[Federal Register: March 3, 2000 (Volume 65, Number 43)]
[Proposed Rules]
[Page 11680-11683]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03mr00-42]
[[Page 11680]]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Parts 212, 261, and 295
RIN 0596-AB67
Administration of the Forest Development Transportation System;
Prohibitions; Use of Motor Vehicles Off Forest Service Roads
AGENCY: Forest Service, USDA.
ACTION: Notice of proposed rulemaking; request for comment.
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SUMMARY: This proposed rule would revise regulations concerning the
development, use, maintenance, and management of the national forest
transportation system. This action is needed to reflect changes in
public demand and use of National Forest resources; to better consider
scientific information about the adverse environmental impacts of road
construction; and to efficiently meet present and future management
objectives in balance with available funding. In concert with the
proposed revision of Forest Service road system administrative
direction published elsewhere in this part of today's Federal Register,
this rule will help ensure that additions to the Forest Service road
system are those deemed essential for National Forest System resource
management and use; that, to the extent practicable, construction,
reconstruction, and maintenance of roads will minimize adverse
environmental impact; and, finally, that unneeded roads are
decommissioned and, where indicated, ecological processes are restored.
The substantive changes are proposed to part 212, which addresses the
forest transportaiton system. Proposed revisions to parts 261 and 295
are solely to conform terminology to that proposed to part 212. The
Forest Service invites written comments and will analyze and consider
those comments in development of the final rule.
DATES: Comments must be received in writing by May 2, 2000.
ADDRESSES: Send written comments to USFS CAET, Attention: Roads, P.O.
Box 221090, Salt Lake City, UT 84122.
Send comments electronically to roads/wo__caet-slc@fs.fed.us. All
comments received, including names and addresses when provided, are
placed in the record and are available for public inspection and
copying at Forest Service, 201 14th Street SW, Washington, D.C. 20250.
Persons wishing to inspect the comments are encouraged to call 202-205-
1400 to facilitate building entrance.
FOR FURTHER INFORMATION CONTACT: Heidi Valetkevitch, Office of
Communication, 202-205-0914.
SUPPLEMENTARY INFORMATION:
Background
On January 28, 1998, in an Advance Notice of Proposed Rulemaking
(ANPR) (63 FR 4350), the Forest Service announced its intent to revise
regulations concerning management of the national forest transportation
system. Simultaneously, the Forest Service published a proposed interim
rule (63 FR 4351) to temporarily suspend permanent and temporary road
construction and reconstruction in certain unroaded areas of National
Forest System lands. The purpose of the interim rule was to take a
``timeout'' for 18 months while the Forest Service developed a new
long-term road management policy and new analytical tools to provide a
more ecological approach to analyzing existing and future road needs.
A final interim rule, issued on February 12, 1999, (64 FR 7289),
temporarily suspended permanent and temporary road construction and
reconstruction in certain unroaded areas of National Forest System
lands. The temporary suspension is effective pending development of a
revised forest transportation system policy, or 18 months from the
effective date of the interim final rule, whichever is sooner.
Section-by-Section Explanation of Proposed Revisions to 36 CFR Part
212
The Forest Service proposes to revise 36 CFR part 212 to shift the
emphasis from transportation development to managing access within the
capability of the land. The proposed revision reflects changes in
public opinion, demand, and use of National Forest resources and
considers not only possible economic and social benefits associated
with road construction and use but also scientific information about
the adverse environmental impacts of road construction. In the proposed
revision, emphasis is placed on providing administrative and public
access and safety within a context of maintaining and restoring healthy
ecosystems. The proposal shifts the focus of road management from
development and construction of new roads to maintaining needed roads
and decommissioning unneeded roads.
Proposed Change in Nomenclature. Consistent with the intent to
shift emphasis from road development to environmentally sound access,
the term ``forest development transportation'' is revised throughout
Part 212 to remove the word ``development.''
Proposed Sec. 212.1 Definitions. The term ``forest transportation
plan'' is revised to refer to ``forest transportation atlas'' to more
clearly reflect the nature and intent of this document. Also,
definitions are added for ``road, unclassified road, and classified
road.'' These terms are necessary to understand and implement the
requirements of proposed Sec. 212.5 regarding the minimum Forest
Service road system. The proposed definition of a road is a ``A motor
vehicle travelway over 50 inches, unless classified and managed as a
trail. A road may be classified or unclassified.'' The 50-inch
dimension was derived to generally distinguish between the largest of
the motorized trail vehicles and the smallest of the highway vehicles.
