[Federal Register Volume 76, Number 12 (Wednesday, January 19, 2011)]
[Rules and Regulations]
[Pages 3015-3017]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-937]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 261

RIN 0596-AC93


Prohibitions in Areas Designated by Order; Closure of National 
Forest System Lands To Protect Privacy of Tribal Activities

AGENCY: Forest Service, USDA.

ACTION: Direct final rule.

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SUMMARY: This final rule is implementing verbatim sections 8102 and 
8104 of the Food, Conservation, and Energy Act of 2008 (FCEA) by adding 
regulations regarding special closures to provide for closure of 
National Forest System lands to protect the privacy of tribal 
activities for traditional and cultural purposes and by adding 
definitions for ``Indian tribe'' and ``traditional and cultural 
purpose.'' FCEA authorizes the Secretary of Agriculture to ensure 
access to National Forest System lands, to the maximum extent 
practicable, by Indians and Indian tribes for traditional and cultural 
purposes, in recognition of the historic use of National Forest System 
lands by Indians and Indian tribes.

DATES: Effective Date: This rule is effective January 19, 2011.

FOR FURTHER INFORMATION CONTACT: Carolyn Holbrook, 202-205-1426, 
Recreation, Heritage, and Volunteer Resources staff. Individuals who 
use telecommunication devices for the deaf may call the Federal 
Information Relay Service at 800-877-8339 between 8 a.m. and 8 p.m., 
Monday through Friday.

SUPPLEMENTARY INFORMATION: Section 8104 of the FCEA authorizes the 
Secretary of Agriculture to ensure access to National Forest System 
lands, to the maximum extent practicable, by Indians and Indian tribes 
for traditional and cultural purposes, in recognition of the historic 
use of National Forest System lands by Indians and Indian tribes. 
Section 8102 of the FCEA defines ``Indian tribe'' as any Indian or 
Alaska Native tribe, band, nation, pueblo, village, or other community 
that is included in a list published by the Secretary of the Interior 
under section 104 of the Federally Recognized Indian Tribe List Act of 
1994 (25 U.S.C. 479a-1). Section 8102 of the FCEA states that 
``traditional and cultural purposes'' with respect to a definable use, 
area, or practice means that the use, area, or practice is identified 
by an Indian tribe as traditional and cultural because of its long-
established significance or ceremonial nature of the use, area, or 
practice to the Indian tribe.
    Forest Service regulations at 36 CFR part 261, subpart B, establish 
prohibitions relating to acts or omissions involving National Forest 
System lands. To implement section 8104 of the FCEA verbatim, the 
Forest Service is adding a paragraph to 36 CFR 261.53 regarding special 
closures to provide for closure of National Forest System lands to 
protect the privacy of tribal activities for traditional and cultural 
purposes. To implement section 8102 of the FCEA verbatim, the Forest 
Service is adding a definition for ``Indian tribe'' as ``any Indian or 
Alaska Native tribe, band, nation, pueblo, village, or other community 
that is included in a list published by the

[[Page 3016]]

Secretary of the Interior under section 104 of the Federally Recognized 
Indian Tribe List Act of 1994 (25 U.S.C. 479a-1)'' and a definition for 
``traditional and cultural purpose'' that states that it means, with 
respect to a definable use, area, or practice, that it is identified by 
an Indian tribe as traditional and cultural because of its long-
established significance or ceremonial nature for the Indian tribe.

