Special Areas; Roadless Area Conservation; National Forest System Lands in Alaska

Published date23 November 2021
Citation86 FR 66498
Record Number2021-25467
SectionProposed rules
CourtForest Service
Federal Register, Volume 86 Issue 223 (Tuesday, November 23, 2021)
[Federal Register Volume 86, Number 223 (Tuesday, November 23, 2021)]
                [Proposed Rules]
                [Pages 66498-66505]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2021-25467]
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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, (Agriculture) USDA.
                ACTION: Notice of proposed rulemaking; request for comment.
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                SUMMARY: On January 20, 2021, President Biden ordered 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 last 4 years that may conflict with
                protecting the environment, and to immediately commence work to
                confront the climate crisis (Executive Order 13990). In addition, 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. Consistent with these Presidential directives, the
                U.S. Department of Agriculture (USDA or Department), proposes to repeal
                a final rule promulgated in 2020 that exempted the Tongass National
                Forest (Tongass or the Forest) from the 2001 Roadless Area Conservation
                Rule (2001 Roadless Rule). The 2001 Roadless Rule prohibited timber
                harvest and road construction or reconstruction within designated
                Inventoried Roadless Areas, with limited exceptions. Repealing the
                Subpart E exemption would reinstate application of the 2001 Roadless
                Rule to the Tongass (as provided for in the U.S. District Court for the
                District of Alaska's Judgment in Organized Village of Kake v. USDA.
                USDA invites written comments on the proposed rule and associated
                documents. Substantive comments received during the comment period will
                be considered in developing the final rule.
                DATES: Written comments must be received or postmarked by January 24,
                2022.
                ADDRESSES: You may send comments by any of the following methods:
                 Preferred: Federal eRulemaking Portal www.regulations.gov.
                 Mail: Alaska Roadless Rule, USDA Forest Service, P.O. Box
                21628, Juneau, Alaska 99802-1628.
                 Hand Delivery/Courier: Alaska Roadless Rule, USDA Forest
                Service, 709 W 9th Street, Juneau, Alaska 99802.
                 Email: [email protected].
                 All comments received will be posted to www.regulations.gov,
                including any personal information provided. The public may inspect
                comments received at www.regulations.gov. Do not submit any information
                you consider to be private, Confidential Business Information (CBI), or
                other information, the disclosure of which is restricted by statute.
                FOR FURTHER INFORMATION CONTACT: Joe Krueger, Interdisciplinary Team
                Leader, at 202-649-1189. Individuals using telecommunication devices
                for the deaf/hard-of-hearing (TDD) may call the Federal Information
                Relay Services at 1-800-877-8339, 24 hours a day, every day of the
                year, including holidays. You may also review information related to
                this rulemaking at the following website: www.fs.usda.gov/project/?project=60904.
                SUPPLEMENTARY INFORMATION:
                Background
                 The Tongass is 16.7 million acres and stretches roughly 500 miles
                northwest from Ketchikan to Yakutat, Alaska. It includes approximately
                80 percent of the land area in Southeast Alaska. The Southeast Alaska
                region has about 75,000 people living in more than 30 towns and
                villages located in and around the Forest, most of which are located on
                islands or along the narrow coastal strip. The Tongass supports
                thriving ecosystems that provide food security, as well as cultural,
                spiritual,
                [[Page 66499]]
                and socio-economic values to the surrounding communities. What is now
                known as the Tongass is the traditional homelands of the Tlingit,
                Haida, and Tsimshian peoples, and is essential to the Alaska Native
                customary and traditional way of life. Their health, well-being,
                identity, and worldview are intertwined with the lands, waters, and
                wildlife of the Tongass.
                 The Tongass contains large areas of essentially undisturbed forest
                lands, which represent increasingly scarce and, therefore, increasingly
                valuable ecosystems. A significant portion of these undisturbed forest
                lands include the 9.37 million acres of land that were administratively
                designated as Inventoried Roadless Areas in the 2001 Roadless Rule.
                Roadless areas are important because of their wildlife and fish
                habitat, recreation values, importance to multiple economic sectors,
                inherent passive use values, traditional properties and sacred sites
                for local indigenous people, and the ecosystem service values they
                provide, and the Tongass is no exception (Final Environmental Impact
                Statement (FEIS) for the 2020 Alaska Roadless Rule). The Tongass, along
                with adjacent areas in Canada, represents 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 nationally and globally significant for its ability to
                sequester carbon in support of a resilient climate and is seen as a
                critical resource to retain intact in our changing climate. 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.