This definition would permit some trails to be over 50 inches wide as
long as they are classified and managed as a trail. The terms
``classified'' and ``unclassified'' as used in the context of Forest
Service roads are somewhat new. The term ``unclassified'' was first
used in the September 1998 draft report, ``The National Forest Road
System and Its Use,'' which was posted on the Worldwide Web http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fs.us/new/roads. Its intent was to identify for management and analysis
purposes the existence of those roads that were not intended to be a
part of the permanent transportation system. The term ``classified
road'' was used in the Temporary Suspension of Road Construction and
Reconstruction in Unroaded Areas Interim Rule, 36 CFR part 212 (64 FR
7289; Feb. 12, 1999) to describe those roads that were constructed or
maintained for long-term highway use. These definitions were also used
in the Road Analysis Report (August 1999). Finally, the definitions for
the terms classified, unclassified, and road as used in this proposal
have been modified slightly for clarity and to reflect comments
received. The proposed new road terms and their definitions are not
intended to have an effect on the disposition of particular roads, only
on how they are characterized for the purposes of analysis and for
documentation in the forest transportation atlas.
Proposed Sec. 212.2 Forest Transportation Program. The proposed
rule would revise this section to update and clarify the required
information to be collected and displayed in the forest transportation
atlas (formerly called the transportation plan). Additionally, the
section would require the use of a science-based analysis to identify
[[Page 11681]]
needed transportation facilities. The proposed rule also would remove
paragraph (c), which addresses allocation of funds, because the statute
on which this paragraph was based has been repealed.
Proposed Sec. 212.5 Road System Management. This section of the
proposed rule would direct agency officials to identify the minimum
transportation system needed to administer and protect National Forest
System lands using a science-based transportation analysis and
recognizing likely, realistic funding estimates. Previously, forest
transportation policy focused on road development and maintenance, and
only limited attention has been paid to ``decommissioning'' roads.
Given the shift in the focus of road management, new direction is
needed to ensure that agency officials identify and decommission
unneeded roads. This proposed revision to Sec. 212.5 would require that
if roads are determined to be unneeded, priority should be given to
decommissioning those roads that pose the greatest risk of
environmental damage.
The proposed rule does not establish any specific science-based
analysis as the standard to be used; rather, it preserves Forest
Service flexibility to further describe science-based transportation
analysis in conjunction with other ecosystem analyses and to adjust the
process in response to new scientific knowledge of road and resource
management interactions. Science-based road analysis is discussed
further in the proposed administrative direction published elsewhere in
this part of today's Federal Register.
Proposed Conforming Amendments to 36 CFR Parts 261 and 295
The rules at 36 CFR part 261 give notice of prohibited acts on
National Forest System lands. There are numerous references in these
prohibitions to ``forest transportation development roads.'' This
proposed rule would remove the term ``development'' from various
sections to conform the terminology to that proposed in part 212. Also,
the rules at 36 CFR part 295 govern use of motor vehicles off forest
development roads. This proposed rule would remove the term
``development'' from the heading and sections of Part 295 to conform
the terminology to that proposed in Part 212. No substantive revisions
are proposed to these parts.
Regulatory Impact
This proposed rule has been reviewed under USDA procedures and
Executive Order (E.O.) 12866 on Regulatory Planning and Review. The
Office of Management and Budget (OMB) has determined that this is a
significant rule as defined by E.O. 12866 because of the importance of
the Forest Service road system and the level of public interest
expressed in the promulgation of the interim rule. Accordingly, OMB has
reviewed this proposed rule. A cost-benefit analysis has been prepared
as part of the environmental assessment on this proposal.
The basic approach is to issue new regulations consistent with
emerging road management policy which encourages investing limited road
management funds in a transportation system that best serves the
current and anticipated management objectives and public uses of
National Forest System lands. This new policy emphasizes investing in
the process of decommissioning unneeded roads and reconstructing and
maintaining the most heavily used roads. New road construction must be
supported by rigorous analysis. Agency road management costs are not
expected to change. Although this rule requires that the Agency use a
new science-based roads analysis when making decisions about road
construction, the Agency currently conducts some transportation
analysis in the context of NEPA requirements or other forest planning
assessments. Thus, the Agency does not expect an incremental increase
of administrative costs due to new administrative requirements under
this proposal. Most of the economic effects have not been quantified.
They have been discussed and evaluated on a qualitative basis. Timber
harvesting is an exception where quantitative data was reasonably
available. A summary of the economic effects of the proposed change in
road management strategy are as follows:
Roaded Areas: The differences between the no action alternative and
the proposed action alternative tend to be minor. No significant
difference in economic benefits or costs is expected for ease of
access, public safety, law enforcement, timber management, and
wilderness or heritage resources. Potential positive economic effects
are expected for fire management, insect and disease management,
noxious weed control, water and air quality, wildlife and fish values,
and passive use values. These positive effects result from road
decommissioning. Different types of recreation use are affected in
different ways--some positive and some negative.
Roadless Areas (inventoried roadless and other unroaded areas): The
differences between the no-action alternative and the proposed action
alternative would be greatest during the transition phase. No
differences are expected for access, public safety, and law
enforcement. The only negative effects expected during the transition
period would be from reduced timber harvest and mineral exploration and
extraction. If all road construction were delayed during the transition
in all of the roadless areas, the maximum potential total reduction in
timber harvest would be 351 million board feet of timber per year. The
cost associated with this reduced timber harvest would be $42 million
annually. Also lost, as a result of decreased timber production, would
be approximately 3,700 jobs and $10 million in payments-to-states each
year. This loss in payments-to-states would be partially offset by
Payments in Lieu of Taxes. Positive effects are expected for fire
prevention, insect and disease management, noxious weeds, watershed and
air quality, wildlife and fish, wilderness, and passive use values.
These positive effects result from lack of new road development. The
effects on recreation and heritage resources are complex and ambiguous
and depend upon the type of activity--some are positive and some are
negative. Less access reduces the level of participation. However, the
quality of wilderness type recreation use is protected and vandalism of
heritage sites is lessened.
In summary, the proposed regulations will permit a reallocation of
funds to management activities that are consistent with present
resource management direction. While the agency could not quantify or
monetize many of the impacts of this proposed rule, the agency
thoroughly considered both the potential quantified and qualitatively-
discussed costs and benefits. Pursuant to requirements of Executive
Order 12866, the agency carefully assessed alternative regulatory
approaches and is proposing this rule only upon making a reasoned
determination that the benefits justify the costs. See the
``Environmental Impact'' section which follows for availability of the
full cost-benefit analysis.
This proposed rule has been considered in light of the Regulatory
Flexibility Act (5 USC 601 et seq. This proposed rule primarily
involves agency terminology and broad principles to guide the planning
and management of the Forest Service road system and has no direct or
indirect financial or other impact on small businesses. Therefore, it
is hereby certified that this action will not have a significant
economic impact on a substantial number of small entities as defined by
the Act.
[[Page 11682]]
Unfunded Mandates Reform
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), the Department has assessed the effects of this
proposed rule on State, local, and tribal governments, and on the
private sector. This proposed rule does not compel the expenditure of
$100 million or more by any State, local, or tribal government, or
anyone in the private sector. Therefore, a statement under section 202
of the Act is not required.
Environmental Impact
Section 31.1b of Forest Service Handbook 1909.15 (57 FR 43180;
September 18, 1992) excludes from documentation in an environmental
assessment or impact statement ``rules, regulations, or policies to
establish Service-wide administrative procedures, program processes, or
instructions.'' The Forest Service's assessment is that this proposed
rule falls within this category of exclusion. Nevertheless, to further
the intent of the National Environmental Policy Act, the agency has
elected to prepare an environmental assessment. This document may be
obtained from the internet at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fs.fed.us/news/roads/ea2.htm or by
writing to the Director of Ecosystem Management Coordination, P.O. Box
96090, Washington, DC 20090. Comments on the environmental assessment
should be submitted with any comments on the proposed rule.
No Takings Implications
This proposed rule has been reviewed for its impact on private
property rights under Executive Order 12630. It has been determined
that this proposed rule does not pose a risk of taking
Constitutionally-protected private property; in fact, the proposed rule
honors access to private property pursuant to statute and to
outstanding or reserved rights.
Civil Justice Reform Act
This proposed rule revision has been reviewed under Executive Order
12988, Civil Justice Reform. The proposed revision would (1) Preempt
all State and local laws and regulations that are found to be in
conflict with or that would impede its full implementation; (2) would
not retroactively affect existing permits, contracts, or other
instruments authorizing the occupancy and use of National Forest System
lands; and (3) does not require administrative proceedings before
parties may file suit in court challenging these provisions.
Controlling Paperwork Burdens on the Public
This proposed rule does not contain any recordkeeping or reporting
requirements or other information collection requirements as defined in
5 CFR part 1320 and, therefore, imposes no paperwork burden on the
public. Accordingly, the review provisions of the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501, et seq.) and implementing regulations at 5
CFR part 1320 do not apply.
Federalism
The agency has considered this proposed rule under the requirements
of Executive Order 12612 and has made a preliminary assessment that the
rule will not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. Therefore, the agency has determined that no further
assessment on federalism implications is necessary at this time. In
addition, the agency has reviewed the consultation requirements under
Executive Order 13132, effective November 2, 1999. This new Order calls
for enhanced consultation with State and local governmental officials
and emphasizes increased sensitivity to their concerns.
In the spirit of these new requirements, the agency has already
carefully considered in the development of this proposed rule the
comments received from States, tribes, and local governments in
response to the Advanced Notice of Proposed Rulemaking published
January 28, 1998 (63 FR 4350). In proposed section 212.1, the
definition of ``forest transportation atlas'' recognizes the need to
consider forest resources upon which communities depend. Section 212.5
of the proposed rule would require agency officials to use a science-
based road analysis process and involve the public in identifying the
Forest Service road system. Also, the proposed rule at section
212.5(b)(1) calls for consultation with affected State, tribal, and
local governments in identifying transportation needs. In addition to
public comments on this Notice, the agency will meet with State,
tribal, and local government officials to clarify understanding of the
proposed rule and to understand their concerns. Prior to adopting a
final rule, the agency will consider the extent to which additional
consultation is appropriate under Executive Order 13132.
Conclusion
The Forest Service proposes to revise its regulations concerning
the national forest transportation system to shift emphasis from
transportation development to managing access within the capability of
the land. The proposed revisions to 36 CFR parts 212, 261, and 295, in
conjunction with proposed administrative direction published elsewhere
in this part today, will provide the framework for achieving this new
emphasis. The Forest Service invites written comments and will consider
those comments in developing the final rule that will be published in
the Federal Register. Additionally, Forest Supervisors may hold
meetings to provide an opportunity for local comment and clarification
of this proposed rulemaking.
List of Subjects
36 CFR Part 212
Highways and roads, National forests, Public lands--rights-of-way,
and Transportation.
36 CFR Part 261
Law enforcement, Investigations, National forests, and Seizures and
forfeitures.
36 CFR Part 295
National forests and Traffic regulations.
For the reasons set forth in the preamble, the Forest Service
proposes to amend Chapter II of Title 36 of the Code of Federal
Regulations as follows:
PART 212--ADMINISTRATION OF THE FOREST TRANSPORTATION SYSTEM
1. The authority citation for Part 212 continues to read as
follows:
Authority: 16 U.S.C. 551. 23 U.S.C. 205.
2. Revise the heading for Part 212 as set out above.
3. Remove the words ``forest development'' and, in their place, add
the word ``forest'' in the following places:
a. Sec. 212.1(e) heading;
b. Sec. 212.1(h) text;
c. Sec. 212.1(i) text;
d. Sec. 212.1(j) text;
e. Sec. 212.1(k) text;
f. Sec. 212.2 heading;
g. Sec. 212.2(b) text;
h. Sec. 212.4(a) text; and
i. Sec. 212.4(b) text.
4. Amend Sec. 212.1 as follows:
a. Remove the paragraph designations and arrange the terms in
alphabetical order.
b. Remove the definitions for ``forest development transportation
plan'' and
[[Page 11683]]
``forest development transportation facility,'' and add definitions, in
alphabetical order, for ``forest transportation atlas,'' ``forest
transportation facility'' and ``road'' to read as follows:
Sec. 212.1 Definitions.
* * * * *
Forest transportation atlas. An inventory, description, and display
of roads, trails, and airfields that are important to the management
and use of National Forest System lands or to the development and use
of resources upon which communities within or adjacent to the National
Forests depend and associated information.
Forest transportation facility. A classified road, trail, airfield,
bridge, culvert, parking lot, log transfer facility, road safety and
other appurtenances in a national forest or grassland transportation
network and under Forest Service jurisdiction that is all or partly
within or adjacent to National Forest System lands.
* * * * *
Road. A motor vehicle travelway over 50 inches wide, unless
classified and managed as a trail. A road may be classified or
unclassified.
(1) Classified road. Roads within National Forest System lands
planned or managed for motor vehicle access including state roads,
county roads, private roads, permitted roads, and Forest Service roads.
(2) Unclassified roads. Roads not intended to be part of, and not
managed as part of, the forest transportation system, such as temporary
roads, unplanned roads, off-road vehicle tracks, and abandoned
travelways.
