Federal Register Vol. 58 No. 86

Section 251.56 -- Terms and Conditions

The proposed rule would amend 251.56(e) on bonding to provide that an authorized officer could not require bonding for holders of authorizations for noncommercial group events or noncommercial disibution of printed material. This amendment would clarify the agency's intent to ensure that no undue burdens are imposed on the exercise of First Amendment rights.

Section 251.57 Fees

The proposed rule revisee 251.57 on fees for special use authorizations to provide that no fee will be charged when the authorization is for a noncommercial group event or for the noncommercial distribution of printed material. This revision would clarify the agency's intent to ensure that no undue burdens are imposed on the exercise of First Amendment rights.

Section 251.60 -- Termination, Revocation, and Suspension

Section 251.60 provides several grounds for terminating, revoking, or suspending a special use authorization, one of which is for reasons in the public interest. The proposed rule would amend this broad basis for termination, revocation, or suspension to exclude authorizations for noncommercial group events or noncommercial distribution of printed material. This amendment would clarify the agency's intent to ensure that the authorized officer does not have unbridled discretion with respect to administration of noncommercial First Amendment activities in the National Forest System. Under 251.60(a), an authorized officer could still terminate, revoke, or suspend an authorization for these activities for noncompliancs with applicable statutes, regulations, or terms and conditions of the authorization; for failure of the holder to exercise the rights and Privileges ganted; with the consent of the holder; or when, by its terms a fixed or agreed upon condition, event, or time occurs.

Amendment to Part 261

In addition to the changes at 36 CFR part 251, subpart B, the proposed rule would make corollary amendments to the rules at 36 CFR part 261, subpart A, which contain general prohibitions in effect for the National Forest System.

The proposed rule would amend the authority citation for part 261 to consolidate the references. The proposed rule would also amend the definitions and prohibitions governing occupancy and use to make them consistent with the requirement in part 251 that a special use authorization is required for noncomercial distribution of printed material.

Section 261.2--Definitions

In the definitions section, the term "placing" would be replaced by the word "affixing." "Placing" could be construed to prohibit leaving printed material under windshield wipers or on dashboards of vehicles, neither of which would result in injury to public or private property. Use of the word "affixing" would narrow the prohibition to address damage to forest resources and facilities.

Section 261.10--0ccupancy and Use

With respect to distribution of printed material, the proposed rule would prohibit delaying, halting or preventing administrative use of an area by the Forest Service or other scheduled or existing uses or activities on National Forest System land; misreprsenting the purposes or affiliations of those distributing the material; or misrepresenting the availability of the material without cost ar donation. Consistent with the third evaluation criterion proposed for part 251, this language would regulate time, place, and manner for the distribution of printed material. This prohibition would also protect the pubiic from fraud by prohibiting specific types of misrepresentation In the context of such distribution.

Section 261.14 - Developed Recreation Sites

The proposed rulee would remove from this section the prohibition on distribution of printed material without a special use authorization. This prohibition is subsumed in the prohibition contained in 261.10(g), which applies throughout the National Forest System.

Summary

With the changes in definitions and establishment of very limited circumstances under which an authorized officer could deny a special use authorization for noncommercial group events and noncommercial distribution of printed material, the proposed rule would preserve the fundamentai constitutional rights of free speech and assembly, while providing reasonably administrative mechanisms to control or Prevent adverse impacts on resources and public health and safety.

Pubiic comment is invited and will be considered in adoption of the final rule. It will aid analysis of comments if

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reviewers key them to specific sections of the proposed rule. Respondents should also note that in conducting this analysis, the agency will give more weight to substantive comments than to simpie "yes," "no," or "check-off" responses to form letters or questionnaires.

A separate proposed rule revising the existing regulations at 36 CFR part 251 governing aplication procedures for all other special uses was published in the Federal Begister at 57 FR 36618 on August 14, 1992. Upon adoption, that final rule will be integrated with this rulemaking to ensure consistency in substance and format.

Regulatory Impact

This proposed rule has been revised under USDA procedures and Executive Order 12291 on Federal Regulations. It has been determined that this would not be a major rule. The proposed rule would not have an effect of $100 million or more on the economy, substantially increase prices or costs for consumers, industry, or state or local governments, or adversely affect competition, employment, investment, productivity, innovetion, or the ability of domestic companies to compete in foreign markets. In short, this proposed rule would have litte or no impact on the national economy. The proposed rule would consist primarily of techinical and administrative changes for authiorization of occupancy and use of National Forest System lands.

Moreover, this proposed rule has been considered in light of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. This action would not have a significant economic impact on a substantial number of small entities because it would not impose recordkeeping requirements on them; it would not affect their competative position in relation to large entities; and it would not affect their cash flow, liquidity, or ability to remain in the market.

This proposed rule has been reviewed for its impact on private property rights under Executive Order 12630 of March 15, 1988, as implemented by the United States Attorney General's Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings. Executive Order 12630 would not apply to this proposed rule because it would consist primarily of technical and administrative changes governing application procedures for authorization of occupancy and use of National Forest System lands. Application for a special use authorization does not grant any right, title, or interest in or to lands or resources held by the United States.

This proposed rule has been reviewed under Executive Order 12778, Civil Justice Reform. If this Proposed rule were adopted, (1) all state and local laws and regulations that are in conflict with this proposed rule or which would impede its full implementation would be preempted; (2) no retroactive effect would be given to this proposed rule; and (3) it would not require administrative proceedings before parties may file suit in court challenging its provisions.

Paperwork Reduction Act

The information an applicant must provide the Forest Service to obtain an authorization for a noncommercial group event or noncommercial distribution of printed material (proposed 251.54(e)(2)(i) (A)-(E)) constitutes an information requirement as defined by the Paperwork Reduction Act and the Office of Management and Budget implementing rules at 5 CFR part 1320 and thus would require OMB approval before adoption of the final rule. The Forest Service is requesting OMB approval of the information required for these applications. The agency estimates that each applicant would spend an average of one to four hours preparing an application, depending on the scope and complexity of the proposed activity, Comments on this information requirement should be submitted to the office listed in this Proposed rule under ADDRESSES, as well as to the: Forest Service Desk Officer, Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503.

Environmental Impact

This proposed rule consists primarily of technical and administrative changes related to authorization of Occupancy and use of National Forest System lands. No extraordinary circumstances have been identified that might cause this proposed action to have a significant effect on the human environment. Therefore, the agency's preliminary determination is that this proposed rule is categorically excluded from documentation in an Enviromental Impact Statement or an Environmental Assessnent (40 CFR 1508.4; Forest Service Handbook 1909.15. Environmental Policy and Procedures, section 31.lb (2), 57 FR 43208, September 18, 1992). A final determination will be made at the time of publication of the final rule.

List of Subjects

36 CFR Part 251

Electric power, Mineral resources, National forests, Rights-of-way, Water resources.

36 CFR Part 261

Law enforcement, National forests.

Therefore, for the reasons set forth in the preamble, it is proposed to amend part 251, subpart B, and part 261, subpart A, of chapter II of title 36 of the Code of Federal Regulations as follows:

PART 251 - LAND USES

Subpart B - Special Uses

1. The authority citiation for subpart B continues to read:

Authority: 16 U.S.C. 472, 551, 1134, 3210; 30 U.S.C. 185; 43 U.S.C. 1740, 1761-1771.

2. Amend 251.50 by revising the heading and paragraphs (a), (c), introductory text, and (c)(3) to read as follows:

251.50 Scope

(a) All uses of National Forest System land, improvements, and resources, except those provided for in the regulations governing the disposal of timber (part 223) and minteral (part 228) and the grazing of livestock (part 222), are designated "special uses." Before engaging in a special use, persons or entities must submit an application to an authorized officer and must obtain a special use authorization from the authorized officer, unless that requirement is waived by paragraph (c) of this section.

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(c) A special use authorization is not required for noncommercial recreational activities such as camping, picnicking, hiking, fishing, hunting, horseback riding, and boating, as well as noncommerical activities involving the expression of views such as assemblies, meetings, demonstrations, and parades, except for:

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(3) Noncommercial group events or noncommerical distribution of printed material as defined in 251.51 of this subpart.

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3. Amend 251.51 by removing the terms and definitions for Distributing noncommerical printed material and Noncommericial printed material, revising the definition for "Group event," and adding the following new terms and definitions in alphabetical order to read as follows:

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251.51 Definitions

Commercial use or activity--any use or activity on National Forest System lands involving the charge of an entry or participation fee, or the purchase, sale, or exchange of a product or service, regardless of whether the use or activity is intended to produce a profit.

