[Federal Register: November 22, 2005 (Volume 70, Number 224)]
[Rules and Regulations]
[Page 70496-70498]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22no05-10]
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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 The Federal Lands Recreation Enhancement Act repealed and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