Proposed Revisions to Existing Subpart B
The proposed revisions to Subpart 8 are technical conforming amendments. Existing §251.50, which currently defines special uses and specifies who must obtain a permit, would be removed from Subpart 3, because this provision would now be addressed in the proposed new Subpart A. The remaining sections would be redesignated. Existing §251.53 Authorities would become §251.50. The list of authorized uses covered in redesignated §251.50 would be revised to remove the reference to expressive uses in paragraph (a) and to revise paragraph (k) to make clear that special recreational events charging a fee or involving contracts with vendors or suppliers would be covered under Subpart 3.
The definitions in §251.51 would be revised to remove those terms that would now be defined in the new Subpart A.
Section 251.54 would be revised to require an applicant to identify any Forest Service authorization held within the last : years and to attest that the applicant does not have outstanding debts owed the U.S. from any prior authorization and that any authorization held in the last 2 years was not revoked for cause.
This revision is necessary to implement proposed §251.3 of Subpart A which would deny an authorization to anyone who owes the U.S. money from a prior use or who had an authorization revoked for cause in the last 2 years. Paragraph (h) on expressive uses would be removed since these would be addressed under the new Subpart E and paragraph (i) would be redesignated as paragraph (h) and revised to remove references to group events and for consistency with the requirements and conditions of denial applicable to all proposed uses set forth in proposed §251.3.
Proposed Subpart E
Proposed Subpart E would set forth the procedures for application. authorization, and administration of short-term noncommercial events and uses. As noted in the discussion of proposed Subpart A, the rules of this subpart would apply to large groups whether for recreational or expressive purposes, noncommercial special recreational events, and distribution of printed matter.
The rules of this proposed subpart are intended to encourage communication and, where appropriate, negotiation between the applicant and the authorized officer. The rules allow for the
recognition of variances in intensity and scope of uses but apply uniform standards and requirements to all uses subject to the subpart.
It should be noted at the outset that the rules of this proposed subpart would govern individual uses for distribution of printed material a. well as group uses ranging from 25 persons to many thousand., Therefore, the rules must be drafted to reflect
the more complex impacts and contingencies that may arise in - large-scale uses. However, the rule. are crafted in such way that, for individual and smaller group uses of limited intensity and impact, the authorization process should not be burdensome or complex. In such cases, the proponent makes application, the analysis is not likely to be complex or time consuming, and the resulting use agreement should be rather simple and brief. Where larger groups propose to assemble, the analysis of the impacts of such uses is likely co be more comprehensive, the time for that analysis is likely to be longer, and the use agreement would generally contain more terms and conditions to mitigate the impacts of large-scale use.
Proposed §251.120 sets forth the scope and applicability of the rules and the National Forest System uses to which they apply . For clarity and ease of use. paragraph (a) repeats all the uses subject to the subpart and cites the relevant section of proposed Subpart A which authorizes these uses.
Paragraph (b) of proposed §251.120 states that the rules reflect the inherent differences between the Forest Service role as hosts to those person making short-term, noncommercial uses of National Forest System lands and the longer term. business-like relationship Chat generally exists between the Forest Service and those seeking or holding authorization. under Subpart B. Finally, this paragraph states that the rules establish uniform standards to guide Forest Service personnel in acting on short-term use applications.
Proposed §251.121 defines terms used in the subpart. Reviewers should note that the terms "sponsor," "agent," or "representative" seek to cover the various organizational situations ant structures that occur among groups wishing to use National Forest System lands. Some groups using National Forest Sys ten lands hesitate, on philosophical grounds, to appoint agents or representatives to speak or act for them. However, it is patently unreasonable and impracticable in a group gathering situation to expect the forest officer to deal separately with each of 25, 100, or several thousand individuals. To work out agreed-upon rules of conduct, the authorized officer must have more than a few persons with whom to communicate and coordinate group and be able to act on behalf of the group with the Forest Service.
This section also would define a new authorizing instrument called a "use agreement." The term was chosen to emphasize the reaching of consensus between the Forest Service and the applicant and that both parties agree to the terms and conditions. The agency sought a new term to emphasize the host-visitor relationship that characterizes use, under this subpart. In proposing the term "use agreement,- the Forest Service seeks to place less emphasis on granting permission for short-term uses and to place greater emphasis on reaching mutual agreement with applicants on how the use can be conducted to meet the applicants needs as well as to protect the forest environment and public health and safety.
