[Federal Register Volume 70, Number 224 (Tuesday, November 22, 2005)]
[Rules and Regulations]
[Pages 70496-70498]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23111]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Parts 251, 261, and 291

RIN 0596-AC35


Recreation Fees

AGENCY: Forest Service, USDA.

ACTION: Final rule.

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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 The Federal Lands Recreation Enhancement Act repealed and 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 Sec.  
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 Sec.  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 Sec.  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)).

[[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.

[[Page 70498]]


0
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

0
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

0
2. Amend Sec.  251.53 to revise paragraph (k) to read as follows:


Sec.  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

0
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

0
4. Amend Sec.  261.2 to add in alphabetical order a definition for 
``recreation fee'' to read as follows:


Sec.  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)).
* * * * *

0
5. Revise Sec.  261.15 to read as follows:


Sec.  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]

0
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