[Federal Register Volume 76, Number 12 (Wednesday, January 19, 2011)]
[Rules and Regulations]
[Pages 3015-3017]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-937]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 261
RIN 0596-AC93
Prohibitions in Areas Designated by Order; Closure of National
Forest System Lands To Protect Privacy of Tribal Activities
AGENCY: Forest Service, USDA.
ACTION: Direct final rule.
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SUMMARY: This final rule is implementing verbatim sections 8102 and
8104 of the Food, Conservation, and Energy Act of 2008 (FCEA) by adding
regulations regarding special closures to provide for closure of
National Forest System lands to protect the privacy of tribal
activities for traditional and cultural purposes and by adding
definitions for ``Indian tribe'' and ``traditional and cultural
purpose.'' FCEA authorizes the Secretary of Agriculture to ensure
access to National Forest System lands, to the maximum extent
practicable, by Indians and Indian tribes for traditional and cultural
purposes, in recognition of the historic use of National Forest System
lands by Indians and Indian tribes.
DATES: Effective Date: This rule is effective January 19, 2011.
FOR FURTHER INFORMATION CONTACT: Carolyn Holbrook, 202-205-1426,
Recreation, Heritage, and Volunteer Resources staff. Individuals who
use telecommunication devices for the deaf may call the Federal
Information Relay Service at 800-877-8339 between 8 a.m. and 8 p.m.,
Monday through Friday.
SUPPLEMENTARY INFORMATION: Section 8104 of the FCEA authorizes the
Secretary of Agriculture to ensure access to National Forest System
lands, to the maximum extent practicable, by Indians and Indian tribes
for traditional and cultural purposes, in recognition of the historic
use of National Forest System lands by Indians and Indian tribes.
Section 8102 of the FCEA defines ``Indian tribe'' as any Indian or
Alaska Native tribe, band, nation, pueblo, village, or other community
that is included in a list published by the Secretary of the Interior
under section 104 of the Federally Recognized Indian Tribe List Act of
1994 (25 U.S.C. 479a-1). Section 8102 of the FCEA states that
``traditional and cultural purposes'' with respect to a definable use,
area, or practice means that the use, area, or practice is identified
by an Indian tribe as traditional and cultural because of its long-
established significance or ceremonial nature of the use, area, or
practice to the Indian tribe.
Forest Service regulations at 36 CFR part 261, subpart B, establish
prohibitions relating to acts or omissions involving National Forest
System lands. To implement section 8104 of the FCEA verbatim, the
Forest Service is adding a paragraph to 36 CFR 261.53 regarding special
closures to provide for closure of National Forest System lands to
protect the privacy of tribal activities for traditional and cultural
purposes. To implement section 8102 of the FCEA verbatim, the Forest
Service is adding a definition for ``Indian tribe'' as ``any Indian or
Alaska Native tribe, band, nation, pueblo, village, or other community
that is included in a list published by the
[[Page 3016]]
Secretary of the Interior under section 104 of the Federally Recognized
Indian Tribe List Act of 1994 (25 U.S.C. 479a-1)'' and a definition for
``traditional and cultural purpose'' that states that it means, with
respect to a definable use, area, or practice, that it is identified by
an Indian tribe as traditional and cultural because of its long-
established significance or ceremonial nature for the Indian tribe.
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 (July 24, 1971; 36 FR 13804). 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). Section 8104 of the FCEA allows the Secretary to
``temporarily close from public access specifically identified National
Forest System land to protect the privacy of tribal activities for
traditional and cultural purposes.'' This rulemaking prohibits public
access into or upon an area which is closed to protect the privacy of
tribal activities for traditional and cultural purposes. Thus, the
prohibition against public access to closed areas under 36 CFR 261.53
merely implements the provision for closure from public access set
forth in section 8104 of the FCEA. Such a prohibition against access to
closed areas is dictated by section 8104 of the FCEA; the agency has no
discretion in implementing these changes. Moreover, the new provisions
conform precisely to the newly enacted statute and the corresponding
definitions in the statute. Accordingly, because this rulemaking
involves purely minor, technical, and nondiscretionary changes, the
Department finds that 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. 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'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 (E.O.) 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 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 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, the Department has determined that promulgation of this
final rule does not require advance consultation with Indian tribal
officials as set forth in E.O. 13175, Consultation and Coordination
With Indian Tribal Governments. Section 5(b) of E.O. 13175 requires
that, to the extent practicable and permitted by law, agencies shall
consult with tribal officials in the promulgation of ``any regulation
that has tribal implications, that imposes substantial direct
compliance costs on Indian tribal governments, and that is not required
by statute.'' This rulemaking merely implements verbatim two existing
statutory provisions, sections 8102 and 8104 of the FCEA, and involves
only minor, purely technical, and nondiscretionary
[[Page 3017]]
regulatory changes. Moreover, these regulatory changes do not impose
substantial direct compliance costs on Indian tribal governments.
Accordingly, the Department has determined that advance consultation
with Tribes is not required for this rulemaking. In the future if the
Department publishes additional directives or guidance on how to
implement this regulation in the Forest Service Manual or Forest
Service Handbook, the Department will consult with Tribes prior to its
publication. At this time, the Department does not intend to publish
additional guidance on how to implement this regulation.
Energy Effects
The Department has reviewed this final rule under E.O. 13211,
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.
Text of the Final Rule
List of Subjects in 36 CFR Part 261
Crime, Law enforcement, National forests.
For the reasons set forth in the preamble, part 261 of title 36 of
the Code of Federal Regulations is amended as follows:
PART 261--PROHIBITIONS
0
1. The authority citation for part 261 continues to read as follows:
Authority: 7 U.S.C. 1011(f), 16 U.S.C. 472, 551, 620(f),
1133(c), (d)(1), 1246(i).
Subpart A--General Prohibitions
0
2. In Sec. 261.2, add definitions for Indian tribe and traditional and
cultural purpose in alphabetical order to read as follows:
Sec. 261.2 Definitions.
* * * * *
Indian tribe means any Indian or Alaska Native tribe, band, nation,
pueblo, village, or other community that is included on a list
published by the Secretary of the Interior under section 104 of the
Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a-1).
* * * * *
Traditional and cultural purpose means, with respect to a definable
use, area, or practice, that it is identified by an Indian tribe as
traditional or cultural because of its long-established significance or
ceremonial nature for the Indian tribe.
* * * * *
Subpart B--Prohibitions in Areas Designated by Order
0
3. Amend Sec. 261.53 by adding paragraph (g) to read as follows:
Sec. 261.53 Special closures.
* * * * *
(g) The privacy of tribal activities for traditional and cultural
purposes. Closure to protect the privacy of tribal activities for
traditional and cultural purposes must be requested by an Indian tribe;
is subject to approval by the Forest Service; shall be temporary; and
shall affect the smallest practicable area for the minimum period
necessary for activities of the requesting Indian tribe.
Dated: January 11, 2011.
Jay Jensen,
Deputy Under Secretary, NRE.
[FR Doc. 2011-937 Filed 1-18-11; 8:45 am]
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