Special Uses, 68379-68382 [E9-30510]
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Federal Register / Vol. 74, No. 246 / Thursday, December 24, 2009 / Rules and Regulations
has determined that this action does not
contain collection information
requirements for purposes of the PRA.
Executive Order 12988 (Civil Justice
Reform)
This action meets applicable
standards in sections 3(a) and 3(b)(2) of
Executive Order 12988, Civil Justice
Reform, to minimize litigation,
eliminate ambiguity, and reduce
burden.
Executive Order 13045 (Protection of
Children)
The FHWA has analyzed this action
under Executive Order 13045,
Protection of Children from
Environmental Health Risks and Safety
Risks. The FHWA certifies that this
action would not concern an
environmental risk to health or safety
that may disproportionately affect
children.
The FHWA does not anticipate that
this action would affect a taking of
private property or otherwise have
taking implications under Executive
Order 12630, Governmental Actions and
Interference with Constitutionally
Protected Property Rights.
National Environmental Policy Act
The agency has analyzed this action
for the purpose of the National
Environmental Policy Act of 1969 (42
U.S.C. 4321–4347) and has determined
that it would not have any effect on the
quality of the environment.
Regulation Identification Number
A regulation identification number
(RIN) is assigned to each regulatory
action listed in the Unified Agenda of
Federal Regulations. The Regulatory
Information Service Center publishes
the Unified Agenda in April and
October of each year. The RIN contained
in the heading of this document can be
used to cross reference this action with
the Unified Agenda.
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List of Subjects in 23 CFR Part 650
Bridges, Grant programs—
Transportation, Highways and roads,
Incorporation by reference, Reporting
and recordkeeping requirements.
Issued on: December 15, 2009.
Victor M. Mendez,
Administrator.
In consideration of the foregoing, the
FHWA amends title 23, Code of Federal
Regulations part 650 as follows:
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1. The authority citation for part 650
continues to read as follows:
■
Authority: 23 U.S.C. 109(a) and (h), 144,
151, 315, and 319; 33 U.S.C. 401, 491 et seq.;
511 et seq.; sec. 4(b) of Pub. L. 97–134, 95
Stat. 1699 (1981); sec. 161 of Pub. L. 97–424,
96 Stat. 2097, at 3135 (1983); sec. 1311 of
Pub. L. 105–178, as added by Pub. L. 105–
206, 112 Stat. 842 (1998); 23 CFR 1.32; 49
CFR 1.48(b); E.O. 11988 (3 CFR, 1977 Comp.,
p. 117); Department of Transportation Order
5650.2, dated April 23, 1979 (44 FR 24678).
American Association of State Highway
and Transportation Officials, Suite 249,
444 N. Capitol Street, NW., Washington,
DC 20001, (202) 624–5800. The
materials may also be ordered via the
AASHTO bookstore located at the
following URL: https://
www.transportation.org.
(1) The Manual for Bridge Evaluation,
First Edition, 2008, AASHTO,
incorporation by reference approved for
§§ 650.305 and 650.313.
(2) [Reserved]
[FR Doc. E9–30469 Filed 12–23–09; 8:45 am]
Subpart C—National Bridge Inspection
Standards
BILLING CODE 4910–22–P
2. Amend § 650.305 by revising the
definition of ‘‘American Association of
State Highway and Transportation
Officials (AASHTO) Manual’’ to read as
follows:
DEPARTMENT OF AGRICULTURE
§ 650.305
RIN 0596–AC81
■
Definitions.
*
Executive Order 12630 (Taking of
Private Property)
■
PART 650—BRIDGES, STRUCTURES,
AND HYDRAULICS
68379
*
*
*
*
American Association of State
Highway and Transportation Officials
(AASHTO) Manual. ‘‘The Manual for
Bridge Evaluation,’’ First Edition, 2008,
published by the American Association
of State Highway and Transportation
Officials (incorporated by reference, see
§ 650.317).
*
*
*
*
*
■ 3. Revise § 650.317 to read as follows:
§ 650.317
Reference manuals.
(a) The materials listed in this subpart
are incorporated by reference in the
corresponding sections noted. These
incorporations by reference were
approved by the Director of the Federal
Register in accordance with 5 U.S.C.
552(a) and 1 CFR part 51. These
materials are incorporated as they exist
on the date of the approval, and notice
of any change in these documents will
be published in the Federal Register.
The materials are available for purchase
at the address listed below, and are
available for inspection at the National
Archives and Records Administration
(NARA). These materials may also be
reviewed at the Department of
Transportation Library, 1200 New Jersey
Avenue, SE., Washington, DC 20590,
(202) 366–0761. For information on the
availability of these materials at NARA
call (202) 741–6030, or go to the
following URL: https://
www.archives.gov/federal_register/
code_of_federal_regulations/
ibr_locations.htm. In the event there is
a conflict between the standards in this
subpart and any of these materials, the
standards in this subpart will apply.
(b) The following materials are
available for purchase from the
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Forest Service
36 CFR Part 251
Special Uses
Forest Service, USDA.
Final rule; technical correction.
AGENCY:
ACTION:
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.
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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
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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 60day 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
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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
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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.
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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.
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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:
■
§ 251.51
Definitions.
Applicant—any individual or entity
that applies for a special use
authorization.
*
*
*
*
*
■ 3. Revise § 251.53(e) to read as
follows:
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§ 251.53
68381
Authorities.
*
*
*
*
*
(e) Permits or easements for a right-ofway 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);
*
*
*
*
*
■ 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:
§ 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.
*
*
*
*
*
■ 5. Revise § 251.60(a)(1)(i)(A), (a)(2)(i),
(a)(2)(ii), and (g) to read as follows:
§ 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
§ 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
§ 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
§ 251.53(e) or (l) of this subpart,
suspension or revocation of a special
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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 § 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.
*
*
*
*
*
■ 6. Revise § 251.65 to read as follows:
§ 251.65 Information collection
requirements.
The rules of this subpart governing
special use proposals and applications
(§ 251.54), terms and conditions
(§ 251.56), rental fees (§ 251.57), and
modifications (§ 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]
BILLING CODE 3410–11–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 225 and 231
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RIN 0750–AF85
Defense Federal Acquisition
Regulation Supplement; Allowability of
Costs To Lease Government
Equipment for Display or
Demonstration (DFARS Case 2007–
D004)
AGENCY: Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
SUMMARY: DoD has issued a final rule
amending the Defense Federal
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Acquisition Regulation Supplement
(DFARS) to address limitations on the
allowability of contractor costs
associated with the leasing of
Government equipment for display or
demonstration. The rule specifies that
monies paid to the Government for the
leasing of Government equipment are
unallowable, except in the case of
foreign military sales contracts.
DATES: Effective Date: December 24,
2009.
C. Paperwork Reduction Act
FOR FURTHER INFORMATION CONTACT: Mr.
Julian Thrash, Defense Acquisition
Regulations System,
OUSD(AT&L)DPAP(DARS), IMD 3D139,
3062 Defense Pentagon, Washington, DC
20301–3062. Telephone 703–602–0310;
facsimile 703–602–0350. Please cite
DFARS Case 2007–D004.
SUPPLEMENTARY INFORMATION:
Amy G. Williams,
Editor, Defense Acquisition Regulations
System.
A. Background
Authority: 41 U.S.C. 421 and 48 CFR
Chapter 1.
DoD Instruction 7230.08, Leases and
Demonstrations of DoD Equipment,
contains policy on the leasing of DoD
equipment to defense contractors for
demonstration to foreign governments
or for display or demonstration at
international trade shows and
exhibitions. In addition to the leasing of
equipment, contractors may obtain
related support services from DoD. The
Instruction provides that the contractor
leasing the equipment may not recover
the DoD charges associated with the
lease, directly or indirectly through any
U.S. Government contract, except to the
extent chargeable to contracts for foreign
military sales. For consistency with the
policy in DoD Instruction 7230.08, this
final rule adds DFARS text to address
the limitations on the allowability of
costs associated with the leasing of
Government equipment.
DoD published a proposed rule at 72
FR 69176 on December 7, 2007. DoD
received no comments on the proposed
rule. Therefore, DoD has adopted the
proposed rule as a final rule without
change.
This rule was not subject to Office of
Management and Budget review under
Executive Order 12866, dated
September 30, 1993.
B. Regulatory Flexibility Act
DoD certifies that this final rule will
not have a significant economic impact
on a substantial number of small entities
within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq.,
because the rule is consistent with
existing DoD policy, and applies only in
those situations where a contractor
chooses to lease military equipment for
display or demonstration purposes.
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The Paperwork Reduction Act does
not apply, because the rule does not
impose any information collection
requirements that require the approval
of the Office of Management and Budget
under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 225 and
231
Government procurement.
Therefore, 48 CFR Parts 225 and 231
are amended as follows:
■
1. The authority citation for 48 CFR
parts 225 and 231 continues to read as
follows:
■
PART 225—FOREIGN ACQUISITION
2. Section 225.7303–2 is amended by
revising paragraph (b) and adding
paragraph (e) to read as follows:
■
225.7303–2 Cost of doing business with a
foreign government or an international
organization.
*
*
*
*
*
(b) Costs not allowable under FAR
Part 31 are not allowable in pricing FMS
contracts, except as noted in paragraphs
(c) and (e) of this subsection.
*
*
*
*
*
(e) The limitations in 231.205–1 on
allowability of costs associated with
leasing Government equipment do not
apply to FMS contracts.
PART 231—CONTRACT COST
PRINCIPLES AND PROCEDURES
3. Section 231.205–1 is added to read
as follows:
■
231.205–1
costs.
Public relations and advertising
(e) See 225.7303–2(e) for allowability
provisions affecting foreign military
sales contracts.
(f) Unallowable public relations and
advertising costs also include monies
paid to the Government associated with
the leasing of Government equipment,
including lease payments and
reimbursement for support services,
except for foreign military sales
contracts as provided for at 225.7303–2.
[FR Doc. E9–30295 Filed 12–23–09; 8:45 am]
BILLING CODE 5001–08–P
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]]>Agencies
[Federal Register Volume 74, Number 246 (Thursday, December 24, 2009)]
[Rules and Regulations]
[Pages 68379-68382]
From the Federal Register Online via the Government Printing 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.
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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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