* * * * *
5. Amend Sec. 212.2 by removing paragraph (c) and revising
paragraph (a) to read as follows:
Sec. 212.2 Forest transportation program.
(a) For each national forest, grassland, and experimental forest
and any other unit of the National Forest System, the Forest Supervisor
or other responsible official must prepare and keep current a forest
transportation atlas. The purpose of the atlas is to display the system
of roads, trails, and airfields of the unit. The identification of
transportation facilities needed for management and public access must
be based upon a science-based analysis, as cited in the agency
directive system (36 CFR 200.4). In order to be used to identify
National Forest System transportation facilities, a science-based
analysis must provide for consideration of environmental, social, and
economic effects and also provide for consideration, at various
ecological scales, of transportation facilities needed to meet resource
management objectives.
* * * * *
Secs. 212.5, 212.6, 212.7, 212.10 [Amended]
6. Remove the words ``forest development roads'' and, in their
place, add the words ``Forest Service road'' in the following places:
a. Sec. 212.5(a) text;
b. Sec. 212.6(b) text;
c. Sec. 212.6(c) text;
d. Sec. 212.7(a) text; and
e. Sec. 212.10 heading and text.
7. Amend Sec. 212.5 by adding paragraph (b) to read as follows:
Sec. 212.5 Road system management.
* * * * *
(b) Forest Service road system.
(1) Identification of system. In planning for the management of the
Forest Service road system for each national forest and grassland,
agency officials shall identify the minimum road system needed for safe
and efficient travel and for administration, utilization, and
protection of National Forest System lands. The road system for each
unit of the National Forest System must be commensurate with the
resource objectives adopted in the land and resource management plan,
reflect likely funding expectations, and, to the extent practicable,
minimize the adverse environmental impacts associated with road
construction, reconstruction, and maintenance. To provide essential
information about road management opportunities within a national
forest or grassland and to help identify the road system that best
meets applicable statutory and regulatory requirements, Forest Service
officials shall conduct a science-based analysis at appropriate scales
which includes opportunities for public involvement and consultation
with state, local, and tribal governments.
(2) Identification of unneeded roads. In identifying the forest
road system, forest officers also shall identify those roads under
Forest Service jurisdiction that are not needed to meet forest resource
management objectives and that, therefore, should be decommissioned.
Decommissioning roads involves restoring them to a more natural state
through activities such as reestablishing former drainage patterns,
stabilizing slopes, and restoring vegetation. In scheduling the
decommissioning of roads, forest officials shall give priority to
decommissioning those roads that pose the greatest risk to public
safety or to environmental quality. Other unneeded roads should be
scheduled for decommissioning commensurate with their potential risk
and available funding.
* * * * *
8. Amend Sec. 212.20 by revising the heading and paragraph (a) to
read as follows:
Sec. 212.20 National Forest trail system operation.
(a) Forest Service trails. Forest Service trails shall be
identified on a map available to the public at the offices of the
Forest Supervisors and District Rangers and shall be marked on the
ground by appropriate signs which reasonably bring their location to
the attention of the public.
* * * * *
PART 261--PROHIBITIONS
9. The authority citation for Part 261 continues to read as
follows:
Authority: 16 U.S.C. 551, 16 U.S.C. 472.
10. In the following places, remove the words ``forest development
road'' or ``forest development roads'' and, in their respective places,
add the words ``Forest Service road'' or ``Forest Service roads'':
a. Sec. 261.1(a)(1) text;
b. Sec. 261.1 (a)(3) text;
c. Sec. 261.2 text;
d. Sec. 261.10(d)(2) text;
e. Sec. 261.12 heading;
f. Sec. 261.50(b) text;
g. Sec. 261.50(f) text; and
h. Sec. 261.56 heading and text.
PART 295--USE OF MOTOR VEHICLES OFF FOREST SERVICE ROADS
11. Revise the heading for Part 295 as set out above.
12. The authority citation for Part 295 continues to read as
follows:
Authority: 30 Stat. 35, as amended (16 U.S.C. 551): 50 Stat.
525, as amended (7 U.S.C. 1011) E.O. 11644, 11989 (42 FR 26959).
13. In Sec. 295.1, remove the words ``National Forest development
roads'' and, in their place, add the words ``Forest Service roads.''
14. Remove the words ``forest development roads'' and, in their
place, add ``Forest Service roads'' in the following places:
(a) Sec. 295.2 heading, and
(b) Sec. 295.5 heading.
Dated: February 25, 2000.
Mike Dombeck,
Chief.
[FR Doc. 00-5001 Filed 3-2-00; 8:45 am]
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