[Federal Register Volume 74, Number 246 (Thursday, December 24, 2009)]
[Rules and Regulations]
[Pages 68379-68382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-30510]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 251

RIN 0596-AC81


Special Uses

AGENCY: Forest Service, USDA.

ACTION: Final rule; technical correction.

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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.

[[Page 68380]]

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 
Sec.  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 Sec.  
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 Sec.  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 Sec.  
251.60(a)(1)(a)(i)(A), the Department is replacing the citation to 
Sec.  251.54(h)(1) with Sec.  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 
Sec.  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 Sec.  251.59 in reference to special use applications, 
since Sec.  251.59 governs transfer of authorized improvements. With 
respect to terms and conditions, the Department is replacing the 
citation to Sec.  251.54 with Sec.  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

[[Page 68381]]

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.

0
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

0
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

0
2. In Sec.  251.51 revise the definition of ``applicant'' to read as 
follows:


Sec.  251.51  Definitions.

    Applicant--any individual or entity that applies for a special use 
authorization.
* * * * *

0
3. Revise Sec.  251.53(e) to read as follows:


Sec.  251.53  Authorities.

* * * * *
    (e) Permits or easements for a right-of-way for a pipeline for the 
transportation of oil, gas, or oil or gas products, where no Federal 
land besides National Forest System lands is required, and permits for 
the temporary use of additional National Forest System lands necessary 
for construction, operation, maintenance, or termination of a pipeline 
or to protect the natural environment or public safety under section 28 
of the Mineral Leasing Act, 41 Stat. 449, as amended (30 U.S.C 185);
* * * * *

0
4. Revise Sec.  251.54(f)(1)(ii) and remove paragraph (f)(2) and 
redesignate paragraph (f)(3) as (f)(2).
    The revision reads as follows:


Sec.  251.54  Proposal and application requirements and procedures.

* * * * *
    (f) Special requirements for certain proposals--(1) Oil and gas 
pipeline rights-of-way. * * *
    (ii) The authorized officer shall promptly notify the House 
Committee on Resources and the Senate Committee on Energy and Natural 
Resources upon receipt of a proposal for a right-of-way for a pipeline 
24 inches or more in diameter, and no right-of-way for that pipeline 
shall be granted until notice of intention to grant the right-of-way, 
together with the authorized officer's detailed findings as to the term 
and conditions the authorized officer proposes to impose, have been 
submitted to the committees.
* * * * *

0
5. Revise Sec.  251.60(a)(1)(i)(A), (a)(2)(i), (a)(2)(ii), and (g) to 
read as follows:


Sec.  251.60  Termination, revocation, and suspension.

    (a) Grounds for termination, revocation, and suspension--(1) 
Noncommercial group uses. (i) Revocation or suspension. * * *
    (A) Under the criteria for which an application for a special use 
authorization may be denied under Sec.  251.54(g)(3)(ii);
* * * * *
    (2) All other special uses. (i) Revocation or suspension. An 
authorized officer may revoke or suspend a special use authorization 
for all other special uses, except a permit or an easement issued 
pursuant to Sec.  251.53(e) or (l) of this subpart: * * *
    (ii) Administrative review. Except for revocation or suspension of 
a permit or an easement issued pursuant to Sec.  251.53(e) or (l) of 
this subpart, suspension or revocation of a special

[[Page 68382]]

use authorization under this paragraph is subject to administrative 
appeal in accordance with 36 CFR part 251, subpart C, of this chapter.
* * * * *
    (g) The authorized officer may suspend or revoke permits or 
easements issued under Sec.  251.53(e) or (l) of this subpart under the 
Rules of Practice Governing Formal Adjudicatory Administrative 
Proceedings instituted by the Secretary under 7 CFR 1.130 through 
1.151. No administrative proceeding shall be required if the permit or 
easement, by its terms, provides that it terminates on the occurrence 
of a fixed or agreed-upon condition, event, or time.
* * * * *

0
6. Revise Sec.  251.65 to read as follows:


Sec.  251.65  Information collection requirements.

    The rules of this subpart governing special use proposals and 
applications (Sec.  251.54), terms and conditions (Sec.  251.56), 
rental fees (Sec.  251.57), and modifications (Sec.  251.61) specify 
the information that proponents or applicants for special use 
authorizations or holders of existing authorizations must provide to 
allow an authorized officer to act on a request or administer the 
authorization. Therefore, these rules contain information collection 
requirements as defined in 5 CFR part 1320. These information 
collection requirements are assigned OMB Control Number 0596-0082.

    Dated: December 16, 2009.
Hank Kashdan,
Associate Chief.
[FR Doc. E9-30510 Filed 12-23-09; 8:45 am]
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