                Large old-growth trees in the Tongass are critical for carbon
                sequestration, addressing the climate crisis, and maintaining the
                productivity and health of the region's fisheries and fishing industry.
                 The Tongass is also home to more than 300 mammal and bird species,
                as well as five species of salmon that return to spawn in the Tongass
                each year. One important feature of roadless areas is their biological
                value. Roadless areas are considered high in biological value if they
                contain a diversity of plant and animal communities, old-growth
                forests, and/or habitat for threatened, endangered, or sensitive
                species or wide-ranging species that are dependent on large,
                undisturbed tracts of land. On the Tongass, roadless areas support
                biological diversity especially associated with old-growth habitats,
                sensitive species, endemic species, and the wide-ranging predators of
                Southeast Alaska.
                 In addition, the fish and wildlife on the Tongass are of
                exceptionally high importance for traditional and customary uses,
                subsistence, recreation, and the economic well-being of the residents
                and visitors of Southeast Alaska. The Tongass offers large tracts of
                old growth forest that provide for some of the most productive fishing
                and hunting areas in the world. In 2018, the tourism and fishing
                industries combined accounted for 26 and 21 percent of Southeast
                Alaska's employment and earnings, respectively. Nature-based tourism
                generates substantial revenues in the region. For example, a 2009
                survey of companies in Sitka, Juneau, Chichagof Island, Prince of Wales
                Island, Petersburg, and Wrangell identified an estimated $277 million
                generated in annual direct business revenues. In November 2020, numbers
                released by the U.S. Bureau of Economic Analysis highlighted the
                importance of Alaska's outdoor recreation industry (3.9 percent of
                state GDP in 2019) as one of the highest percentages in the country.
                 In 2018, an estimated 185 million pounds of seafood was harvested
                in Southeast Alaska with a value of $247 million. Viewed in terms of
                market value, salmon accounted for more than half (55 percent) of the
                total commercial catch in Southeast Alaska. Employment in the seafood
                harvesting and processing sectors remains relatively stable from year
                to year, despite the fluctuations in the volumes and value of salmon
                harvested each year. Salmon harvesting employed an estimated 864 people
                in Southeast Alaska in 2018, with an additional 1,281 people employed
                harvesting other fish. Wild Pacific salmon originating from streams and
                lakes within the Tongass' boundaries account for an estimated 75
                percent of all commercially harvested salmon (Johnson et al. 2019).
                These fish support fishing and processing jobs for thousands of local
                residents and nonresidents.
                 The Tongass includes high-value, intact watersheds that were
                designated to be managed for intact ecological values and aquatic
                habitat productivity. In addition to commercial fisheries, subsistence
                marine resources are integral to life in Southeast Alaska. Marine
                resources, including fish, mammals, and plants, account for more than
                half of total per capita harvest in all Southeast Alaska communities,
                ranging from 55 percent in Tenakee Springs to 88 percent in Skagway.
                Salmon, trout, char, and eulachon (hooligan) are harvested in
                subsistence fisheries and for personal use by local residents. Salmon
                and trout are also the basis of tourism and guided fisheries enjoyed by
                thousands of visitors, supporting hundreds of tourism and related
                businesses.
                 Timber and mining, as well as other multiple uses on the Tongass,
                support businesses and jobs in Southeast Alaska. In 2018, timber and
                mining supported 3 and 5 percent of employment and earnings,
                respectively in the region. A number of small businesses rely on timber
                for local community consumption, and wood from the forest also supports
                cultural uses such as totem poles, canoes and tribal artisan use.
                Tongass National Forest-related employment in logging and sawmilling
                declined from 199 jobs in 2003 to a low of 62 jobs in 2018. Factors
                contributing to the decline include changes in the structure of the
                Alaska forest sector, macroeconomic conditions both in the United
                States and overseas (e.g., shifting demand from Asian markets), markets
                for Alaskan products, and conditions faced by Alaska's competitors. In
                addition, Alaska faces competitive challenges due to its remote
                location: The high costs of harvesting and transportation in remote
                areas of Southeast Alaska and the relatively lower price commanded in
                dimensional lumber markets limits profitability (Daniels et al. 2016).