Proposed §251.122 would require users subject to Subpart apply for an authorization sufficiently in advance to permit the authorized-officer adequate time to complete review and analysis of the proposed use. The rule would not establish a hard and as: time period for advance application because the agency does not want to preclude a use that is otherwise acceptable solely on the basis that an application is late. Moreover, proposed uses have varying resource impacts requiring different intensities of review and analysis . In the agency's view, a specific timeframe for advance application could serve as an impediment to public use .: National Forest System Lands. For example, if a group of 50 persons applied 15 days in advance to conduct an hour-long
religious service at a scenic location not used by many other
forest users, and the occupancy required only the handling of
parking and access to the site, an authorized officer should
be able, because of the group's size and the limited scope and intensity of use, to identify any terms and conditions of use and reach agreement with the group in the time remaining. If, on the other hand, the same group applied 2 weeks in advance for an authorization to conduct a week-long encampment for religious purposes and expected several hundred persons to attend, there
not be sufficient time based on the site requested and other relevant factors, to evaluate the use of the site and reach an agreement on terms and conditions of use.
As an aid to potential users, the rule would advise that those wishing to use a forest area for traditional recreational uses for small groups should apply advance and for activities involving intensive site impacts or coordination needs, such as those involving several hundred persons or heavy use of vehicles, applicants should generally apply at least 60 days in advance. Sixty days is generally the minimum necessary; to review and consider uses involving large groups or highly intensive uses because of the need to coordinate with state and local Jurisdictions and to complete necessary environmental analysis and documentation.
Proposed §251.126 sets forth the bases for denying a short-term, noncommercial occupancy and use. Paragraph (a) would impose on authorized officers the obligation to make all reasonable efforts to come to agreement with applicants on the terms and conditions of use. However, under this paragraph, an authorized officer shall deny occupancy and use where reasonable efforts to reach agreement fail and the refusal would, in the judgment of the authorized officer, result in conditions requiring denial as set forth in proposed §251.3(b). In other words, failure to agree to such terms and conditions would mean that the use could not comply with the minimum requirements applicable to all uses set forth in proposed §251.3(a)(2).
Paragraph (b) of proposed §251.126 would require the ~ authorized officer to give written notice of denial which includes the reasons for denial. This paragraph also provides that if "he denial decision is documented in a Decision Memo. Decision Notice or Record of Decision as defined in 36 CFR Part 217. the decision would be subject to administrative appeal. If a denial decision were appealable but time did not permit resolution of the appeal before the proposed use would occur and if the applicant sough e court relief, this paragraph provides that the Department of Agriculture would waive as defense the argument that the appellant not exhausted available administrative remedies. This waiver provision is necessary because of the short time often involved
In conclusion, the intent of not specifying a fixed application deadline is not to grant unreasonable discretion to the authorized officer but to allow the Forest Service to be responsive to applications based on realistic, practical considerations rather than on a rigid timeframe. The agency considered, but rejected, trying to establish application timeframes based on numbers of participants, because it is the type and location of use—not numbers alone—that determine the impact of a use. As many field officers pointed out in the drafting of this proposed rule, some small group uses can have as ouch, or greater, impact on forest resources as larger ones.
Paragraph (b) of proposed §251.122 sets forth the minimum information an applicant must provide the Forest Service. This includes a description of the event, estimated numbers involved, dates and tines, identification of the site, and names, addresses and telephone numbers of persons making the application. In addition. the applicant must identify any prior authorization issued by the Forest Service to the individual(s) or organization applying and state that the applicant does not owe any outstanding debts to the U.S. resulting from the prior authorization and that the applicant has not had an authorization revoked for serious or willful breach of the terms or conditions of use within the past 2 years. This information is necessary in order for the authorized officer to ensure that an authorization is not issued to
local approvals or coordination that may be necessary, identify the type or range of terms and conditions that the use agreement will probably need to address, estimate the amount of time compliance with the National Environmental Policy Act will require, and identify any additional information the authorized officer needs from the applicant at that time. The objective of requiring this information a. part of the acknowledgment process is to foster early dialogue and cooperation between the Forest Service and the applicant so that the applicant is alerted to and can prepare for various term. and conditions and/or provide the additional information. This early dialogue is fundamental to being a good host to forest users. It should be noted that, at the time of acknowledgment. the authorized officer will not have completed the full analysis of the proposed use, and, therefore, may not be able to discuss or identify all the relevant elements of the proposed use at that time. It is for this reason that the rule provides that the authorized officer is to provide this information at the acknowledgment stage to the extent that information is available or relevant.
