyzes six alternatives. Alternative 1 was the no
action alternative in the 2020 FEIS and would maintain the 2001
Roadless Rule, as prescribed in the Alaska District Court's Judgement.
Alternative 1 would maintain the designation of 9,368,000 acres of
Inventoried Roadless Area on the Tongass that was established in the
2001 Roadless Rule.
Alternative 2 provided limited additional timber harvest
opportunities in comparison to Alternative 1 by removing protections
from certain areas designated as roadless in 2001 while maximizing
protection for unroaded areas by adding other Roadless Area
designations. It removed from roadless designation approximately
142,000 acres that were substantially altered by road construction or
timber harvest conducted during periods when the Tongass National
Forest was exempted from the 2001 Roadless Rule. Alternative 2 also
would have added 110,000 acres of unroaded lands as Alaska Roadless
Areas that were not designated by the 2001 Rule, and by extension,
remained undesignated in Alternative 1.
Alternative 3 would have provided moderately more timber harvest
opportunities than Alternative 1 by increasing the available land base
from which timber harvest opportunities could occur. It would have
accomplished this 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. Alternative 3 also established a
Community Priority category to allow exceptions for small-scale timber
harvest and associated road construction and reconstruction within
certain designated roadless areas. Overall, Alternative 3 proposed a
net decrease of 1.14 million roadless acres relative to Alternative 1.
Alternative 4 provided substantial more timber harvest opportunity
than Alternative 1 while maintaining inventoried roadless designations
for areas defined in the 2016 Forest Plan as Scenic Viewsheds, T77
Watersheds, and The Nature Conservancy/Audubon Conservation Priority
Areas. Overall, alternative 4 proposed a net decrease of 394,000
roadless acres relative to Alternative 1.
Alternative 5 provided the greatest amount of additional timber
harvest and road construction/reconstruction opportunities by removing
2.32 million acres from Roadless designation, including areas defined
as Scenic Viewsheds and some T77 Watersheds and TNC/Audubon
Conservation areas.
Alternative 6 fully exempted the Tongass from the 2001 Roadless
Rule, removing 9.37 million acres from roadless area designation. This
was the alternative selected for the 2020 Alaska Roadless Rule.
Taken together, the six alternatives represent the spectrum of
management regimes identified by the Forest Service through public
comments, public meetings, Tribal and Alaska Native corporation
consultations, and cooperating agency input.
Environmentally Preferable Alternative
The Council on Environmental Quality's regulations require that a
Record of Decision specify the alternative or alternatives considered
environmentally preferable, 40 CFR 1505.2(a)(2). As defined in the
USDA's regulations, the environmentally preferable alternative is the
alternative that will best promote the national environmental policy as
expressed in section 101 of the National Environmental Policy Act
(NEPA) (42 U.S.C. 4321). Ordinarily, the environmentally preferable
alternative is that which causes the least harm to the biological and
physical environment; it also is the alternative that best protects and
preserves historic, cultural, and natural resources. In some
situations, there may be more than one environmentally preferable
alternative (36 CFR 220.3).
NEPA does not require the decisionmaker to select the
environmentally preferable alternative or prohibit adverse
environmental effects. Indeed, Federal agencies often have other
concerns and policy considerations to take into account in the
decision-making process, such as social, economic, technical, or
national security interests, as well as agencies' statutory missions.
As described in the 2020 Alaska Roadless Rule decision, Alternative
2 has been determined to be the environmentally preferred alternative,
although the environmental benefits of Alternative 2 in comparison to
Alternative 1 are minor. While Alternative 2 would designate and manage
slightly fewer acres (approximately 32,000 acres) as Alaska Roadless
Areas relative to the acres of Inventoried Roadless in Alternative 1,
it would increase conservation of roadless characteristics and values
because all the acres designated and managed as Alaska Roadless Areas
under Alternative 2 are undeveloped at this time. Specifically,
Alternative 2 would remove the roadless designation from 142,000 acres
that are designated as Inventoried Roadless Areas under Alternative 1,
but have already been roaded, harvested, or substantially altered, and
therefore do not currently possess the roadless characteristics and
values the 2001 Roadless Rule is intended to conserve. At the same
time, Alternative 2 would designate as Alaska Roadless Areas
approximately 110,000 acres that are undeveloped land but that were not
designated as Inventoried Roadless Areas under the 2001 Rule and, by
extension, are not designated as such in Alternative 1. Alternative 2
limits timber harvest opportunities, road construction, and road
reconstruction, on the most acres of undeveloped land out of all the
alternatives considered. All other action alternatives considered in
the 2020 FEIS involve sizeable roadless area reductions. For this
reason, Alternative 2 is the environmentally preferred alternative.
That conclusion is appropriate notwithstanding modest changes
between Alternative 1 and Alternative 2 in certain designated roadless
areas. Alternative 2 assigns a Roadless Priority management category to
5.2 million acres that include more exceptions than allowed under
Alternative 1, thereby modestly diminishing protection for those areas.
However, Alternative 2 also includes a Watershed Priority category,
applied to 3.28 million acres, which is more restrictive than
Alternative 1. Therefore, on balance, Alternative 2 is at least as
protective as Alternative 1.
The differences between Alternatives 1 and 2 are minor in
comparison to the differences between these alternatives and the 2020
Alaska Roadless Rule (analyzed as Alternative 6). No old-growth
harvesting would occur in ``logical extensions'' or areas ``distant
from roads'' under either Alternatives 1 or 2, for example, while 35%
of old-growth logging would likely occur in such areas under
Alternatives 4-6. Similarly, Alternatives 1 and 2 are comparable and
preferable in terms of tree harvest for Alaska Native cultural purposes
because of the relatively low level of competition with commercial
timber harvest they would create. Alternatives 1 and 2 are also
expected to generally result in very little to no effect on communities
compared to Alternatives 4, 5, and 6 (especially Alternatives 5 and 6)
which have an
[[Page 5255]]
increased potential for effects on communities relative to the other
alternatives, especially in those communities where the visitor
industry sector is important. This is primarily because those
communities rely on undisturbed landscapes, which in turn may affect
visitor use. The smaller and less economically diversified communities
have a greater risk of effects.
While Alternative 2 is the environmentally preferred alternative,
the USDA has determined that the minor environmental benefits of
Alternative 2 in comparison to Alternative 1 do not warrant adopting it
for the reasons set forth in the following section. These reasons are
primarily because Alternative 1 promotes stability and predictability,
and because it reflects the overwhelming consensus recommendation of
Alaskan Native Tribes as expressed through formal consultation.
Decision Rationale and Important Considerations
The USDA has selected Alternative 1 to reinstate the pre-existing
management regime established in the 2001 Roadless Rule because the
USDA believes that this alternative strikes the appropriate balances
among the various values that the Department must consider when
managing the Tongass. In particular, the USDA believes that Alternative
1 best addresses the needs and concerns of local communities, including
Tribal communities. These needs include the need for stability and
predictability after over two decades of shifting management, which can
best be served by restoring the familiar framework of the 2001 Roadless
Rule.
Adopting Alternative 1 also takes appropriate consideration of
consultation with sovereign Tribal Nations, which uniformly and
strongly supported Alternative 1. Although Alternative 2 serves many of
the same values as Alternative 1, Alternative 2 would introduce
potentially confusing changes both to the location of designated Alaska
Roadless Areas and to the management prescriptions associated with
certain management categories. Alternative 2 also lacks a history of
implementation consistent with the 2001 Roadless Rule and the 2016
Forest Plan, potentially complicating implementation. The minor
environmental advantages of Alternative 2 do not outweigh Alternative
1's other advantages and those environmental benefits could be achieved
under Alternative 1 through alternative planning and program mechanisms
that provide greater flexibility for achieving program goals. The
Forest Service employs various planning and project-specific efforts to
maintain and restore watersheds by strategically focusing investments
on watershed improvement projects and conservation practices at the
landscape and watershed scales. For example, watersheds have unique
characteristics and can best be addressed through Forest Planning and
site-specific planning. Alternatives 3 through 6, meanwhile, are
insufficiently protective of the roadless characteristics and values
the 2001 Roadless Rule is intended to conserve.
Alternative 1 Appropriately Balances Competing Values
When it issued the 2020 Alaska Roadless Rule, the USDA stated that
the final rule's change in policy does not rest on new factual findings
contradicting the factual findings the USDA made in its 2001 Roadless
Rule. The policy judgments implemented through the 2020 rulemaking were
ultimately the result of assigning different value or weight to the
various multiple uses. Although 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. (85 FR 68691)
Like the 2020 Alaska Roadless Rule, this rulemaking is based on a
reevaluation of the social value of the various uses of the Tongass,
rather than on new factual findings. As the USDA noted at the time, the
2020 FEIS estimates that exempting the Tongass from the 2001 Roadless
Rule (Alternative 6) would make 168,000 more acres of old-growth forest
available for timber production (FEIS at 3-18) and would result in
nearly 46 miles of additional roads on NFS land over the next 100
years, compared with Alternative 1 (FEIS at 3-121). The USDA also noted
at the time of the 2020 Alaska Roadless Rule that ``tribal government
cooperating agencies expressed concern about removal of the 2001
Roadless Rule.'' (85 FR 68691) Nonetheless, the USDA believed at the
time that these consequences were acceptable in light of the
Administration's policy preferences, which emphasized ``increasing
rural economic opportunity, decreasing federal regulation, and
streamlining federal government services.'' (85 FR 68691)
By contrast, the USDA now believes that the adverse consequences of
exempting the Tongass from the 2001 Roadless Rule, particularly the
increase in acreage available for timber production, the increase in
road construction, and the lack of consideration for the views of
Tribal Nations, outweigh the benefits of ``decreasing federal
regulation'' and the other advantages cited in the 2020 Alaska Roadless
Rule. Moreover, restoring the protections afforded in the 2001 Roadless
Rule will advance or is consistent with other USDA policy priorities,
including promoting the continued health and resilience of mature and
old-growth forests; retaining and enhancing carbon storage; conserving
biodiversity; mitigating the risk of wildfires; enhancing climate
resilience; enabling subsistence and cultural uses; providing outdoor
recreational opportunities; and promoting sustainable local economic
development. See also Executive Order 14072 on Strengthening the
Nation's Forests, Communities, and Local Economies. As the 2020 FEIS
notes, roadless areas on the Tongass provide important ecosystem
services 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.
Roadless areas on the Tongass are also the world's largest
remaining, intact, old-growth temperate rainforest, which supports
biodiversity and stores carbon. The Tongass holds more biomass per acre
than any other rainforest in the world and stores more carbon than any
other national forest in the United States. Both old-growth and young-
growth forests are important for carbon storage and sequestration: old-
growth forests are capable of storing large amounts of carbon in the
ecosystem, while young-growth forests are capable of rapid rates of
carbon sequestration with new growth. By restoring protection to
188,000 forested acres, including 168,000 acres of old-growth forest,
from future timber harvest and associated roadbuilding, Alternative 1
would support retention of the largest and most extensive tracts of
undeveloped land for the roadless values, watershed protection, climate
benefits, and ecosystem health those lands provide.
Roadless areas on the Tongass also include watersheds and areas
important for fishing, hunting, outdoor recreation, and tourism, which
support revenue and jobs in Southeast Alaska as well as
[[Page 5256]]
local community well-being. Subsistence, commercial, and sport
fisheries in both marine and freshwater systems, for example, are all
important to the way of life for Southeast Alaskan residents. As the
2020 FEIS explains, ``[r]oads pose the greatest risk to fish resources
on the Tongass (Dunlap 1996), partly because they pose the largest risk
of management-caused sediment input to streams.'' (FEIS at 3-134)
Restoring the 2001 Roadless Rule will reduce the amount of potential
new road construction and thereby minimize the potential for road and
harvest operations to increase sediment displacement or delivery, thus
minimizing associated adverse effects on fisheries and providing more
durable protections to these resources than those provided under the
forest plan.
Restoring the 2001 Roadless Rule protections also responds to the
unanimous input provided by Tribal Nations during government-to-
government consultation sessions conducted in 2021, and therefore
honors the Nation-to-Nation relationship. See President Biden's January
26, 2021, Memorandum on Tribal Consultation and Strengthening Nation-
to-Nation Relationships (<a href="https://www.govinfo.gov/content/pkg/FR-2021-01-29/pdf/2021-02075.pdf">https://www.govinfo.gov/content/pkg/FR-2021-01-29/pdf/2021-02075.pdf</a>). Roadless areas on the Tongass hold immense
cultural significance for Alaska Native peoples. Restoring the 2001
Roadless Rule on the Tongass is in keeping with the broad
Administration commitment to strengthening Nation-to-Nation
relationships, and incorporating indigenous knowledge, stewardship, and
priorities into land management decision-making.
By adopting Alternative 1, this final rule also is more responsive
to the vast majority of comments received as part of the 2020
rulemaking as well as in response to this rulemaking. In issuing the
2020 Alaska Roadless Rule, the USDA noted that ``[a] large majority of
written comments and oral subsistence testimony supported retaining the
2001 Roadless Rule on the Tongass National Forest,'' and that ``A
significant proportion of southeast Alaska municipal and Tribal
governments submitted resolutions supporting the 2001 Roadless Rule's
application on the Tongass National Forest,'' while also noting that
``many of the State's elected officials, including the Governor, the
federal delegation, and some municipal governments support changing the
2001 Roadless Rule.'' The comments received by the USDA on this
proposed rulemaking demonstrated a similar pattern and breadth of
support for Alternative 1. Notably, in its 2021 comments, the Southeast
Alaska Subsistence Regional Advisory Council (SEARAC) expressed the
view that an exemption from the 2001 Roadless Rule would result in a
decrease in the availability of subsistence resources and subsistence
opportunities throughout the Tongass.
While agency rulemaking need not always reflect the views of a
simple majority of commenters, the USDA believes that the strong
support for restoring the 2001 Roadless Rule, especially from some
local municipal and all the Tribal governments that were consulted,
reflects the extraordinary ecological values of the Tongass National
Forest and the cultural, social, and economic needs of the local forest
dependent communities in Southeast Alaska. The USDA therefore believes
that Alternative 1 represents the best balance of multiple uses and
values for the Tongass.
Furthermore, in light of the 2020 FEIS and the additional comments
received on the proposed rule, the USDA believes that selecting
Alternative 1 would not have major adverse impacts to the timber,
energy, and mining industries, and would be beneficial at best or
neutral at worst for the primary economic drivers in Southeast Alaska,
which include fishing and tourism.
The USDA acknowledges the continued importance of forest products
from the Tongass. A number of businesses, Tribes and individuals rely
on timber harvested from the Tongass for forest products, including
cultural uses such as totem poles, canoes, and Tribal artisan use.
Timber harvest and forest products from the Tongass for personal or
administrative use (e.g., firewood and Christmas trees) would continue
as provided by the Roadless Rule's exceptions.
Since the Alaska Region of the Forest Service began documenting and
tracking certain decisions for projects within roadless areas in 2009,
the Tongass has received 59 project proposals in IRAs that included
tree removal and/or road construction using the exceptions authorized
by the 2001 Roadless Rule, including for mineral, energy, recreation,
and transportation projects. All 59 projects were approved. These
project approvals demonstrate that the 2001 Roadless Rule's exceptions
for access and mineral rights, as well as appropriate special uses,
have been effective, and that the operation of the 2001 Roadless Rule
on the Tongass has coexisted with State, Tribal, and private interests
and allowed the Forest Service to fulfill its multiple use mission.
Proposed projects in IRAs will continue to be evaluated for consistency
with Roadless Rule and forest plan requirements.
For these reasons, the USDA concludes that adopting Alternative 1
and reinstating the pre-existing management regime under the 2001
Roadless Rule strikes a more appropriate balance among the relevant
values and policy objectives than Alternative 6, represented by the
2020 Alaska Roadless Rule. Similarly, Alternatives 3-5, like
Alternative 6, would also significantly reduce roadless area
protections on the Tongass in comparison to Alternative 1.
At the same time, the USDA believes that Alternative 1 strikes a
better balance of relevant values and policy objectives than
Alternative 2. Although, as noted above, Alternative 2 is the
environmentally preferred alternative and might provide slightly
greater protection to the roadless values on the Tongass than
Alternative 1, Alternative 2 also represents a departure from the
management approaches that have governed the Tongass over the last two
decades. Notably, the comments received by the USDA during both the
2020 rulemaking process and this rulemaking process, including comments
from Tribal, State, and local government entities, expressed very
limited interest in Alternative 2, and instead focused on the choice
between Alternatives 1 and 6.
Alternative 2 also lacks a history of implementation in comparison
to the experience of managing under the 2001 Roadless Rule, potentially
complicating implementation. The 2016 Forest Plan was designed to be
consistent with the 2001 Roadless Rule, and in adopting the Plan, the
Tongass Forest Supervisor concluded that ``the best way to bring
stability to the management of roadless areas on the Tongass is to not
recommend any modifications to the Roadless Rule'' (2016 Forest Plan
Record of Decision (ROD) at 4, 19). Alternative 2 would represent a
departure from this approach.
Therefore, the USDA believes that selecting Alternative 2 would
conflict with the expectations of commenters and cooperating agencies,
inject new uncertainty into the management of the Tongass, undermine
the goal of stability and predictability that the USDA hopes to promote
with this rulemaking, and insufficiently consider consultation with
Tribal Nations.
[[Page 5257]]
Adopting Alternative 1 is Permissible and Appropriate Under the
Governing Laws
General Authorities
The Secretary of Agriculture has broad authority to protect and
administer the National Forest System (NFS) through regulation as
provided by the Organic Administration Act of 1897 (Organic Act) and
the Multiple-Use Sustained Yield Act of 1960. 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.
Combined with the complex, and sometimes even conflicting, judicial
rulings applicable to the 2001 Roadless Rule, the recent history of
roadless management on the Tongass demonstrates that 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, cultural, and
environmental consequences.
While the Tongass has endured debate regarding land and natural
resource management for decades, there are common agreements. The
Tongass roadless areas are vast and valuable. The Tongass contributes
social, cultural, economic, and 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 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. The USDA has received many
comments that highlight differences in views concerning the best
available information, as well as general opinions and preferences. The
USDA is grateful for the attention and interest that Tribal nations,
local communities, State offices, stakeholder groups, and individuals
have devoted to helping shape the decision-making process.
Perspectives and opinions differ as to how to best shape
restrictions that protect a valuable resource while providing cultural,
social, and economic benefits for both local communities and the
nation, which is reflected in the nearly 500,000 comments received
throughout the analysis and promulgation of the 2020 Alaska Roadless
Rule (input received during official comment periods is summarized in
Appendix H of the 2020 Alaska Roadless Rule FEIS as well as in the
Scoping Summary) and the 112,000 comments provided in response to the
2021 NOPR.
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 the 2001 Roadless Rule. The USDA believes that the
underlying goals and purposes of the 2001 Roadless Rule continue to be
important, especially in the context of the values that roadless areas
on the Tongass represent for local communities and Native peoples, and
the multiple ecologic, social, cultural, and economic values supported
by roadless areas on the Forest. This final rule therefore falls within
the discretion afforded to the USDA under the Organic Act and the
Multiple-Use Sustained Yield Act of 1960 to determine the proper uses
within the Tongass.
Alaska-Specific Statutes
The USDA has also considered several Alaska-specific statutes
applicable to the Tongass in selecting the final rule, including the
Tongass Timber Reform Act (TTRA) and Alaska National Interest Lands
Conservation Act (ANILCA).
Tongass Timber Reform Act
The TTRA directs the Forest Service to seek to provide a supply of
timber from the Tongass that meets annual market demand and the market
demand for each planning cycle subject to appropriations and to the
extent consistent with providing for the multiple-use and sustained-
yield of all renewable resources and other applicable requirements,
including the requirements of the National Forest Management Act
(NFMA). The 2016 Forest Plan, which was prepared at a time when the
2001 Roadless Rule was in effect, anticipates sufficient timber
availability to meet projected demand as described in the 2016 Forest
Plan FEIS and ROD. In addition, the 2016 Forest Plan provides guidance
to conduct annual monitoring and review of current timber demand.
Because the Department has considered market demand for timber as one
of the goals to be balanced with environmental preservation and other
multiple-use goods and services, reinstating the 2001 Roadless Rule
fully complies with the TTRA.
Section 810 of ANILCA--Subsistence Determination
Section 810 of ANILCA (16 U.S.C. 3120) provides that in determining
whether to withdraw, reserve, lease, or otherwise permit the use,
occupancy, or disposition of public lands under any provision of law
authorizing such actions, the head of the Federal agency shall evaluate
the effect of such use, occupancy, or disposition on subsistence uses
and needs, the availability of other lands for the purposes sought to
be achieved, and other alternatives which would reduce or eliminate the
use, occupancy, or disposition of public lands needed for subsistence
purposes. Section 810 also specifies that if the ``withdrawal,
reservation, lease, permit, or other use, occupancy or disposition'' of
Federal lands ``would significantly restrict subsistence uses,'' the
agency must take certain additional steps. Specifically, the agency
must give notice to the appropriate State agency and the appropriate
local committees and regional councils and give notice of, and hold, a
hearing in the vicinity of the area involved, and determine that (1)
such a significant restriction of subsistence uses is necessary,
consistent with sound management principles for the utilization of the
public lands, (2) the proposed activity will involve the minimal amount
of public lands necessary to accomplish the purposes of such use,
occupancy, or other disposition, and (3) reasonable steps will be taken
to minimize adverse impacts upon subsistence uses and resources
resulting from such actions.
When it issued the 2020 Alaska Roadless Rule, the USDA determined
that an ANILCA section 810 analysis was not required because the action
it was taking was ``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.'' Nonetheless, the USDA conducted a subsistence use analysis in
order ``to honor regional commitments and inform future project-level
planning and decision-making subject to ANILCA Section 810,'' and
provided notices and conducted subsistence hearings consistent with
section 810.
After analyzing potential impacts to subsistence uses and resources
in the 2020 FEIS, the USDA concluded in the 2020 Alaska Roadless Rule
ROD that ``the risk of a significant restriction to
[[Page 5258]]
subsistence resource abundance and distribution is largely equivalent
across'' the six alternatives considered in that rulemaking, that ``the
final rule may eventually influence subsistence resource access due to
timber management activities,'' and that ``[t]he 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.'' The USDA therefore
proceeded to make the three factual determinations required by section
810, determining that the anticipated subsistence impacts are
necessary, consistent with the sound management of NFS land; that ``the
final rule addresses the amount of NFS land necessary to accomplish the
proposed action;'' and that implementation of the 2016 Forest Plan will
result in ``reasonable steps [being taken] to minimize effects on
subsistence resources.''
Like the 2020 rulemaking, this final rule is a rulemaking and
programmatic-level decision, and does not ``withdraw, reserve, lease,
or otherwise permit the use, occupancy, or disposition'' of National
Forest System land. Therefore, no section 810 subsistence analysis is
required for this rulemaking.
However, for consistency with its practice when promulgating the
2020 Alaska Roadless Rule and in order ``to honor regional commitments
and inform future project-level planning and decision-making subject to
ANILCA Section 810,'' the USDA has reviewed the subsistence impact
analysis in the 2020 FEIS, which was conducted ``in a manner consistent
with Section 810 of ANILCA.'' This review relies on the information
contained in the 2020 FEIS (see the section below titled ``National
Environmental Policy Act''). In addition, because the 2020 rulemaking
process took place recently and addressed the same issues as this
rulemaking, the USDA did not conduct additional subsistence hearings,
but instead relied on the notices and hearings conducted as part of the
2020 rulemaking process, as supplemented by the general notices and
consultations carried out in connection with this rulemaking.
Likelihood of Significant Restriction of Subsistence Uses
This subsistence impact review begins by considering whether
reinstating the 2001 Roadless Rule may ``significantly restrict
subsistence uses.'' The 2020 FEIS analyzes the effects of each of the
alternatives on three subsistence use factors: (1) resource
distribution and abundance; (2) access to resources; and (3)
competition for the use of resources.
With regard to distribution and abundance of subsistence resources,
the 2020 FEIS indicates that ``[a]s a result of their association with
old-growth forest habitat, which is the main terrestrial habitat type
affected by the alternatives, deer are considered the `indicator' for
potential subsistence resource consequences'' related to distribution
and abundance. The 2020 FEIS acknowledges that both the 1997 Tongass
Forest Plan Revision FEIS and the 2008 Tongass Plan Amendment FEIS
concluded that deer habitat capabilities in several areas of the
Tongass may not be adequate to sustain current levels of deer harvests,
and, therefore, implementation of any of the 1997 or 2008 Forest Plan
alternatives could lead to a significant possibility of a significant
restriction on the abundance or distribution of the subsistence use of
deer. The 2016 Forest Plan EIS made the same conclusion with regard to
abundance and distribution, although it concluded that the possibility
of a significant restriction would be less than the possibility under
the 1997 or 2008 Forest Plans because of the lower than anticipated
rates of timber harvests. Because harvest levels were expected to be
the same under all of the alternatives considered for roadless
rulemaking, the 2020 FEIS found that ``future [timber] harvest and road
building is not expected to result in large reductions in abundance or
a major redistribution of deer under any of the alternatives [compared
to the 2016 Forest Plan],'' and that ``the risk of a significant
restriction would be the same under all of the alternatives.''
Regarding access to resources, the 2020 FEIS found that ``[n]ew
road construction is likely to result in the development of some new
use patterns around some communities, but these changes are not likely
to lead to a significant possibility of a significant restriction of
subsistence access to the resources.'' The analysis identified some
differences between the alternatives, with Alternatives 1 ``likely [to]
have the lowest impact on subsistence users who prefer unroaded
areas,'' while likely resulting in ``increase[d] road density in
already developed areas,'' such that ``[m]ore harvest is likely to
occur in the vicinity of existing roads.'' Nonetheless, across all
alternatives, the FEIS found that ``future harvest and road building
are not expected to result in substantial interference with access to
active subsistence use sites.''
Regarding competition for subsistence resources, the 2020 FEIS also
noted the findings in the 2016 Forest Plan FEIS, and again found that,
for all the alternatives considered, ``[t]he significant possibility of
a significant restriction [in subsistence use], resulting from a change
in competition, still exists but would be less than the possibility
under [past Forest Plans] . . . because of the much lower anticipated
rates of timber harvest and road construction'' under the 2016 Forest
Plan. When considering potential differences between alternatives, the
FEIS noted that increases in competition could result from a variety of
factors, including habitat reduction and the types of community access
to subsistence resources. The FEIS assumed that ``[n]ew road
construction adjacent to communities with ferry access'' and ``[n]ew
road construction adjacent to existing road systems where interties
between communities exist'' could result in increased competition, and
noted that ``Alternatives 1, 2, and 3 would have a higher potential to
result in additions to existing road systems because harvest would be
limited to areas outside existing IRAs,'' whereas under Alternatives 4,
5, and 6, ``harvest could also occur in these areas . . . but
additional acres in presently undeveloped areas would also be available
for harvest.'' Under all of the alternatives, increased competition for
subsistence resources was found to be most likely on Chichagof,
Baranof, and Prince of Wales Islands, where competition for deer and
other land mammals is already high and habitat has been significantly
reduced due to prior timber harvest and associated road construction.
Considering these potential impacts, the USDA concludes that a
significant possibility of a significant restriction of the subsistence
use of deer due to increased competition exists in some locations under
the reinstated 2001 Roadless Rule. While the FEIS noted that
Alternative 1 would ``likely have the lowest impact on subsistence
users who prefer unroaded areas,'' it assumed that concentrating
development outside of IRAs would lead to increased competition in some
locations, particularly areas near existing roads with existing roaded
interties or ferry access to other communities. Therefore, the USDA
conservatively concludes that reinstating the 2001 Roadless Rule may
indirectly result in a significant restriction of subsistence use of
deer by increasing competition for the resource in some locations. This
conclusion is consistent with the conclusion reached in the 2020 Alaska
Roadless Rule ROD.
Because the USDA concludes that there is a significant possibility
of a significant restriction of subsistence use,
[[Page 5259]]
it proceeds to consider whether: (1) such a significant restriction of
subsistence uses is necessary, consistent with sound management
principles for the utilization of the public lands, (2) the proposed
activity will involve the minimal amount of public lands necessary to
accomplish the purposes of such use, occupancy, or other disposition,
and (3) reasonable steps will be taken to minimize adverse impacts upon
subsistence uses and resources resulting from such actions. The
Department again notes, however, that it is not required to make these
determinations for purposes of issuing this rule, but rather, makes
these determinations voluntarily in light of the considerations noted
above.
Necessary, Consistent With Sound Management of Public Lands
The USDA concludes that any significant restriction of subsistence
uses that may result from reinstating the 2001 Roadless Rule is
necessary, consistent with sound management principles for the
utilization of NFS lands. As noted in the previous section, the
potential restriction of subsistence uses exists under all of the
alternatives. This decision reinstates restrictions on development
within IRAs and may lead to the concentration of new development in
areas near existing roads, indirectly leading to increased competition
for subsistence resources in those areas. As explained above, however,
reinstating these restrictions on development within IRAs will promote
many important values that are central to the USDA's management of NFS
lands, including protection of soil, water and air resources, species
habitat, opportunities for recreation, traditional and cultural uses,
and respect for indigenous knowledge, stewardship, and priorities.
Moreover, this alternative would minimize overall road miles, and would
therefore minimize some impacts to subsistence uses, including impacts
on subsistence users who prefer roadless areas. The USDA also notes
that in its 2021 comments, the Southeast Alaska Subsistence Regional
Advisory Council (SEARAC) expressed the view that an exemption from the
2001 Roadless Rule would result in a decrease in the availability of
subsistence resources and subsistence opportunities throughout the
Tongass. Therefore, any restriction on subsistence uses that may result
under Alternative 1 (which restores the 2001 Roadless Rule) is
necessary, consistent with the sound management of NFS lands.
Amount of Public Land Necessary To Accomplish the Purposes of the
Proposed Action
As explained in the 2021 NOPR, ``[t]he stated purposes of the 2001
Roadless Rule included retention of the largest and most extensive
tracts of undeveloped land for the roadless values of watershed
protection and ecosystem health that these lands provide'' (86 FR
66503). Specific to the Tongass, the 2021 NOPR noted that the 2001
Roadless Rule recognized ``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'' (86 FR 66501-66502). In addition to
these original purposes of the 2001 Roadless Rule, the proposed action
also serves the purpose of respecting indigenous knowledge,
stewardship, and priorities.
Each of these purposes requires the USDA to evaluate, and take
action with respect to, the Tongass as a whole. The Tongass as a whole
was addressed in the 2001 Roadless Rule and analyzed in the 2020 FEIS.
As explained above, in the section titled ``Alternative 1 Appropriately
Balances Competing Values,'' the USDA believes that Alternative 1--
which would reinstate the 2001 Roadless Rule throughout the Tongass--
best balances the competing values that the Department must consider
when managing the Tongass, which include both the ecological and social
values served by the 2001 Roadless Rule and the need of local and
Tribal communities for stability and predictability. Therefore, the
USDA concludes that restoring the 2001 Roadless Rule's land
classification system and associated prohibitions and exceptions to all
IRAs within the Tongass is necessary to accomplish the purposes of this
action, and that the action will involve the minimal amount of lands
necessary to accomplish those purposes.
Reasonable Steps To Minimize Adverse Impacts to Subsistence Uses and
Resources
The 2016 Forest Plan provides forest-wide standards and guidelines
for subsistence and related standards and guidelines for riparian
areas, fish, and wildlife, which collectively minimize adverse impacts
to subsistence uses and resources. Many important subsistence areas are
assigned land use designations that limit timber harvesting and road
construction. For example, beach and estuary fringe forest-wide
standards and guidelines generally apply to beach fringe and estuarine
areas not under more restrictive designations.
In addition, any adverse subsistence impacts of the proposed action
are likely to be modest, at most. While the 2020 FEIS concluded that
both this final rule (Alternative 1 in the FEIS) and the 2020 Alaska
Roadless Rule (Alternative 6) could lead to a significant possibility
of a significant restriction on the subsistence use of deer, the final
rule is expected to result in fewer overall road miles than the 2020
Alaska Roadless Rule, and to have ``the lowest impact on subsistence
users who prefer unroaded areas.''
The potential site-specific effects of future actions, including
potential future development near existing roads, on subsistence uses,
and reasonable ways to minimize these effects, will be analyzed and
considered during project-level design, analysis, and decision-making.
Therefore, reasonable steps will be taken to minimize any potential
adverse impacts on subsistence uses and resources resulting from the
final rule.
2001 Roadless Rule's Original Purpose
The USDA is increasingly mindful of the original stated purposes of
the 2001 Roadless Rule in restoring the rule's restrictions for the
Tongass, especially in the era of addressing climate change and the
need to reduce and avoid greenhouse gas emissions. The stated purposes
of the 2001 Roadless Rule included retention of the largest and most
extensive tracts of undeveloped land for roadless values, watershed
protection, and ecosystem health. The purposes also included 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, 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 plus
years of experience managing the Tongass, with and without the rule in
operation, provides an important window for assessing whether the 2001
Roadless Rule's prohibitions should be maintained.
A significant percentage of the Tongass 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
ensure that the additional 188,000 forested acres made available for
timber harvest by the 2020
[[Page 5260]]
Alaska Roadless Rule, with the majority characterized as old-growth
timber, will remain protected from timber harvest and roadbuilding.
Watershed protection was a prominent aspect in the decision to
adopt the nationwide 2001 Roadless Rule. In the Tongass today,
watershed protection goals are served both by the roadless rule and by
complementary and reinforcing policies. Large tracts of undeveloped
lands and watershed protections are protected by existing statutory and
forest plan direction, including lands in designated Wilderness 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 Land Use Designations (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 2016 Forest Plan as Tongass 77 Watersheds and The Nature
Conservancy/Audubon Conservation Areas) are currently managed for no
old-growth timber harvest, thus minimizing adverse impacts to
fisheries. Management direction of LUD II areas and key watersheds
within IRAs would be afforded additional, regulatory protections by
applying Roadless Rule protections.
Ecosystem health was another important element of the 2001
rulemaking. Although the FEIS reveals a modest difference between
implementation of the 2001 Roadless Rule and the 2020 Alaska Roadless
Rule, a key indicator of ecosystem health for the Tongass is a
functional and interconnected old-growth ecosystem. While protection of
productive old-growth would continue to occur under the 2016 Forest
Plan's old-growth habitat conservation strategy and Southeast Alaska
Sustainability Strategy (SASS) initiatives, existing connectivity
between these old-growth reserves would be maintained and provided more
long-term and durable protection under this final rule by prohibiting
timber harvest on 188,000 acres that include significant blocks of old-
growth timber.
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. While 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 road work 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. There are
approximately 3,500 miles of deferred maintenance on the Tongass road
system with a projected cost of $59 million estimated in 2021. The
amount of deferred maintenance indicates that this factor remains
relevant during this rulemaking process.
The 2020 FEIS projected a range of 994 to 1,043 miles of new road
construction (primarily in support of timber harvesting) over the next
100 years across all alternatives with Alternatives 1 and 2 at the low
end and Alternative 6 at the high end and Alternatives 3, 4, and 5 in
between. The locations of future harvests and associated roadbuilding
are unknown, however, the additional 49 miles of new road projected
under the 2020 Alaska Roadless Rule would be expected to adversely
affect roadless values, watershed protection, and ecosystem health. The
final rule is not expected to materially increase or decrease the
amount of timber harvested in the Tongass, as that is governed by the
2016 Forest Plan and influenced by a number of other non-roadless
factors.
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 2001 Roadless Rule's approach to roadless area management
is once again considered the best approach for roadless area management
on the Tongass. 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 was temporarily enjoined or set aside. The State
of Alaska's 2018 rulemaking petition asked 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 appear
to be best managed through the local planning processes.
The Department acknowledges the importance of local planning
processes and benefits of conservation solutions developed through NFMA
planning procedures, such as occurred during the 2016 Forest Plan
amendment process. Throughout the development of the 2020 FEIS and in
response to this proposed rulemaking, the Department and Forest Service
conducted extensive public engagement, received thousands of comments,
including from Alaskan citizens; and conducted government-to-government
consultation sessions. It is clear that roadless areas on the Tongass
support multiple ecologic, social, cultural, and economic values that
are significant locally, regionally, nationally, and even
internationally. This includes the fact that the Tongass represents,
along with adjacent areas in Canada, the largest intact tract of
coastal temperate rainforest on earth, and it contains nearly a third
of all old-growth temperate rainforests left in the world. This
ecosystem is recognized for its relatively large forest carbon stocks
and ability to sequester carbon that can help to moderate climate
change. The Tongass stores more carbon than any other national forest
in the United States. Large old-growth trees in the Tongass are
important for carbon storage and sequestration, which can play a role
in addressing the climate crisis.
Moreover, roadless areas on the Tongass support a wide variety of
ecosystem services that the American people enjoy and maintain the
productivity and health of the region's fisheries and fishing industry.
The underlying goals and purposes of the 2001 Roadless Rule continue to
be important, especially in the context of the values that roadless
areas on the Tongass represent for local communities and Native
peoples. These facts warrant the restoration of the 2001 Roadless Rule
provisions.
The final rule ensures that future forest planning efforts maintain
the conservation values associated with 9.37 million acres of
Inventoried Roadless Areas.
In selecting the final rule among the several alternatives
considered, the USDA has considered State of Alaska's policy
preferences as expressed in its 2018 Petition. USDA has also reflected
on the original decision rationale for applying the roadless rule to
the Tongass in 2001. As described in the response to comments on the
final rule on January 12, 2001, USDA noted that ``the agency has
considered the
[[Page 5261]]
alternatives of exempting and not exempting the Tongass, as well as
deferring a decision per the proposed rule. Social and economic
considerations were key factors in analyzing those alternatives, along
with the unique and sensitive ecological character of the Tongass, the
abundance of roadless areas where road construction and reconstruction
are limited, and the high degree of ecological health.'' Then, and
again now, in making this decision, the Department considered the
extraordinary ecological values of the Tongass and the cultural,
social, and economic needs of the local forest dependent communities in
Southeast Alaska. USDA believes that this management approach best
reflects and responds to those multiple values.
From an ecologic perspective, restoring the 2001 Roadless Rule
protections on the Tongass would help conserve natural resources by
restoring roadless area management on 9.34 million acres, which
protects 188,000 acres of forest from potential harvest and
roadbuilding and would support retention of the largest and most
extensive tracts of undeveloped land for the roadless values, watershed
protection, and ecosystem health those lands provide. Roadless areas on
the Tongass represent the world's largest remaining, intact, old-growth
temperate rainforest, which supports biodiversity and sequesters
carbon. The final rule reflects the Administration's priority on
protecting those values.
Restoring the 2001 Roadless Rule protections also reflects the
Administration's priorities to build on the region's primary private-
sector economic drivers of tourism and fishing. Roadless areas on the
Tongass include watersheds and areas important for fishing, hunting,
outdoor recreation, and tourism, which support revenue and jobs in
Southeast Alaska as well as local community well-being. Restoring 2001
Roadless Rule protections to those areas would support those values.
This approach is consistent with the Department's Southeast Alaska
Sustainability Strategy (more about the strategy is available at
<a href="https://go.usa.gov/xMNzF">https://go.usa.gov/xMNzF</a>), announced on July 15, 2021, to serve the
broader economy of Southeast Alaska, support community resiliency, and
conserve the social, cultural, and ecologic values supported by the
Tongass.
Restoring the 2001 Roadless Rule protections also responds to the
January 26, 2021, Memorandum on Tribal Consultation and Strengthening
Nation-to-Nation Relationships issued by President Biden (<a href="https://www.govinfo.gov/content/pkg/FR-2021-01-29/pdf/2021-02075.pdf">https://www.govinfo.gov/content/pkg/FR-2021-01-29/pdf/2021-02075.pdf</a>). This
rule is directly responsive to unanimous input from Tribal Nations
during government-to-government consultation sessions conducted in 2021
and 2022. Roadless areas on the Tongass are of immense cultural
significance for Alaska Native peoples. Restoring application of the
2001 Roadless Rule to the Tongass would reflect the Administration's
commitment to strengthening nation-to-nation relationships, and
incorporating indigenous knowledge, stewardship, and priorities into
land management decision-making.
Relationship of the Alaska Roadless Rule to the Forest Plan
The 2001 Roadless Rule's scope and applicability language was
designed to avoid conflicts between the rule and forest plans, as well
as to avoid unnecessary or duplicative administrative processes for the
operation of the 2001 Roadless Rule. As such, the 2001 Roadless Rule
expressly directed that the rule did not compel the amendment or
revision of any land and resource management plan. See 36 CFR 294.14(b)
(2001). When the Tongass Land Management Plan was amended in 2016, the
Forest Service elected to directly implement the 2001 Roadless Rule's
timber harvesting prohibitions in determining suitability (see 2016
Forest Plan, Appendix A, page A-3, Appendix I, page I-177, indicating
all Inventoried Roadless Areas were removed from the suitable land base
during Stage 1 of the suitability analysis due to the 2001 Roadless
Rule).
As part of the Department's 2020 final rulemaking decision to
exempt the Tongass from the 2001 Roadless Rule, the Department directed
the Forest Service to issue a ministerial notice of an administrative
change to the 2016 Forest Plan pursuant to 36 CFR 219.13(c), to alter
the timber suitability of lands deemed unsuitable solely due to the
application of the 2001 Roadless Rule. 36 CFR 294.51. Further, the 2020
rulemaking was clear that the administrative change simply provided
conformance of the 2016 Forest Plan to the final rule in regard to
lands suitable for timber production and would not change the level of
timber harvest, how timber is harvested on the Tongass, or any other
aspects of the 2016 Forest Plan. See 85 FR 68695. However, the
ministerial administrative change was never issued, and no change has
been made to the suitable timber lands designation in the 2016 Forest
Plan.
Public Comment Process
The Forest Service published a Notice of Intent to prepare an EIS
for the Alaska Roadless Rule in the Federal Register (83 FR 44252) on
August 30, 2018. The Notice of Intent 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
Alaska: 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, over 144,000 comment
letters or emails were received.
On October 17, 2019, the Department published a NOPR in the Federal
Register (84 FR 55522) and on October 18, 2019, a Notice of
Availability for the DEIS was published (84 FR 55952). On October 25,
2019, an amended Notice of Availability 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 meetings in 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.
On November 23, 2021, the USDA published the NOPR for repeal of the
2020 Alaska Roadless Rule, initiating a 60-day comment period (86 FR
66498). Approximately 112,000 comment documents were received (about
9,000 were unique submissions). In addition to the comments, 14
petitions with over 130,000 names attached were received.
Cooperating Agencies
As part of the 2020 rulemaking, the Forest Service invited 32
federally recognized Tribes in Alaska to participate as cooperating
agencies during the rulemaking process. Originally, the State of Alaska
and 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.
[[Page 5262]]
The Forest Service made several trips to potentially affected
villages to work individually with Tribal cooperating agencies, provide
technical expertise, and collect input. All Tribal cooperating agencies
opposed the proposed rule (Alternative 6), while some expressed support
for 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 Tribes' traditional use areas for the community use
analysis boundaries in the development of the DEIS. USDA did not apply
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 these areas to the
Tribes.
The USDA revisited the community use analysis boundary issue
between the DEIS and the 2020 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. This data indicated Southeast Alaskans
are traveling further for subsistence gathering.
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 USDA appreciates and recognizes the contributions of all the
Alaska Native Tribes that participated in development of the 2020 FEIS
but later withdrew as cooperating agencies. The USDA understands that
the previous 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 decision in this rulemaking to restore 2001 Roadless Rule
protections to the Tongass reflects input received by USDA and the
Forest Service during additional government-to-government consultation
sessions in 2021 and 2022 (see Consultation with Indian Tribal
Governments section). USDA and the Forest Service recognize and value
Indigenous stewardship, knowledge, cultural values, ways of life and
connection to this land since time immemorial. The Department's hope is
that restoring the 2001 Roadless Rule will create space for more
creative solutions that are sensitive to the diverse interests of
Alaskan Native Tribal communities and begin to restore the trust
between our sovereign nations.
Comments on the Proposed Rule
About 112,000 comments were received on the 2021 NOPR, including
several petitions with more than 100,000 signatures in total, during
the 60-day comment period. Several Southeast Alaska municipal and
Tribal governments and industry organizations also submitted comments
or resolutions. A large majority of comments supported repeal of the
2020 Alaska Roadless Rule and reinstatement of the 2001 Roadless Rule
on the Tongass. The USDA considered all substantive comments submitted
as part of this rulemaking, as well as comments submitted on the 2019
DEIS and testimony given at subsistence hearings in 2019. The following
is a summary of the comments received relating to the 2021 NOPR and the
agency response. A complete response to comments on the NOPR is
contained in a response to comments report available through <a href="https://www.fs.usda.gov/project/?project=60904">https://www.fs.usda.gov/project/?project=60904</a>. Also, see Appendix H of the
2020 FEIS.
Comments Opposed to the Repeal of the 2020 Alaska Roadless Rule and
Reinstatement of the 2001 Roadless Rule on the Tongass
Comment: Some commenters opposed the repeal of the 2020 Alaska
Roadless Rule, stating it does not make sense for Alaska and hinders
economic development. They state the 2001 Roadless Rule has been a
major barrier to developing resources and improving transportation in
Southeast Alaska. Some comments expressed that the rationale provided
by the USDA when it exempted the Tongass in 2003 is still valid today.
Response: The 2001 Roadless Rule does not prohibit many of the
activities cited in these comments. For example, the 2001 Roadless Rule
does not prohibit tree removal for the construction or maintenance of
utility lines. While new temporary or permanent roads are not permitted
in IRAs, with exceptions, temporary linear construction zones can be
authorized to facilitate the construction of utility lines. The 2001
Roadless Rule does not prohibit the construction, operation, and
maintenance of hydropower facilities, including otherwise lawful road
construction associated with such facilities. The 2001 Roadless Rule
does not prohibit statutorily authorized mineral exploration or
development, including roads that may be needed to provide access to
mining claims or mining facilities. The 2001 Roadless Rule also
provides exceptions to allow the construction, reconstruction, or
realignment of Federal aid highways in IRAs and road construction or
reconstruction pursuant to reserved or outstanding rights, and as
provided by statute or treaty. This includes the State of Alaska's
rights under section 4407 of Public Law 109-59, as amended. For
additional discussion of the activities allowed under the 2001 Roadless
Rule, see pages 3-166, 3-167, 3-169, 3-170, 3-178, and 3-179 of the
2020 FEIS.
Comments in Support of the Repeal of the 2020 Alaska Roadless Rule and
Reinstatement of the 2001 Roadless Rule on the Tongass
Comment: Many commenters supported the reinstatement of the 2001
Roadless Rule in Alaska, stating that restoring Roadless Rule
protections in the Tongass will support many environmental, economic,
and cultural values, and will help maintain the way of life of the
Native peoples who live there. Many requested that the USDA fully
restore 2001 Roadless Rule protections on the Tongass; as well as end
large-scale old-growth timber sales on the entirety of the Tongass.
Response: The USDA has considered the importance of roadless area
conservation for a combination of cultural, social, ecological, and
economic values. The USDA recognizes that the underlying goals and
purposes of the 2001 Roadless Rule continue to be important, especially
in the context of the values that roadless areas on the Tongass
represent for local communities and Native peoples, and the multiple
ecologic, social, cultural, and economic values supported by roadless
areas on the Forest.
Comments Relating to the Alaska Roadless Rule Citizens Advisory
Committee (CAC) Recommendations
Comment: Commenters were concerned that the USDA disregarded the
substantial work of the CAC, its final
[[Page 5263]]
recommendations (November 2018), its recommended exceptions for timber
harvesting and road building, and its input on unique characteristics
found on the Tongass.
Response: The Forest Service considered the input and
recommendations provided by the CAC to the State of Alaska. It is
important to recall that the CAC's Final Report (page 11) stressed that
it ``represents options to consider for analysis, not recommendations
for what the Committee expects or desires to see as the final Alaska
Roadless Rule.'' Many of the CAC options were incorporated into
Alternatives 2, 3, 4, and 5 of the 2020 FEIS and were considered during
both the 2020 rulemaking and as part of today's final rule.
Comments on Effects to Energy, Renewable Energy, and Infrastructure
Comment: Commenters were concerned that repeal of the 2020 Alaska
Roadless Rule would make it more expensive to site, plan, permit,
develop, operate, and maintain energy and renewable energy projects
such as hydropower and geothermal and associated infrastructure. Some
commenters stated that while the effects on the energy systems of
Southeast Alaska may not be immediate, the action will have a
deleterious impact on consumer rates and the ability for electric
utilities to access crucial infrastructure and constitutes a
significant energy action as defined in Executive Order 13211 (Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use, issued May 18, 2001).
Response: The 2001 Roadless Rule has and will continue to
accommodate access for qualified mining, energy, and community
infrastructure needs while also conserving the multiple ecologic,
social, cultural, and economic values supported by roadless areas on
the forest. The USDA has considered this 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 believes that this final rule is not likely to have
a significant adverse effect on the supply, distribution, or use of
energy, and the Administrator of the Office of Information and
Regulatory Affairs has not designated this final rule as a significant
energy action as defined in Executive Order 13211. Therefore, a
statement of energy effects is not required.
The Federal Power Act (FPA) grants the Federal Energy Regulatory
Commission (FERC) the authority to issue and administer licenses for
hydropower projects. For projects located on NFS lands, section 4(e) of
the FPA requires FERC to assure the project will not interfere or be
inconsistent with the purpose for which the forest reservation was
created or acquired. While section 4(e) of the FPA gives the Forest
Service the authority to impose mandatory conditions in the FERC
license to ensure the adequate protection and use of forest land and
resources, these 4(e) conditions cannot usurp FERC's role in deciding
whether to license a hydropower facility. In short, if FERC decides
that a road is necessary for facility development, the Forest Service
cannot veto the project or road, but rather is limited to imposing
reasonable terms and conditions necessary for the adequate protection
and utilization of the forest. The 2001 Roadless Rule (at 36 CFR
294.12(b)(3) (2001)) provides that a road may be constructed or
reconstructed in an IRA if ``[a] road is needed pursuant to reserved or
outstanding rights, or as provided for by statute or treaty.'' The FPA
is one such statute.
The 2001 Roadless Rule also does not prohibit the construction or
maintenance of transmission lines. While new temporary or permanent
roads are not permitted in IRAs, temporary linear construction zones
can be authorized to facilitate the construction of transmission lines,
along with other applicable exceptions set forth in the 2001 Roadless
Rule. The courts have sustained that interpretation on more than one
occasion. The USDA has acknowledged that the restriction on road
construction, including the construction of access roads, may pose a
challenge for transmission routes that cross IRAs, potentially
increasing construction and maintenance costs. However, based on
analysis for previous transmission projects on the Tongass, roaded
alternatives are not necessarily less expensive to construct and
maintain than those relying on other means of access. Construction and
maintenance costs depend on terrain, distance to communities, and other
factors. Helicopter access, temporary construction zones, and/or trails
can also be used to provide access and may even be less expensive than
the road construction and maintenance costs associated with permanent
roads in remote areas. In addition, the rights-of-way granted in
section 4407 of Public Law 109-59, as amended, also allows for
specified roaded access in the forest for transmission lines and other
utility systems.
The 2001 Roadless Rule does prohibit road construction in IRAs for
new leasable mineral projects, including geothermal projects. Although
road construction is prohibited, leasable mineral projects are not
prohibited in IRAs, including the incidental cutting, sale, and/or
removal of trees associated with such projects. Mineral leasing laws
are clear that mineral leasing is a wholly discretionary activity. In
making a decision to make minerals available for leasing on the
Tongass, the determination as to what restrictions should be placed on
surface occupancy, as well as how access will be provided, are within
the discretion of the Forest Service. As discussed in the 2020 FEIS, no
leasable minerals are currently being produced on the Tongass and
demand is expected to remain low (p. 3-58). In addition, no geothermal
development activity is anticipated in the near future. Therefore, the
repeal of the 2020 Alaska Roadless Rule and the reinstatement of the
2001 Roadless Rule will have limited impact on mineral leasing economic
activity.
Comments About Alaska Mental Health Trust Lands
Comment: Commenters were concerned that repealing the 2020 Alaska
Roadless Rule would adversely impact the value of Alaska Mental Health
Trust (AMHT) lands, build uncertainty around access to AMHT lands, and
impede the State's ability to generate revenue and to abide by the AMHT
Enabling Act.
Response: Access to non-Federal lands, including AMHT lands, is
guaranteed by ANILCA and the 2001 Roadless Rule recognizes statutory
rights to access. The Forest Service has already issued the easements
requested by the AMHT to access their conveyed lands. None of the
easements issued as part of the AMHT Act of 2017 crossed IRAs.
Comments About Compliance With ANILCA
Comment: Commenters assert that implementing the 2001 Roadless Rule
violates ANILCA because it withdraws more than 5,000 acres (sec.
1326(a)) and it violates all three of ANILCA's ``no more'' clause
directives (sec. 1326 (a) and (b) and sec. 708).
Response: Reinstating the 2001 Roadless Rule does not constitute a
withdrawal. Under section 1326(a) of ANILCA, the operative issue is
whether the action taken exempts portions of the public land within the
Tongass from the operation of the public land laws. Applying an agency
regulation that protects and conserves the inventoried
[[Page 5264]]
roadless areas of the Tongass does not exempt these lands from
operation of the public land laws; rather, it's an example of the
Forest Service's statutory responsibility to provide for the multiple
use and sustained yield of the products and services from units of the
National Forest System (NFS), Southeast Conference v. Vilsack, 684
F.Supp.2d 135, 144 (D.D.C. 2010). This protective designation is
consistent with the agency's responsibility to plan for multiple uses
of NFS lands, Wyoming v. USDA, 661 F.3d 1209, 1234-35 (10th Cir. 2011)
(holding the Roadless Rule consistent with USDA's multiple use
authorities).
Comments Related to Subsistence
Comment: In its 2021 comments, the Southeast Alaska Subsistence
Regional Advisory Council (SEARAC) reiterated its subsistence-related
concerns shared with the Forest Service in 2019 and 2020, including the
SEARAC's conclusion that an exemption from the 2001 Roadless Rule would
result in a decrease in the availability of subsistence resources and
subsistence opportunities throughout the Tongass. Some commenters
stated that access to subsistence resources would be better under the
2020 Alaska Roadless Rule, while others stated that subsistence
resources would be better protected under the 2001 Roadless Rule.
Response: This final rule repeals the 2020 Alaska Roadless Rule and
reinstates the 2001 Roadless Rule on the Tongass. This is consistent
with the management direction described in the 2016 Forest Plan and
upon which the environmental analysis for the 2016 Forest Plan was
based. Reinstatement of the 2001 Roadless Rule will prevent any
additional effects on subsistence that could indirectly result from the
2020 Alaska Roadless Rule due to increased access and competition.
Although rulemaking related to the management of roadless areas on
the Tongass is a programmatic policy decision and does not make a
specific decision on whether to ``withdraw, reserve, lease, or
otherwise permit the use, occupancy, or disposition'' of NFS lands that
is subject to a determination under section 810 of ANILCA, subsistence
hearings were conducted in 19 communities across the Tongass between
the Draft and Final EISs for the 2020 Alaska Roadless Rule. Testimony
regarding subsistence activities that was submitted at those hearings
has been further considered in the current rulemaking effort, as have
the comments received from SEARAC and other comments and input.
The USDA concluded that the 2020 Alaska Roadless Rule may
eventually indirectly result in a significant restriction of the
subsistence use of deer by increasing overall competition for the
subsistence resource by urban and rural residents, especially on
Chichagof, Baranof, and Prince of Wales Islands where competition for
deer and some other land mammals is already high and habitat capability
has been significantly reduced due to prior timber harvest and road
construction (85 FR 68692). As stated above, this final rule prevents
any additional effects on subsistence that could result from the 2020
Alaska Roadless Rule due to increased access and competition.
In compliance with NEPA and section 810 of ANILCA, future projects
that include timber harvest, road construction, and/or road
reconstruction that may significantly impact the human environment or
significantly restrict subsistence uses would undergo site-specific
analysis when they are proposed, and the potential impacts to
subsistence resources and users would be assessed as part of these
project-level analyses. Project-level analyses require a subsistence
evaluation and finding in accordance with ANILCA section 810, which
specifically address potential impacts in terms of: (1) resource
distribution and abundance; (2) access to resources; and (3)
competition for the use of resources.
Comments About Mining and Access to Minerals
Comment: Commenters expressed concern that reinstating the 2001
Roadless Rule would limit roaded access to mineral exploration and
development and that the USDA should work with other agencies to update
mineral studies conducted in the past. Some stated that even the
perception of regulatory uncertainty brought by the 2001 Roadless Rule
will limit investments in mineral projects.
Response: The 1872 Mining Law gives a statutory right of reasonable
and necessary access related to the exploration and development of
mineral resources, and the 2001 Roadless Rule recognizes this right.
This statutory right is subject to reasonable regulation for the
protection of surface resources. For any area in an IRA that is open to
mineral entry, locatable mineral mining, including certain activities
ancillary to mining (e.g., access roads for exploration and
development), may be approved. Whether or not roaded access is needed
to provide reasonable access is determined on a case-by-case basis
based on conditions specific to each request. This process is no
different than how requests outside of IRAs are handled, as regardless
of where the proposed mining activity is located, the Mining Law
provides for reasonable access.
Comments on Fishing, Hunting, Outdoor Recreation, and Tourism
Comment: Commenters stated that reinstating the 2001 Roadless Rule
would benefit fishing, hunting, recreation, and tourism users and
industry by providing remote and adventurous recreation opportunities
and healthy, intact watersheds and habitat. They state that the 2001
Roadless Rule is crucial to protecting these opportunities and
resources for Southeast Alaska residents and visitors from across
Alaska and around the globe.
Response: Roadless areas on the Tongass include watersheds and
areas important for fishing, hunting, outdoor recreation, and tourism,
which provide revenue and jobs in Southeast Alaska as well as local
community well-being. Subsistence, commercial, and sport fisheries in
both marine and freshwater systems, for example, are all important to
the way of life for Southeast Alaskan residents. In comparison to the
current rule, this final rule reduces the potential for road and
harvest effects on fisheries in areas that will again be protected by
the 2001 Roadless Rule and provides more durable protections to these
resources than those provided under the forest plan.
Comments Concerned About Declining Community Stability
Comment: Commenters question why reinstating the 2001 Roadless Rule
is needed when the 2016 Forest Plan adequately provides for the
ecological sustainability of the Tongass. They state that every
community in Southeast Alaska is in decline, population is declining,
and jobs are being eliminated, and they ask that the USDA reconsider
its conclusion that the social and economic hardships to Southeast
Alaska are outweighed by the ecological benefits of reinstating the
2001 Roadless Rule. They stated that if sustainability were the
priority, policy should prioritize well-conceived road building and
expanding job opportunities and commerce to encourage additional
infrastructure to reduce the cost of living.
Response: The 2016 Forest Plan was developed while the 2001
Roadless Rule was in effect on the Tongass. While the 2016 Forest Plan
Final EIS did include alternatives that would be reliant on a roadless
rulemaking (Alternatives 2 and 3), the ROD for the 2016 Forest Plan
[[Page 5265]]
concluded that, ``the best way to bring stability to the management of
roadless areas on the Tongass is to not recommend any modifications to
the Roadless Rule'' (Tongass Forest Plan ROD, p. 19).
The 2001 Roadless Rule provides flexibility for the development of
roads, hydropower, transmission lines, and minerals, which are
acknowledged as important to the socioeconomic well-being of Southeast
Alaska residents along with the subsistence, cultural, and recreational
values that also contribute to socioeconomic well-being. Restoring the
2001 Roadless Rule protections reflects this Administration's
priorities to build on the region's primary private-sector economic
drivers of tourism and fishing. Roadless areas on the Tongass include
watersheds and areas important for fishing, hunting, outdoor
recreation, and tourism, which generate the majority of employment
opportunities and private sector revenue across Southeast Alaska that,
in turn, supports local community well-being. This approach is
consistent with the USDA's broader SASS initiative to serve the broader
economy of Southeast Alaska, support community resiliency, and conserve
the social, cultural, and ecologic values supported by the Tongass.
Comments Regarding Stability in Forest Management
Comment: Commenters note that the Forest Supervisor concluded in
the 2016 Forest Plan ROD that ``the best way to bring stability to the
management of roadless areas on the Tongass is to not recommend any
modifications to the Roadless Rule,'' thereby benefiting local
communities by reducing local conflicts over forest decisions and
community tensions. Others, however, stated that the 2020 Alaska
Roadless Rule is more effective in providing stability in forest
management.
Response: This final rule is in alignment with the conclusions
reached in the 2016 Forest Plan ROD to retain the regulatory
protections of the 2001 Roadless Rule, thereby benefiting local
communities by reducing conflicts over forest management decisions and
community tensions. The 2001 Roadless Rule provides flexibility for the
development of roads, hydropower, transmission lines, and mineral
resources.
Comments Concerned About Natural Resource-Based Employment That Relies
on a Healthy Forest
Comment: Commentors state that the healthy forests and ecosystems
on the Tongass are crucial to the economic well-being of many
communities in Southeast Alaska. Pointing out food security concerns
and the high cost of importing food to Southeast Alaska communities,
they state that their economic well-being depends on adequate
subsistence resources. Commentors also state that the economies of many
Southeast Alaska communities depend on commercial fishing, guiding and
tourism, trapping, work in fisheries, wildlife and forest management,
and small-scale harvest of forest products. They stated that all of
these components of their economies depend on maintaining the
ecological integrity of the forest and intact salmon-producing
watersheds. Conversely, commentors also are concerned about impacts to
industries like timber, energy, and mining.
Response: This final rule repeals the 2020 Alaska Roadless Rule and
reinstates the 2001 Roadless Rule management regime expected by the
2016 Forest Plan and is expected to avoid any additional effects on
subsistence due to the increased access and competition for resources
under the 2020 Alaska Roadless Rule. This final rule also offers more
long-term, regulatory protection for watersheds and other areas
important for fishing, hunting, outdoor recreation, and tourism, which
support revenue and jobs in Southeast Alaska as well as local community
well-being. As discussed above in the rationale for the final rule,
this policy change for the Tongass can be made without major adverse
impacts to the timber, energy, and mining industries, while recognizing
the importance of the primary economic drivers in Southeast Alaska,
fishing and tourism, and contributing to the continued assurances that
the carbon storage and sequestration associated with the Tongass are
realized.
Comments on the Balance of Competing Interests of All Small Businesses
Comment: Commenters state that the Forest Service should work to
balance competing interests to allow all industries a fair and equal
opportunity for success while still meeting the conservation goals of
the agency.
Response: Reinstating the 2001 Roadless Rule reflects this
Administration's priorities to build on the region's primary private-
sector economic drivers of tourism and fishing. Roadless areas on the
Tongass include watersheds and areas important for fishing, hunting,
outdoor recreation, and tourism, which support employment opportunities
and private-sector revenue and jobs in and across Southeast Alaska.
This contribution to employment and revenue generation in turn supports
local community well-being.
With regard to natural resource-based businesses, the 2020 FEIS
indicates that direct employment in natural resource-based industries
(visitor, seafood, mining, and timber) accounted for 28 percent of
total employment in Southeast Alaska. Of the total natural resource-
based employment, the visitor and seafood industries accounted for 90
percent of employment, while mining and timber accounted for 10 percent
(2020 FEIS, pp. 3-32 to 3-33). The Final EIS also indicates that the
Warehousing, Utilities, and Transportation sector of Southeast Alaska
employment accounts for two percent of total employment in Southeast
Alaska.
The economic priorities reflected in this final rule are consistent
with the USDA's SASS announced in July 2021. These competing interests
have been weighed and documented in the 2022 Alaska Roadless Rule
Regulatory Impact Assessment and Cost-Benefit Analysis. This
Administration and USDA believe that a policy change for the Tongass
can be made without significant adverse impacts to the timber and
mining industries, while recognizing the importance of the tourism, and
fishing industries.
For the timber industry, this final rule limits some harvest
opportunities that would have been potentially available following the
2020 Alaska Roadless Rule's removal of the regulatory roadless
prohibitions and adjusting the suitable timber base. However, this
final rule is not expected to alter projections for timber jobs and
income compared to those under the 2020 Alaska Roadless Rule. Actual
timber employment and income in Southeast Alaska would depend on
factors and choices made by purchasers that exist outside the context
of roadless restrictions; those choices may change as markets and
prices shift, as well as other factors (2020 Alaska Roadless Rule Final
EIS, page 3-56).
