Special Uses

AGENCY:

Forest Service, USDA.

ACTION:

Final rule; technical correction.

SUMMARY:

This final rule is making minor, purely technical changes to the Forest Service's special use regulations. The Agency is clarifying a definition of a term in which a phrase was inadvertently omitted from previous versions of the rule and which properly reflect the Forest Service's authority to issue special use authorizations. The rule also corrects inaccurate citations and terms and removes obsolete requirements.

DATES:

Effective Date: This rule is effective December 24, 2009.

FOR FURTHER INFORMATION CONTACT:

Julett Denton, Special Uses Program Manager, Lands Staff, 202-205-1256.

SUPPLEMENTARY INFORMATION:

Forest Service regulations at 36 CFR part 251, subpart B, govern special use authorizations for use and occupancy of National Forest System lands. Approximately 72,000 special use authorizations are in effect on National Forest System lands. These uses cover a variety of activities ranging from individual private uses to large-scale commercial facilities and public services. Examples of authorized uses include road rights-of-way, apiaries, water storage and transmission facilities, telephone and electric transmission line rights-of-way, ski areas, resorts, marinas, outfitting and guiding, and campgrounds. The Department is making minor, purely technical changes to the regulations governing special use authorizations.

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 (36 FR 13804, July 24, 1971). 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). This rulemaking merely clarifies the definition of “applicant” to make it consistent with agency practice and authority regarding who may apply for a special use authorization; inserts the words “or a permit” after “easement” and “or permits” after “easements,” which were inadvertently omitted in several paragraphs of this chapter and which are needed to reflect the scope of the Forest Service's authority; corrects inaccurate citations and terms; and removes obsolete provisions. Public comment on these minor and purely technical changes is unnecessary pursuant to 5 U.S.C. 553(b)(B).

Section-by-Section Analysis of the Final Rule

Section 251.51 Definitions. The Department is clarifying the definition for “applicant” to include any entity, not just a business or governmental entity, consistent with the Forest Service's practice and authority regarding who may apply for a special use authorization.

Section 251.53(e) Authorities. Consistent with applicable law and directives, the Department is inserting the words “or permits” after the word “easements” in the two places where that word appears in § 251.53(e). Direction in Forest Service Manual (FSM) 2701.1, paragraph 4, and 2710.11a, paragraph 4, and Forest Service Handbook (FSH) 2709.11, section 19, exhibit 03, uses the term “permit” as well as the term “easement” to refer to a special use authorization for a pipeline issued under the Mineral Leasing Act (MLA). Additionally, section 28 of the MLA (30 U.S.C. 185) uses the term “right-of-way or permit” throughout. It has always been the Forest Service's practice to issue a permit or an easement for a pipeline authorized under the MLA.

Section 251.54 Proposal and application requirements and procedures. The Department is removing the requirement in § 251.54(f)(1)(ii) to wait 60 days before issuing a right-of-way for a pipeline 24 inches or more in diameter, after notifying Congress. Public Law 101-475, enacted in 1990, repealed the 60-day waiting period in section 28(w)(2) of the MLA (30 U.S.C. 185(w)(2)).

In addition, the Department is deleting the unnecessary requirement in § 251.54(f)(2) to refer proposals for electric transmission lines that would carry 66 kilovolts or more of energy to the Secretary of Energy for coordination. There is no statutory requirement for this referral, nor does the U. S. Department of Energy require the referral. In addition, provisions on interagency cooperation and coordination in the Energy Policy Act of 2005 have made this requirement obsolete.

Section 251.60 Termination, revocation, and suspension. In § 251.60(a)(1)(a)(i)(A), the Department is replacing the citation to § 251.54(h)(1) with § 251.54(g)(3)(ii), which is the correct citation for the provision governing evaluation criteria for noncommercial group use applications.

Consistent with applicable law and Forest Service directives, in § 251.60(a)(2)(i), (a)(2)(ii), and (g), the Department is inserting the words “a permit or” in front of the words “an easement” and “permits or” in front of the word “easements” in these sections. FSM 2701.1, paragraph 4, and 2710.11a, paragraph 4, and FSH 2709.11, section 19, exhibit 03, use the term “permit” as well as the term “easement” to refer to a pipeline authorized under the MLA. Additionally, section 28 of the MLA (30 U.S.C. 185) uses the term “right-of-way or permit” throughout. It has always been the Forest Service's practice to issue either a permit or an easement for a pipeline authorized under the MLA.

Section 251.65 Information collection requirements. The Department is adding the words “proposals and” before “applications,” since requirements for proposals as well as applications entail information collection requirements. In addition, the Department is removing the citation to § 251.59 in reference to special use applications, since § 251.59 governs transfer of authorized improvements. With respect to terms and conditions, the Department is replacing the citation to § 251.54 with § 251.56, which is the correct citation for the provision governing terms and conditions in special use authorizations. Finally, the Department is inserting the word “collection” between “information” and “requirements” in the text, consistent with the heading of this section and applicable law.

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 has concluded 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. The Office of Management and Budget (OMB) has 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 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 final 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, this final rule does not have Tribal implications as defined by E.O. 13175, Consultation and Coordination With Indian Tribal Governments, and therefore advance consultation with Tribes is not required.

Energy Effects

The Department has reviewed this final rule under E.O. 13211 of May 18, 2001, 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.

List of Subjects in 36 CFR Part 251

• Administrative practice and procedure
• Electric power
• National forests
• Public lands--rights-of-way
• Reporting and recordkeeping requirements
• Water resources

Therefore, for the reasons set forth in the preamble, the Forest Service is amending subpart B of part 251 of Title 36 of the Code of Federal Regulations as follows:

PART 251—LAND USES

1. The authority citation for part 251 continues to read as follow:

Authority: 7 U.S.C. 1011; 16 U.S.C. 518, 551, 678a; Pub. L. 76-867, 54 Stat. 1197.

Subpart B—Special Uses

2. In § 251.51 revise the definition of “applicant” to read as follows:

3. Revise § 251.53(e) to read as follows:

4. Revise § 251.54(f)(1)(ii) and remove paragraph (f)(2) and redesignate paragraph (f)(3) as (f)(2).

The revision reads as follows:

5. Revise § 251.60(a)(1)(i)(A), (a)(2)(i), (a)(2)(ii), and (g) to read as follows:

6. Revise § 251.65 to read as follows: