70496 Federal Register / Vol. 70, No. 224 / Tuesday, November 22, 2005 / Rules and Regulations 

used, or capable of being used, as a 

means of transportation on water other 

than a public vessel. 

(c) Applicability. This section applies 

to all vessels of 100 gross tons (GT) or 

more, including tug and barge 

combinations of 100 GT or more 

(combined), operating within the RNA, 

with the exception of public vessels, 

vessels not intending to cross the 

COLREGS Demarcation Line and enter 

San Diego Bay or Mission Bay, and any 

vessels exercising rights under 

principles of international law, 

including innocent passage or force 

majeure, within the area of this RNA. 

Vessels operating properly installed, 

operational, type approved automatic 

identification system (AIS) as denoted 

in 33 CFR 164.46 are exempted from 

making requests as required in this 

regulation. 

(d) Regulations. (1) No vessel to 

which this rule applies may enter, 

depart or move within San Diego Bay or 

Mission Bay unless it complies with the 

following requirements: 

(i) Obtain permission to enter San 

Diego Bay or Mission Bay from the 

Captain of the Port or designated 

representative immediately upon 

entering the RNA. However, to avoid 

potential delays, we recommend seeking 

permission 30 minutes prior to entering 

the RNA. 

(ii) Follow all instructions issued by 

the Captain of the Port or designated 

representative. 

(iii) Obtain permission for any 

departure from or movement within the 

RNA from the Captain of the Port or 

designated representative prior to 

getting underway. 

(iv) Follow all instructions issued by 

the Captain of the Port or designated 

representative. 

(v) Requests may be made by 

telephone at 619–278–7033 (select 

option 2) or via VHF–FM 

radiotelephone on channel 16 (156.800 

Mhz). The call sign for radiotelephone 

requests to the Captain of the Port or 

designated representative is ‘‘Coast 

Guard Sector San Diego.’’

(2) For purposes of the requirements 

in paragraph (d)(1) of this section, the 

Captain of the Port or designated 

representative means any official 

designated by the Captain of the Port, 

including but not limited to 

commissioned, warrant, and petty 

officers of the U.S. Coast Guard, and any 

U.S. Coast Guard patrol vessel. Upon 

being hailed by a U.S. Coast Guard 

vessel by siren, radio, flashing light, or 

other means, the operator of a vessel 

shall proceed as directed. 

(e) Waivers. The Captain of the Port or 

designated representative may, upon 

request, waive any regulation in this 

section. 

Dated: November 9, 2005. 

K.J. Eldridge, 

Rear Admiral, U.S. Coast Guard, Commander, 

Eleventh Coast Guard District. 

[FR Doc. 05–23030 Filed 11–21–05; 8:45 am] 

BILLING CODE 4910–15–P 

DEPARTMENT OF AGRICULTURE 

Forest Service 

36 CFR Parts 251, 261, and 291 

RIN 0596–AC35 

Recreation Fees 

AGENCY: Forest Service, USDA. 

ACTION: Final rule. 

SUMMARY: This final rule is making 

minor, purely technical changes to 

implement the Federal Lands Recreation 

Enhancement Act (16 U.S.C. 6801–

6814). The Federal Lands Recreation 

Enhancement Act repealed and 

supplanted section 4 of the Land and 

Water Conservation Fund Act (16 U.S.C. 

460l–6a) as the authority for special 

recreation permits issued by federal 

land management agencies and for 

recreation fees charged by federal land 

management agencies, including the 

Forest Service. Consequently, in 36 CFR 

part 251, subpart B, the final rule is 

replacing the citation to section 4(c) of 

the Land and Water Conservation Fund 

Act for special recreation permits (16 

U.S.C. 460l–6a(c)) with a citation to 

section 803(h) of the Federal Lands 

Recreation Enhancement Act (16 U.S.C. 

6802(h)). The final rule also is adding a 

definition for recreation fee and revising 

the prohibition for failure to pay 

recreation fees in 36 CFR part 261, 

subpart A, to conform with the Federal 

Lands Recreation Enhancement Act. In 

addition, the final rule is removing 36 

CFR part 291 governing recreation fees 

authorized under section 4 of the Land 

and Water Conservation Fund Act. 

Because these changes are minor, purely 

technical, and nondiscretionary, the 

Department finds that good cause exists 

to exempt this rulemaking from public 

notice and comment under 5 U.S.C. 

553(b)(B). 

DATES: This rule is effective November 

22, 2005. 

FOR FURTHER INFORMATION CONTACT: 

Jennifer Eberlien, Program Leader, 

Recreation and Heritage Resources Staff, 

(202) 205–1169. 

SUPPLEMENTARY INFORMATION: The 

Federal Lands Recreation Enhancement 

Act (REA) (16 U.S.C. 6801–6814) was 

enacted December 8, 2004. REA 

provides the sole authority for the 

Forest Service to issue and collect fees 

for special recreation permits for use 

and occupancy of National Forest 

System lands and to establish, modify, 

charge, and collect recreation fees on 

National Forest System lands. Section 

813 of REA (16 U.S.C. 6812) repeals the 

agency’s other authorities for issuing 

these permits and charging these fees, 

including section 4 of the Land and 

Water Conservation Fund Act (LWCFA) 

(16 U.S.C. 460l–6a). 