This final rule is not expected to affect existing or future
locatable mineral exploration or mining activities on the Forest
because the right of reasonable access is guaranteed by the General
Mining Law of 1872. Exploration, mining, and mineral processing
activities, including road construction and reconstruction, are
presently allowed to the extent provided by statute in IRAs and will
continue to be allowed under this final rule.
Comments Supporting Commercial and Non-Commercial Fishing
Comment: Commenters stated that roadless areas provide essential
and
[[Page 5266]]
intact spawning, rearing, and migratory habitat for salmon and that
protecting roadless areas benefits commercial, sport, and subsistence
fishing. They further state that intact habitats such as those in
roadless areas are more resilient to changing environmental conditions
caused by climate change.
Response: The 2020 FEIS acknowledges that subsistence, commercial,
and sport fisheries in both marine and freshwater systems are all
important to the way of life for Southeast Alaskan residents. The
abundant aquatic systems of the Tongass provide spawning and rearing
habitats for most fish produced in Southeast Alaska. Maintenance of
this habitat and associated high-quality water is a focal point of
public, State, and Federal natural resource agencies, as well as user
groups, Native organizations, and individuals. In comparison with the
current rule, this final rule reduces the potential for road and
harvest effects on fisheries in areas that will again be better
protected by the 2001 Roadless Rule. As the FEIS explains, Alternative
1 ``would have the lowest potential harvestable acres, the lowest
number of new and rebuilt roads constructed, and likely the lowest
number of new and reconstructed stream crossings of any alternative.''
Although ``these numbers are not substantially different than the other
alternatives,'' ``[a]ll stream crossings increase risks to fish
passage, and new crossings have a greater risk of sediment effects.
(FEIS 3-138). Alternative 1 is therefore consistent with protection of
intact spawning, rearing, and migratory habitat for salmon and the
fishers who depend on that habitat.
Reinstating the 2001 Roadless Rule will help to ensure that the
Tongass will continue to provide for ecosystem resiliency in changing
climatic conditions.
Comments on the Adverse Effects of Roads on Fish and Fish Habitat,
Including Salmon
Comment: Commenters noted that roads can have adverse impacts
including increased sediment loads, modified stream flows, habitat
fragmentation, degraded water quality, increased stream temperatures,
fish passage barriers, loss of genetic fitness, loss of spawning and
rearing habitat, and increased vulnerability to catastrophic events.
They were concerned about the backlog of bridges and culverts that
currently fail to meet fish passage standards. They stated that instead
of building costly new roads, the Forest Service should invest in
restoration, including the existing backlog of culverts that impede
fish passage (known as ``RED crossings'').
Response: This final rule repeals the 2020 Alaska Roadless Rule and
reinstates the 2001 Roadless Rule, thus restricting roadbuilding in
IRAs on the Tongass, with limited exceptions. As noted in the 202 FEIS,
Alternative 1 ``would have the lowest potential harvestable acres, the
lowest number of new and rebuilt roads constructed, and likely the
lowest number of new and reconstructed stream crossings of any
alternative.''
As of 2020, the Tongass has documented a total of 1,136 crossings
(32 percent) that do not meet current fish passage standards, otherwise
known as RED crossings, as established by the Alaska Department of Fish
and Game and the Forest Service. Fragmented habitat upstream of RED
crossings is estimated to equal about 0.4 percent (64 miles) and 2
percent (182 miles) of all mapped anadromous and resident fish stream
miles on the Forest, respectively. The restrictions on roadbuilding in
the 2001 Roadless Rule will protect the watersheds within IRAs on the
Tongass, and the USDA will seek opportunities to leverage funding
through the USDA's SASS, the 2021 Infrastructure Investment and Jobs
Act, the 2022 Inflation Reduction Act, and other sources to target
priority restoration needs on the Tongass.
Comments Related to Wildlife
Comment: Commenters noted the high-value habitat that roadless
areas provide for old-growth dependent species. Many species were
mentioned, including birds, bears, wolves, and deer, among others. The
commenters noted that the best method to ensure protection of old-
growth dependent species and endemic species habitat is the
reinstatement of 2001 Roadless Rule protections for the Tongass.
Response: Conserving terrestrial habitat, aquatic habitat, and
biological diversity was a key issue in the development of the 2020
FEIS, recognizing that the Tongass includes large, undeveloped, and
natural land areas that represent expansive, unfragmented blocks of
wildlife habitat that is not available elsewhere in the NFS outside of
Alaska. As stated above, the final rule restores roadless area
management on 9.37 million acres, which protects 188,000 acres of
forest from potential timber harvest and roadbuilding and retains the
largest and most extensive tracts of undeveloped land for the habitat,
biodiversity, and ecosystem health those lands provide.
Comments Related to Suitability of Lands for Timber Harvest
Comment: Commenters noted that the 2020 Alaska Roadless Rule
directed the Tongass Forest Supervisor to issue a notice of
administrative change to formally make 188,000 acres suitable for
timber harvest, but that administrative change was not made. Some
commenters stated that because the administrative change was never
made, repeal of the 2020 Alaska Roadless Rule will not reduce the areas
available for harvest or enhance ecological, wildlife, hunting,
fishing, recreation, tourism, subsistence, cultural, and spiritual
values. Other commenters stated that without the protection of the 2001
Roadless Rule, there is no reason to expect that the suitable timber
base would not be expanded in the future.
Response: The 2020 Alaska Roadless Rule directed the Tongass Forest
Supervisor to issue an administrative change to the 2016 Forest Plan
(36 CFR 219.13(c)) that would make 188,000 acres of additional forest
land suitable for timber harvest. While the Forest Service was
determining the changes to the plan necessary under this direction,
President Biden issued Executive Order 13990 (published on January 20,
2021) and the USDA began work to review the 2020 Alaska Roadless Rule
in light of that order. If the 2020 Alaska Roadless Rule was not
repealed, this administrative change to increase forest land available
for timber harvest would proceed. Therefore, it is appropriate to
consider the additional areas available for harvest under the 2020
Alaska Roadless Rule, as well as the ecological values of those areas.
The 2020 Alaska Roadless Rule removed the prohibitions on harvest
in the 2001 Roadless Rule and could potentially result in a higher
degree of habitat fragmentation and corresponding adverse effects on
wildlife. The 2020 Alaska Roadless Rule could also potentially lead to
more road construction and reconstruction, which could result in
slightly higher adverse impacts to fish and aquatic resources and less
protection for high-value watersheds. Additional roads in remote areas
could provide more opportunities for roaded recreation and subsistence
users who prefer roaded settings under the 2020 Alaska Roadless Rule.
However, users who prefer non-motorized remote recreation, outfitter/
guide use, and subsistence use of remote settings could be more
adversely affected.
[[Page 5267]]
Comments on Compliance With the Tongass Timber Reform Act ``Seek To
Meet Market Demand'' Provision
Comment: Commenters assert the Forest Service has historically
failed to meet (or even approach) performance goals identified in its
2016 Tongass Forest Plan and has therefore not complied with its
obligation to ``seek to meet market demand.'' They state that volumes
offered for sale have consistently fallen short of volumes listed in 5-
year schedules of timber sales and that many sales fail to sell due to
poor design.
Response: The Tongass, in compliance with the TTRA, seeks to
provide a supply of timber to meet market demand subject to
appropriations and to the extent consistent with providing for the
multiple use and sustained use of all renewable forest resources and
other applicable laws. These other laws that apply to management of the
National Forest System, such as the Organic Act, the Multiple Use and
Sustained Yield Act, and the NFMA, provide broad authority and
discretion to the Secretary of Agriculture to preserve, protect, and
administer NFS lands and resources.
Timber is one of many resources managed by the Tongass in
accordance with the Organic Act and the Multiple Use and Sustained
Yield Act. While section 101 of the TTRA directs the Forest to ``seek
to meet market demand,'' it specifically states that this direction is
subject to appropriations, other applicable law, and NFMA. It is also
noteworthy that section 101 was written to eliminate the timber supply
mandate in the section of the ANILCA that it amended. Therefore, TTRA
envisions not an inflexible or specific harvest level, but a balancing
of the current market, law, and other uses, including preservation
(Alaska Wilderness Recreation and Tourism Association v. Morrison, et
al., 67 F.3d 723 (9th Cir. 1995)). As specifically noted in the 2020
FEIS, pages 3-38 to 3-39, the actual volume of timber offered each year
on the Tongass can fluctuate substantially due to a variety of factors,
including but not limited to appropriations, competing agency and
Forest obligations, NEPA resource evaluations and analysis, litigation,
and market conditions.
The 2016 Forest Plan projections as applied in the 2020 FEIS remain
the most reasonable estimates of long-term harvest levels to inform the
decision among alternatives in this rulemaking. Recalculations of
market demand projections and what timber harvest levels the Forest
Plan should consider to seek to meet that demand are better addressed
through the forest planning processes.
Comments Concerning Consideration of the 2005 Safe, Accountable,
Flexible, Efficient Transportation Equity Act: A Legacy for Users
(SAFETY-LU)
Comment: Commenters assert that repeal of the 2020 Alaska Roadless
Rule fails to consider or analyze Congress's decision in SAFETY-LU
transportation legislation to implement the 2004 Southeast Alaska
Transportation Plan by authorizing 19 easements allowing for road
construction in the Tongass irrespective of IRA status.
Response: Section 4407 of Public Law 109-59, as amended, grants the
State of Alaska a statutory right to the specific easements authorized
in that Act, and the 2001 Roadless Rule recognizes such statutory
rights (36 CFR 294.12(b)(3)). Therefore, should the State of Alaska
choose to proceed with road construction on these easements, the 2001
Roadless Rule would not prohibit that development. Section 4407's
provisions affect about 25 transportation and utility corridors located
across the Tongass to connect communities and provide reciprocal access
to NFS lands over State-managed lands.
Comments About Projects That May Have Roads in Early Stages of
Development
Comment: Commenters requested that the Forest Service consider
effects to projects in the early stages of road development that relied
on the 2020 final rule and may now be prohibited by this rulemaking.
Response: The USDA is not aware of any early-stage road development
projects on the Tongass which rely on the 2020 Alaska Roadless Rule.
The only roads requested by any entity within IRAs on the Tongass since
the decision on the 2020 Alaska Roadless Rule are those associated with
a locatable mining project; these roads fall under the exceptions in
the 2001 Roadless Rule that recognize the statutory rights provided by
mining law.
Comments About Effects on Transportation Systems Within the Tongass
Comment: Commenters stated that the limitations on roadbuilding
under the 2001 Roadless Rule have been a major barrier to accessing
resources and improving transportation within the Tongass.
Response: The 2001 Roadless Rule provides exceptions to allow the
construction, reconstruction, or realignment of Federal aid highways in
IRAs and road construction or reconstruction pursuant to reserved or
outstanding rights, or as provided by statute or treaty. This includes
the State of Alaska's rights under section 4407 of Public Law 109-59,
as amended.
Comments Supporting a Process for Improved Local, Tribal, and Community
Input
Comment: Commenters urged the Forest Service to ensure a process is
in place for improved local input and review of local community
priorities, possibly through community economic development plans or
other community planning processes.
Response: The USDA has continued meaningful consultation throughout
this rulemaking process. The Forest Service welcomes local, Tribal, and
community input. Receiving such input is essential to the agency for
determining how best to develop plans and accomplish projects. When
there are projects with outcomes that may have substantial influence on
a community or region's economic, cultural, and ecological well-being,
the Forest Service often convenes open houses to garner input or
formally establishes working groups to develop recommendations and
provide input from a cross-section of those directly affected,
including local, Tribal, and community leaders. For example, a Federal
advisory committee (Tongass Advisory Committee) was formed to provide
recommendations on developing an ecologically, socially, and
economically sustainable forest management strategy for the Tongass
during the drafting of the 2016 Forest Plan Amendment (2016 Forest
Plan, Appendix B).
As previously noted, on January 26, 2021, President Biden directed
all federal agencies to review Tribal consultation policies and
practices and recommit to more robust nation-to-nation relationships
and respect for federal trust responsibilities (Executive Order 13175).
The Forest Service invites Tribal input through formal government-to-
government consultation, and Alaska Native corporation input through
formal government-to-corporation consultation (Forest Service Handbook
(FSH) 1509.13, Chapter 10). The USDA consulted with Tribes and Alaska
Native corporations at the beginning of this rulemaking effort as well
as during the public comment period. There have been ongoing
government-to-government consultations involving Tribes pertaining to
repealing the 2020 Roadless Rule. The first was conducted July 7-8,
2021, and involved nine Tribes: the Central Council of Tlingit
[[Page 5268]]
and Haida Indian Tribes of Alaska; the Organized Village of Kake; the
Ketchikan Indian Community; the Klawock Cooperative Association; the
Organized Village of Saxman; the Skagway Traditional Council; the
Organized Village of Kasaan; the Douglas Indian Association, and the
Hoonah Indian Association. A virtual consultation meeting was held with
five tribes in August 2021. Another consultation was held February 18,
2022, at the request of one Tribe: the Organized Village of Kasaan.
