[Federal Register Volume 77, Number 184 (Friday, September 21, 2012)]
[Rules and Regulations]
[Pages 58492-58493]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-23319]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 261

RIN 0596-AD08


Prohibitions Governing Fire

AGENCY: Forest Service, USDA.

ACTION: Direct final rule.

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SUMMARY: The Forest Service is making purely technical, nonsubstantive 
changes to Forest Service regulations. These regulations authorize 
issuance of an order prohibiting operation or use of any internal or 
external combustion engine without a spark arresting device that is 
properly installed, maintained, and in effective working order in 
accordance with the standards. The reference to the standard is 
obsolete and needs to be updated. The standard does not apply and needs 
to be removed.

DATES: The rule is effective September 21, 2012.

FOR FURTHER INFORMATION CONTACT: Kenneth Pearson, Assistant Director 
for Enforcement and Liaison, at 703-605-4527 or via email at 
kenpearson@fs.fed.us. 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., Eastern Standard Time, Monday through 
Friday.

SUPPLEMENTARY INFORMATION: The standard listed in paragraph (j)(1) is 
``Department of Agriculture, Forest Service Standard 5100-1a.'' 
However, the current U.S. Forest Service Standard is 5100-1d. Since 
this standard is continually being updated, the standard in paragraph 
(j)(1) is being revised to read, ``U.S. Forest Service Standard 5100-
1.''
    The standard listed in paragraph (j)(2) is ``Appropriate Society of 
Automotive Engineers (SAE) recommended practice J335(b) and J350(a).'' 
However, SAE recommended practices cover test procedures for, rather 
than performance of, spark arresters. U.S. Forest Service Standard 
5100-1 covers performance of spark arresters. Accordingly, paragraph 
(j)(2) is being removed, and paragraph (j)(1) is being designated as 
paragraph (j).

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 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 a reference and removes an 
inapplicable reference. Public notice and comment are unnecessary for 
these minor, purely technical changes.

3. Regulatory Certifications

Environmental Impact

    This final rule revises law enforcement regulations governing 
certain activities on National Forest System lands. 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 Service-wide administrative 
procedures, program processes, or instructions. The Department has 
determined that this final rule falls within this category of actions 
and that no extraordinary circumstances exist which require preparation 
of an environmental assessment or environmental impact statement.
    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 final rule is not significant. 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 or safety, or State or local 
governments. This final rule will not interfere with an action taken or 
planned by another agency, nor will this final rule raise new legal or 
policy issues. Finally, this final rule will not alter the budgetary 
impact of entitlements, grants, user fees, or loan programs or the 
rights and obligations of beneficiaries of those programs. Accordingly, 
this final rule is not subject to review by the Office of Management 
and Budget under E.O. 12866.
    This final rule has been considered in light of the Regulatory 
Flexibility Act (5 U.S.C. 602 et seq.). This final rule makes purely 
technical, nonsubstantive changes to Forest Service regulations. 
Therefore, the Department has determined that this final rule will not 
have a significant economic impact on a substantial number of small 
entities as defined by that Act because this final rule will not impose 
record-keeping 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.

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. The Department has determined 
that this final rule conforms to 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, on the relationship 
between the Federal Government and the States, or on the distribution 
of power and responsibilities among the various levels of government. 
Therefore, the Department has determined that no further determination 
of federalism implications is necessary at this time.
    This final rule does not have tribal implications per E.O. 13175, 
Consultation and Coordination with Indian Tribal Governments. 
Therefore, advance consultation with tribes is not required in 
connection with the final rule.

[[Page 58493]]

No Takings Implications

    The Department has analyzed the final rule in accordance with the 
principles and criteria in E.O. 12630 and has determined that this 
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.

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.

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. The Department has determined that this final rule does 
not constitute a significant energy action as defined in the E.O.

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 (44 U.S.C. 3501 et seq.) and its implementing regulations 
at 5 CFR part 1320 do not apply to this final rule.

List of Subjects in 36 CFR Part 261

    Law enforcement, National forests.

    Therefore, for the reasons set forth in the preamble, the Forest 
Service is amending subpart B of part 261 of Title 36 of the Code of 
Federal Regulations to read as follows:

PART 261--PROHIBITIONS

Subpart B--General 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).


0
2. In Sec.  261.52, revise paragraph (j) to read as follows:
* * * * *


Sec.  261.52  Fire.

* * * * *
    (j) Operating or using any internal or external combustion engine 
without a spark arresting device that is properly installed, 
maintained, and in effective working order in accordance with U.S. 
Forest Service Standard 5100-1.
* * * * *

    Dated: September 14, 2012.
Tim DeCoster,
Acting Chief, Forest Service.
[FR Doc. 2012-23319 Filed 9-20-12; 8:45 am]
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