Distribution of printed material--disseminating, posting, affixing, or erecting printed material as defined in this section or soliciting information, views, or signatures in conjunction with the distribution of printed material.

Group event--an activity conducted on National Forest System lands that involves and/or attracts 25 or more people.

Noncommerical use or activity--any use or activity that does not involve a commerical use or activity as defined in this section.

Printed material--any written and/or graphic material including but not limited to pamphlets, periodicals, leaflets, brochures, photographs or graphics, handbills, signs, petitions, posters, bumper stickers, and booklets.

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4. Amend 251.54 by revising paragraphs (a), introductory text, (e)(1), (e)(2)(i) and the introductory text of (e)(2)(ii), redesignating paragraphs (f)(1) and (f)(2) as (f)(2) and (f)(3) and adding new paragraphs (f)(4) and (f)(5) and revising paragraph (h) to read as follows:

251.54 Special use applications.

(a) Preapplication activity. When occupancy ur use of National Forest System land is desired, a proponent is encouraged to contact the Forest Service office(s) responsible for management of the affected land as early as possible so that potential constraints may be identified, the proposal can be considered in land management plans if necessary, and processing of an application can be tentatively scheduled. To the extent applicable to the proposed use and occupancy, the proponent will be given guidance and information about:

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(e) Application content--(1)
Applicant identification. Any applicant for a special use authorization shall provide the applicant's name and mailing address, or if the applicant is not an individual, the name and address of the applicant's agent who is authorized to receive notice of actions pertaining to the application.

(2) Minimum information--(i)
Noncommercial group events and noncommercial distribution of printed material. An applicant for noncommerical group events and noncommercial distribution of printed material shall provide the following:

(A) A description of the proposed activity;

(B) A description of the National Forest System land and any facilities the applicant would like to use;

(C) The estimated number of participants and spectators;

(D) The date and time of the proposed activity; and

(E) The name of the person or persons 21 years of age or older who will sign a speicial use authorization on behalf of the applicant.

(ii) All other special uses. If requested by an authorized officer, an applicant in one of the following categories shall furnish the information speicified for that category:

(A) A State and local government agency: a copy of the authorization under which the application is made;

(B) A public corporation: the statute or other authority under which it was organized;

(C) A Federal government agency: the title of the agency official delegated the authority to file the application:

(D) A private corporation: (1) Evidence of incorporation and its current good standing; (2) if reasonably obtainable by the applicant, the name and address of each shareholder owning 3 percent or more of the shares, together with the number and percentage of any class of voting shares of the entity which such shareholder is authorized to vote; (3) the name and address of each affiliate of the entity; (4) in the case of an affiliate which is controlled by the entity, the number of shares and the percentage of any class of voting stock of the affiliate that the entity owns either directly or indirectly; or (5) in the case of an affiliate which controls that entity, the number of shares and the percentage of any class of voting stock of that entity owned, either directly or indirectly by the affiliate; or

(E) A partnernship, association or other unincorporated entity: a certified copy of the partnership agreement or other similar document, if any, creating the entity, or a certificate of good standing under the laws of the State.

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(f) Processing applications. (1) * * *
(4) The authorized officer shall give due deference to the findings of another agency such as the Public Utility Commission, the Federal Energy Regulatory Commission, or the Interstate Commerce Commission in lieu of another detailed finding. If this information is already on file with the Forest Service, it need not be refiled if reference is made to the previous filing date, place, and case number.

(5) A decision to grant or deny an application for noncommerical group event or noncommercial distribution of printed material shall be made without unreasonable delay.

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(h) Response to applications for noncommerical group events or for the noncommercial distrubtion of printed material. (1) An authorized officer shall grant an application for a speicial use authoirzation for a noncommercial group event or for noncommercial distribution of printed material, upon a determination that:

(i) The proposed activity is not prohibited by the rules at 36 CFR part 261, subpart A, or by orders issued pursuant to 36 CFR part 261, subpart B, or by Federal, State, or local law;

(ii) The proposed activity is consistent or can be made consistent with the applicable approved land and resource management plan required pursuant to 36 CFR part 219;

(iii) The proposed activity will not delay, halt, or prevent administrative use of an area by the Forest Service or other schuduled or existing uses or activities on National Forest System land, including but not limited to uses and activities pursuant to parts 222, 223, 228, and 251 of this chapter;

(iv) The proposed activity will not prose a substantial danger to public health. Considerations of public health shall be limited to the following with respect to the proposed site:

(A) The sufficiency of sanitation facilities;

(B) The adequacy of waste disposal facilities;

(C) The availability of sufficient potable drinking water, in view of the expected number of users and duration of use;

(D) The risk of disease from the physical characteristics of the proposed site or natural conditions associated with the proposed site;

(E) The risk of contaimination of the water supply;

(F) The sufficiency of a plan for safe handling of food.

(v) The proposed activity will not pose a substantial danger to public safety. Considerations of public safety shall not include concerns about possible reaction to the users' identity or beliefs from non-members of the group seeking an authorization and shall be limited to the following:

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(A) The potential for physical injury to other forest users from the proposed activity;

(B) The potential for physical injury to users from the physical characteristics of the proposed site or natural conditions associated with the proposed site;

(C) The potential for physical injury to users from scheduled or existing uses or activities on National Forest System land; and

(D) The adequacy of ingress and egress in case of an emergency;

(vi) The proposed activity does not involve military or paramilitary training or exercises by private organizations or individuals, unless such training or exercises are federally funded; and

(vii) A person or persons 21 years of age or older has been designated to sign and does sign a special use authorization on behalf of the applicant.

(2) If an authorized officer denies an application because it does not meet the criteria in paragraphs (h)(1)(i) through (vii) of this section, the authorized officer shall notify the applicant in writing of the reasons for the denial. A denial of an application under paragraph (h)(1)(i) through (vii) of this section constitutes final agency action and is immediately subject to judicial review.

5. Amend 251.56 by revising paragraph (e) to read as follows:

251.56 Terms and Conditions

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(e) Bonding. An authorized officer may require the holder of a special use authorization for other than noncommercial group events and noncommercial distribution of printed material to furnish a bond or other security to secure all or any of the obligations imposed by the terms of the authorization or by any applicable law, regulation or order.

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6. Amend 251.57 by redesignating paragraphs (d) through (g) as (e) through (h) and adding a new paragraphs (d) to read as follows:

251.57 Rental fees

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(d) No fee shall be charged when the authoirzation is for a noncommerical group event or for a noncommercial distribution material as defined by 251.51 of this subpart.

7. Revise 251.60(b) to read as follows:

251.60 Termination, revocation, and suspension.

(b) A special use authorization may be suspended, revoked or terminated, in the discretion of the authorized officer, for reasons in the public interest, except that this provision shall not apply to special use authorizations for noncommerical group events or noncommerical distribution of printed material.
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PART 261 - PROHIBITIONS

Revise the authority citation for part 261 to read as follows:

Authoirty: 7 U.S.C. 1011(f); 16 U.S.C. 472, 551, 1133(c)- (d)(1), 1246(i).

Subpart A - General Prohibitions

9. Amend 261.2 by adding the following new terms and definitions in alphabetical order to read as follows:

261.2 Definitions

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Distribution of printed material. Disseminating, posting, affixing, or erecting printed material as defined in this section or soliciting information, views, or signatures in conjunction with the distribution of printed material.

Printed material. Any writeen and/or graphic material including but not limited to pamphlets, leaflets, brochures, photographs or graphics, handbills, signs, petitions, posters, bumper stickers, and booklets.

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10. Amend 261.10 by redesignating paragraphs (h) through (m) as paragraphs (i) through (n), revising paragraph (g), and adding a new paragraph (h) to read as follows:

261.10 Occupancy and use.

(g) Distributing any printed material without a special use authorization.

(h) When distributing printed material, delaying halting, or preventing administrative use of an area by the Forest Service or other scheduled or existing uses or activities on National Forest System land; misrepresenting the purposes or affiliations of those selling or distributing the material; or misrepresenting the availability of the material without cost or donation.
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261.14 [Amended]

11. Amend 261.14 by removing paragraph (p) and redesignating paragraph (q) as paragraph (p).

Dated March 25, 1993.
George M. Leonard,
Associate Chief.

[FR DOC. 92-10625 Filed 5-5-93; 8:45am]

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