                The timber industry remains an important part of the economy for the
                rural communities of Southeast Alaska and is in the midst of a
                transition from old growth harvest to young growth harvest. The young-
                growth transition strategy as described in the 2016 Tongass Forest Plan
                Record of Decision (ROD) defines a 16-year period in which the old-
                growth contribution to the projected timber sale quantity decreases
                over time as young growth matures and becomes more economical to
                harvest. The analyses in the FEIS for the Alaska Roadless Rule (USDA
                Forest Service 2020) considered the continuation of the young-growth
                transition strategy in all alternatives analyzed. The Department and
                Forest Service are committed to investing in new opportunities through
                the Southeast Alaska Sustainability Strategy that will support the
                transition, including continuing investments in developing young growth
                opportunities. Mining activity on the Tongass has also continued to
                support jobs and economic opportunity.
                 The Tongass supports traditional and cultural uses that are central
                to the way of life for Alaska Native peoples, who have engaged in these
                uses for thousands of years. Living off the land is at the core of
                Alaska Native peoples' culture. For Native people, this tie to place
                and the harvest, trade, and use of
                [[Page 66500]]
                traditional foods are key elements in fostering Native cultural
                identity (Alaska Native Heritage Center 2014). In more recent history,
                non-Native people living in rural Alaska have also come to rely on
                natural resources for their livelihoods (Office of Subsistence
                Management 2016).
                Legal and Regulatory History
                 There is a long regulatory and litigation history concerning
                roadless area management on the Tongass. On January 12, 2001, the
                Department published the Roadless Area Conservation Rule (2001 Roadless
                Rule (66 FR 3243 and 66 FR 3272, January 12, 2001)). The 2001 Roadless
                Rule sought to conserve roadless area characteristics by prohibiting
                timber harvest and road construction and reconstruction with limited
                exceptions (including to protect public health and safety, provide
                access to existing rights or leases, prevent or repair natural resource
                damage, maintain or restore ecosystem characteristics, or improve
                habitat for certain species).
                 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, in
                recognition of the multiple values of roadless areas on the Tongass,
                the Department applied the rule to the Tongass. 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, 1:09-cv-00023 JWS
                (D. Alaska filed May 24, 2011). That decision was appealed by the State
                of Alaska, but 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 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 Rule, the 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 National Forest be dismissed as moot and 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 State of Alaska
                v. USDA, No. 17-5260 (D.C. Cir.).
                 On January 19, 2018, the State of Alaska submitted a rulemaking
                petition to Secretary of Agriculture Sonny Purdue 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 for the Forest. In June 2018, Secretary Perdue accepted
                the State's petition and agreed to review the State's concerns on
                roadless area management. The Secretary 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. A proposed
                state-specific rule and draft environmental impact statement were
                issued in October 2019. An FEIS was released in September 2020 and the
                final rule exempting the Tongass was published on October 29, 2020 (85
                FR 68688, part 294 of Title 36 of the Code of Federal Regulations
                subpart E). That rule will be referred to as the ``2020 Alaska Roadless
                Rule.''
                 The FEIS for the 2020 Alaska Roadless Rule analyzed six
                alternatives for managing roadless areas on the Tongass. The following
                is a brief description of the action alternatives evaluated in the FEIS
                for the 2020 Alaska Roadless Rule (Chapter 2 of the FEIS contains a
                complete description of the alternatives):
                 The application of the 2001 Roadless Rule to the Tongass was
                analyzed as Alternative 1 (which at the time maintained the regulatory
                status quo, also known as the no action alternative).
                 Alternative 2 provided limited additional timber harvest
                opportunity while maximizing Inventoried Roadless Area designations.
                 Alternative 3 provided moderate additional timber harvest
                opportunities by making timber harvest, road construction, and road
                reconstruction permissible in areas where roadless characteristics have
                already been substantially altered and in areas immediately adjacent to
                existing roads and past harvest areas. Alternative 3 also established a
                Community Priority category to allow for small-scale timber harvest and
                associated road construction and reconstruction.
                 Alternative 4 provided substantial additional timber harvest
                opportunity while maintaining inventoried roadless designations for
                areas defined in the Tongass Forest Plan as Scenic Viewsheds, T77
                Watersheds, and The Nature Conservancy/Audubon Conservation Priority
                Areas.
                 Alternative 5 provided maximum additional timber harvest
                opportunity by removing 2.32 million acres from Inventoried Roadless
                Area designation.
                 Alternative 6 fully exempted the Tongass from the 2001 Roadless
                Rule, removing 9.37 million acres from roadless area designation.
                 Taken together, the six alternatives represented the spectrum of
                potential management regimes identified to the Forest Service in public
                comments, public meetings, consultations with Tribal and Alaska Native
                corporations, and by cooperating agencies.
                 Approximately 411,000 comments were received during the development
                of the Alaska Roadless Rule. The ``large majority of comments supported
                retaining the 2001 Roadless Rule and opposed the full exemption.'' (85
                FR 68697).
                 In addition, nine Southeast Alaska Tribal governments submitted a
                petition to the Secretary on July 21, 2020 requesting that the United
                States government commence a new rulemaking in collaboration with
                Tribal signatories to create a Traditional Homelands Conservation Rule
                to identify and protect traditional and customary uses of the Tlingit,
                Haida, and Tsimshian peoples in the Tongass. This petition also
                requested that USDA create a new process for engaging in consultation
                with Tribes based on the principle of ``mutual concurrence.'' The
                petition states that it was submitted in response to the Tribes'
                experience in the 2020 Alaska Roadless Rulemaking process and their
                belief that their contributions were not being adequately considered.
                Since the initial submission of the Traditional Homelands petition,
                three additional tribes joined as signatories.
                [[Page 66501]]
                 After reviewing the alternatives and considering the comments, the
                Secretary issued 36 CFR part 294, subpart E (85 FR 68688) on October
                29, 2020 (Subpart E), selecting Alternative 6 and fully exempting the
                Tongass from application of Subpart B of 36 CFR part 294 (the 2001
                Roadless Rule).
                 On December 23, 2020 a coalition of twenty-two plaintiffs,
                including five federally recognized tribes, two ecotourism companies,
                and other cultural and environmental organizations filed a complaint in
                the U.S. District Court for the District of Alaska challenging the 2020
                Alaska Roadless Rule. decision. Organized Village of Kake v. Vilsack,
                No. 1:20-cv-00011.
                Rationale for the Proposed Rule
                 USDA has the discretion to determine how to manage inventoried
                roadless areas. Fundamentally, the choice of how to best conserve and
                manage inventoried roadless areas is an exercise of USDA's delegated
                authority for management of the renewable surface resources of the
                National Forest System in a multiple-use and sustained-yield context.
                Or as stated in the preamble of the 2020 final rule ``roadless area
                management . . . is fundamentally an exercise in discretion and policy
                judgement concerning the best use of the NFS lands and resources . .
                .'' (85 FR 68691).
                 No statute compels or prohibits USDA's roadless rules, they are
                derived from the Secretary's delegated organic statutory authorities.
                The Multiple-Use Sustained-Yield Act (MUSYA), 16 U.S.C. 528-531,
                establishes multiple-use as the foundation for management of the
                National Forest System and defines multiple use extremely broadly,
                calling for management of the various forest resources ``in the
                combination that will best meet the needs of the American people'' (16
                U.S.C. 531(a)). Congress has expressly declared ``that some land will
                be used for less than all resources'' and ``consideration being given
                to the relative values of the various resources, and not necessarily
                the combination of uses that will give the greatest dollar return or
                the greatest unit output'' (16 U.S.C. 531(a.1988)).
                 Courts have similarly found that the MUSYA grants USDA and the
                Forest Service ``wide discretion to weigh and decide the proper uses
                within any area'' (Wind-River Multiple Use Advocates v. Espy, 835
                F.Supp. 1362, 1372 (D. Wyo. 1993) (citing Bighole Ranchers Ass'n v.
                United States Forest Serv., 686 F.Supp. 256, 264 (D. Mont. 1988)).
