The proposed rules revising special uses authorization and administration seek to meet the tests identified in recent Federal court decisions involving exercise of First Amendment rights of assembly, speech, and religion on National Forest System lands. The proposed rules also seek to bring clarity to administration of special uses by distinguishing between business and nonbusiness relationships between the Forest Service and users and thus devising procedures appropriate to each type of relationship and use. The rules would set standards for the exercise of discretion by authorized officers. treat group. evenly without regard to purpose, and establish the same minimum standards for group uses as for all other uses. Public comment is invited on this proposed rule and will be considered in adoption of a final rule.
Regulatory Impact
This proposed rule has been reviewed under USDA procedures and Executive Order 12291 on Federal Regulations. It has been determined that this is not a major rule. The rule will 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 , nor adversely affect competition, employment, investment productivity, innovation, or the ability of United States-based enterprises to compete in foreign markets. In short little or no effect on the National economy will result from this rule . The rule is essentially procedural and limited in scope to application for occupancy and use of National Forest System lands. The rule doe. not change fees that may be charged for uses nor substantially increase the burden. on the public in complying with the rules.
Moreover, this rule (policy) has been considered in light of the Regulatory Flexibility Act (5 U.S.C. 601 et. seq.), and it has been determined that this action will not have a significant economic impact on a substantial number of small entities.
Environmental Impact
This proposed rule is limited to a process for applying for, approving, and administering special uses. The proposed rule sets forth administrative procedures and standard business practices that the agency would follow in authorizing and administering use of National Forest System lands. Based on both experience and environmental analysis. the rule in and of itself would have no significant effect on the human environment, individually or cumulatively. Therefore, it is categorically excluded from documentation in an environmental assessment or an environmental impact statement (40 CFR 1508.4; 7 CFR lb). However, it should be emphasized that each proposed use is subject to National Environmental Policy Act compliance and is evaluated for its environmental effects.
LIST OF SUBJECTS IN 36 CFR CHAPTER II
Part 251
Electric power, Mineral resources-, National forests,
Rights-of way, and Water resources.
Part 261
Crime, Law enforcement, and National forests.
Therefore, for the reasons set forth in the preamble, Part 251 of Chapter II of Title 36 of the Code of Federal Regulations is proposed to be amended as follows:
PART 251 -- LAND USES
1. Redesignate Subpart A as a new Subpart F—Miscellaneous
Land Uses, redesignate §§251.9, 251.10, 251.11, 251.14,
251.17-251.19, 251.23, and 251.35 as §§251.135 -251.144
respectively, revise the heading for redesignated §251.137. and
retain the centered headings so that the Table of Contents reads as follows:
Subpart F - Miscellaneous Land Use.
NATURAL RESOURCES CONTROL
Sec.
251.135 Management of municipal watersheds.
251.136 Prohibition of location of mining claims. within certain areas in the Norbeck Wildlife Preserve, South Dakota.
251.137 Locating mining claims within the Norbeck Wildlife Preserve, South Dakota.
251.138 Conditions. rules, and regulations to govern exercise of timber rights reserved in conveyances to the United States.
251.139 Conditions, rules, and regulations to govern exercise of mineral rights reserved in conveyances to the United States.
RIGHTS OF GRANTOR'S
251.140 Grantor's right to occupy and use lands conveyed to the United States.
251.141 Rights-of-way reserved by the grantor on lands conveyed to the United States.
251.142 Exercise of water rights reserved by the grantor of tar,_ conveyed to the United States.
DESIGNATION OF AREAS
251.143 Experimental areas and research natural areas.
251.144 Petersburg watershed.
2. The authority citation for Subpart F reads as follows: Authority: 7 U.S.C. 428a. 1011; 16 U.S.C. 518, 551, 678a.
1131-1136, 1241-1249, 1271, 1287; 54 Stat. 1197.
3. Establish a new Subpart A to read as follows:
Subpart A - General Provisions Governing Authorization of Land Uses
Sec.
251.1 Scope and applicability.
251.2 Definitions.
251.3 Minimum requirements for authorizing and regulating land uses.
251.4 General recreational uses.
251.5 Special recreational events and uses.
251.6 Assemblies, meetings, and similar gatherings.
251.7 Distribution of printed matter.
251.8. Commercial, governmental. private, and other special uses
251;9 Access to private lands. "Reserved]
251.10 - .49 [Reserved].
Authority: 16 U.S.C. 471, 551. 1134, 3210; 30 U.S.C. 185; 43
U.S.C. 1740, 1761-1771.
§251.1 Scope and applicability.
(a) The rules of this part govern Forest Service authorization and administration of occupancy of National Forest System lands and the associated use of improvements, facilities, and resources on chose lands, except for the following:
(1) Disposal of timber and miscellaneous forest products, which is governed by the rules at 36 CFR Part 223;
(2) Crazing of livestock, which is governed by the rules at 36 CFR Part 222; and
(3) Disposal of Minerals and Mineral Materials, which is governed by the rules at 36 CFR Part 228.