Good Cause Statement

    The Administrative Procedure Act (APA) exempts certain rulemaking 
from its public notice and comment requirements, including rulemaking 
involving ``public property'' (5 U.S.C. 553(a)(2)), such as federal 
lands managed by the Forest Service. Furthermore, the APA allows 
agencies to promulgate rules without public notice and comment when an 
agency for good cause finds that public notice and comment are 
``impracticable, unnecessary, or contrary to the public interest'' (5 
U.S.C. 553(b)(B)).
    In 1971, Secretary of Agriculture Hardin announced a voluntary 
waiver of the public property exemption from public notice and comment 
rulemaking under the APA (July 24, 1971; 36 FR 13804). Thus, agencies 
in the U.S. Department of Agriculture (USDA) generally provide public 
notice and comment in promulgating rules. However, the Hardin policy 
permits USDA agencies to promulgate final rules without public notice 
and comment when the agencies find for good cause that notice and 
comment procedures would be impracticable, unnecessary, or contrary to 
the public interest, consistent with 5 U.S.C. 553(b)(B). The courts 
have recognized this good cause exception to the Hardin policy and have 
indicated that since the public notice and comment requirement was 
adopted voluntarily, the Secretary should be afforded ``more latitude'' 
in making a good cause determination. See Alcaraz v. Block, 746 F.2d 
593, 612 (9th Cir. 1984).
    The Department finds that good cause exists to exempt this 
rulemaking from public notice and comment pursuant to 5 U.S.C. 
553(b)(B). Section 8104 of the FCEA allows the Secretary to 
``temporarily close from public access specifically identified National 
Forest System land to protect the privacy of tribal activities for 
traditional and cultural purposes.'' This rulemaking prohibits public 
access into or upon an area which is closed to protect the privacy of 
tribal activities for traditional and cultural purposes. Thus, the 
prohibition against public access to closed areas under 36 CFR 261.53 
merely implements the provision for closure from public access set 
forth in section 8104 of the FCEA. Such a prohibition against access to 
closed areas is dictated by section 8104 of the FCEA; the agency has no 
discretion in implementing these changes. Moreover, the new provisions 
conform precisely to the newly enacted statute and the corresponding 
definitions in the statute. Accordingly, because this rulemaking 
involves purely minor, technical, and nondiscretionary changes, the 
Department finds that public notice and comment are unnecessary 
pursuant to 5 U.S.C. 553(b)(B).

Regulatory Certifications

Environmental Impact

    This final rule makes purely minor, technical changes to the Forest 
Service's regulations. Forest Service regulations at 36 CFR 220.6(d)(2) 
exclude from documentation in an environmental assessment or 
environmental impact statement ``rules, regulations, or policies to 
establish Servicewide administrative procedures, program processes, or 
instructions.'' The Department's conclusion is that this final rule 
falls within this category of actions and that no extraordinary 
circumstances exist that would require preparation of an environmental 
assessment or environmental impact statement.

Regulatory Impact

    This final rule has been reviewed under USDA procedures and 
Executive Order (E.O.) 12866 on regulatory planning and review. It has 
been determined that this is not a significant rule. This final rule 
will not have an annual effect of $100 million or more on the economy, 
nor will it adversely affect productivity, competition, jobs, the 
environment, public health and safety, or State or local governments. 
This final rule will not interfere with an action taken or planned by 
another agency, nor will it raise new legal or policy issues. Finally, 
this final rule will not alter the budgetary impact of entitlement, 
grant, user fee, or loan programs or the rights and obligations of 
beneficiaries of such programs. Accordingly, this final rule is not 
subject to Office of Management and Budget (OMB) review under E.O. 
12866.

Regulatory Flexibility Act

    The Department has considered this final rule in light of the 
Regulatory Flexibility Act (5 U.S.C. 602 et seq.). The final rule makes 
purely minor, technical changes to the Forest Service's regulations. 
This final rule will not have a significant economic impact on a 
substantial number of small entities as defined by the act because the 
final rule will not impose recordkeeping requirements on them; it will 
not affect their competitive position in relation to large entities; 
and it will not affect their cash flow, liquidity, or ability to remain 
in the market.

No Takings Implications

    The Department has analyzed this final rule in accordance with the 
principles and criteria contained in E.O. 12630. The Department has 
determined that the final rule will not pose the risk of a taking of 
private property.

Civil Justice Reform

    The Department has reviewed this final rule under E.O. 12988 on 
civil justice reform. After adoption of this final rule, (1) All State 
and local laws and regulations that conflict with this rule or that 
impede its full implementation will be preempted; (2) no retroactive 
effect will be given to this final rule; and (3) it will not require 
administrative proceedings before parties may file suit in court 
challenging its provisions.