                Thus, the Secretary and the Chief of the Forest Service have wide
                discretion in managing the lands entrusted it and may use ``less than
                all the resources'' in certain areas, for example by prohibiting timber
                harvest and timber harvesting. In Wyoming v. USDA, 661 F.3d 1209 (10th
                Cir. 2011), the Tenth Circuit upheld the legality under MUSYA of the
                timber harvest and road construction prohibitions imposed by the 2001
                Roadless Area Conservation Rule.
                 As with the Organic Act, the provisions of MUSYA give the Forest
                Service broad discretion to regulate NFS lands for a wide variety of
                purposes. See Perkins v. Bergland, 608 F.2d 803, 806-07 (9th Cir.1979)
                (``This language [in 16 U.S.C. 528, 529, and 531''] can hardly be
                considered concrete limits upon agency discretion. Rather, it is
                language which `breathe(s) discretion at every pore' '' (quoting
                Strickland v. Morton, 519 F.2d 467, 469 (9th Cir.1975)).
                 Courts have routinely upheld the Forest Service's discretion to
                weigh and choose the proper mix of uses with the National Forest
                System. See, for example, Seattle Audubon Soc. v. Lyons, 871 F.Supp.
                1291, 1315 (W.D. Wash. 1991), aff'd, 80 F.3d 1401 (9th Cir. 1996)
                (upholding Forest Service's designation of large reserves within which
                timber harvest is generally prohibited as ``an exercise of the
                Secretary's multiple use planning responsibilities''); Sierra Club v.
                Hardin, 325 F.Supp. 99, 123 (D. Alaska 1971) (``Congress has given no
                indication as to the weight to be assigned each value and it must be
                assumed that the decision as to the proper mix of uses within any
                particular area is left to the sound discretion and expertise of the
                Forest Service.''). The rule proposed today is such an exercise of
                discretionary policy judgment. In addition, as described by the FEIS
                for the 2020 Alaska Roadless Rule, all of the alternatives analyzed,
                including Alternative 1 (the no action alternative), satisfied the
                requirements of the Tongass Timber Reform Act (TTRA). As noted below,
                the Tongass Timber Reform Act (TTRA) does not require USDA to meet
                market demand, but only to ``seek to . . . meet [ ]'' such demand, and
                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 rationale for the rule proposed today is based on an evaluation
                of the importance of roadless area conservation for a combination of
                cultural, social, ecologic and economic values. On January 20, 2021,
                President Biden ordered 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 previous four years that may conflict with protecting the
                environment and to immediately commence work to confront the climate
                crisis (Executive Order 13990, 86 FR 7037). In addition, on January 26,
                2021, President Biden issued a Memorandum on Tribal Consultation and
                Strengthening Nation-to-Nation Relationships that directs executive
                departments and Federal agencies to make the following the cornerstones
                of Federal Indian policy: \1\ Respect for Tribal sovereignty and self-
                governance, commitment to fulfilling Federal trust and treaty
                responsibilities to Tribal Nations, and regular, meaningful, and robust
                consultation with Tribal Nations.
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                 \1\ https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/26/memorandum-on-tribal-consultation-and-strengthening-nation-to-nation-relationships/.
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                 Consistent with these Presidential instructions, USDA proposes to
                repeal the 2020 Alaska Roadless Rule (part 294 of Title 36 of the Code
                of Federal Regulations Subpart E) and return the Tongass to management
                under the provisions of the 2001 Roadless Rule, as reinstated by the
                U.S. District Court for the District of Alaska.
                 Reinstating application of the 2001 Roadless Rule on the Tongass
                would prohibit timber harvest and road construction or reconstruction
                within Inventoried Roadless Areas on the Forest, with the limited
                exceptions included in the 2001 Roadless Rule and Court Order.
                Exceptions in the 2001 Roadless Rule were included to allow for some
                activity, including activity to protect public health and safety,
                provide access to existing rights or leases including for mining,
                provide for renewable energy and utility systems, prevent or repair
                certain natural resource damage, maintain or restore ecosystem
                characteristics, or improve habitat for certain species.
                 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, stated ``the agency has considered the
                alternatives of exempting and not exempting the Tongass National
                Forest, 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 National
                [[Page 66502]]
                Forest, the abundance of roadless areas where road construction and
                reconstruction are limited, and the high degree of ecological health.''