(b) Nothing in this part prohibits the temporary occupancy of National Forest System land for the protection of life or property in emergencies, if authorization for such use is obtained at the earliest opportunity.
(c) Unless otherwise required by order or by regulation issued under Part 261 of this chapter, the use of existing forest development road and trails does not require a written use authorization; however, any such use is subject to compliance with all Federal and State laws governing the roads or trails to be used .
(d) Unless otherwise provided by law, those authorized to occupy and use National Forest System lands are subject to applicable Federal. State. and local laws and regulations and co the prohibitions see forth in Part 261 of this chapter.
(e) In the event of question as to which rules of this part apply to a proposed occupancy and use. the authorized officer shall make the determination utilizing the rules of this part and such guidance as may be issued through the Forest Service Manual or Handbooks (36 CFR Part 200).
§251.2 Definitions
For the purposes of this part, the following terms are defined:
Applicant . An individual, entity, group, or representative, sponsor, or designated agent of an organization or event requesting authorization of occupancy and use of National Forest System lands.
Authorization . A grant of authority, conveyed by law or regulation or by an authorized officer acting under the rules of this part, to an individual, group, or organization to occupy National Forest System lands and to use specified resources, facilities, and improvements on those lands. Where authorization must be granted in writing, the rule refers to a "written authorization." Also, a written instrument which, when signed by the applicant and authorized officer, authorizes a use of National Forest System lands and the terms and conditions of the occupancy and use e. Examples are permits, easements. and use agreements.
Authorized existing use . A prior use of National Forest System lands granted by statute, regulation, or an authorized officer, that exists at the time of an application for occupancy and use is made. Examples include timber sales. road construction, access to privately-owned inholdings, certain mining activities under the general mining laws, or other permitted activities.
Authorized officer . The Forest Service official to whom authority has been granted to act on and approve applications for an authorization to occupy and use National Forest System lands and/or co administer such authorizations. Generally, a District Ranger or Forest Supervisor or an Individual designated to act for these officials.
Commercial uses. . Uses of or activities on National Forest System lands which involve advertising, offering, or otherwise attempting co buy, sell. or exchange a commodity. product, or service, without regard to whether these activities are intended for or produce a SIZE=2>profit. Examples include, but are not limited to, ski resorts, outfitter and guide services, recreation events for which participants. or spectators are charged or expected to contribute an entry or participation fee, or energy transmission facilities.
Distribution of printed matter . Disseminating, posting, placing, or erecting printed matter or soliciting information.
views or signatures. in conjunction with printed matter, with or without charge or donation.
Governmental uses . Uses of National Forest System lands by other Federal agencies and State, county, and local units of government or their agencies.
Holder of an authorization . An applicant who accepts the terms and conditions of a written authorization issued by an authorized officer under the rule. of this part.
National Forest System land. . National Forests, National Grasslands, land utilization projects, and other lands, waters, or interests therein which are administered by the Forest Service or are designated for administration through the Forest Service as a part of the Sys ten (16 U.S.C. 1609).
Noncommercial uses . Uses and activities which do not involve offering or otherwise attempting to buy, sell. or exchange a commodity, product. or service. The term "noncommercial uses" is not synonymous with ''nonprofit activities."
Printed matter . Pamphlets. periodicals, leaflets, brochures. photographs or graphics with or without text, handbills, signs. petitions, posters, bumper stickers, booklets, and similar printed or reproduced material with text and/or graphics.
Private uses . A broad. collective term used to categorize and refer to a wide range of proposed and authorized uses of National Forest System lands by an individual, organization, or
group for purposes distinct from other established categories of uses. Examples include, but are not limited to, organization coops , easements, rights-of-way. recreation residences, and agricultural uses. The term "private uses" can refer to uses proposed or undertaken for personal gain or profit or for nonprofitable purposes.
Written authorization . A written instrument which, when signed by the authorized officer, authorizes. use of National Forest System lands, facilities, improvements or resources and specifies the terms and conditions of the use.
§251.3 General requirements for authorizing and regulating land uses.
(a) Requirements applicable to all uses. (1) Except as otherwise provided by law or the rules of this part, all who wish to occupy National Forest System lands or to use the facilities. improvements, and resources thereon must apply to the District Ranger, Area Manager, or Forest Supervisor in charge of the area for an authorization.
FACE="Courier New" SIZE=3>(2) In authorizing a use under the applicable rules of the; part, the authorized officer shall establish such terms and conditions of the occupancy and use as are reasonably necessary. -: ensure that the following criteria are met:
(i) The use is consistent with the laws, regulations, orders. and policies establishing or governing National Forest System
lands and with applicable state and local health and sanitation laws.
