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###### Department of Agriculture

###### Forest Service

          - 36 CFR Parts 251, 261, and 291
          - RIN 0596-AC35

# 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 The Federal Lands Recreation Enhancement Act repealed and supplanted section 4 of the Land and Water Conservation Fund Act (16 U.S.C. 460*l*                        -6a) as the authority for special recreation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. 460*l*                        -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. 460*l*                    -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. 460*l*                    -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)).                          ( print page 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

      ( print page 70498)    
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), 16460*l*                            -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 

* * * * *

(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. 460*l*                            -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 

* * * * *

*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 

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