                 Then, and again now, in proposing this action, the agency
                considered 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
                proposed management approach best reflects 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 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
                proposed rule would reflect 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
                https://go.usa.gov/xMNzF), 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.
                 As outlined below, restoring the 2001 Roadless Rule protections
                also responds to the January 26, 2021, Memorandum on Tribal
                Consultation and Strengthening Nation-to-Nation Relationships
                (www.govinfo.gov/app/details/DCPD-202100091). The proposed rule is
                directly responsive to unanimous input from Tribal Nations during
                government-to-government consultation sessions conducted in 2021.
                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.
                 The Administration acknowledges the continued importance of forest
                products from the Tongass. A number of businesses rely on timber for
                local community consumption, and wood from the forest also supports
                cultural uses such as totem poles, canoes and tribal artisan use.
                Timber harvest and forest products from the Tongass would continue to
                be provided with the proposed roadless rule's prohibitions in place.
                 In addition, the Tongass has processed 40 mineral, energy and
                recreation requests in inventoried roadless areas since the roadless
                rule was established in 2001, while it has been in effect on the
                Tongass. This further demonstrates that the 2001 Roadless Rule's
                exceptions allowing access for existing rights and leases are
                effective, and that roadless rule prohibitions can coexist with these
                industries and allow the Forest Service to continue to fulfill its
                multiple use mission.
                Consultation With Indian Tribal Governments and Alaska Native
                Corporations
                 During development of the 2020 Alaska Roadless Rule on July 30,
                2018, the Forest Service invited government-to-government consultation
                with 32 Alaska Federally recognized Tribes and 27 Alaska Native
                corporations. Federally recognized Tribes were invited to participate
                as cooperating agencies during the rulemaking process. Six Tribes
                initially agreed to become cooperating agencies, including the 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.
                 All six Tribes eventually withdrew as cooperating agencies.
                 On July 21, 2020, then-Secretary of Agriculture Sonny Perdue
                received a petition from nine Southeast Alaska Tribal governments
                requesting that the United States government commence a new rulemaking
                in collaboration with Tribal signatories to create a Traditional
                Homelands Conservation Rule to identify and protect traditional and
                customary uses of the Tlingit, Haida, and Tsimshian peoples in the
                Tongass. Since the initial submission of the Traditional Homelands
                petition, three additional tribes joined as signatories. This petition
                also requested that USDA create a new process for engaging in
                consultation with Tribes based on the principle of ``mutual
                concurrence.'' The petition states that it was submitted in response to
                the Tribes' experience in the 2020 Alaska Roadless Rulemaking process
                and their belief that their contributions were not being adequately
                considered.
                 On May 24, 2021, Secretary Vilsack acknowledged the petition,
                expressing a commitment to engaging and learning more and inviting
                formal consultation with Tribal governments. In July 2021, the
                Department and the Forest Service held a consultation with 10 tribes in
                Juneau, Alaska. Topics included the petition, the Alaska Roadless Rule
                and the Southeast Alaska Sustainability Strategy. The Tribes
                represented at this consultation expressed their desire to return to
                the 2001 Roadless Rule's application on the Tongass as quickly and
                expeditiously as administratively possible.
                 A second consultation session took place during the week of August
                16, 2021, during which the Tribes represented continued to express
                their interest in seeing action from the Administration to quickly
                reinstate the 2001 Roadless Rule protections on the Tongass.
                 The Department and the Forest Service will continue to consult with
                Tribal Governments and Alaska Native Corporations on this proposed
                rule.
                Relationship of the Alaska Roadless Rules to the Tongass Forest Plan
                 The 2001 Roadless Rule's scope and applicability language was
                designed to avoid conflicts with 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
                Tongass Land Management Forest Plan (2016 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
                [[Page 66503]]
                Tongass from the 2001 Roadless Rule, the Department directed the Forest
                Service to issue a ministerial notice of an administrative change to
                the Tongass Land Management 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 administrative change simply provided
                conformance of the 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 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 Plan. Because the
                timber suitability determination in the 2016 Tongass Land Management
                Plan was never actually altered pursuant to the 2020 rulemaking, the
                proposed rule's repeal of the 2020 rulemaking would leave the 2016
                Forest Plan's suitability determination undisturbed and operational
                going forward.