USDA has continued its coordination and consultation with Tribal
Nations throughout development of the final rule, including another
consultation with seven tribes on September 19, 2022. Tribes have also
reaffirmed that their comments submitted during the 2020 EIS process
are still valid (refer to appendix H of the 2020 FEIS).
In addition, the Forest Service has been working closely with local
communities, Tribes, the State, and a broad range of partners through
the OneUSDA Southeast Alaska Sustainability Strategy (SASS). The SASS
process, projects and investments reflect USDA's commitment to a
community-driven investment strategy that reflects input from local
communities; acknowledges, respects and honors Indigenous stewardship,
knowledge, and priorities; and values the many collaborative
relationships that have developed to support social, cultural,
ecologic, and economic sustainability and opportunity in the region.
Community economic development plans (or similar plans) may also be
shared with the Forest Service at any time to inform and help ensure
that the management of NFS lands is considerate of local, Tribal, and
community needs. For example, the Southeast Conference 2025 Economic
Plan, a comprehensive economic development strategy for 2021-2025, was
one of the screening tools used for selecting SASS investment proposals
for funding.
Comments on the Rulemaking Process for the 2020 Alaska Roadless Rule
Comment: Some commenters stated that the process leading to the
2020 Alaska Roadless Rule was inappropriately ``top down'' and that the
process led to a decision (full exemption, the 2020 Alaska Roadless
Rule) that did not resemble a durable solution.
Response: The long regulatory and litigation history concerning
roadless area management on the Tongass is evidence that durable
solutions for managing inventoried roadless areas on the Tongass are
challenging. The concerns expressed during this rulemaking reflected a
sentiment that the 2020 decision was a ``top down'' decision, and it is
true that the 2020 Alaska Roadless Rule was not representative of the
vast majority of commenters who expressed support for maintaining
roadless rule protections. In making this decision, the USDA has
considered all of the comments throughout both rulemaking efforts, and
the comments expressed during Tribal consultation. The USDA recognizes
that the underlying goals and purposes of the 2001 Roadless Rule
continue to be important, especially in the context of the values that
roadless areas on the Tongass represent for local communities and
Native peoples, and the multiple ecologic, social, cultural, and
economic values supported by roadless areas on the Forest.
Comments on the 2020 Alaska Roadless Rule Damaging Trusts and
Relationships Between the Forest Service and Regional Stakeholders
Comment: Some commenters stated that the 2020 Alaska Roadless
decision damaged trusts and relationships.
Response: This final rule is directly responsive to unanimous input
from Tribal nations provided during government-to-government
consultation sessions conducted in 2021 and reaffirmed in additional
consultations in 2022. Roadless areas on the Tongass have immense
cultural significance for Alaska Native peoples. Restoring application
of the 2001 Roadless Rule to the Tongass reflects this Administration's
commitment to strengthening nation-to-nation relationships with Tribes
and incorporating traditional ecological knowledge, shared stewardship,
and priorities into land management decision-making.
The final rule also is more responsive to the vast majority of
comments received as part of the 2020 rulemaking as well as the 2021
repeal effort. This final rule reflects the consideration of the
extraordinary ecological values of the Tongass National Forest and the
cultural, social, and economic needs of the local forest dependent
communities in Southeast Alaska. USDA believes that this management
approach best reflects those multiple values.
Comments About Preordained Outcome
Comment: Some commenters argued that the Administration and USDA's
decision to repeal the 2020 Alaska Roadless Rule was preordained in
violation of NEPA. Some commentors pointed to the Southeast Alaska
Sustainability Strategy's statement that the agency would pursue a
repeal of the 2020 Tongass Exemption rule as proof of such
predetermination.
Response: No NEPA violation occurs simply because an Administration
or agency expresses its initial policy preferences before or at the
beginning of a rulemaking. Here, the agency has carefully reviewed the
potential environmental consequences before arriving at its decision.
Comments About Changed Circumstances and New Information
Comment: Some commenters noted that there may be changed
circumstances or new information that render the 2020 EIS's analysis
inadequate to support this rulemaking and urge a new or supplemental
EIS be prepared.
Response: The proposed rule made a preliminary determination that
the 2020 FEIS remained an effective analysis of the environmental
effects of returning the Tongass to operation under the 2001 Roadless
Rule. Commenters on the proposed rule have suggested that new
information or changed circumstances related to (1) the USDA Southeast
Alaska Sustainability Strategy, and (2) Sealaska Corporation's
announced plan to transition away from logging its lands, may compel
additional NEPA analysis for this rulemaking. The agency has carefully
considered this information and concluded that it does not
significantly alter the 2020 FEIS's analysis of the alternatives'
effects on the quality of the human environment. More detailed
discussion related to the agency's consideration of new information or
changed circumstances is set out in the agency's Determination of NEPA
Adequacy (DNA).
Comments on Consideration of Public Input
Comment: Commenters were concerned that the USDA based this final
rule on the fact the large majority of comments received during the
comment period for the 2020 Alaska Roadless rulemaking effort supported
retaining the 2001 Roadless Rule and will again follow the majority and
ignore local, informed input.
Response: The NOPR pointed out the large majority of comments
received during the comment period for the 2020 Alaska Roadless
rulemaking effort supported retaining the 2001 Roadless Rule. It did
not draw the conclusion that the 2001 Roadless Rule should be
reinstated simply because the majority of comments received during that
rulemaking process were opposed to the Tongass exemption from the 2001
[[Page 5269]]
Roadless Rule (i.e., opposed the 2020 Alaska Roadless Rule).
The USDA values the comments received and the concerns expressed by
the public during the rulemaking process. The USDA considered all
public comments received, input from Tribal governments, communities,
cooperating agencies, and elected officials. The NEPA and rulemaking
public comment processes 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. 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. USDA reconsidered
all alternatives and has opted to repeal the 2020 Alaska Roadless Rule
for all the reasons discussed herein.
Comments Concerning the Tongass Old-Growth Conservation Strategy and
Protecting Roadless Area Quality and Values
Comment: Commenters supported repeal of the 2020 Alaska Roadless
Rule stating that it would have an adverse effect on the Tongass old-
growth conservation strategy by directing an administrative change
regarding timber suitability within IRAs and further stated that a
supplemental EIS should be prepared with an alternative that would
modify the 2016 Forest Plan to remove development land use designations
from IRAs. They requested that the Forest Plan be amended to provide a
comprehensive set of plan components that are compatible with Roadless
Area qualities and values.
Response: The USDA has extensive authority governing forest
management. The Secretary also has broad discretion concerning the
development, amendment, or revision of land management plans, but new
laws and regulations can supersede land management plan direction. The
2012 Planning Rule recognizes this authority and provides for
administrative changes to forest plans to conform to new statutory or
regulatory requirements (36 CFR 219.13(c)). The administrative change
directed by the 2020 rulemaking regarding timber suitability only
applied to lands that were deemed unsuitable solely due to IRA
designation in the 2016 Forest Plan. While timber suitability is a
Forest Plan component that would normally be changed through an
amendment process (36 CFR 219.13(b)), the Planning Rule directs that
Forest Plan components may be changed through a different mechanism
under certain circumstances.
In any event, that particular administrative change was never
executed. While the Forest Service was determining the changes to the
2016 Forest Plan necessary, President Biden issued the Executive orders
discussed above and the USDA began work to review the 2020 Alaska
Roadless Rule. This final rule repeals the direction to issue that
administrative change. Instead, the 2001 Rule will apply as a direct
result of the repeal of the 2020 Alaska Roadless Rule. In turn, the
2001 rule itself expressly provided that it does not compel the
amendment or revision of any land and resource management plan. That
fits well with the recognition in the 2016 Forest Plan (p. 1-5) that
Federal law and regulation receive the highest level of priority in
setting direction for Forest activities. Thus, changes to land use
designation assignments are not necessary to apply the regulatory
protections of the 2001 Roadless Rule or any roadless rule for that
matter.
Comments Related to Climate Change, Carbon Storage, and Carbon
Sequestration
Comment: Commenters supported repeal of the 2020 Alaska Roadless
Rule in consideration of the urgent climate crisis and the need to
retain or increase carbon storage and sequestration. Others disagreed
and stated that the USDA is overstating the importance of Tongass old-
growth for carbon sequestration.
Response: Roadless areas on the Tongass represent the world's
largest remaining, intact, old-growth temperate rainforest, which
supports biodiversity and stores carbon. These areas are considered
critical for carbon sequestration and carbon storage to help mitigate
climate change: the Tongass holds more biomass per acre than any other
rainforest in the world and stores more carbon than any other national
forest in the United States. Both old-growth and young-growth forests
are important for carbon storage and sequestration.
Reinstating the 2001 Roadless Rule will provide regulatory
certainty that the Tongass IRAs will continue to sequester and store
carbon into the future, while providing numerous other ecological,
economic, cultural, and social values to the American people and
providing for ecosystem resiliency in changing climatic conditions.
Comments on Greenhouse Gasses as a Result of Increased Fuel Consumption
Comment: Some commenters stated that reinstating the 2001 Roadless
Rule could reduce greenhouse gas emissions caused by fuel consumption
related to timber harvest while others stated that it would impede the
development of renewable resources and thereby delay the transition to
clean energy in diesel-reliant communities.
Response: Regarding increased fuel consumptions related to timber
harvests, this final rule does not set or change the volume of timber
offered for sale. Those decisions will continue to be made in
accordance with USDA policy, the 2016 Tongass Forest Plan, and the
Tongass National Forest's fiscal capabilities and organizational
capacity.
Hydroelectric projects, and the roads necessary to support these
projects, that may help transition communities from fossil fuel energy
are not prohibited in IRAs on the Tongass. The 2001 Roadless Rule also
does not prohibit the construction or maintenance of transmission
lines. While new temporary or permanent roads are not permitted in
IRAs, outside of the exceptions in the 2001 Roadless Rule, temporary
linear construction zones can be authorized to facilitate the
construction of transmission lines. In addition, Alaska's
transportation system guaranteed in section 4407 of Public Law 109-59,
as amended, also allows for roaded access in the Forest for
transmission lines and other utility systems. Therefore, the USDA
believes that this final rule adequately provides for renewable energy
projects and the transition to clean energy in communities across
Southeast Alaska.
Comments on Opportunities To Conserve Cedar Forests in a Changing
Climate
Comment: Commenters note that conservation areas, such as roadless
areas protected by reinstatement of the 2001 Roadless Rule, offer
opportunities to conserve cedar forests in a changing climate.
Commenters request protection for yellow-cedar, red cedar and large, or
old-growth trees, under the 2001 Alaska Roadless Rule.
Response: The 2020 FEIS acknowledged that yellow cedar is one
species that is already experiencing effects of climate change on its
distribution on the Tongass; however, management actions that benefit
specific individual tree species are better addressed through other
management efforts, such as forest planning or specific project design
features.
[[Page 5270]]
Comments on the Difference in Environmental Consequences Between
Continued Implementation of the 2001 Roadless Rule and Exemption From
the 2001 Roadless Rule
Comment: Some commenters disagreed with the USDA's determination in
2020 that there was only a modest difference in environmental
consequences between continued implementation of the 2001 Roadless Rule
and exemption from the 2001 Roadless Rule. The commenters stated that
roading and logging of these undeveloped lands resulting from the full
exemption would have profound and significant environmental
consequences for the 188,000 affected acres and beyond, including the
roadless areas in which they are located.
Response: The USDA considered and disclosed the effects to roadless
areas in terms of acres designated as roadless and the degree of
protection provided by each alternative. The Final EIS is clear that
Alternative 6 (full exemption of the Tongass from the 2001 Roadless
Rule) would likely result in more degradation of roadless area
characteristics than any of the other alternatives. Effects to each
roadless area were presented in the Final EIS using estimated old-
growth harvest acres by alternative to compare the alternatives.
The 2020 FEIS concluded that there is only a modest difference
between the alternatives considered in the EIS as far as environment
effects resulting from timber harvest, because the estimated acreage of
land subject to harvest is not proportional to the acres of suitable
timber lands, but rather is based on the projected timber sale quantity
established in the 2016 Forest Plan. Although 9.4 million acres were no
longer subject to the 2001 Roadless Rule with the exemption, only
188,000 more acres would become available for timber production. Road
construction was estimated to increase Tongass-wide from 994 miles in
the no-action alternative (Alternative 1) to 1,043 miles under the full
exemption alternative (Alternative 6) over the next 100 years.
The assumptions and findings in the 2020 FEIS are still true as
those findings were attributable to the fact that all of the
alternatives were expected to have harvest levels similar to the levels
authorized in the Forest Plan. The modest differences reflect the
additional flexibility the 2020 Alaska Roadless Rule was expected to
provide in making 188,000 more acres suitable for harvest, and the
projection that there might be more high-volume and large-tree old-
growth harvested under Alternative 6 (the 2020 Alaska Roadless Rule
Alternative) because of that flexibility (See Alaska Roadless FEIS
Environmental Consequences Forest Products Page 2-23).