Federalism and Consultation and Coordination With Indian Tribal 
Governments

    The Department has considered this final rule under the 
requirements of E.O. 13132 on federalism and has determined that the 
final rule conforms with the federalism principles set out in this 
E.O.; will not impose any compliance costs on the States; and will not 
have substantial direct effects on the States, the relationship between 
the Federal government and the States, or the distribution of power and 
responsibilities among the various levels of government. Therefore, the 
Department has determined that no further assessment of federalism 
implications is necessary.
    Moreover, the Department has determined that promulgation of this 
final rule does not require advance consultation with Indian tribal 
officials as set forth in E.O. 13175, Consultation and Coordination 
With Indian Tribal Governments. Section 5(b) of E.O. 13175 requires 
that, to the extent practicable and permitted by law, agencies shall 
consult with tribal officials in the promulgation of ``any regulation 
that has tribal implications, that imposes substantial direct 
compliance costs on Indian tribal governments, and that is not required 
by statute.'' This rulemaking merely implements verbatim two existing 
statutory provisions, sections 8102 and 8104 of the FCEA, and involves 
only minor, purely technical, and nondiscretionary

[[Page 3017]]

regulatory changes. Moreover, these regulatory changes do not impose 
substantial direct compliance costs on Indian tribal governments. 
Accordingly, the Department has determined that advance consultation 
with Tribes is not required for this rulemaking. In the future if the 
Department publishes additional directives or guidance on how to 
implement this regulation in the Forest Service Manual or Forest 
Service Handbook, the Department will consult with Tribes prior to its 
publication. At this time, the Department does not intend to publish 
additional guidance on how to implement this regulation.

Energy Effects

    The Department has reviewed this final rule under E.O. 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. The Department has determined that this final 
rule does not constitute a significant energy action as defined in the 
E.O.

Unfunded Mandates

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), the Department has assessed the effects of this 
final rule on State, local, and Tribal governments and the private 
sector. This final rule will not compel the expenditure of $100 million 
or more by any State, local, or Tribal government or anyone in the 
private sector. Therefore, a statement under section 202 of the act is 
not required.

Controlling Paperwork Burdens on the Public

    This final rule does not contain any recordkeeping or reporting 
requirements or other information collection requirements as defined in 
5 CFR part 1320 that are not already required by law or not already 
approved for use. 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.

Text of the Final Rule

List of Subjects in 36 CFR Part 261

    Crime, Law enforcement, National forests.
    For the reasons set forth in the preamble, part 261 of title 36 of 
the Code of Federal Regulations is amended as follows:

PART 261--PROHIBITIONS

0
1. The authority citation for part 261 continues to read as follows:

    Authority:  7 U.S.C. 1011(f), 16 U.S.C. 472, 551, 620(f), 
1133(c), (d)(1), 1246(i).

Subpart A--General Prohibitions

0
2. In Sec.  261.2, add definitions for Indian tribe and traditional and 
cultural purpose in alphabetical order to read as follows:


Sec.  261.2  Definitions.

* * * * *
    Indian tribe means any Indian or Alaska Native tribe, band, nation, 
pueblo, village, or other community that is included on a list 
published by the Secretary of the Interior under section 104 of the 
Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a-1).
* * * * *
    Traditional and cultural purpose means, with respect to a definable 
use, area, or practice, that it is identified by an Indian tribe as 
traditional or cultural because of its long-established significance or 
ceremonial nature for the Indian tribe.
* * * * *

Subpart B--Prohibitions in Areas Designated by Order

0
3. Amend Sec.  261.53 by adding paragraph (g) to read as follows:


Sec.  261.53  Special closures.

* * * * *
    (g) The privacy of tribal activities for traditional and cultural 
purposes. Closure to protect the privacy of tribal activities for 
traditional and cultural purposes must be requested by an Indian tribe; 
is subject to approval by the Forest Service; shall be temporary; and 
shall affect the smallest practicable area for the minimum period 
necessary for activities of the requesting Indian tribe.

    Dated: January 11, 2011.
Jay Jensen,
Deputy Under Secretary, NRE.
[FR Doc. 2011-937 Filed 1-18-11; 8:45 am]
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