                Conclusion
                 The 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. The Department and Administration believe 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. Once again, the USDA believes that the
                long-term benefits to the nation of conserving inventoried roadless
                areas on the Tongass outweigh the potential benefits associated with
                the Tongass no longer being subject to the 2001 Roadless Rule. USDA
                believes, considering the FEIS for the 2020 Alaska Roadless Rulemaking,
                which analyzed the continued implementation of the 2001 Roadless Rule
                as Alternative 1, that a policy change for the Tongass can be made
                without significant adverse impacts to the timber and mining
                industries, while providing benefits to the recreation, tourism and
                fishing industries. This change would also respond to input from Alaska
                Tribal Nations and reflect cultural benefits associated with conserving
                roadless areas on the Tongass.
                 Therefore, USDA proposes to repeal Subpart E and return roadless
                management on the Tongass to the regulatory regime previously in force,
                which would result in the reinstatement of the 2001 Roadless Rule as
                provided for in the U.S. District Court for the District of Alaska's
                Judgment in Organized Village of Kake v. USDA, 1:09-cv-00023 JWS (D.
                Alaska filed May 24, 2011).
                Regulatory Certifications
                National Environmental Policy Act
                 Preliminary Determination of NEPA Adequacy: The Forest Service's
                preliminary determination is that the FEIS issued in association with
                promulgation of Subpart E (85 FR 68688) adequately analyzes the
                environmental effects of this proposed rule and reasonable
                alternatives. The FEIS is available at: www.fs.usda.gov/nfs/11558/www/nepa/109834_FSPLT3_5357355.pdf. The environmental effects associated
                with adoption of the proposed 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
                one year 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 Forest Service's preliminary determination of NEPA
                adequacy is based upon the criteria outlined at 36 CFR 220.4(j) as
                applied to the 2020 rule and the proposed rule: (1) The federal action
                proposed in this rulemaking is identical to the federal action
                described and analyzed in detail in Alternative 1 in the FEIS for the
                2020 Alaska Roadless Rule; (2) the range of alternatives analyzed in
                the FEIS for the 2020 Alaska Roadless Rule is appropriate with respect
                to this proposed rulemaking and comparable with the alternatives
                considered during the 2001 roadless rulemaking and its Final EIS (as
                noted above, the FEIS for the 2020 Rule included six alternatives
                covering a broad range of roadless management options); (3) there
                appears to be no materially relevant new information or circumstances
                relevant to environmental concerns that would substantially change the
                environmental analysis disclosed in the FEIS for the 2020 Alaska
                Roadless Rule; and (4) the environmental effects associated with
                implementing the proposed rule are not different than, and are
                effectively identical to, those analyzed in Alternative 1 in the FEIS
                for the 2020 Alaska Roadless Rule.
                 A final NEPA determination will be made in association with the
                final rule and the public may submit as part of its comments on the
                rulemaking any supporting or contrary views concerning environmental
                effects.
                Regulatory Planning and Review
                 This rulemaking is a significant regulatory action as it may raise
                novel legal or policy issues arising out of legal mandates, the
                President's priorities, or the principles set forth in Executive Order
                12866. The Forest Service has prepared an analysis of potential impacts
                and discussion of benefits and costs of the proposed rule in its
                Regulatory Impact Analysis. By removing Subpart E, the proposed 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 to existing rights or leases, 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 proposed 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 suitable old growth would not decrease
                timber related jobs, income or output, since the proposed rule does not
                change the timber sale quantity or timber demand projections from the
                Tongass Land and Resource Management Plan.
                 The Tongass, in compliance with the Tongass Timber Reform Act
                (TTRA), has long acknowledged that the TTRA directs the Forest Service,
                subject to other applicable laws, to ``seek to meet market demand'' for
                timber from the Tongass National Forest. See 66 FR at 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
                [[Page 66504]]
                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,
                nothing on the face of the 2001 Roadless Rule prevents USDA from
                seeking to meet market demand through timber sales on lands outside of
                inventoried roadless areas or consistent with Roadless Rule exceptions,
                even if operation of the rule would make it more difficult to meet
                market demand in light of other market factors. 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 proposed rule is fully consistent with TTRA's
                aspirational directive.
                 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 proposed rule and
                regulatory alternatives.
                Regulatory Flexibility Act and Consideration of Small Entities
                 USDA certifies that the proposed rule does not have a significant
                economic impact on a substantial number of small entities as determined
                in the Regulatory Flexibility Analysis because the proposed rule does
                not directly subject small entities to regulatory requirements.
                Therefore, notification to the Small Business Administration's Chief
                Council for Advocacy is not required pursuant to Executive Order 13272.
                A number of small and large entities may avoid revenue losses as a
                result of the proposed rule, or otherwise benefit from activities on
                National Forest System lands under the proposed rule.
                Paperwork Reduction Act
                 This proposed 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 proposed rule are estimated to be less than
                $100 million per year.
                Federalism
                 USDA has considered the proposed rule in context of Executive Order
                13132, Federalism, issued August 4, 1999. USDA has determined that the
                proposed 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 of Alaska,
                or any other state, nor on the distribution of power and
                responsibilities among the various levels of government. Therefore,
                USDA concludes that this proposed rule does not have Federalism
                implications. USDA has considered the proposed rule in the context of
                the public comment received during the Forest Service's previous public
                comment periods and previous input received from cooperating agencies.
                No Takings Implications
                 USDA has considered the proposed 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. USDA has determined that the
                proposed rule does not pose the risk of a taking of private property
                because it only applies to management of National Forest System lands
                and contains exemptions that prevent the taking of constitutionally
                protected private property.
                Consultation With Indian Tribal Governments
                 The proposed rule was reviewed in accordance with the requirements
                of Executive Order 13175, Consultation and Coordination with Indian
                Tribal Governments. Executive Order 13175 requires Federal agencies to
                consult and coordinate with tribes on a government-to-government basis
                on policies that have tribal implications, including regulations,
                legislative comments, or proposed legislation, and other policy
                statements or actions that may have substantial direct effects on one
                or more Indian tribes, on the relationship between the Federal
                government and Indian tribes, or on the distribution of power and
                responsibilities between the Federal government and Indian tribes. In
                Alaska, the Forest Service is also required to consult with Alaska
                Native corporations on the same basis as Federally recognized tribes.
                 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 10 tribes in Juneau, Alaska. The tribes represented
                at this consultation 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.
                Civil Justice Reform
                 USDA reviewed the proposed rule in context of Executive Order
                12988. USDA has not identified any state or local laws or regulations
                that conflict with the proposed rule or would impede full
                implementation of the rules. However, if the rule is adopted, all state
                and local laws and regulations that conflict with this proposed rule or
                would impede full implementation of this proposed rule would be
                preempted. No retroactive effect would be given to this proposed rule,
                and the proposed 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, USDA has assessed
                the effects of the proposed rule on state, local, and tribal
                governments and the private sector. The proposed rule does not compel
                the expenditure of $100 million or more by any state, local, or tribal
                government, or anyone in the private
                [[Page 66505]]
                sector. Therefore, a statement under section 202 of the Act is not
                required.
                Energy Effects
                 USDA has considered the proposed rule in context of Executive Order
                13211, Actions Concerning Regulations That Significantly Affect Energy
                Supply, Distribution, or Use, issued May 18, 2001. USDA has determined
                the proposed rule does not constitute a significant energy action as
                defined in Executive Order 13211. Therefore, a statement of energy
                effects is not required.
                E-Government Act
                 USDA is committed to complying with the E-Government Act, to
                promote the use of the internet and other information technologies to
                provide increased opportunities for citizen access to government
                information and services, and for other purposes.
                List of Subjects in 36 CFR Part 294
                 National Forests, Recreation areas, Navigation (air), Roadless area
                management.
                 For the reasons set forth in the preamble, USDA proposes to amend
                part 294 of Title 36 of the Code of Federal Regulations as follows:
                PART 294--SPECIAL AREAS
                0
                1. The authority citation for part 294 continues to read as follows:
                 Authority: 16 U.S.C. 472, 551, and 1131.
                Subpart E--[Removed]
                0
                2. Subpart E, consisting of Sec. Sec. 294.50 and 294.51, is removed.
                 Dated: November 17, 2021.
                Meryl Harrell,
                Deputy Under Secretary, Natural Resources and Environment.
                [FR Doc. 2021-25467 Filed 11-22-21; 8:45 am]
                BILLING CODE 3411-15-P
                

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