Similarly, the 2001 Roadless Rule has not been an impediment to
vital infrastructure and energy projects, given that some
infrastructure and energy development is allowed under various statutes
and projects have been approved consistent with the exemptions in the
2001 Roadless Rule.
While the conclusion in the 2020 FEIS that the overall adverse
effect of the 2020 Alaska Roadless Rule on roadless area
characteristics was modest is still valid, this final rule reflects the
USDA's belief that even a modest adverse effect of this type is
undesirable, in light of the USDA's current policy objectives. As
explained above in the section titled ``Decision Rationale and
Important Considerations,'' these objectives include prioritizing the
values that roadless areas on the Tongass hold for local communities
and Native peoples, as reflected, among other places, in the
consultation with Tribal Nations, and the multiple ecologic, social,
cultural, and economic values supported by roadless areas on the
Forest.
Comments in Support of a Traditional Homelands Conservation Rule or Co-
Management With Tribal Governments
Comment: Commenters stated Support for a Traditional Homelands
Conservation Rule and increased co-management and consultations with
Tribal governments.
Response: Shared stewardship of land management is a priority for
USDA, and an important part of our responsibility to Native Nations.
Ecological challenges do not recognize borders or boundary lines.
Through shared stewardship, USDA is coming together with Tribal
governments, States, and other partners to address these challenges and
explore opportunities to improve forest health and resiliency. In July
2021, the USDA and the Forest Service held a consultation with nine
Tribes in Juneau, Alaska. Topics included the Tribes' petition to
create a Traditional Homelands Conservation Rule, the 2020 Alaska
Roadless Rule, and the SASS. The Tribes represented at this
consultation expressed their desire to return to the 2001 Roadless Rule
on the Tongass as quickly and expeditiously as administratively
possible, while also urging the USDA to take other steps. The USDA and
the Forest Service have continued to consult with Tribal governments
and Alaska Native corporations regarding this rule.
As part of the SASS, the USDA has committed up to $25 million in
investments in Southeast Alaska, over 50 percent of which is expected
to support Tribal and indigenous interests and Tribal and community
youth engagement. Additionally, the USDA is exploring new ways
utilizing existing authorities to advance co-stewardship between Tribal
Nations and the USDA on NFS lands across Southeast Alaska. See the USDA
SASS Initial Investments and Recommendations, March 2022 at <a href="https://www.fs.usda.gov/internet/FSE_DOCUMENTS/fseprd1008319.pdf">https://www.fs.usda.gov/internet/FSE_DOCUMENTS/fseprd1008319.pdf</a>.
Regulatory Certifications
National Environmental Policy Act
The Department's determination is that the FEIS issued in
association with promulgation of subpart E (85 FR 68688) adequately
analyzes the environmental effects of this final rule and reasonable
alternatives. Therefore, the USDA has prepared a Determination of NEPA
Adequacy (DNA) for this rulemaking. Under the Forest Service's National
Environmental Policy Act (NEPA) procedures (36 CFR 220.4(j)), a DNA is
a NEPA compliance method that allows an existing environmental analysis
to be used in its entirety for a new proposed action if the Responsible
Official determines that the existing NEPA analysis adequately assesses
the environmental effects of the proposed action and reasonable
alternatives. The DNA and 2020 FEIS are available at: <a href="https://www.fs.usda.gov/project/?project=60904">https://www.fs.usda.gov/project/?project=60904</a>. The environmental effects
associated with adoption of the final rule were analyzed and disclosed
in detail in Alternative 1 of the FEIS for the 2020 Alaska Roadless
Rule (the no action alternative).
The FEIS for the 2020 Alaska Roadless Rule was prepared less than
two years ago and included an effects analysis for six alternatives
covering a broad range of roadless management options, including both
operation under, and exemption from, the 2001 Roadless Rule's
prohibitions. The NOPR included a preliminary determination that the
2020 FEIS remained an effective analysis of the environmental effects
of returning the Tongass to operation under the 2001 Roadless Rule.
Commenters on the proposed rule have suggested that new information or
changed circumstances related to (1) the USDA Southeast Alaska
Sustainability Strategy, and (2) Sealaska Corporation's announced plan
to transition away from logging its lands, may compel additional NEPA
analysis for this rulemaking. The agency has carefully considered this
information and concludes that it does
[[Page 5271]]
not significantly alter the 2020 FEIS's analysis of the alternatives'
effects on the quality of the human environment. Additional discussion
related to the DNA can be found at the link above.
Regulatory Planning and Review
OMB has designated this rulemaking as a significant regulatory
action under Executive Order 12866. The Forest Service has prepared an
analysis of potential impacts and discussion of benefits and costs of
the final rule in its Regulatory Impact Analysis. By removing subpart
E, consisting of Sec. Sec. 294.50 and 294.51, the final rule would
return the Tongass to management under the provisions of the 2001
Roadless Rule, which prohibits timber harvest and road construction or
reconstruction within designated Inventoried Roadless Areas with
limited exceptions. Exceptions in the 2001 Roadless Rule do allow for
some activity, including to protect public health and safety, provide
access for statutory rights and existing leases, and in specified
circumstances prevent or repair natural resource damage, maintain or
restore ecosystem characteristics, or improve habitat for certain
species.
Protection of roadless characteristics through reinstatement of the
2001 Roadless Rule that would occur as a result of this final rule
would provide benefits associated with old-growth conservation and
would avoid displacement-related losses to recreationists and the
outfitter and guide industry, estimated to be $68,000 to $224,000
annually. Estimated loss of access to suitable old-growth would not
materially decrease timber related jobs, income, or output, since the
final rule does not change the timber sale quantity or timber demand
projections from the Tongass Land and Resource Management Plan.
The TTRA directs the Forest Service, subject to other applicable
laws, to ``seek to meet market demand'' for timber from the Tongass.
See 66 FR 3255. However, as USDA (and the courts) have repeatedly
explained, the TTRA ``does not envision an inflexible harvest level,
but a balancing of the market, the law, and other uses, including
preservation.'' Id. The TTRA expressly declares that subject to
appropriations, other applicable law, the requirements of the National
Forest Management Act; and to the extent consistent with providing for
the multiple use and sustained yield of all renewable forest resources,
the Forest Service is to ``seek to provide a supply of timber from the
Tongass, which: (1) Meets the annual market demand for timber from such
forest and (2) meets the market demand from such forest for each
planning cycle'' (16 U.S.C. 539d).
While the TTRA provides a qualified instruction that USDA ``seek to
provide a supply of timber'' from the Tongass that meets market demand,
the 2001 Roadless Rule does not prevent USDA from seeking to meet
market demand through timber sales on lands outside of inventoried
roadless areas or consistent with Roadless Rule exceptions. The TTRA
does not require USDA to meet market demand, but only to ``seek to . .
. meet [ ]'' such demand. Even that qualified directive is ``subject
to'' applicable law and must be ``consistent with'' USDA's authority to
provide for the multiple use and sustained yield of renewable forest
resources, including recreation, watershed, and wildlife and fish, in
addition to timber. The final rule is fully consistent with TTRA.
Stumpage value changes are quantified in the regulatory impact
analysis, alongside agency road maintenance costs, conservation value,
avoided lost revenue to outfitters and guides, and value of access by
recreationists not using outfitters and guides. Discounted upper bound
estimates of net present value are positive for the final rule and
regulatory alternatives.
The rule does not maximize net present value relative to the other
regulatory alternatives as measured in quantitative terms (Alternative
2 is higher). However, such analysis does not fully capture the rule's
qualitative effects (i.e., biological diversity, habitat, physical
values, scenic quality, recreation opportunities, traditional cultural
properties, and sacred sites). Both quantitative and qualitative
considerations were weighed in the agency's decision rationale for this
rule.
Regulatory Flexibility Act and Consideration of Small Entities
This final rule has been considered in light of E.O. 13272 that
addresses the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as
amended, requires agencies to prepare and make available to the public
a regulatory flexibility analysis that describes the economic effect of
a proposed or final rule on small entities (i.e., small businesses,
small organizations, and small governmental jurisdictions) when the
agency is required to publish a general notice of proposed rulemaking
for a rule. Furthermore, section 605 of the RFA allows an agency to
certify a rule, in lieu of preparing an analysis, if the final
rulemaking is not expected to have a significant economic impact on a
substantial number of small entities. Despite this rulemaking not being
subject to the requirements of sec. 553 of the Administrative Procedure
Act, the Department nevertheless prepared a regulatory flexibility
analysis which can be found at <a href="https://www.regulations.gov/docket/FS-2021-0007">https://www.regulations.gov/docket/FS-2021-0007</a>. The Forest Service is directly affected by this rulemaking
and by definition is not a small entity; the final rule imposes no
costs or recordkeeping requirements for small entities; nor does the
final rule seek to impose any direct regulatory restrictions upon any
small entities. A number of small and large entities may experience
regulatory assurance provided by the proposed rule, or otherwise
benefit from roadless protection under the proposed rule. In
consideration of the facts and analysis set forth in the regulatory
flexibility analysis prepared by the Forest Service, the undersigned
has determined and certified by signature on this document that this
final rule will not have a significant economic impact on a substantial
number of small entities.
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.
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
would not have substantial direct effects on States, on the
relationship between the National Government and the State
[[Page 5272]]
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.
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
The USDA has consulted and coordinated with Tribal Nations
throughout the process of developing the proposed regulation. As part
of this rulemaking, the USDA's Office of Tribal Relations determined
that this final rule has Tribal implications that require continued
outreach efforts under Executive Order 13175. The USDA Office of Tribal
Relations has determined that this rulemaking review and analysis has
been conducted in accordance with Departmental Regulation (DR) 1350-
002, ``Tribal Consultation'' and Executive Order 13175, ``Consultation
and Coordination with Indian Tribal Governments.''
In support of the January 26, 2021, Executive Order 13175 and the
President's Memorandum on Tribal Consultation and Strengthening Nation-
to-Nation Relationships, in July 2021, USDA and the Forest Service held
a consultation with ten Tribes in Juneau, Alaska: Central Council
Tlingit and Haida Indian Tribes of Alaska, Douglas Indian Association,
Hoonah Indian Association, Organized Village of Kake, Organized Village
of Kasaan, Ketchikan Indian Community, Klawock Cooperative Association,
Organized Village of Saxman, Sitka Tribe of Alaska and Skagway Village
(Skagway Traditional Council). A virtual consultation was also held
with 6 Tribes in August 2021: Central Council Tlingit and Haida Indian
Tribes of Alaska, Craig Tribal Association, Klawock Cooperative
Association, Organized Village of Kake, Organized Village of Kasaan and
Ketchikan Indian Community. A virtual consultation was conducted at the
request of one Tribe in February 2022 (Organized Village of Kasaan).
Another virtual consultation was conducted with seven Tribes in
September 2022: Central Council Tlingit and Haida Indian Tribes of
Alaska, Hoonah Indian Association, Organized Village of Kake, Organized
Village of Kasaan, Ketchikan Indian Community, Skagway Village (Skagway
Traditional Council) and the Wrangell Cooperative Association. The
Tribes represented at these consultations expressed their desire to
return to the 2001 Roadless Rule as quickly and expeditiously as
administratively possible. USDA committed to continuing meaningful
consultation throughout the rulemaking.
This final rule reflects the input from Tribal nations provided
during those government-government consultation sessions. Roadless
areas on the Tongass have immense cultural significance for Alaska
Native peoples. Restoring application of the 2001 Roadless Rule to the
Tongass reflects this Administration's commitment to strengthening
nation-to-nation relationships with Tribes and incorporating Indigenous
Knowledge, stewardship, and priorities into land management decision-
making.
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. Nevertheless, if such conflicts were to be
identified, 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
believes that the final rule is not likely to have a significant
adverse effect on the supply, distribution, or use of energy, and the
Administrator of the Office of Information and Regulatory Affairs has
not designated this final rule as 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.
Congressional Review Act
Pursuant to Subtitle E of the Small Business Regulatory Enforcement
Fairness Act of 1996, also known as the Congressional Review Act (5
U.S.C. 801 et seq.), the Office of Information and Regulatory Affairs
designated this rule as not a ``major rule,'' as defined by 5 U.S.C.
804(2).
List of Subjects in 36 CFR Part 294
National forests, Navigation (air), Recreation areas, Roadless area
management.
For the reasons set forth in the preamble, USDA is amending part
294 of title 36 of the Code of Federal Regulations as follows:
PART 294--SPECIAL AREAS
0
1. Add an authority citation for part 294 to read as follows:
Authority: 16 U.S.C. 472, 529, 551, 1131, 1608, and 1613 and 23
U.S.C. 201 and 205.
Subpart E--[Removed]
0
2. Subpart E, consisting of Sec. Sec. 294.50 and 294.51, is removed.
Dated: January 19, 2023.
Meryl Harrell,
Deputy Under Secretary for Natural Resources, USDA.
[FR Doc. 2023-01483 Filed 1-26-23; 8:45 am]
BILLING CODE 3411-15-P
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</html>Indexed from Federal Register on January 27, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.