Special Areas; Roadless Area Conservation; National Forest System Lands in Alaska, 66498-66505 [2021-25467]

Agencies

• DEPARTMENT OF AGRICULTURE
• Forest Service

[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