Federal Register / Vol. 76, No. 12 / Wednesday, January 19, 2011 / Rules and Regulations 3015 

Commencement Bay, WA from 12:01 

a.m. on January 6, 2011, through 11:59 

p.m. on January 29, 2011. This action is 

necessary for the security of Department 

of Defense assets and military cargo 

during loading and off-loading 

operations taking place within the Blair 

Waterway, Commencement Bay, WA. 

During periods of enforcement, no 

person or vessel operator may enter the 

security zone unless authorized by the 

Captain of the Port, Puget Sound or 

Designated Representative. 

DATES: The security zone described in 

33 CFR 165.1321 (c)(1) will be enforced 

from 12:01 a.m. on January 6, 2011, 

through 11:59 p.m. on January 29, 2011. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this notice, call 

or e-mail LTJG Ashley M. Wanzer, 

Waterways Management Division, 

Sector Puget Sound, Coast Guard; 

telephone 206–217–6175, e-mail 

SectorPugetSoundWWM@uscg.mil. 

SUPPLEMENTARY INFORMATION: The Coast 

Guard will enforce the Blair Waterway 

security zone in Commencement Bay, 

WA for protection of military cargo in 

33 CFR 165.1321 from 12:01 a.m. on 

January 6, 2011, through 11:59 p.m. on 

January 29, 2011. A discussion of these 

regulations can be found in the 

preamble of a final rule published 

December 10, 2004 (69 FR 71709). 

Under the provisions of 33 CFR 

165.1321, vessel operators may not enter 

the following security zone described in 

§ 165.1321(c)(1): All waters enclosed by 

a line connecting the following points: 

47°16′57′′ N, 122°24′39′′ W, which is 

approximately the beginning of Pier No. 

23 (also known as the Army pier); then 

northwesterly to 47°17′05′′ N, 

122°24′52′′ W, which is the end of the 

Pier No. 23 (Army pier); then 

southwesterly to 47°16′42′′ N, 

122°25′18′′ W, which is the approximate 

location of a private buoy on the end of 

the sewage outfall; then southeasterly to 

47°16′33′′ N, 122°25′04′′ W, which is 

approximately the northwestern end of 

Pier No. 5; then northeasterly to the 

northwestern end of Pier No. 1; then 

southeasterly along the shoreline of the 

Blair Waterway to the Blair Waterway 

turning basin; then along the shoreline 

around the Blair Waterway turning 

basin; then northwesterly along the 

shoreline of the Blair Waterway to the 

Commencement Bay Directional Light 

(light list number 17159); then 

northeasterly along the shoreline to the 

point of origin. [Datum: NAD 1983]. 

All vessel operators must obtain 

permission from the COTP or 

Designated Representative to enter, 

move within, or exit the security zone 

during periods of enforcement. To 

obtain permission to transit the zone 

vessel operators can contact the onscene patrol craft on VHF Channel 16/ 

13 or VST Puget Sound on VHF Channel 

14. Operators of vessels 20 meters or 

greater in length should seek permission 

from the COTP or a Designated 

Representative at least 4 hours in 

advance. Operators of vessels less than 

20 meters in length should seek 

permission at least 1 hour in advance. 

Any Coast Guard commissioned, 

warrant or petty officer may enforce the 

rules of this section. The Coast Guard 

may be assisted by other Federal, State, 

or local law enforcement agencies in 

enforcing this regulation. Vessels and 

persons granted permission to enter the 

security zone shall obey all lawful 

orders or directions of the Captain of the 

Port or Designated Representative. All 

vessels shall be operated at a minimum 

speed necessary to maintain a safe 

course. 

This notice is issued under authority 

of 33 CFR 165.1321 and 5 U.S.C. 552(a). 

If the COTP determines that the 

regulated area need not be enforced for 

the full duration stated in this notice, he 

may use a Broadcast Notice to Mariners 

to temporarily grant general permission 

to enter this zone during breaks between 

loading and off-loading operations. 

Upon notice of temporary periods of 

suspension of enforcement by the 

Captain of the Port Puget Sound, all 

persons and vessels are authorized to 

enter, transit, and exit this security zone 

until the zone is reestablished and 

subject to enforcement. 

Dated: January 5, 2011. 

Scott J. Ferguson, 

Captain, U.S. Coast Guard, Captain of the 

Port, Puget Sound. 

[FR Doc. 2011–1034 Filed 1–18–11; 8:45 am] 

BILLING CODE 9110–04–P 

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. 

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 


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3016 Federal Register / Vol. 76, No. 12 / Wednesday, January 19, 2011 / Rules and Regulations 

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 


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Federal Register / Vol. 76, No. 12 / Wednesday, January 19, 2011 / Rules and Regulations 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 

■ 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 

■ 2. In § 261.2, add definitions for 

Indian tribe and traditional and cultural 

purpose in alphabetical order to read as 

follows: 

§ 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 

■ 3. Amend § 261.53 by adding 

paragraph (g) to read as follows: 

§ 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] 

BILLING CODE 3410–11–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 74 

RIN 2900–AM78 

VA Veteran-Owned Small Business 

Verification Guidelines 

AGENCY: Department of Veterans Affairs. 

ACTION: Final rule. 

SUMMARY: This document affirms as 

final, with changes, a final rule with 

request for comments that implemented 

portions of the Veterans Benefits, Health 

Care, and Information Technology Act 

of 2006. This law requires the 

Department of Veterans Affairs (VA) to 

verify ownership and control of veteranowned small businesses, including 

service-disabled veteran-owned small 

businesses. This final rule rescinds the 

requirement that eligible owners work 

full-time in the business for which they 

have applied for acceptance in the 

Verification Program and that limits 

participants to a single business. It 

formally changes the time period for 

issuance of reconsideration decisions 

from 30 to 60 days and changes the 

distribution of profits for limited 

liability companies and employee stock 

ownership plans. 

DATES: Effective Date: This final rule is 

effective February 18, 2011. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Gail Wegner, Deputy Director, Center for 

Veterans Enterprise (00VE), Department 

of Veterans Affairs, 810 Vermont Ave., 

NW., Washington, DC 20420, phone 

(202) 303–3260 x5239. 

SUPPLEMENTARY INFORMATION: In a final 

rule with request for comments 

published in the Federal Register on 

February 8, 2010, (75 FR 6098), we 

revised 38 CFR part 74 setting forth a 

mechanism for verifying ownership and 

control of veteran-owned small 

businesses (VOSBs), including servicedisabled veteran-owned small 

businesses (SDVOSBs). We solicited 

comments on the following new interim 

final requirements: Requiring eligible 

owners work full-time in the business 

for which they have applied for 

acceptance in the VOSB or SDVOSB 

Verification Program, changing the time 

period for issuance of reconsideration 

decisions from 30 to 60 days, and 

changing the distribution of profits for 

limited liability companies and 

employee stock ownership plans. We 

provided a 30-day comment period 

which ended on March 10, 2010. We 

received more than 100 comments on 

the interim final requirements. The 

issues raised in the comments are 

discussed below. Based upon the 

rationale set forth in this document, we 

are rescinding the interim final 

provisions that require owners to work 

full-time in the business for which they 

have applied for acceptance in the 

Verification Program and which limit 

participants to a single business. We are 

also formally changing the time period 

for issuance of reconsideration 

decisions from 30 to 60 days and 

changing the distribution of profits for 

limited liability companies (LLC) and 


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