Paragraph (c) would require the authorized officer to encourage the applicant to work closely with the Forest Service in obtaining an authorization . This is standard practice among most authorized officers and is included in the rule to signal the
agency's commitment to working cooperatively with those who wish to visit and use the National Forest System.
Proposed §251.124 sets forth the process for determining whether any terms and conditions should be applied to uses under Subpart E and specifies certain fixed terms and conditions that would apply to all uses. First, under paragraph (a), the authorized officer must evaluate whether the proposed use can meet the minimum requirements applicable to all uses set forth in proposed §251.3.
In making that evaluation, the authorized officer would be required to consider the effect of the proposed, use on forest resources and public health and safety and identify actions, terms, and conditions necessary to prevent or mitigate adverse impacts created by the use. The rule would require that in making the evaluation of effects, the authorized officer comply with the National Environmental Policy Act and implementing regulations and procedures.
If a proposed use appears to have an impact on state and local government responsibilities for law enforcement, traffic management, or protection of public health and safety, paragraph (a)(2) would require the authorized officer to seek to coordinate review of the application with these agencies and officials. Such coordination is routine, is required where environmental impacts are documented in an environmental assessment or environmental
impact statement, and. with regard to law enforcement, is often required by terms of cooperative agreements between the Forest Service and state and county law enforcement agencies.
Paragraph (b) would limit short-term, noncommercial uses to 14 calendar days—the same period of use allowed for individual recreational uses. However, the authorized officer may grant additional time prior to and after an activity for preparation and/or cleanup of a site.
Paragraph (c) would require that any holder of a use agreement shall be responsible for and pay any costs associated with cleanup and restoration of a site as specified in the use agreement. These obligations would remain in force even if an agreement is revoked during the use or event. This is a standard l requirement now applicable to special uses. -
Consistent with current special uses administration, paragraph (c)(1) would allow the authorized officer to require a use agreement. Such bonds are typically required only where the scale and intensity of a use would require extensive site cleanup and restoration needs and the authorized officer discerns that the applicant might not have sufficient personnel or organizational control to meet the cleanup and restoration requirements. Because of the difficulty that organizations often face in obtaining bonds or other security, the Forest Service requires them sparingly.
Forest Service policy at FSM 2713.34 provide, that the right to revoke a permit for cause provides adequate authority to enforce the terms and conditions of a special use permit and prohibits use of a bond to supplement chat authority or to enforce general conditions of a permit.
Paragraphs (d) through (f) regarding liability insurance indemnifying the U.S., and payment of service fees, are also standard provisions now regard to special uses. However, the liability insurance requirement is proposed to be limited to only those events of m high risk of physical injury to participants or spectators. Existing direction at FSM 2713.32a, defines high risk situations that require insurance to include such activities as: where permitted use involves use of boats. aircraft, or pack and saddle livestock; where the activity is physically strenuous. conducted at high speeds, or occurs on or near fast-moving water or steep and precipitous terrain, or involves the use of firearms, weapons, or explosives.FACE="Courier New" SIZE=3>
The proposed rule would continue the requirement that
the holder of a use agreement shall pay the U.S. for all injury, loss, or damage arising from the authorized use and shall indemnify the U.S. from all injury it may suffer resulting from claims, demands losses or judgments caused by the holder's use. Finally, if the
government provides a holder special water or caretaker services at government-owned facilities or structures,
the rule provides that the holder be required to reimburse the government for its costs in providing such services. Each of these provisions are prudent practices necessary co protect the government from high costs or claims resulting from a holder's use. They are likely to be required for only a small minority of uses, but these practices just be provided, where appropriate, to protect the government.
Proposed §251.125 sets forth the authorization process for short-tern, noncommercial uses. Under paragraph (a), the authorized officer would prepare and transmit to the applicant a proposed use agreement. including any terns and conditions of use, and specify the deadline for response. The authorized officer would also be required to offer to meet and discuss in person or by telephone the terms and conditions. This paragraph indicates that, where applicable, the authorized officer is to use standard Forest Service clauses in the use agreement as Day be set forth in Forest Service Handbook 2709.11.
Paragraph (b) sets forth the minimum information to be included in a use agreement. In addition to the name, address. and telephone number of the sponsor, agent, or representative. the use agreement must identify the site authorized to be used, include a map showing the site, describe the purpose and nature of the activity , specify the duration and clues of the use and see forth any specific terms and conditions of the use. The rule
requires use of any mandatory Service-wide clauses developed to implement the rule and then lists examples of the types of matters that might be addressed depending on the type and nature of the use. The use agreement would specify the responsibilities of the Forest Service and the holder of the use agreement in meeting these terms and conditions. The list in not all inclusive and is not mandatory because of the variety of uses subject to authorization under this subpart. A group of 30 persons gathering may not have any law enforcement or traffic management impacts, for example. while a group of several thousand obviously would.
The matters to be covered by the use agreement arise from the authorized officer's evaluation of the impacts of the proposed use and identification of those actions needed to ensure that the use conforms to the minimum requirements applicable to all uses. Paragraph ( c) would require that a use agreement be in writing. The rule allows the use of a standard Forest Service form or format or an applicant could propose an alternative form The authorized officer shall accept an alternate format as long as it is sufficient to document the responsibilities, terms, and conditions. of use. However, to avoid any confusion on the pare groups as to content, the rule specifies that use of an alternative format does not include the option to revise mandatory standard clauses issued by the Chief in Forest Service Handbook
(FSH) 2709.11. Such clauses are carefully drafted to ensure legal sufficiency and are issued by the Chief to ensure uniform treatment throughout the Forest Service.
Upon acceptance and signature by the applicant within the time period specified, the authorized officer shall sign and date the agreement, unless new information has come to light requiring further study or denial. This proviso would assure that the offer of a proposed use agreement is a bona fide offer to approve the use as documented in the proposed use agreement and binds the authorized officer to the proffered use agreement, unless the applicant negotiates a revision or new information comes to light that would change the facts on which the use agreement was developed.
Paragraph (d) of this section addresses modification of authorizations. Holders may request modification prior to a use The authorized officer may initiate a modification only where new information indicates a serious and substantial risk requiring additional measures to protect forest resources, to meet health standards, or to provide for safety of participants, spectators. or ocher forest users. The paragraph specifies the notice to be given and the modification process to be followed. Applicant, and holders would have the opportunity to disagree to any modification and to propose alternative measures to meet the identified need ,concern. However. if the applicant fails to reach timely
agreement, the authorized officer shall deny or revoke the agreement.
The likelihood that the Forest Service would have to initiate a modification of a use agreement is small; however. it is important that the rules provide a process and specify rights of each party in the event a modification is necessary. The basis for Forest Service initiation of modification is very narrow. A modification can only be based on new information that has arisen since development of a proposed use agreement or execution of a use agreement, and the new information must indicate a substantial and serious risk requiring additional protective measures. Examples of situations where new information might cone to light that indicates a serious and substantial risk to forest resources or forest users include the movement of an endangered wildlife species into the site, flooding or earth movement that would make the site or a portion of the site unsafe for use or that would result in serious compaction of soil or damage to vegetation if the use proceeded, or detection of bacteria or other harmful substances in the water supply. If such natural occurrences could threaten human safety or risk irreparable harm to forest resources, the authorized officer must have a mechanism to modify a use e agreement.
In contrast to modifications initiated by the Forest Service. the holder or applicant could propose modifications on any matter
prior to an activity or use without regard to its seriousness. They rule at paragraph (d)(2) would require the authorized officer to evaluate the change based on impact on and protection of forest resources, public health and safety, and other uses and to notify the applicant or holder in writing of the decision. Modifications would have to be accepted and signed by both parties and, if a use occurred before the officer could make a timely response, the use agreement as originally accepted and signed would remain in force.