(ii) The use i. consistent with the direction and guidelines of the applicable approved land and resource management plan or other approved management plan for the area or can be made consistent.
(iii) The use can be conducted without unreasonable or irreparable harm or damage to the lance or resources of the National Forest System;
(iv) The use will not create a serious and substantial danger to public health or safety;
(v) The use will not create an exclusive or perpetual right of use or occupancy; and
(vi) The use will not unreasonably conflict or interfere with administrative use by the Forest Service. other scheduled or authorized existing uses of the National Forest System, or use of adjacent non-National Forest System land.
(vii) The use does not conflict with orders or regulations issued pursuant to 36 CFR Pare 261, Subpart B or restrictions and conditions. of use posted at forest sites.
(b) Denial of uses . (1) Unless otherwise provided by law or the rules of this part , an authorized officer shall not grant an authorization to occupy and use National Forest System land if
chat officer determines thee one of the following conditions exists:
(i) The proposed occupancy and use does not or cannot be modified to meet the criteria listed in paragraph (a)(2) of this section;
(ii) The applicant has outstanding debts owed the Forest Service under terms and conditions of a prior authorization; for example, amounts due for fees, for damages, or for payment to the Forest Service for providing services that the applicant as holder of a prior authorization had agreed to provide.
(-iii) The applicant has failed to meet the terms and conditions of an authorization issued by the Forest Service within the last 2 years or misrepresented material information about the authorized use and the violations resulted in revocation of the authorization; provided that this criterion shall be applied or. . to authorizations revoked after [Insert the effective date of this rule. ]
(iv) The application was not received in sufficient time prior to the onset of the proposed use to permit compliance with National Environmental Policy Act analysis and documentation requirements;
(v) The activity involves gambling or sexually oriented service., even if permitted under State law.
(vi) The use involves military or paramilitary training or exercises by private organizations or individuals, unless such training is federally funded;
(vii) Except for assemblies and gatherings as defined in
- §251.6 of this subpart, the use can be reasonably accommodated on non-National Forest System land;
(viii) The use is for storage or disposal of solid waste or radioactive or other hazardous materials; and
(ix) The use is for a community-type facility such as a hospital, school, church, cemetery, gymnasium, swimming pool, or other sports facility.
(x) The applicant refuses to sign and accept an offered authorization.
(2) The authorized officer shall give notice of denial in writing and shall cite the reasons for denying in the proposed use.
§251.4 General recreational use..
(a) Most lands of the National Forest System are available for general recreational uses customarily associated with enjoyment of forest areas. Restrictions on recreational uses of National Forest System lands are set forth in Part 261 of this chapter. In addition, restrictions on and conditions of recreational uses may be established in a forest land and resource
management plan (36 CFR Part 219), by order or regulation issued under Subparts B and C of Part 261, by posting of restrictions or conditions of use, or by other printed materials made available to the public.
(b) Application and written authorization are not required for the noncommercial use and occupancy of National Forest System lands or facilities for general forest recreational uses, such as camping, picnicking, hiking, gathering or picking of berries, fishing, hunting, horse riding, biking, boating, or similar recreational activity, unless one or more of the following circumstances exists:
(1) An order requiring authorization of recreational activity in an area has been issued pursuant to 36 CFR Part 261, Subpart A :
(2) A regulation requiring authorization of recreational activity in area has been issued pursuant to 36 CFR Part 261, Subpart C;
(3) The recreational use is for a site or development requiring a reservation and/or permit as posted at the site or described in a forest recreation user guide or map; and
(4) The recreational use is by a group of 25 or more persons whose numbers cannot be accommodated at an available designated recreation site suitable for large group use, or the use is by a group of 25 or more who do not wish to use an available designated recreation site. Recreational users in this category oust contact
the local Forest Service office in advance of the use to determine if sites are available and whether they need to apply for an authorization under the procedure. of Subpart E of this part.
(c) General recreational uses are subject to such fees as may be established accordance with Part 291 of this chapter.
§251.5 Special recreational events and related uses.
(a) Unless prohibited by order or regulation issued pursuant to 36 CFR Part 261, Subparts B and C or other regulation of this chapter, sports events, including competitive and endurance events, pageants, regattas, public spectator attractions, entertainments, reenacements of historic events, ceremonies, social events such as weddings, family reunions, parties, and dances, animal and vehicle races or rallies, dog trials, fishing rodeos, fairs, and similar special recreational events are allowed on National Forest System lands, provided the authorized officer has issued a written authorization. An authorization is required for such events without regard to the number of potential participants and/or spectators.
(b) (l) Sponsors of any commercial special recreational event or use shall make application to the District Ranger, Area Manager, or Forest Supervisor in charge of the area proposed for use in accordance with the rules of Subpart B of this pare.