Forest Service regulations at 36 CFR 

part 251, subpart B, govern special use 

authorizations for use and occupancy of 

National Forest System lands. In the list 

of authorities for part 251, subpart B, the 

final rule is replacing the citation to 

section 4(c) of the LWCFA (16 U.S.C. 

460l–6a(c)) with a citation to section 

803(h) of REA (16 U.S.C. 6802(h)) for 

special recreation permits. In addition, 

in § 251.53(k), which enumerates the 

authority for special recreation permits, 

the final rule is replacing the citation to 

section 4(c) of the LWCFA with a 

citation to section 803(h) of REA. 

The regulations at 36 CFR part 261, 

subpart A, establish prohibitions 

relating to acts or omissions relating to 

National Forest System lands. The final 

rule is adding a definition for recreation 

fee in § 261.2 to track the definition for 

that term in section 802(8) of REA (16 

U.S.C. 6801(8)) to the extent it applies 

to the Forest Service and revising the 

prohibition for failure to pay recreation 

fees in § 261.15 to conform precisely to 

the enforcement provisions in section 

812(d) of REA (16 U.S.C. 6811(d)). 

The Department also is removing 36 

CFR part 291 governing recreation fees 

authorized by section 4 of the LWCFA. 

The Department is not replacing part 

291, because the Department believes 

that REA is sufficiently prescriptive that 

it does not require interpretation in a 

regulation. The Forest Service intends to 

issue directives that provide specific 

direction on implementation of REA. 

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)). 

Federal Register / Vol. 70, No. 224 / Tuesday, November 22, 2005 / Rules and Regulations 70497 

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 United 

States 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). This rulemaking 

merely updates citations, revises a 

prohibition to conform precisely to a 

newly enacted statute, and removes 

obsolete provisions. These minor and 

purely technical changes are dictated by 

enactment of REA. Since the 

Department has no discretion in 

implementing these changes, 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. Section 31.1b of FSH 

1909.15 (57 FR 43180, September 18, 

1992) excludes from documentation in 

an environmental assessment or 

environmental impact statement ‘‘rules, 

regulations, or policies to establish 

Service-wide 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 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 Executive 

Order 12866. 

Regulatory Flexibility Act 

This final rule has been considered 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 

This final rule has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

12630. It has been determined that the 

final rule will not pose the risk of a 

taking of private property. 

Civil Justice Reform 

This final rule has been reviewed 

under Executive Order 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 

Executive Order 13132 on federalism, 

and has determined that the final rule 

conforms with the federalism principles 

set out in this Executive Order; 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, this final rule does not 

have Tribal implications as defined by 

Executive Order 13175, Consultation 

and Coordination With Indian Tribal 

Governments, and therefore advance 

consultation with Tribes is not required. 

Energy Effects 

This final rule has been reviewed 

under Executive Order 13211 of May 18, 

2001, Actions Concerning Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use. It has been 

determined that this final rule does not 

constitute a significant energy action as 

defined in the Executive Order. 

Unfunded Mandates 

Pursuant to Title II of the Unfunded 

Mandates Reform Act of 1995 (2 U.S.C. 

1531–1538), which the President signed 

into law on March 22, 1995, 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 

36 CFR Part 251 

Administrative practice and 

procedure, Electric power, National 

forests, Public lands rights-of-way, 

Reporting and recordkeeping 

requirement, Water resources. 

36 CFR Part 261 

Law enforcement, National forests. 

36 CFR Part 291 

Recreation and recreation areas. 

70498 Federal Register / Vol. 70, No. 224 / Tuesday, November 22, 2005 / Rules and Regulations 

■ Therefore, for the reasons set out in 

the preamble, amend the authority 

citation for part 251, amend subpart A 

of part 261, and remove part 291of title 

36 of the Code of Federal Regulations as 

follows: 

PART 251—LAND USES 

■ 1. Revise the authority citation for part 

251 to read as follows: 

Authority: 7 U.S.C. 1011(f), 16 460l–6d, 

472, 497b, 497c, 551, 580d, 1134, 3210, 

6802(h); 30 U.S.C. 185; 43 U.S.C. 1740, 1761–

1771. 

Subpart B—Special Uses 

■ 2. Amend § 251.53 to revise paragraph 

(k) to read as follows: 

§ 251.53 Authorities. 

* * * * * 

(k) Special recreation permits issued 

under section 803(h) of the Federal 

Lands Recreation Enhancement Act (16 

U.S.C. 6802(h)), for specialized 

recreation uses of National Forest 

System lands, such as group activities, 

recreation events, and motorized 

recreational vehicle use. 

* * * * * 

PART 261—PROHIBITIONS 

■ 3. The authority citation for part 261 

continues to read as follows: 

Authority: 7 U.S.C. 1011(f); 16 U.S.C. 460l–

6d, 472, 551, 620(f), 1133(c)–(d)(1), 1246(i). 

Subpart A—General Prohibitions 

■ 4. Amend § 261.2 to add in 

alphabetical order a definition for 

‘‘recreation fee’’ to read as follows: 

§ 261.2 Definitions 

* * * * * 

Recreation fee means a standard 

amenity recreation fee, an expanded 

amenity recreation fee, or a special 

recreation permit fee as defined in 

section 802(8) of the Federal Lands 

Recreation Enhancement Act (16 U.S.C. 

6801(8)). 

* * * * * 

■ 5. Revise § 261.15 to read as follows: 

§ 261.15 Recreation fees 

Failure to pay any recreation fee is 

prohibited. Notwithstanding 18 U.S.C. 

3571(e), the fine imposed for the first 

offense of nonpayment shall not exceed 

$100. 

PART 291—OCCUPANCY AND USE OF 

DEVELOPED SITES AND AREAS OF 

CONCENTRATED PUBLIC USE 

PART 291—[REMOVED] 

■ 6. Remove the entire part 291. 

Dated: November 7, 2005. 

David P. Tenny, 

Deputy Under Secretary, Natural Resources 

and Environment. 

[FR Doc. 05–23111 Filed 11–21–05; 8:45 am] 

BILLING CODE 3410–11–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 80 

[OAR–2005–0153; FRL–7996–9] 

RIN 2060–AJ71 

Control of Air Pollution From New 

Motor Vehicles; Revisions to Motor 

Vehicle Diesel Fuel Sulfur Transition 

Provisions; and Technical 

Amendments to the Highway Diesel, 

Nonroad Diesel, and Tier 2 Gasoline 

Programs 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: The highway diesel fuel 

sulfur program, finalized in 2001, is 

resulting in the nationwide transition in 

2006 of most diesel fuel from low-sulfur 

diesel (LSD) to ultra-low sulfur diesel 

(ULSD). Some in the diesel fuel 

production and distribution industries 

indicated that they may be unable to 

complete the transition to ULSD by the 

current deadlines at the very furthest 

reaches of the distribution system. In 

response, today’s action makes limited 

changes to the transition provisions for 

entities in the highway diesel 

distribution system. These changes 

finely balance the concerns of the fuel 

industry and the critical need for ULSD 

to be available for 2007 diesel vehicles 

and engines. The impacts of the recent 

hurricanes along the Gulf Coast of the 

U.S. are not a contributing factor in 

taking today’s action, and there is no 

change in the June 1, 2006 start date for 

refiners to be producing ULSD (15 ppm 

sulfur). 

In today’s action, we extend the ULSD 

implementation dates for terminals and 

retail outlets by 45 days. Thus, 

terminals will have until September 1, 

2006 (vs. July 15) and retailers will have 

until October 15, 2006 (vs. September 1) 

to complete their transitions to ULSD. 

We also provide that downstream of the 

refinery fuel with a sulfur content 

slightly higher than 15 ppm may 

temporarily be sold as ULSD. In 

addition, we extend the beginning of the 

restriction on how much ULSD can be 

downgraded to higher sulfur fuel by 15 

days, to October 15, 2006 to be 

consistent with the end of the new 

transition dates. The rule also includes 

corrections to the recordkeeping and 

reporting requirements under the 

highway diesel program and also 

includes several minor amendments to 

the highway diesel sulfur, nonroad 

diesel sulfur, and gasoline sulfur 

programs to correct errors or omissions 

in the regulations. 

DATES: This direct final rule is effective 

on January 6, 2006 without further 

notice, unless we receive adverse 

comments by December 22, 2005 or 

receive a request for a public hearing by 

December 7, 2005. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. OAR–2005–0153. All documents in 

the docket are listed in the EDOCKET 

index at http://www.epa.gov/edocket. 

Although listed in the index, some 

information is not publicly available, 

i.e., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically in 

EDOCKET or in hard copy at the Air 

Docket, EPA/DC, EPA West, Room 

B102, 1301 Constitution Ave., NW., 

Washington, DC. The Public Reading 

Room is open from 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding 

legal holidays. The telephone number 

for the Public Reading Room is (202) 

566–1744, and the telephone number for 

the Air Docket is (202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: Tad 

Wysor, Assessment and Standards 

Division, U.S. EPA, National Vehicle 

and Fuels Emission Laboratory, 2000 

Traverwood, Ann Arbor, MI 48105; 

telephone (734) 214–4332, fax (734) 

214–4816, e-mail wysor.tad@epa.gov. 

SUPPLEMENTARY INFORMATION: We do not 

expect to hold a public hearing, 

however, if we receive such request we 

will publish information related to the 

timing and location of the hearing and 

the timing of a new deadline for public 

comments. If we receive adverse 

comment or a request for a hearing, we 

will withdraw the amendment, 

paragraph or section of the direct final 

rule receiving such comment or hearing 

request, and such withdrawn 

amendment, paragraph or section will