The Forest Service assumes that all who are authorized to use National Forest System lands will prove to be responsible users and that there will be no need to revoke authorizations. Moreover, the agency recognizes the necessity to handle noncompliance with sensitivity to ensure that users' rights are not abridged. However, it is essential that the rules address the worst-case scenario by providing a uniform standard to guide Forest Service employees in the revocation process. Therefore. under paragraph (e) of proposed §251.125, an authorized officer may revoke a use agreement at any time for serious and/or willful breach of the terms and conditions of a use agreement or for breach of terms that the holder fails to rectify within a time period specified by the authorized officer. Reviewers should note that breach of terms and conditions which is rectified does not result in revocation. Other reasons for revocation are misrepresentation of an activity—for
example, if a proposed recreation use turned out to be an organized gambling activity or if a use purported to be noncommercial , in fact, was a commercial use—or failure of a group to accept a modification of a use agreement necessary to protect forest resources or the public from serious and substantial harm ,
Paragraph (e)(1) would require notice of revocation in writing, except that, if the use is in progress, the agreement could be revoked in person and written notice given within 72 hours of the order to discontinue the occupancy and use. Paragraph (e)(2) would allow an authorized officer to suspend a use agreement during the course of the event, if suspension were practicable under the circumstances, to allow the holder to come into compliance. Suspension could be ordered orally, but must be followed in writing within 48 hours. A notice of suspension must specify the timeframe for compliance and give notice that if compliance with the terms and condition. of the use agreement is not achieved, the agreement is automatically revoked.
As with revocation, the Forest Service objective in utilizing the suspension provision would be to achieve compliance with the terms and conditions of a use agreement, not to penalize a group. Suspension and revocation are serious actions which the Forest Service wants to avoid but the agency would not hesitate co use these provisions if necessary to safeguard persons and resources.
Proposed §251.126 sets forth the basis for denying a short-term, noncommercial occupancy and use. Paragraph (a) would impose on authorized officers the obligation to make all reasonable efforts to come to agreement with applicants on the terms and conditions of use. However, under this paragraph, an authorized officer shall deny occupancy and use where reasonable efforts to reach agreement fail and the refusal would, in the judgment of the authorized officer, result in conditions requiring denial as set forth in proposed §251.3(b). In other words, failure to agree to such terms and conditions would mean that the use could not comply with the minimum requirements applicable to all uses set forth in proposed §251.3(a)(2).
Paragraph (b) of proposed §251.126 would require the authorized officer to give written notice of denial which includes the reasons for denial. This paragraph also provides that if the denial decision is documented in a Decision Memo. Decision Notice, or Record of Decision as defined in 36 CFR Part 217, the decision would be subject to administrative appeal. If a denial decision were appealable but time did not permit resolution of the appeal before the proposed use would occur and if the applicant sought court relief, this paragraph provides that the Department of Agriculture would waive as defense the argument that the appellant not exhausted available administrative remedies. This waiver provision is necessary because of the short time often involved before group use would occur and because the administrative appeal rules at 36 CFR Part 217 state that, in any litigation of a matter that could be appealed, the Department will argue to dismiss because the appellant has not exhausted available administrative remedies.
Proposed §251.127 would set forth the information collection clearance number assigned to the rule. The information an applicant must provide the Forest Service to obtain authorization of a short-term. noncommercial use is an information requirement as defined by Office of Management and Budget (OMB) rules at 5 CFR Part 1320 and thus requires OM9 review and approval prior to adoption of the final rule. The Forest Service has requested OMB review and approval of the information required for an application for authorization of occupancy and use. The agency estimates that each applicant will spend an average of 1 to 4 hours preparing and submitting an application for Forest Service review and approval depending on the scope and complexity of the proposed use.
Reviewers who wish to comment on this information requirement should submit their views to the Chief of the Forest Service at the address listed earlier in this document as well as to the: Forest Service Desk Officer Office of Information and Regulatory Affairs Office of Management and Budget Washington, D.C. 20503.
Reviewers are also alerted to the fact that during the comment period, the Forest Service will be developing a standard application form or format for use in applying for an authorization, notice of which will be given in the Federal Register at the time the form is sent to OMB for review. The Forest Service will also be developing a standardized use agreement form or format during this period and will publish that form upon adoption of a final rule. The use agreement is not subject to OMB review because it requires only signature and dating by the applicant.
Corollary Revisions to 36 CFR Part 261
Finally, the proposed revision of the current special uses rules would require corollary revision of the prohibitions set forth
in 36 CFR Part 261. Section §261.10 would need to be revised to replace the words "special use authorization" with the words "a written authorization" and to bring the prohibition related to distribution of printed matter into conformance with the definitions of that activity in proposed §251.2 and with the limitations on that use in the proposed §251.7. Those who violate the prohibited acts in Part 261 are subject to citation by Forest Service law enforcement officials and, if convicted, are subject to fine and/or imprisonment.