(2) For noncommercial special recreation events and related uses, the applicant shall apply for an authorization to the officer in charge of the area in accordance with the rules of Subpart E of this part.
(c) As provided in Subpart B of this part, a rental fee shall be charged for any commercial special recreational event or use for which participants or spectators are charged an entry or ocher fee. which involves the contracting with vendors or suppliers for services or products in support of or association with the event, or which involves the sale or exchange of products or services.
§251.6 Assemblies, meetings, and similar gatherings
(a) Assemblies, meetings, gatherings, demonstrations, parades, and other similar activities for the expression of views or the exercise of religious beliefs are allowed on National Forest System lands, subject to the rules of this part. An application and written authorization are not required, unless the activity will involve or is expected to involve more than 25 persons and those numbers cannot be accommodated at an available designated site or the group does not wish to use an available
designated site. Groups who wish to assemble on National Forest System lands for expressive or religious purposes should contact the local forest officer to determine if a designated site is available.
(a) Where a designated site i. not available to accommodate groups of 25 or more persons, sponsoring individuals or groups shall apply for authorization, and forest officers shall act on such applications and administer such authorizations in accordance with the rules of Subpart E of this part.
(c) The authorized officer shall grant authorization of such uses unless the proposed use doe. not or cannot be modified to meet the criteria applicable to all uses covered under this part as set forth in §251.3 or is subject to denial under §251.126 of this part.
§ 251.7 Distribution of printed material.
(a) The distribution of printed matter, with or without charge or donation (§251.2), is allowed within the National Forest System provided that the authorized officer has issued a written. authorization to do so. Persons wishing to sell or distribute printed matter oust apply for an authorization to the District Ranger, Area Manager, or Forest Supervisor for the area.
(1) The sale of commercial merchandise within the National Forest System, including printed merchandise, may be authorized only in association with uses or facilities authorized under the procedures of Subpart 3 of this part or through interpretive associations chartered by the Forest Service.
(2) The distribution of all other printed matter is subject to the application and authorization procedures of Subpart E of
this part.
(b) The authorized officer shall grant authorization of the
male or distribution of printed matter under the procedures of
Subpart E, unless the proposed use does not or cannot be modified
to meet the criteria applicable to all uses covered under this
part as set forth in §251.3(a)(2) or the provisions. of §251.126 of
this part. Except as provided by law, the authorized officer
shall not consider the content of the message in printed matter in
determining if a use is consistent with the requirements of §251.3(a)(2).
© Any authorization issued for the distribution of printed
matter shall contain the following statement:
"It is prohibited for persons engaged in the distribution of
printed matter on National Forest Sys tee lands to obstruct or
impede-pedestrians or vehicles, to harass forest visitors
with physical contact or persistent demands, to misrepresent
the purposes or affiliations of those engaged in the
distribution, or to misrepresent whether the printed matter
is available without cost or donation. Violation of these
prohibitions shall result in immediate revocation of this
authorization and such revocation shall. in accordance with
the rules at 36 CFR 251.3 result in denial of any future
request to occupy and use National Forest System lands for a
period of 2 years."
§251.8 commercial governmental. private, and other special uses. Occupancy ant use of National Forest System lands for commercial, governmental. and private purposes, as defined in §251.2 of this subpart. or for ocher special uses not specifically addressed in the rules of this subpart are allowed if the authorized officer has issued a permit or other written authorization. Application, authorization, and administration of such uses are subject to the rules of Subpart B of this part.
SUBPART B-- COMMERCIAL, GOVERNMENTAL, PRIVATE, AND RELATED USES
4. Revise the heading of Subpart B to read as set forth above.
5. The authority citation for Subpart B continues to read as follows:
Authority: 16 U.S.C. 472, '51, 1134, 3210; 30 U.S.C. 185: U.S.C. 1761-1771.
6. Remove existing §251.50, redesignate §251.53 as §251 and establish and reserve a new §251.53.
7. In redesignated §251.50, revise the introductory phrase and paragraphs (a} and (k) to read as follows: 5251.50 Authorities.
The rule. of this subpart apply to issuance and administration of the following types of authorizations for
commercial, governmental, private, and other special uses:
(a) Permits governing occupancy and use under the Act of June 4, 1897, 30 Stat. 35 (16 U.S.C. 551):
(k) Permits under the Land and Water Conservation Fund Act of September 3, 1964, 78 Stat. 897, as amended (16 U.S.C. 4601-6a©) for special recreation events and other specialized recreation uses that involve the changing of an entry or other fee for participants or spectators. or the contracting with vendors or suppliers for services. of products in support of or associated with the event or use.
8. Amend §251.51 by removing the terms and definitions for "authorized officer," "distributing noncommercial printed material," "group event," "holder," "National Forest System lands," and Special use authorization" and by adding an introductory phrase to read as follows: