part iv - us forest service · federal register 65949 monday november 30, 1998 part iv department...

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65949

MondayNovember 30, 1998

Part IV

Department ofAgricultureForest Service

36 CFR Part 251Special Uses; Final Rule

65950 Federal Register / Vol. 63, No. 229 / Monday, November 30, 1998 / Rules and Regulations

DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 251

RIN 0596–AB35

Special Uses

AGENCY: Forest Service, USDA.ACTION: Final rule.

SUMMARY: The Department is adoptingamendments to regulations governingthe use and occupancy of NationalForest System lands to streamline andmake more efficient the process forobtaining special use authorizations, toprovide for the use of one-timepayments for easements as presentlyused in the market place, to limit certainliability requirements to amountsdetermined by a risk assessment, toclarify definitions of certain terms, andto clarify requirements related torenewal of existing special useauthorizations. The intent is to improveservice and reduce costs to proponentsand applicants for and holders ofNational Forest System special useauthorizations, to expeditedecisionmaking, and to permit more‘‘user-friendly’’ administration of suchauthorizations by removing certainrequirements deemed unnecessary andoutdated.EFFECTIVE DATE: This rule is effectiveDecember 30, 1998.FOR FURTHER INFORMATION CONTACT:Randall Karstaedt, Lands Staff, (202)205–1256, or Ken Karkula, Recreation,Heritage, and Wilderness ResourcesManagement Staff, (202) 205–1426,Forest Service, USDA.SUPPLEMENTARY INFORMATION:

Background

Approximately 72,000 special useauthorizations are in effect on NationalForest System lands. These uses cover avariety of activities, ranging fromindividual private uses to large-scalecommercial facilities, and publicservices. Examples of authorized landuses include road rights-of-way servingprivate residences, apiaries, domesticwater supply conveyance systems,telephone and electric service rights-of-way, oil and gas pipeline rights-of-way,hydroelectric power generatingfacilities, ski areas, resorts, marinas,municipal sewage treatment plants, andpublic parks and playgrounds. Theagency receives about 6,000applications for special useauthorizations each year. Theseapplications are subjected to a rigorous,time-consuming, and costly review and

decisionmaking process in determiningwhether to approve or reject them.

There are 14 statutes authorizingspecial uses on National Forest Systemlands. These authorities, which arelisted at 36 CFR 251.53, include statutesof broad application, such as theMineral Leasing Act of 1920, the FederalLand Policy and Management Act of1976, and the Bankhead-Jones FarmTenant Act of 1937, as well as statutesfocusing on a specific use of Federallands, such as the National Forest SkiArea Permit Act. The basic authority ofthe Secretary of Agriculture to regulatethe occupancy and use of NationalForest System lands is the Act of June4, 1897 (16 U.S.C. 551).

Additionally, the Independent OfficesAppropriations Act of 1952, asamended, (31 U.S.C 9701) and theOffice of Management and Budget(OMB) Circular A–25 require holders ofauthorizations to pay for the use of theFederal land. The Federal Land Policyand Management Act of 1976 requiresholders of rights-of-way authorizationsto pay annually, in advance, the fairmarket value of the use of the Federalland and its resources. The 1976 Actalso provides that fees may be waived,in whole or in part, under specifiedconditions when equitable and in thepublic interest.

Requirements of the NationalEnvironmental Policy Act, theWilderness Act of 1964, the EndangeredSpecies Act, the ArchaeologicalResources Protection Act of 1979,additional requirements of the FederalLand Policy and Management Act of1976, and Executive Order Nos. 11990(Floodplains) and 11998 (Wetlands) alsobear directly on the issuance of specialuse authorizations. These directives andstatutory authorities require extensiveanalysis and documentation of theimpacts of use and occupancy on a widearray of environmental, cultural, andhistorical resources. The practical effectof these requirements has been togreatly lengthen the time required andthe costs involved in processingapplications for special useauthorizations or reissuingauthorizations for existing uses. Thetime and cost impacts weigh on both theForest Service and applicants andholders of authorizations. Thesignificance of these impacts has been aprincipal factor in the development ofthese amendments to the special useregulations.

On August 14, 1992, the ForestService published a proposed rule (57FR 36618) and sought public commentto amend regulations governing the useand occupancy of National ForestSystem lands at 36 CFR Part 251,

subpart B. Such use and occupancy isauthorized by ‘‘special useauthorizations,’’ which include permits,term permits, easements, licenses, andleases. The proposed revisions hadseveral purposes: to (1) streamline theapplication process for special useauthorizations, (2) enhance efficiency ofreview of special use proposals, (3)authorize one-time payments of rentalfees for certain types of special useauthorizations, (4) limit certain liabilityrequirements, (5) clarify certaindefinitions, and (6) clarify direction onrenewal of special use authorizations.

A total of 25 responses were receivedon the proposed rule. Identity of therespondents is as follows:

Respondent category Num-ber

Per-cent

Individuals ......................... 3 12Electric Utilities .................. 6 24Oil & Gas Companies ....... 4 16Telephone Company ......... 1 4Permit Holder Associations 8 32Government Agencies ...... 3 12

Total ........................... 25 100

Readers are advised that a majorrevision to this subpart was madesubsequent to the August 14, 1992,proposed rule. On August 30, 1995, theagency adopted a final rule revisingthose portions of subpart B governingnoncommercial group uses andnoncommercial distribution of printedmaterial within the National ForestSystem (60 FR 45293). The 1995revisions, referred to in this rulemakingas the ‘‘noncommercial group useregulations,’’ ensure that theauthorization procedures for theseactivities comply with First Amendmentrequirements of freedom of speech,assembly, and religion. They did notdirectly impact the concurrent effort tostreamline and make more efficient theprocess for obtaining special useauthorizations. However, the 1995revisions added new provisions andrevised existing text which requiredredesignation of several sections andparagraphs throughout the subpart. Inthe narrative which follows, the terms‘‘current rules’’ or ‘‘current regulations’’refer to the regulations at 36 CFR part251, subpart B, as published in thecurrent volume of Title 36 of the Codeof Federal Regulations, revised as of July1, 1997.

General CommentsRespondents to the 1992 streamlining

proposed rule generally supported theForest Service’s effort to streamline thepermit application process and to makethe administration of special use

65951Federal Register / Vol. 63, No. 229 / Monday, November 30, 1998 / Rules and Regulations

authorizations more user friendly,although most asked that the final ruleclarify that the revisions apply to newpermits only. These respondents feltthat the proposed regulations wouldreduce unnecessary paperwork burdenson applicants and, thereby, reduce costsfor both the applicant and the agency.Indicating that the proposed revisionswould improve the agency’sperformance, a number of respondentscited examples of the poor quality ofservice, the lack of experienced fieldpersonnel, and the length of time takenby the agency’s field offices inresponding to and processing specialuse permit applications. Further, theserespondents urged the agency to quicklyadopt final regulations that implementstatutory authorities that have beenavailable to the agency for several years,particularly amendments made to theFederal Land Policy and ManagementAct of 1976 by the Act of October 27,1986.

Several respondents suggested thatthe agency institute a land and resourceplanning procedure or incorporate intoits Forest planning activity a processthat would pre-authorize certain typesof land uses and thus avoid or minimizetime consuming and costly analysis ofindividual applications forauthorizations. These respondentssuggested the process could be builtaround standards and guidelines in anational forest’s land and resourcemanagement plan (forest plan). Onerespondent suggested the U.S. ArmyCorps of Engineers Nationwide PermitProgram could serve as a model for thisprocess. The types of special uses thatwould be subject to this pre-authorization process are described bythe respondents as routine activitiesserving the public, such as electric andtelephone rights-of-way.

Three respondents expressed concernthat the agency’s efforts to improve itsadministration of special useauthorizations and make thoseregulations more user friendly will notbe successful unless and until fundingfor this activity is dramaticallyimproved. These respondents pointedout that the lack of adequate funding atthe field office level is the biggest singlefactor responsible for poor service anddelays in processing applicationsexperienced by permit applicants.

The Department of the Interior (DOI)urged that Forest Service regulations forpermitting and administering uses onNational Forest System lands be morecompatible with those of the land-managing agencies in the Department ofthe Interior, particularly the Bureau ofLand Management (BLM). Because boththe Forest Service and the BLM derive

much of their authority foradministering land uses from theFederal Land Policy and ManagementAct of 1976, the DOI believes anyregulations of the two agencies shouldbe very similar. Further, the DOI urgeda coordinated effort to review and reviseregulations promulgated under the 1976Act.

The DOI also expressed concern thatthe proposed delay in consideration ofthe environmental effects of theproposed use could result inenvironmentally unsound projectspassing screens only to be rejected inlater stages of development aftersubstantial time and investment havebeen made by the agency and theproponent. In the same context, the DOIsuggested that notification of adjacentland-managing agencies should be madeearlier in the application review processso that the concerns of the affectedagencies could be made known sooner.

The U.S. Small BusinessAdministration advised the ForestService that the proposed rule was notin compliance with the RegulatoryFlexibility Act (5 U.S.C. 601–612). ThatAct requires Federal Governmentagencies promulgating rules to describethe impact of the rulemaking on smallentities through preparation of aregulatory flexibility analysis. Despitethe agency’s acknowledgment that theproposed rule would have a beneficialimpact on a substantial number of smallentities, the U.S. Small BusinessAdministration stated that theaforementioned analysis mustnevertheless be prepared.

Response to the General Comments.The Forest Service and the Departmentare pleased that most respondentsgenerally viewed the proposed rule as apositive step toward improving theadministration of special useauthorizations. The agency is aware thatits performance in responding toapplications and administering existingauthorizations often is inadequate andits service to permit applicants andholders—its ‘‘customers’’—needs to besignificantly improved. The Departmentis also mindful of the President’sdirection to improve service to thepublic. Executive Order No. 12866,dated September 30, 1993, directedagencies to reform and make moreefficient their regulatory processes. TheForest Service initiated this effort withthe goal of streamlining and makingmore user friendly its special useregulations and will, through theadoption of a final rule, ensure that thisgoal is met in part. Since beginning thisparticular rulemaking, the ForestService has undertaken a major projectto re-engineer special uses

administration. A team of agencyemployees is currently at work toimplement the re-engineeringrecommendations, which are focused onagency procedures. Implementation ofthese recommendations may lead tofurther changes in rules and willcertainly result in additional revisionsin agency directives governing specialuses administration. Any revisions torules or directives will be fullycoordinated with the revisions made bythese final rules.

The agency agrees with the suggestionthat broad guidance for consideringapplications for special useauthorizations be made a part of its landand resource planning processes. Thisguidance would allow decisions to bemade on routine permit activitieswithout further analysis. Such aprocedure would require that therequisite environmental documentationbe made in the Forest plan and that thedocumentation be specific enough tocover the proposed use.

However, the agency believes thatsuch a procedure can be implementedwithout additional regulatory guidance.The forest planning process described inthe agency’s administrative manual(Forest Service Manual, Chapter 1920)prescribes the format and content ofeach Forest plan. The initial plans werecompleted in the early to mid 1980’sand currently remain in effect. Almostwithout exception, these plans lack anydetail regarding authorizations for useand occupancy of National ForestSystem lands. The life of these plans isgenerally 10–15 years and most of theplans for the 123 National Forestplanning units of the agency are now orsoon will be undergoing revision. TheForest Service recognizes the need toaddress land use and occupancygenerally in the forest plans. The forestplan revision process offers theopportunity for units to consider theneed for more specific guidance on landuses. The Department further notes thatpublic participation is a fundamentalingredient in the preparation andrevision of Forest plans. Thus, this willallow holders of or applicants forauthorizations to participate directly inthe development of the plan and,thereby, identify specific opportunitiesfor addressing land use authorizations atthe Forest level.

The Department fully agrees withrespondents’ concerns that sufficientfunding for administration of specialuse authorizations must be consideredalong with revisions to the regulations.The Forest Service is addressing thismatter in a variety of ways. However,the Department must emphasize that thebudgeting and appropriation process


takes a much larger view of themanagement of National Forest Systemlands, balancing the funding of a widevariety of Forest Service programs andactivities in the context of constraintsimposed on the Department ofAgriculture and the Federal Governmentas a whole. Thus, while the Departmentagrees that improving funding for thisactivity is desirable, it cannotunilaterally support respondents’ urgingof greater funding for the administrationof special use authorizations. Instead,the Forest Service will seek recognitionin its budget requests of the importanceof efficient and cost-effectiveadministration of land useauthorizations and service to itscustomers.

The Forest Service concurs with theDOI suggestion that regulationsgoverning administration of land useson Federal lands should be moreconsistent. The Forest Service and theBLM are taking actions to bring theirregulations into closer agreement, albeitin the context of individual uses. Thetwo agencies have agreed that morecomprehensive action is needed and areundertaking joint examination andcoordination of regulations. While thisaction was prompted in part by thepublication of the proposed special useregulations, additional motivation hasbeen provided by the NationalPerformance Review effort andExecutive Order No. 12866. To theextent that statutory authorities permit,the two agencies have embarked on acourse to adopt common regulatoryapproaches to land use and occupancy.

The Department acknowledges theDOI concern that the effort to streamlinethe permit application process mayallow environmentally unsound projectsto be initially considered, only to berejected later after substantialinvestment of time and money byproponents and the agency. The ForestService has examined the ‘‘screening’’process set forth in the proposedregulations (§ 251.54(a)) and madeappropriate revisions to respond to theDOI concern.

With regard to the DOI’s suggestionthat Federal agencies managing landsadjacent to the National Forest Systemland being considered for a land useauthorization be notified sooner in theapplication process so that thoseagencies’ views can be made known, theDepartment suggests that suchnotification may counteract the intent tostreamline the application process byinserting a step that is unnecessary.Analysis of an application generallyrequires, as part of environmentaldocumentation, a ‘‘scoping’’ of theproposal to learn of the concerns of

other agencies and the public. Thisprocess of advising the public andaffected parties of a proposal providestimely notice to adjacent landowners,whether public or private, and allowsthose landowners to bring forth anyconcerns.

The Department’s response to the U.S.Small Business Administration’s advicethat a regulatory flexibility analysis beprepared is found at the conclusion ofthis supplementary informationstatement.

Specific Comments on Proposed Ruleand Response

The following analysis of andresponse to comments on the proposedrule is organized by the section of thecurrent special use regulations.

Section 251.51 Definitions. Theproposed rule combined definitionsfound in other sections of the currentregulations into this section and addedfour new definitions intended toimprove the implementation of theregulations.

Comment. Three respondents wereconcerned that the proposed definitionfor ‘‘termination’’ would be confusing,because the new definition is a reversalof past usage and incorporates theexpiration of a permit and ending of apermitted use. They noted thattermination of a permit occurred by thedirect action of the authorized officerand not by the expiration of a statedperiod of time.

Response. New definitions forrevocation and termination areproposed because over the years the twoterms have come to be usedinterchangeably, even though they havedistinctly different usages. This lack ofprecision has caused confusion amongholders of permits and agencypersonnel. The purpose in adding thesetwo definitions to the regulations is todifferentiate between cessation of aspecial use permit by action of anauthorized officer (revocation) andcessation of a special use permit underits own terms without any action by anauthorized officer (termination). Termsof a permit which would result intermination could include: (1)Expiration of the term authorized, and(2) transfer of the improvement toanother party. Nothing further isintended. Adoption of these definitionswill in no way bear upon reissuance ofa permit. There will be no change inpolicy for reissuing a permit thatterminates as a result of the applicationof these definitions. Consequently, thedefinition of ‘‘termination’’ will remainas defined in the proposed rule, but ithas been clarified by listing examples of

permit terms and conditions that wouldcause a permit to terminate.

Comment. Three respondentscommented that the revised definitionfor ‘‘revocation’’ must be revised to limituse of the ‘‘reasons in the publicinterest’’ standard to special use permitsonly, not to easements, for consistencywith existing laws and regulations.

Response. Provisions for termination,revocation, and suspension of aneasement are contained in § 251.60 (g)and (h). Therefore, the Department hasnot included easements under therevocation and suspension provisions in§ 251.60(a)(2)(i). Moreover, theDepartment disagrees with therespondents concerning leases. Leasesmay be revoked for reasons that are inthe public interest, and leases arecompensable according to their terms asdefined in § 251.51. Therefore, leasesare not exempted from revocation andsuspension criteria in § 251.60(a)(2)(i).To avoid redundancy in the regulations,the definition does not repeat criteria forrevoking an authorization that are listedin § 251.60(a)(2)(i), but the provision hasbeen amended to require that revocationin the public interest must be forreasons that are ‘‘specific andcompelling.’’

Comment. One respondent suggestedthat the definition of ‘‘sound businessmanagement principle’’ be expanded toinclude ‘‘an accepted industry practiceor method * * *,’’ as this would clarifythat one individual’s or company’spractice or method is not necessarilymore correct than others.

Response. The Department agreeswith this suggestion and has made thischange in the final rule.

Other Changes. In preparing this finalrule, the Department discovered that theproposed definition of the word ‘‘lease’’was not consistent with the use of thatword in the private rental market, andas proposed could have led to confusionwhen applied in the field. Specifically,a lease conveys a conditional andlimited interest in land that may berevocable and compensable according toits terms. Accordingly, the final rulereflects this clarification in thedefinition of the word ‘‘lease.’’

In analyzing the comments on and theadequacy of the definitions included in§ 251.51, the Department consideredwhether or not to include a definitionfor the word ‘‘license.’’ This term isoften used in connection with the word‘‘permit’’ and may be confused with thewords ‘‘easement’’ and ‘‘lease.’’ Aseparate definition could imply the twoterms have separate meaning and, thus,that separate rights in the land may beconveyed, when, in fact, both permitsand licenses convey only a privilege to


use and occupy the land, rather than aninterest in the land. Therefore, adefinition of the term ‘‘license’’ is notincluded in the final rule.

In preparing this final rule, theDepartment also concluded that the goalof clarifying when environmentalanalysis is conducted on proposals forspecial use authorizations would beenhanced by defining the term ‘‘NEPAprocedures’’ as used in several places inthe rule. Thus, the term has been addedto the definitions included in § 251.51and refers to the agency’s writtencompliance with the NationalEnvironmental Policy Act.

Section 251.54 Special useapplication procedure andauthorization. This section of thecurrent regulations describes theprocedures by which the agency acceptsand acts upon applications for specialuse authorizations. This sectionincludes direction on holding advancediscussions with a proponent before anapplication is submitted, where tosubmit applications, the content ofapplications, and agency response toapplications. The current regulationsmake it difficult to deny an applicationfor a special use authorization that doesnot meet certain minimum requirementsimposed by law or regulation as theylack specific direction guiding theconsideration of and decision onapplications for authorizations. Thecurrent regulations also result inunnecessary paperwork and expensebeing imposed on both the proponentand the agency.

The proposed rule would expand thissection, adding step-by-step proceduresthat enumerate required activities andoutcomes through the proposal,application, and authorization phases.Specifically, the proposed rule wouldestablish a two-level screening processbefore a formal application is acceptedby the agency.

This section of the proposed rulereceived the most attention fromrespondents, and consideration of theseresponses has resulted in extensiverevision of this section in the final rule.

General Comments. Severalrespondents expressed concern that thenew procedures described in thissection could be interpreted to apply toreissuance of authorizations for existinguses as well as to issuance of newauthorizations. While endorsing theinitial screening process, severalrespondents also cautioned that anyefficiencies that might be gainedthrough this process could be lost,unless the agency imposed a time limiton itself, such as 30 days, in which tocomplete the proposed screeningprocess and respond to the proponent.

Some respondents observed that theorganization of this section was difficultto follow in the proposed rule, notingthat the sequence of events described bythe rule did not seem to correspondwith the actions taken by the agency’sfield officers when receiving andprocessing requests for special useauthorizations.

Response. This section applies only toapplications for new or substantiallychanged uses. Renewal of special useauthorizations is covered in § 251.64. Toremove the confusion, the title of thissection has been revised in the final ruleto read ‘‘Proposal and applicationrequirements and procedures.’’

The Department agrees that the initialscreening process should be completedas expeditiously as possible. However,because of the number, variety, andcomplexity of special use proposals, itdoes not believe a specified time limitshould be imposed on the screeningprocess. The Forest Service policy oncustomer service in combination withproponent expression of interest shouldprovide necessary encouragement tofield offices to act promptly onproposals. Thus, the final rule does not

specify a time limit on the proposalscreening process.

The Department agrees with thoserespondents who found the organizationof this section hard to follow. Inconsidering the respondents’ comments,and in revising the section to respond tothose comments and to its ownconcerns, the Department determinedthat an overall reorganization of thesection was needed. The intent of thereorganization is to make the processthat defines the agency’s considerationof proposals and applications morelogical and sequential, and fullyconsistent with regulationsimplementing the procedural provisionsof the National Environmental PolicyAct at 40 CFR Parts 1500–1508 andguidance issued by the Council ofEnvironmental Quality.

Readers are advised that thereorganization of this section requiresthat a clearer distinction be madebetween actions by proponents andactions by the agency during the processby which a request for an authorizationis considered. Hence, a ‘‘proponent’’makes a ‘‘proposal’’ for a special useauthorization. That proposal issubjected to the screening processesdescribed in paragraph (e). Uponmeeting the criteria in the initial andsecond-level screenings, the proposalbecomes an ‘‘application’’ and theproponent becomes an ‘‘applicant.’’

Because of the extensiveness of therevisions to the proposed rule, readersare advised that § 251.54 has beenpresented in the final rule in its entirety,thus including provisions not revised inthe proposed rule. Presentation of theentire section, therefore, includesamendments made by the adoption in1995 of the noncommercial group useregulations. The following tabledisplays the provisions of § 251.54 inthe final rule with the same provisionsas located in the proposed rule:

Final rule Proposed rule

(a) Early notice ......................................................................................... (a)(1) (Untitled).(b) Filing proposals ................................................................................... (b) Filing applications.(c) Rights of proponents ........................................................................... (d) Rights of applicants.(d) Proposal content ................................................................................. (e) Application content.(1) Proponent identification ....................................................................... (1) Applicant identification.(2) Required information.(i) Noncommercial group uses.(ii) All other special uses.(3) Technical and financial capability ....................................................... (2) Technical and financial capability.(4) Project description ............................................................................... (3) Project description.(5) Additional information .......................................................................... (4) Additional information.(e) Pre-application actions ........................................................................ (f) Receipt and denial of applications for uses.(1) Initial screening ................................................................................... (a) Initial screening.(2) Results of initial screening.(3) Guidance and information to proponents ........................................... (a)(3) (Untitled).(4) Confidentiality ...................................................................................... (a)(4) (Untitled).(5) Second-level screening of proposed uses .......................................... (i) Response to applications for all other special uses.


Final rule Proposed rule

(6) NEPA compliance for second-level screening process.(f) Special requirements for certain proposals ......................................... (h) Special application procedures.(1) Oil and gas pipeline rights-of-way ...................................................... (1) Oil and gas pipeline rights-of-way.(2) Electric power transmission lines 66 KV or over ................................ (2) Electric power transmission lines 66 KV or over.(3) Major development .............................................................................. (3) Major resort development.(g) Application processing and response.(1) Acceptance of applications ................................................................. (f)(1).(2) Processing applications ...................................................................... (g) Processing applications, and

(c) Coordination of applications.(3) Response to applications for non-commercial group uses.(4) Response to all other applications ...................................................... (j) Action taken on accepted applications.(5) Authorization of a special use ............................................................. (k) Authorization and reauthorization of a special use.

Comments on specific provisions of§ 251.54 as proposed and theDepartmental response follow.

Section 251.54, Paragraph (a)—Initialscreening. In a general comment on thisparagraph of the proposed rule, anumber of respondents stated a concernthat the initial screening process wouldadd another step to the already lengthyprocess of evaluating an application,which would place an additionalburden on the applicant. Respondentssuggested that paragraph (a)(1) shouldmake clear that the initial screeningbegins only with a written notice orapplication.

Response. The Department does notagree that the screening process wouldimpose additional burdens on aproponent. In fact, the screening processis expected to reduce the burden bypreventing unsuitable or inconsistentprojects from proceeding to full-scaleapplications. The screening processwould require only a very simpleabstract of the proposed use and wouldnot require a lengthy analysis by theauthorized officer. The purpose of thescreening is to eliminate those proposeduses which are obviously unsuitable onNational Forest System (NFS) lands.The initial screening process appears asparagraph (e)(1) of § 251.54 in the finalrule.

The Department also does not agreethat any proposal for use of NFS landsthat would trigger the screening processmust be in writing. Currently, manyrequests to use National Forest Systemlands begin with a verbal request by aproponent to the District Ranger’s staff.The final rule has been clarified to statethat a written notice is not requireduntil a proposal has cleared the initialand second-level screening processesand is ready to be considered as anapplication for a special useauthorization. However, for morecomplex special use proposals,proponents may be advised to prepare abrief written summary to ensure that theForest Service has a full understandingof the scope of the proposal.

Readers are also advised that the finalrule makes a technical modification tolanguage adopted by the noncommercialgroup use amendments to this subparton August 30, 1995, to ensureconsistency with the overall intent ofthis revision to subpart B. The proposedrule would have established nineminimum requirements (or criteria) tobe applied at the initial screening stage.These were listed in paragraph (a)(1) ofthe proposed rule. Comments receivedon these requirements and theDepartment’s response follow.

Minimum requirement (i). Asuggestion was made that this criterion,requiring all special uses to beconsistent with laws, regulations,orders, and policies, should state thatthe agency has an obligation to protectthe environmental integrity of the areaproposed for a special use. Anotherrespondent commented that under theFederal Power Act, the Federal EnergyRegulatory Commission (FERC)determines whether proposedhydroelectric uses on NFS lands areconsistent and that FERC’s authorityshould not be prejudiced by the agencyauthorizing official.

Response. The Forest Serviceobligation to protect the environment isadequately covered, since lawspertaining to environmental protectionare included in the laws, regulations,and policies referred to in this criterion.All special uses must comply withenvironmental law. Thus, this suggestedrevision has not been adopted in thefinal rule.

FERC does not have soleresponsibility for determining theconsistency of hydroelectric uses onNFS lands. As part of its responsibilityunder Section 4(e) of the Federal PowerAct, the Forest Service must make aconsistency determination on proposedhydroelectric uses. The FERCdetermines whether the proposedhydroelectric project should belicensed, based in part on theconsistency determination by the ForestService. That consistency determination

is based on the direction found in theapplicable forest plan, as set forth inminimum requirement (ii). Therefore,the text of this requirement (a)(1)(i) isunchanged in the final rule, but nowappears at paragraph (e)(1)(i).

Minimum requirement (ii). Nocomments were received recommendingrevision or change to this criterion,which would require the proposed useto be consistent with the applicableforest plan for the area. The intent ofthis requirement is to capture theprovision in section 6(i) of the NationalForest Management Act of 1976 (90 Stat.2955). The agency did streamline thelanguage of this requirement from thatin the proposed rule but made nosubstantive change in the text of therequirement, which now appears atparagraph (e)(1)(ii) in the final rule.

Minimum requirement (iii). Arespondent suggested that this criterion,which would require that the proposeduse not pose a serious or substantial riskto public health and safety, include alist of examples which are consideredacceptable from a health and safetystandpoint.

Response. The Department agrees thatexamples would clarify the intent of thiscriterion, but believes that it would bemore appropriate to include suchexamples in the Forest Service’s internalprocedural handbooks. This possibilitywill be explored following adoption ofthis final rule. Further, the agencybelieves that the phrase ‘‘serious andsubstantial risk’’ will limit thediscretion of the authorized officer tofindings of genuine risk to public healthand safety. Therefore, no changes weremade to this requirement in the finalrule, which appears at paragraph(e)(1)(iii).

Minimum requirement (iv). Severalrespondents stated that utilitycompanies seeking rights-of-way acrossNFS lands should be exempted fromthis criterion, which would causerejection of a proposed use if it createdan exclusive or perpetual right of use oroccupancy. The respondents contended


that a perpetual right of use is the basisunder which all utility service isprovided. Another respondent askedthat the language be revised to ensurethat applications for permanenteasements, such as those authorized bythe Forest Roads and Trails Act of 1964,would be accepted. Finally, arespondent suggested that the languageof the proposed rule could beinterpreted to mean that a proponent,after having an application approvedand expending capital to implement theuse, would not have an exclusive rightto receive the proceeds resulting fromthe use.

Response. The Department recognizesthe concerns of these respondents butrejects the suggestions that utilitycompanies should be exempted fromthis criterion because they must have anexclusive and perpetual use of Federalland. To grant such use would, in effect,grant fee title to Federal land to anauthorization holder. LongstandingCongressional and Executive Branchpolicy dictates that authorizations to useNFS lands cannot grant a permit holderan exclusive or perpetual right ofoccupancy in lands owned by thepublic. The direction contained in thisrequirement is no different from thatcontained in the current regulations at§ 251.55(b). Similarly, the respondent’sassertion that a proponent withoutexclusive right would not have theexclusive right to receive the proceedsfrom the use is without merit since suchrights are provided by the terms of aneasement or lease. Accordingly, therecommendation that the criterion allowautomatic acceptance of an applicationfor a permanent road easement is notadopted. Such applications should besubjected to the same screening as allother applications. The language of thisrequirement remains unchanged in thefinal rule and appears at paragraph(e)(1)(iv).

Minimum requirement (v). Threecomments were received on thiscriterion, which would prohibitapproval of proposed uses that wouldunreasonably conflict or interfere withadministrative use by the agency, withother existing uses, or with use ofadjacent non-NFS lands. Theserespondents were concerned that thiscriterion was overly broad and wouldlead to abuses by local agency officialswhen reviewing applications andrecommended that clarifying guidelinesbe added. Additionally, the respondentssuggested that proposals that may havean effect on adjacent non-NFS lands,whether unreasonable or not, shouldprompt local Forest Service officials toinform adjacent landowners, includingland-managing government agencies, of

the proposal and possible impacts onadjoining lands.

Response. The criterion is limited tounreasonable conflicts or interference;some conflict or interference withexisting uses would still be allowed.Therefore, the Department does notagree that additional guidance is neededin the rule and has retained the text ofthis requirement in the final rule(paragraph (e)(1)(v)) without change.The appropriate place for more detailed,cautionary guidance is in the agency’sadministrative Manual and Handbooks.Upon adoption of this final rule, theapplicable Manual and Handbooks willbe reviewed to determine if there is aneed for additional guidance to preventoverly broad application of thisrequirement.

Minimum requirement (vi). Thiscriterion stated that proposals will notbe considered if the proponent hasoutstanding debts owed to the ForestService under a prior authorization.Seven respondents suggested that anexception to this criterion be allowed ifthe delinquent debt is the result of anadministrative appeal decision, a feereview, or similar legal oradministrative process. By contrast,another respondent suggested that theauthorized officer check with the BLMto determine if a proponent owes anydebts to that agency. Finally, arespondent suggested that the criterionnot be interpreted to include obligationsof a proponent who is a cooperator withthe agency through a road cost-shareand use agreement.

Response. Without this requirement, aproponent’s bad faith under a priorauthorization could not be used todisqualify the applicant from receivinganother authorization. To reward anapplicant with a delinquent debt with anew authorization is not a prudentmanagement practice and would beunacceptable on privately owned lands.The Department agrees with thesuggestion that debts owed theGovernment as a result of anadministrative appeal or similar legalprocess, including that involving areview of annual rental fees, should notbe considered in applying this criterionand has revised the rule to specify thatdebts owed as a result of decisions inadministrative appeals or fee reviewswill not be included under thiscriterion. However, such debts must becurrent and the proponent in goodstanding on a payment schedule.

While the Department agrees thatdebts owed other Federal agencies areimportant, requiring authorized officersto check with other agencies couldlengthen the time involved in the initialscreening process. Indebtedness in

general, and delinquent debts owed tothe Federal government in particular,should be revealed at the second-levelscreening process.

Finally, road cost-share and useagreements are not special useauthorizations; outstanding obligationsexisting under these agreements are notconsidered debts for the purpose ofapplying this criterion. Therefore, thisrequirement does not need to be revisedto respond to this concern. For thisreason, no changes were made to thisprovision in the final rule, whichappears as paragraph (e)(1)(vi).

Minimum requirement (vii). Thiscriterion would prohibit considerationof a proposed use that involvesgambling or providing sexually orientedservices. No comments were received onthis requirement which has been long-standing agency administrative policy.It is retained in the final rule withoutchange as paragraph (e)(1)(vii).

Minimum requirement (viii). Thiscriterion would codify longstandingagency policy to prohibit considerationof a proposed use if it involves militaryor paramilitary training or exercises byprivate organizations or individuals,unless the training is federally funded.No comments were received on thiscriterion, and it is retained withoutchange in the final rule as paragraph(e)(1)(viii).

Minimum requirement (ix). Thiscriterion would prohibit considerationof a proposed use if it involves disposalof solid waste or storage or disposal ofradioactive or other hazardous material.Two responses were received on thiscriterion. One respondent suggested thatthe term ‘‘hazardous material’’ bechanged to ‘‘hazardous substances’’ toconform to the definitions in theComprehensive EnvironmentalResponse, Compensation, and LiabilityAct and the Resource Conservation andRecovery Act. The other respondentsuggested that the reference to ‘‘storage’’of hazardous materials be deletedbecause it would prohibit storage at anauthorized use area of crude oil andchemicals necessary to maintain oil andgas production.

Response. The Department agrees thatthe terms used in this rule shouldconform to definitions set forth in otherFederal statutes and has, therefore,revised the wording of this requirementin the final rule. The Department alsoagrees that materials to be used inconducting activities at the use area,even though considered hazardous,should not be cause to reject a proposeduse. Since controls prescribed by otherFederal statutes should ensure thatproper care is taken, the term ‘‘storage’’has not been included in this


requirement in the final rule, whichappears as paragraph (e)(1)(ix) in thefinal rule.

Other Changes. No comments werereceived on paragraphs (a)(2) and (3) of§ 251.54 of the proposed rule.

Paragraph (a)(2) stated that if aproposed use did not meet all theminimum requirements, as set forth inparagraphs (a)(1)(i)–(ix), it would not beconsidered further and the applicantwould be notified of this action inwriting. Paragraph (a)(2) does notappear in the current regulation. Thetext of paragraph (a)(2) is included inthe final rule as paragraph (e)(2) and ithas been revised to state that theauthorized officer would not have tonotify in writing a proponent whomakes an oral request that the proposalwill not receive further consideration.Requests for special use authorizationsare frequently made orally to localagency officials, and, as such, would notrequire a written response.

Paragraph (a)(3) of the proposed rulestated that if a proposed use appears tomeet the minimum requirements, theauthorized officer would provide theapplicant with information relevant toobtaining a special use authorization.The content of paragraph (a)(3) of theproposed rule was unchanged from thatalready in effect, § 251.54(a)(1)–(8).However, when reviewing paragraph(a)(3) of the proposed rule in the contextof the overall public review andcomment, the Department determinedthat the phrase ‘‘appear to’’ mightsuggest the possibility of arbitrary actionand, therefore, removed the words inthe final rule. This material appears atparagraphs (e)(3)(i)–(viii) in the finalrule.

In addition, minor editing changeshave been made to paragraphs (e)(2) and(3) in the final rule for clarity and toincorporate changed terminology.

Section 251.54, Paragraph (a)(4). Thisparagraph of the proposed rule wouldhave directed the agency, if requestedby the proponent, and to the extentreasonable and authorized by law, not todisclose project and programinformation revealed during pre-application consideration andscreening. Respondents stated theirconcern that this provision couldprevent public scrutiny of a proposal,particularly one involving largecommercial projects, thus giving theproponent an inside track on approval.

Response. The Department disagreesthat maintaining confidentiality, to theextent reasonable and authorized bylaw, at the pre-application stage of aproposal having commercial applicationwould preclude public scrutiny.Confidentiality would be maintained

only prior to the agency’s acceptance ofa formal written application that hascleared the screening processes, andonly to the extent it is reasonable andauthorized by law. Once an applicationis accepted and initial reviewdetermines that an environmentalassessment or environmental impactstatement must be prepared, law andagency policy require public disclosurein the review and approval process.Applications for relatively minorproposals which a review indicates canbe categorically excluded fromdocumentation in an environmentalassessment or environmental impactstatement under current rules, generallydo not include the public review anddisclosure of information envisioned bythis paragraph.

This paragraph appears in the finalrule at paragraph (e)(4) under theheading ‘‘Confidentiality.’’ The text hasbeen revised in the final rule tosubstitute the word ‘‘shall’’ for ‘‘will’’ inthe direction regarding the disclosure ofproject and program information, andthe paragraph has also been edited toimprove clarity of the provision’s intent.

Section 251.54,Paragraph (b)—Filingapplications. Paragraph (b) of current§ 251.54 gives direction on where andwith whom applications forauthorizations should be filed. Thisparagraph appears at § 251.54(b),entitled ‘‘Filing proposals,’’ in this finalrule. The text has been revised toconform to changed terminology;namely, to change ‘‘application’’ to‘‘proposal’’ and ‘‘applicant’’ to‘‘proponent,’’ or the plural forms ofthese words.

Section 251.54, Paragraph (c)—Coordination of applications. Theproposed change to this paragraphwould have eliminated the requirementthat proponents of projects requiring useof National Forest System (NFS) landswho must obtain a license or permitfrom a State, county, or other Federalagencies for that project mustsimultaneously file an application withthe Forest Service. The proposed rulestated that the Forest Service mayrequire in its authorization that theapplicant obtain licenses, permits,certificates, or similar approvaldocuments from other entities oragencies.

Comment. Four respondentssuggested that this provision describes arequirement in an authorization andthus should not be included in thissection describing the proposal andapplication process. Instead, therespondents recommended that theprovision be placed in § 251.56(a).

Response. The Department agrees thatrevision and relocation of this provision

is appropriate and has placed it at§ 251.56(a)(2) in the final rule. Thisaction will benefit the applicant by notrequiring that other approval documentsbe obtained until a decision is made onthe application to use NFS lands.However, the provision has been revisedin the final rule to make clear to holdersthat such licenses, permits, certificates,or other approval documents must beobtained prior to commencement of anyactivities on NFS lands.

No revision was proposed toparagraph (d), ‘‘Rights of applicants,’’ ofsection 251.54 of the regulations. Whilethe text remains unchanged, thisparagraph has been redesignated asparagraph (c), ‘‘Rights of proponents,’’in the final rule.

Section 251.54, Paragraph (e)—Application content. This paragraph ofthe proposed rule defined the minimumcontent of an application for a specialuse authorization. In the proposed rule,the agency proposed revising paragraph(e)(3), ‘‘Project description,’’ to make itconsistent with the proposed additionwhich addresses the issuance ofplanning permits for major commercialdevelopments. Paragraph (e)(4) in thecurrent rules also required an applicantto describe the impact of the proposeduse on the environment. However, tostreamline the proposal/applicationprocess, the proposed rule would havemoved this requirement to paragraph (j),which described actions to be taken bythe agency after an application has beenaccepted.

Comment. Some respondents wereconcerned with the removal fromparagraph (e)(3) of the requirement thatapplicants address the proposed uses’simpact on the environment, and with acompanion provision in paragraph (e)(5)that the application include a plan forprotection and rehabilitation of theenvironment during the life of theproposed project. These respondentsbelieve early consideration ofenvironmental effects is essential toensure that environmentallyunacceptable projects do not proceed tothe application stage and recommendedthat all of the provisions in paragraphs(e)(3) and (4) be retained.

Response. Paragraph (e) wasextensively revised by thenoncommercial group use amendmentsof August 30, 1995 (60 FR 45294). Asrevised by those amendments, thisparagraph distinguishes betweennoncommercial group uses (paragraph(e)(2)(i)) and all other special uses(paragraph (e)(2)(ii)), in describing theinformation required for an applicationfor a special use authorization. Thisfinal rule redesignates this paragraph as(d), retitles it as ‘‘Proposal content,’’ and


makes additional changes. Changes interminology are made throughoutparagraph (d) to be consistent withchanges made earlier in this section.Paragraph (e)(3), ‘‘Technical andfinancial capability,’’ is redesignated as(d)(3), but is unchanged in the final rule.Paragraph (e)(4), ‘‘Project description,’’has been redesignated as (d)(4) in thefinal rule and revised to make theexception in the first sentenceapplicable to all major developments,rather than just to ‘‘major resortdevelopment.’’ This revision isconsistent with the revision toparagraph (f)(3) of the final rule whichdescribes the requirements forrequesting authorizations for majordevelopments.

The Department recognizesrespondents’ concern with paragraph(e)(5), ‘‘Environmental protection plan.’’It emphasizes that it does not seek toavoid consideration of environmentaleffects when evaluating proposals.However, the removal of environmentalanalysis requirements in this paragraphis consistent with the overall objectiveof streamlining the regulation. It willsave the proponent and the agency thetime and expense of conducting anenvironmental analysis on proposalsthat would be rejected on other grounds.For example, the agency has found thatapplications often are not approvedbecause the proponent lacks sufficienttechnical or financial capability tooperate the proposal successfully, orbecause the Forest plan for the areaprecludes the proposed use. Readers arereminded that the procedure proposedin the rule to screen proposals isintended to screen out those proposalswhich do not meet minimumrequirements/criteria before theybecome proposals as defined by theNational Environmental Policy Act(NEPA) and its implementingregulations, which would requireenvironmental analysis anddocumentation. Once an application hasbeen accepted by the agency, analysis ofthe proposed use’s environmentaleffects must be considered(§ 251.54(g)(2) of the final rule).

Section 251.54, Paragraph (f)—Receipt and denial of applications forspecial uses. This paragraph of theproposed regulation, which has beenparagraph (i) in the previous regulationsdescribing agency response toapplications, would mark the point inprocessing requests for special useauthorizations at which the proposal isconsidered received by the agency.

Comment. Respondents suggested thata time limit be set for completion of theapplication analysis set forth inparagraph (f)(2): 30 days was suggested.

One respondent stated that proposals forhydroelectric projects, which are alsogoverned by the Federal Power Act,would not be subject to the criterialisted in paragraph (f)(2), since theultimate approval of these projects lieswith the FERC. A respondent suggestedthat subjecting an application forreissuance of an authorization for anexisting use to this second-levelscreening seemed unfair andinconsistent with due processrequirements.

Response. The Department does notagree that a rigid time limit should beapplied to analysis of applications. Thewide variation in scope and complexityof applications requires flexibility inresponse time. Thus, while theDepartment recognizes theappropriateness of prompt action, it willnot impose time limits on itsdecisionmaking responsibility. Also, theForest Service has affirmativeresponsibility with respect toapplications for hydroelectric projects.Section 4(e) of the Federal Power Actrequires the agency to provide the FERCa determination of whether the projectis consistent with the purpose for whichthe National Forest is established. Thisstatutory requirement, coupled with theagency’s internal policy onhydroelectric projects, serves assufficient guidance in recognizing theunique actions necessary for theseprojects.

The screening/analysis processdescribed in paragraph (f)(2) (now (e)(5)in the final rule) is tiered to the initialscreening process and thus applies onlyto applications for new authorizations,not renewals for existing uses, whichare covered by § 251.64. Therefore, thecriteria in proposed paragraph (f)(2)have been retained in the final rule asparagraph (e)(5)(i)–(v) since this second-level screening is intended to apply toproposals that have met the criteria ofthe initial screening and which wouldbe subjected to additional scrutiny andconsideration. This shift presents theagency’s process for consideringrequests for special use authorizationsin a more logical sequence than that ofthe proposed rule.

No comments were received onproposed paragraphs (f)(1) and (3) ofthis section of the proposed rule.Proposed paragraph (f)(1) of theproposed rule was a new provisionstating that an application that passesthe initial screening set forth inparagraph (a) would be received but notaccepted by the agency forconsideration. The paragraph appears inthe final rule as (g)(1), ‘‘Acceptance ofapplications,’’ but has been revised tostate that a proposal meeting the criteria

of both the initial and second-levelscreening processes (paragraphs (e)(1)and (e)(5)) would be accepted by theagency as a formal application for theuse. If the request does not meet thecriteria for the screening processes, it isnot accepted as a formal application.Proposed paragraph (f)(3), also a newprovision, stated that the decision todeny a special use application based onthe factors listed in paragraph (f)(2)would not constitute a ‘‘proposal’’ asdefined by Council on EnvironmentalQuality regulations and thus would notrequire the agency to conduct anenvironmental analysis. This paragraphapplies to proposals which have beenscreened under the second-levelscreening process. It is retained asparagraph (e)(6) in the final rule, butedited to clarify its intent.

Other comments relevant to Section251.54(f).

Four respondents objected to theremoval of an unnumbered paragraphwhich has been at the end of § 251.54(i)requiring the authorized officer, whendenying an application under twoconditions, to offer the applicant analternative site or time for the proposeduse. These respondents believed thatremoval of this provision would alterthe agency’s obligation to consideralternatives to the proposed use undercurrent Council on EnvironmentalQuality regulations and the agency’sown policies for environmental analysisand documentation. The respondentsurged that the provision be retained toprovide applicants additional flexibilityin obtaining authorizations to use NFSlands. However, one respondentsupported the elimination of thisprovision, stating that it avoidedunnecessary duplication in theapplication process and thus would behelpful to applicants.

Response. The removal of theprovision requiring that an alternativesite be offered when denying anapplication does not circumvent NEPArequirements to consider reasonablealternatives to a proposed action whendocumenting environmental impacts.The Forest Service believes that it hasno affirmative duty to providealternative sites for a proposed usewhen a use is denied because it isinconsistent or incompatible with thepurposes for which the lands aremanaged, or because the applicant is notqualified. Therefore, this provision hasnot been included in the final rule.

This determination on the offering ofan alternative site for special useauthorizations in general differs fromthat in the recently adopted revisions tothis subpart concerning noncommercialgroup uses and noncommercial


distribution of printed material.Constitutional requirements concerningample alternatives for communication ofinformation dictated that an alternativesite provision be included in thenoncommercial group use regulations.

Section 251.54, Paragraph (g)—Processing Applications. Paragraph (g)of the proposed rule, which has untilnow appeared as paragraph (f) of§ 251.54, describes the procedure to befollowed when an application isaccepted for processing. The proposedrule revised this paragraph to beconsistent with revisions madeelsewhere in the regulations. Central tothese revisions was the removal of thoseprovisions in paragraph (f)(1) thatrequired the authorized officer tocomplete environmental documentationrequirements, consult with otheragencies and interested parties, holdpublic meetings, and take other actionsnecessary to evaluate an application.These provisions were moved toparagraph (i) of the proposed rule toachieve the consistency sought by theoverall revision to subpart B.

A new paragraph (3) was proposed toprovide guidance on processingapplications for planning permits,principally those for major resortdevelopments. This addition was tied toa revision in paragraph (h) of thissection describing major commercialdevelopments. This proposed newprovision would limit applicationinformation to that needed to make adecision on issuance of a planningpermit; that is, a permit authorizingonly minor disturbance of the proposedsite in order to gather information anddata to prepare an application for thedevelopment project which would besubmitted later. If the planning resultedin an application to develop the project,the detailed information and requisiteenvironmental documentation would becompleted.

There were no comments received onproposed paragraph (g). Nevertheless, asnoted in the discussion of andcomments on proposed paragraph (f),this paragraph has been revisedextensively in the final rule to conformto the overall reorganization of thissection. In particular, it should be notedthat this paragraph was reformatted toaccommodate the August 30, 1995,noncommercial group use regulationswhich are redesignated as paragraph(g)(3) in the final rule.

In the final rule, paragraph (g)(2)requires the authorized officer toevaluate formal applications for specialuse authorizations, including evaluationof effects on the environment, and,where required by NEPA procedures, toprovide notice to the public with anopportunity to comment on the

application. This provision appeared inparagraph (j) of the proposed rule.Paragraph (g)(2) represents the point ofthe special use proposal/applicationprocess at which the proposal becomesan application as defined by 40 CFR1508.23, and thus requiresenvironmental analysis anddocumentation. In the final rule,paragraph (g)(2) also incorporatesprovisions previously found elsewherein the rule regarding notice to andconsideration of findings of otherFederal, State, and local governmentagencies concerning the application.

Section 251.54, Paragraph (h)—Special application procedures. Thisparagraph of the proposed ruledescribed special requirements andprocedures for handling applications foroil and gas pipelines and large electrictransmission line rights-of-way. In theproposal, a third type of special userequiring special procedures whenapplying for an authorization wouldhave been added—that is, proponentsfor a major resort development on NFSlands could apply for a 5-year planningpermit.

This provision would substantiallychange the way proposals for majorcommercial recreation developmentwould be considered. Previously, anapplication for this use would triggerfull-scale economic and environmentalanalysis—before the proponent has fullydefined the project and prepared amaster development plan. Once aproject is fully defined in adevelopment plan, a project differentfrom that described in the applicationoften results, thus requiringreconsideration of the original analysisand decision and sometimes requiring asupplemental environmental impactstatement. This supplemental analysiscan impose considerable additional coston the proponent and the agency. Underthe proposed rule, a proponent whopassed the initial screening criteriawould apply for a planning permit. Thisapplication would be subjected to theestablished procedures for review anddecision by the agency. Approval of theplanning permit application wouldallow the proponent to complete themaster development plan, which wouldthen become the basis for an applicationfor an authorization to construct andoperate the major resort development.The second application would besubject to separate analysis anddecision.

Comment. Respondents generallyendorsed the proposed 2-part permittingprocess for major commercial recreationdevelopment. However, they urged thatthe process be available for all large-scale commercial developments. Therespondents suggested that oil and gas

pipelines or hydroelectric projects, forexample, would qualify for thisprocedure. The respondents believedthat this procedure would furtherreduce the regulatory burden on boththe applicant and the agency.

Response. The Department agrees thatthe proposed planning permit for majorresort developments should be availablefor all types of major developments onNFS lands and has adopted this changein the final rule. Further, theDepartment believes that a fixed term offive years for the planning permit maynot be adequate for some types of majordevelopment, which are subject toseparate licensing/approval actions byother Federal and State agencies.Accordingly, the final rule states thatplanning permits may be issued for upto 10 years.

Paragraph (h) of the proposed rule hasbeen redesignated as (f) in the final rule,with the new provision concerningmajor developments appearing asparagraph (f)(3). This redesignationplaces this paragraph ahead of theregulations on processing applications;thus it occupies a more logical locationin the sequence of processing requestsfor authorizations. The title of paragraph(f) has been revised to read ‘‘Specialrequirements for certain proposals,’’ tomore accurately reflect the paragraph’spurpose.

Section 251.54, Paragraph (j)—Actiontaken on accepted applications. Thisprovision of the proposed rule wouldrequire the authorized officer toevaluate the effects of the acceptedapplication, including effects on theenvironment, and to make a decision onwhether to approve or disapprove theapplication. The proposed paragraphdescribed the three types of action thatcould be taken by the authorized officeron an accepted application: (1)approval; (2) denial; or (3) approvalwith modification. By specifying therange of decisions available, thisprovision would enable the agency todefine more clearly in theenvironmental documentation thepurpose of and need for the project towhich the agency is responding.

Comment. Respondents stated that theagency needed to describe in greaterdetail the review and analysis processthat culminates in a decision on theapplication. For example, respondentssuggested that this paragraph addressthe backgrounds, or areas of expertise,of those who will review the applicationand the regulations, policies, andagency procedures that will apply to thereview. This suggestion was offered inthe belief that a more complete decisionrecord is needed. Respondents also


urged the agency to include a time limitin this paragraph for making a decisionon an application. If a decision was notmade within the time specified, theapplication would be consideredapproved under standard permit termsand conditions.

One respondent suggested that due tothe magnitude of the revisions proposedin its comments on this and othersections of the proposed rule, theagency should reissue proposedregulations and provide for anadditional comment period.

Two respondents objected to thesentence in this paragraph that wouldallow several similar special useapplications to be approved in onedecision and its documentation. Theserespondents felt that an application’sapproval could be delayed byincomplete applications for similarprojects of others and suggested that thisprovision be amended to require that acombined decision be made only withthe concurrence of the applicants.Another respondent believed that allapplications need to be consideredindividually to give adjacent landmanagers adequate opportunity toconsider a proposed use.

Response. Expanding paragraph (j) todescribe in detail the process forreaching a decision on an application isnot necessary or appropriate to aregulation. While no change will bemade in this regard in the finalregulations, upon adoption of finalregulations, the Forest Service willreview its Manual and Handbookdirection to determine if revision isnecessary to improve consistentinterpretation among field units.

It also would be inappropriate toplace a time limit on the authorizedofficer to render a decision on anaccepted application. Such a provisioncould prevent the authorized officerfrom reaching a sound decision,particularly where unforeseen events,such as an extended period of forest fireemergency, prevent the authorizedofficer from performing theadministrative duties involved inevaluating a special use application.Thus, this suggestion is not adopted inthe final regulation.

Similarly, it is not appropriate toreissue proposed regulations reflectingthe Department’s response torespondents’ suggestions. Comments ofall respondents were carefullyconsidered and their appropriatenessand applicability determined.Acknowledgment of the Department’sresponse to those comments, asexplained in this supplementaryinformation section, is considered to be

sufficient explanation of the rulemakingdecision.

The Department recognizesrespondents’ concerns about combiningapplications into one decision.However, it is the agency’s intent thatuses that could be grouped under onedecision would be homogeneous andhave relatively minor impact.Applications for complex proposalscould not be grouped due to thevariations in impacts and the resultingvariation in the depth of analysisrequired for each proposal. An exampleof how this provision could be usedoccurs in the Pacific Northwest, wherea large number of applications arereceived each year to place bee hivestemporarily on NFS lands where timberharvest activities have recentlyoccurred. While the hives may bescattered over an area of severalhundred acres, the impact of each hiveis essentially the same as that of allothers. Thus, a single decision couldauthorize placement of all hives.Therefore, the Department has decidedto retain the language of this provisionas § 251.54(g)(4) in the final rule, buthas added clarifying guidance limitingthe application of this provision to thoseuses having minor impacts.

The Department disagrees with therespondent who believes eachapplication must be consideredindividually to ensure that it does notadversely affect management ofadjoining land. Even if severalapplications were acted upon in onedecision, the impacts of each proposeduse, including those on adjacent lands,would have to be considered. Further,where an environmental assessment orenvironmental impact statement isprepared, the public, including theadjacent landowner, would have theopportunity to be involved in theanalysis of the proposed use.

Paragraph (j) has been relocated in thefinal rule as part of the overallreorganization of this section to achievea more logical sequential process. Aportion of the first sentence of proposedparagraph (j) concerning evaluation ofthe proposed use has been moved toparagraph (g)(2), while the remainder ofthe paragraph has been moved toparagraph (g)(4) in the final rule. Theseprovisions have been edited in the finalregulation to improve clarity.

As part of the overall reorganizationof § 251.54, the rules applicable tononcommercial group uses are nowcodified as paragraph (g)(3). A provisionpreviously in paragraph (f)(5) statingthat applications for noncommercialgroup uses are automatically grantedunless denied within 48 hours of receipthas been moved to paragraph (g)(3) in

the final rule since the provisionconcerns the response to rather than theprocessing of the application. Also, thetext of paragraph (g)(3) has been revisedto correct citations to other parts of thissubpart which have been revised in thefinal rule and to correct incorrect usesof the word ‘‘shall’’; however, theDepartment emphasizes that nosubstantive changes have been made.

Section 251.54, Paragraph (k)—Authorization and reauthorization of aspecial use. This proposed paragraphwould govern issuance of a special useauthorization after a decision is made toauthorize the use. The use thusauthorized may be reauthorized as longas it remains consistent with theoriginal decision. However, if newinformation becomes available, or newcircumstances have developed, newanalysis must support a decision toreauthorize the use.

Comment. Eight respondentscommented on paragraph (k). Theserespondents suggested that the directionregarding reauthorizing uses is notappropriate since § 251.54 applies onlyto new authorizations. Respondents alsostated that the language onreauthorizations does not providesufficient protection from an arbitrarydecision not to reissue an authorization.One respondent suggested thatreauthorizations should be allowed atany time, not just upon expiration of theauthorization.

Response. The Department agrees thatthis language concerningreauthorization of the special useauthorization is out of place. Thus, thesecond sentence of proposed paragraph(k) has been moved to § 251.64(a) in thefinal rule, which deals with renewals ofspecial use authorizations. The headingof § 251.54 has been revised to makeclear that this section deals solely withthe special use proposal and applicationprocess. Further, the agency believesthat placement of the languageconcerning reauthorization in § 251.64responds to respondent concerns thatdecisions disallowing reauthorizationmay be arbitrary. The language in§ 251.64(a), as modified by the finalrule, prescribes additional requirementsthat must be observed whenreauthorization is considered. Theserequirements will help prevent arbitrarydecisions.

The adoption of the noncommercialgroup use regulations on August 30,1995, to this subpart did not affectproposed paragraph (k). However, thefirst sentence of proposed paragraph (k)has been redesignated as (g)(5) in thefinal rule in keeping with the placementof all actions related to processing andresponding to applications in paragraph


(g)—Application processing andresponse.

Because of the complexity of thescreening and application processes, theDepartment has prepared Exhibit 1 todisplay the entire special useauthorization approval process definedin § 251.54. Exhibit 1 is set out at theend of this rule but will not appear inthe Code of Federal Regulations.

Section 251.56 Terms and conditions.This section of the current regulationssets forth the terms and conditions to beincluded in each special useauthorization. Paragraph (d) prescribesthe liability requirements to be imposedon a holder of an authorization. Theproposed rule would have revised onlyparagraph (d)(2) of this section. Therevision was intended to clarify that themaximum limit of liability for certainhigh hazard authorized uses would bedetermined by an assessment of the riskassociated with the use rather than anamount set by the authorized officer.This is usually $1,000,000, themaximum liability amount previouslyestablished by the regulations at§ 251.56(d)(2).

Comment. Most respondentscommenting on this revision agreedwith the proposal to require riskassessments in order to establishliability limits for a specific use. Severalrespondents suggested factors to beincluded in the risk assessment, such asthe holder’s past performance and thehistorical frequency of incidents wherenegligence associated with the holder’suse and occupancy has contributed tothe liability of the Forest Service. Somerespondents proposed that holders ofauthorizations with a lower risk ofaccidents and negative impacts on theland should not pay the same fee asholders of authorizations with a higherrisk use.

Three respondents objected to thecurrent provision, for which revisionwas not proposed, that requires holdersof authorizations for high-risk uses to beliable for all injury, loss, or damagewithout regard to the holder’snegligence. These respondents statedthat since the holder does not haveexclusive use of the lands and cannotcontrol the activities of others on thoselands, the holder should not be liablefor the actions of third parties.

Finally, one respondentrecommended that the regulations berevised to allow the agency to obtainrestitution in excess of the amountestablished by a risk assessment, or$1,000,000 as authorized by law, shouldspecial circumstances arise or actualcosts incurred by the agency exceed theestablished amount. This respondentfurther suggested that the regulations

provide that damages paid to the agencyunder the liability provision be madeavailable to adjacent landowners whosuffer losses as a result of a holder’sactivities on Federal lands.

Response. Factors to be included in arisk assessment to determine themaximum limit of liability should beidentified, in order to avoidstandardizing the liability and thuscreating inequities among holders ofauthorizations involving high-risk uses.However, this type of information ismore appropriately included in theForest Service’s internal directivesystem; namely, the Special UsesHandbook (FSH 2709.11). The agencywill add direction on how to conductliability risk assessment to the SpecialUses Handbook. Factors to be includedin this risk assessment will recognizeuses having less risk of damage toNational Forest System resources andimprovements.

The Department does not agree withthose respondents who object to placingliability for all injury, loss, or damageon holders without regard to theholders’ negligence. Placing the burdenof risk on the holder of the authorizationrather than the landowner is anestablished practice in transactionsinvolving private lands and is justifiedas a reasonable requirement to insureagainst potential liability from anycause. Therefore, no change has beenmade to this provision in the final rule.

State laws governing rules of ordinarynegligence allow the agency to litigate toseek damages in excess of an amountestablished by law or regulation forstrict liability. These State laws offersufficient protection to the FederalGovernment, and these same laws allowadjacent landowners the opportunity toseek damages from the holder, insteadof claiming a share of damages receivedby the Forest Service. Thus, no changewas made in the final regulations torespond to this comment.

Paragraph (a) of § 251.56 has beenreformatted and slightly revised in thefinal rule to clarify the content of aspecial use authorization. A newparagraph (a)(2) has been added to thissection, which states that authorizationsmay be conditioned to require approvalsfrom other government agencies. Thisparagraph was previously at § 251.54(c).

Section 251.57 Rental fees. Thissection of the regulations currentlyrequires that holders of authorizationspay an annual rental fee in advancebased on the fair market value of therights and privileges authorized. Inaddition, this section prescribes theconditions under which all or a part ofthose annual fees may be waived and

the circumstances under whichadditional fees may be assessed.

The proposed rule incorporated intoparagraph (a) of the regulation anamendment made to the Federal LandPolicy and Management Act of 1976(FLPMA) (43 U.S.C. 1701 et seq.) by theAct of October 27, 1986 (Pub. L. 99–545). That amendment allows theSecretary of Agriculture to requirepayment of fees either annually or formore than one year at a time. The 1986amendment also gives privateindividuals (holders of authorizationswho are not commercial orgovernmental entities and are acting inan individual capacity) whose annualrental fees are greater than $100 theoption of paying annually or for morethan one year at a time.

The supplementary informationsection for the proposed rule explainedthat in accordance with Title V ofFLPMA, the agency is authorized toissue easements and leases, instead ofannual permits, when authorizingcertain types of special uses,particularly those involving large-scalecommercial operations but that thisauthority had not been implemented inagency practice. (See the definitions for‘‘easement’’ and ‘‘lease’’ in § 251.51.)The agency can provide an extendedauthorization period by using easementsor leases to authorize commercial landuses, such as communication sites,utility rights-of-way, and roads. In thecase of easements, the commonlyaccepted practice in the privatemarketplace is to receive a onetimepayment when the easement isnegotiated that recognizes the fairmarket value of the rights and privilegesgranted, as determined by appraisal orother sound business managementpractices. The proposed rule indicatedthat if the Forest Service uses thisapproach when authorizing use of NFSlands by an easement, considerable cost-savings could accrue to the agency andto the holder of the authorizationthrough avoidance of annualadministrative costs and the costs ofpermit renewal activities. It is alsopossible (although uncommon in theprivate market) that the acquisition ofan easement could be accomplished byperiodic payments, in which case thepurchase value would be amortized overan agreed-upon timeframe, and anappropriate interest rate on the unpaidbalance would be applied.

Comment. Eleven respondentscommented on this section. Fiverespondents suggested that the option ofannual versus multi-year payments notbe limited to private individuals,suggesting that partnerships andcorporations be given this option as


well. Five respondents supported theagency’s proposal to allow use ofeasements and leases, but suggested thatthe conversion of permits be made at therequest of the holder rather than uponexpiration of the permit. Somerespondents expressed concern thatallowing a one-time payment would notallow the agency to keep pace withinflation, thus preventing receipt of fairmarket value. Finally, some respondentsasked how the proposed revisions tothis section would be implemented bythe agency, suggesting that modificationof the agency’s directive system wouldbe necessary.

Response. The provision in theproposed rule allowing privateindividuals the option of paying feesannually or for more than one year at atime if their annual fees are more than$100 precisely tracks with the languagein the 1986 amendment to FLPMA.Thus, since the law limits the revisionto private individuals, the suggestion toallow partnerships, corporations, andgovernmental entities the same privilegein the final rule cannot be adopted.However, the language of proposedparagraph (a)(2) of this section has beenrevised in the final rule to simplify andclarify the provision.

Allowing immediate use of easementsand leases would be desirable; however,the workload imposed on the agency’sfield staff should this occur could beoverwhelming. Thus, the agency willrevise its current administrativedirection to indicate that conversion toeasements and leases will be made aspermits expire, or as mutually agreedupon between the holder and theauthorized officer, in order to spread outthe workload of conversion. Also, itshould be noted that many of theauthorizations that would be affected bythis provision can be terminatedannually by mutual agreement of theagency and the holder, thusaccomplishing what has been suggestedby the respondents.

The Department disagrees with thoserespondents who suggest that the effectsof inflation should be a part of the feecalculation process when providing fora one-time payment of fees. The fairmarket value of an easement isindicated by comparable transactions inthe private market place. The agencyassumes that inflation is considered bythe grantor in determining the value ofthe easement in the same manner thatthe additional rights granted arerecognized in determining value. Forexample, an easement could conveyadditional rights to the holder, such astenure, transferability, andcompensation in the event oftermination. In addition, the holder

could treat the easement as a capitalasset, thereby gaining favorablefinancial treatment. The value of theseadditional rights would be realized inincreased fees, providing increasedreturns to the Treasury. Thus, a one-time payment can represent fair marketvalue for the entire term of theauthorization, and no loss to theGovernment will occur. Upon adoptionof this final rule, the agency’s directiveswill be amended to reflect thisregulatory revision.

The proposed regulation would haveremoved paragraph (g) of § 251.57.Subsequently redesignated as paragraph(h) by the 1995 noncommercial groupuse rule, this paragraph provides specialauthority to the Supervisor of the MarkTwain National Forest to waive feesunder certain specified conditions. Thisprovision was added to the regulationsto test a procedure to reduce costs to theagency and contained an expiration dateof December 31, 1990. Thus, theprovision is no longer in effect andshould be removed from the section. Nocomments were received on the removalof this paragraph, and no additionalinformation has come to light bearing onthis provision. Therefore, this provisionis removed by adoption of this finalrule.

Section 251.59 Transfer of special useprivileges. This section sets forth therequirements for transferring a specialuse authorization from the currentholder to a new holder. No change wasproposed to this section in the 1992proposed rule. However, as a result ofits review of public comments and theoverall analysis of subpart B, theDepartment has determined that thissection contains incorrect andmisleading requirements. Specifically,the language of this section can beinterpreted to contradict itself by statingin the first sentence that a permit maybe transferred and, then, by stating inthe last sentence that, if the holderthrough transfer of the authorizedimprovements ceases to be the owner,the permit is subject to termination.

Section 504(c) of FLPMA (90 Stat.2778) provides discretionary authorityto the agency (delegated through theSecretary of Agriculture) to specify theterms and conditions applicable toauthorizations it grants. TheDepartment’s longstanding position hasbeen and remains that, with theexception of easements, anauthorization itself has no value. Toallow transfer of the authorizationwould simply imply that it is a valuableasset to the owner of the improvements.Accordingly, the Forest Service requiresas a provision of the authorizingdocument that new owners of

improvements covered by a special useauthorization must first obtain a newauthorization. Therefore, except forcertain types of easements and leases,the agency does not actually transfer anauthorization when the authorizedimprovements are sold or otherwisetransferred between parties. Rather,upon a change of ownership, the agencydeems the original authorizationterminated and issues a newauthorization to the new owner of theimprovements upon a determinationthat the new owner is eligible to hold aspecial use authorization.

Therefore, the agency has revised thetitle and the text of this section toremove the current ambiguity and toreflect more accurately its purpose andintent. In the final rule, the title reads‘‘Transfer of authorized improvements.’’The text of the section has beenreorganized and edited for precision andclarity. It now states that a special useauthorization terminates when theholder of the authorization ceases to bethe owner of the authorizedimprovements. A new owner of theimprovements may be issued anauthorization upon applying for andreceiving approval from the authorizedofficer.

The Department considers this changeto be a technical correction that reflectslongstanding policy and practice andthat it has no substantial effect onadministration of current special useauthorizations.

Section 251.60 Termination,revocation, and suspension. Thissection of the regulation prescribes theconditions under which a special useauthorization may be suspended,terminated, or revoked. Revisions toparagraphs (b), (e), (f), and (h) of thissection were proposed to be consistentwith proposed definitions of these termsin § 251.51. Revision to paragraphs (g)and (i) of this section was necessary tocorrect identification of regulationspertaining to administrative appeals ofdecisions relating to special useauthorizations.

Comment. Five respondentscommented on the proposed revisionsto this section. These respondents notedthat the use of the word ‘‘termination’’in paragraph (a) implies an action by theauthorized officer, which is inconsistentwith the proposed definition in§ 251.51. One respondent recommendedthat the proposed revision require theauthorized officer to follow agencypolicy and procedures when decisionsto terminate, revoke, or suspend apermit are under consideration. Anotherrespondent recommended that decisionsto suspend or revoke a permit not bedelegated to agency officials below the


Regional Forester. Two respondentssuggested that the on-site review setforth in paragraph (f), proposed to beconducted within 10 days following therequest of the holder when a permit issuspended, is too long a period forpublic utilities such as hydroelectricfacilities or electric or gas transmissionlines. These respondents suggested thatthe review be conducted within 24hours of a suspension.

One respondent suggested that theproposed regulation be revised torequire that all authorizations issued toholders providing public utilities mustbe renewed as long as the holder is incompliance with all laws andregulations affecting the authorization.One respondent suggested that theproposed definition for ‘‘termination’’would require review of all related laws,regulations, and policies and revision ofmany individual permits to make themconform to the proposed definition. Asa result, the agency would face a majorincrease in regulatory burden and costs.

Response. Readers are advised thatthe adoption of the noncommercialgroup use amendments on August 30,1995, resulted in extensive revision toparagraphs (a) and (b) of § 251.60. Theamendments, in specifying the groundsfor termination, revocation, andsuspension of special useauthorizations, distinguished betweennoncommercial group uses (paragraph(a)(1)) and all other special uses(paragraph (a)(2)). In responding tocomments to this section of theproposed rule, the agency was requiredto take special consideration of theAugust 30, 1995, amendments. Therevisions also caused paragraph (b), asamended in 1995, to be reorganized tobe consistent with paragraph (a). Therevision of paragraphs (a) and (b) of thissection resulted in the elimination inthe final rule of paragraph (g),concerning appeals of termination,revocation, and suspension decisions byan authorized officer. This provision hasbeen incorporated into both paragraphs(a) and (b).

The Department agrees that thelanguage of paragraph (a) of theproposed regulations (previouslyparagraph (a)(2)) was inconsistent withthe new definition for ‘‘termination’’ in§ 251.51 and has revised this paragraphto remove the inconsistency. The agencydisagrees that additional languageshould be added in the final rule toensure that authorized officers followpolicy and procedures whenconsidering decisions to terminate,revoke, or suspend permits. Thedelegation of authority to agencyofficials carries with it the responsibilityto follow agency policies and

procedures; therefore, no additionalregulatory guidance is necessary. Thesuggestion that decisions to suspend orrevoke permits not be delegated belowthe Regional Forester has not beenadopted. Decisions by authorizedofficers below the Regional Forester arereviewable by line officers one levelabove the deciding officers undercurrent administrative appealregulations. The Department believesthat this procedure offers sufficientprotection for holders.

In response to the concern about theproposed 10-day period to reviewconditions leading to suspension of apermit, readers should be aware thatparagraph (f) would be invoked only inan emergency to protect the publichealth and safety or the environment. Ina normal situation where suspension ofa permit is contemplated, written noticewould be given and a reasonable time tocure the condition leading to thesuspension would be provided.However, the Department agrees that 10days is too long to respond in anemergency situation and has revised theprovision in the final rule to provide fora 48-hour response period.

The Department disagrees with therespondent who suggested that allauthorizations for utility rights-of-waymust be renewed, if the holder is incompliance with applicable laws andregulations. This proposal wouldinappropriately restrict the actions ofthe authorized officer responsible forprotecting and managing the NFS lands.

The Department also disagrees withthe respondent who believed that thedefinition of the word ‘‘termination’’would increase regulatory burden andagency costs. Upon adoption of thisfinal rule, the agency will makenecessary revision to its internaldirectives to ensure consistency andconformity with the regulations.Conformance of these directives withthe use of the terms adopted by this rulewill be a part of this effort. Thus, nochange has been made to this provisionin the final rule.

The agency determined during itsanalysis of the proposed rule and thepublic comments that the regulationdoes not clearly identify the agencyofficial who may initiate termination,revocation, or suspension ofauthorizations. Thus, the final ruleprovides that for the purposes of section251.60 the authorized officer is theofficer who issues the authorization orthat officer’s successor.

In addition to the revisions and newlanguage included in this section, thefinal rule also reflects some minorediting to clarify and simplify the text.

Section 251.61 Modifications. Thissection of the regulation describes thoseactions which a holder is required toundertake when it becomes necessary tomodify an existing authorization andthe information which the holder mustsupply to the authorized officer whenmodification becomes necessary. Theproposed rule would have clarifiedparagraph (c) of this section, to providethat modifications to an authorizationrequiring the approval of the authorizedofficer include all activities that wouldimpact the environment, other users, orthe public, not just those involving‘‘maintenance or other activities.’’

Three respondents were concernedthat the wording of the proposedrevision would apply to all activitiesthat would impact the environment,other users, or the public, not just thoseactivities for which modification isproposed. They suggested that thelanguage be clarified to allowimplementation of activities alreadyapproved in the permit that are notsubject to modification to proceedwithout further approval.

Response. The Department agrees thatthe language of proposed paragraph (c)was overly broad. In response torespondents’ concerns, the Departmenthas revised paragraph (c) to require theholder to obtain prior approval for allmodifications to approved uses that willimpact the environment, other users, orthe public.

Section 251.64 Renewals. This sectionof the regulation enumerates the criteriafor renewing an authorization when itprovides for renewal and when it doesnot. There were no changes proposed tothis section, nor did the adoption of thenoncommercial group use regulationson August 30, 1995, to this subpart,affect this section. However, the agencyhas revised this section to incorporate aprovision moved from § 251.54(k) intoparagraph (a) of this section whichrespondents had indicated was out ofplace in that section.

Section 251.65 Information collectionrequirements. This section of theregulation describes the requirementsimposed on the agency when collectinginformation from applicants. Theregulation sets forth in paragraph (b) theagency’s estimate of the time requiredfor a proponent/applicant to provide theinformation requested in an applicationfor a special use authorization, which isestimated to range from 30 minutes forsimple projects (or uses) to severalmonths for complex ones with anaverage of four hours for each project (oruse). There were no changes proposedto this section.

The Department notes it is no longerrequired to set forth the information


contained in paragraph (b) of § 251.65concerning estimates of the informationcollection requirement burden. Thus,this paragraph has been removed in thefinal rule as a technical revision to thesection. The text of former paragraph‘‘(a)’’ is retained but as an undesignatedparagraph.

SummaryThis final rule responds to direction

from the President to reduce theregulatory burden imposed on thoseentities holding or seeking to obtainauthorizations to use and occupyNational Forest System (NFS) lands.The current special use regulations at 36CFR Part 251, Subpart B addresses therights of all citizens regarding uses ofNational Forest System lands areprotected. The regulations provide themeans to protect the health and safetyof the public when using the services ofcommercial entities authorized to usethe Federal lands; ensure that theservices or facilities authorized areoperated in compliance with Title VI ofthe Civil Rights Act of 1964; and ensurethat environmental safeguards areemployed and that authorized uses donot have adverse environmental effectson National Forest System lands.

This final rule will retain these basicsafeguards. The rule will enhanceefficiency in the review of applications,the approval/denial process, and theadministration of authorizations,thereby providing significant costsavings to applicants, holders, and theFederal Government. The intent of thefinal rule is to make the issuance andadministration of special useauthorizations a less cumbersome andcostly process, thereby reducing theburden on that segment of the publicmaking use of these Federal lands,improving productivity of agencyemployees, and streamlining operationsof the agency. Screening a proposed usewill permit review of the proposalbefore the proponent invests time andexpense in providing detailedinformation to accompany theapplication or the Forest Service investstime and expense in performing adetailed evaluation of the proposed use,including an analysis of the impacts onthe environment. By eliminating time-consuming and costly processing ofproposals that cannot meet minimumrequirements, a faster agency responseon those applications that pass theinitial screening would result.

The final rule also incorporates intoregulation statutory authority that hasbeen available to the Forest Service thatexpands its authority to administerspecial use authorizations. The finalrule underscores that the agency may

issue long-term easements instead ofannual or short-term permits and thatthose easements may allow for a one-time fee payment rather than annual feepayments. Holders of authorizations forhigh-risk uses such as electrictransmission lines will be subject tostrict liability for damage or loss thatwill be determined by a risk assessmentrather than a fixed dollar amountspecified in regulations. Finally, theagency has made the regulations more’’user-friendly’’ by clarifying certainprovisions and removing unnecessarylanguage, and carefully reorganizing thetext to flow in a logical sequence.

Regulatory ImpactThis final rule has been reviewed

under USDA procedures and ExecutiveOrder 12866 on Regulatory Planningand Review. It has been determined thatthis is not a significant rule. This rulewill not have an annual effect of $100million or more on the economy noradversely affect productivity,competition, jobs, the environment,public health or safety, nor State or localgovernments. This rule will not interferewith an action taken or planned byanother agency nor raise new legal orpolicy issues. Finally, this action willnot alter the budgetary impact ofentitlements, grants, user fees, or loanprograms or the rights and obligations ofrecipients of such programs.Accordingly, this final rule is notsubject to OMB review under ExecutiveOrder 12866. To the contrary, adoptionof this final rule will have positiveeffects on the economy by creatingefficiencies for the Forest Service andspecial use proponents and holders. Theexpected benefits of this rule outweighthe expected costs to society, the rule isfashioned to maximize net benefits tosociety, and the rule provides clarity tothe regulated community.

Moreover, this final rule has beenconsidered in light of the RegulatoryFlexibility Act (5 U.S.C. 601 et seq.),and it has been certified that this actionwill not have a significant economicimpact on a substantial number of smallentities as defined by that Act.Therefore, contrary to the views of theSmall Business Administration, aregulatory flexibility analysis is notrequired. The efficiencies and costsavings to be achieved by the rule willbenefit both small entities who apply foror hold special use authorizations aswell as large-scale entities.

No Taking ImplicationsThis rule has been analyzed in

accordance with the principles andcriteria contained in Executive Order12630, and it has been determined that

the rule does not pose the risk of ataking of constitutionally protectedprivate property rights. This rule appliesto the discretionary use of Federallyowned land.

Unfunded Mandates Reform

Pursuant to Title II of the UnfundedMandates Reform Act of 1995 (2 U.S.C.1531–1538), which the President signedinto law on March 22, 1995, theDepartment has assessed the effects ofthis rule on State, local, and tribalgovernments and the private sector.This rule does not compel theexpenditure of $100 million or more byany State, local, or tribal governments oranyone in the private sector. Therefore,a statement under section 202 of the Actis not required.

Civil Justice Reform Act

This final rule has been reviewedunder Executive Order 12988, CivilJustice Reform. With adoption of thisfinal rule, (1) all State and local lawsand regulations that are in conflict withthis final rule or which would impedeits full implementation would bepreempted; (2) no retroactive effectwould be given to this final rule; and (3)it would not require administrativeproceedings before parties may file suitin court challenging its provisions.

Environmental Impact

Section 31.1b of Forest ServiceHandbook 1909.15 (57 FR 43180;September 18, 1992) excludes fromdocumentation in an environmentalassessment or impact statement ‘‘rules,regulations, or policies to establishService-wide administrative procedures,program processes or instructions.’’Based on consideration of the commentsreceived and the nature and scope ofthis rulemaking, the Department hasdetermined that this rule falls withinthis category of actions and that noextraordinary circumstances exist whichwould require preparation of anenvironmental assessment orenvironmental impact statement.

Controlling Paperwork Burdens on thePublic

This rule will not result in additionalpaperwork not already required by lawor not already approved for use.Therefore, the review provisions of thePaperwork Reduction Act of 1995 (44U.S.C. 3501, et seq.) and implementingregulations at 5 CFR 1320 do not apply.

List of Subjects in 36 CFR Part 251

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


Therefore, for the reasons set forth inthe preamble, subpart B of part 251 oftitle 36 of the Code of FederalRegulations is amended as follows:

PART 251—LAND USES

Subpart B—Special Uses

1. The authority citation for subpart Bcontinues to read as follows:

Authority: 16 U.S.C. 472, 497b, 551, 1134,3210; 30 U.S.C. 185; 43 U.S.C. 1740, 1761–1771.

2. In § 251.51, revise the definitionsfor ‘‘Easement’’ and ‘‘Lease,’’ and adddefinitions for ‘‘NEPA procedures,’’‘‘Revocation,’’ ‘‘Sound businessmanagement principles,’’ ‘‘Suspension,’’and ‘‘Termination’’ in the appropriatealphabetical order to read as follows:

§ 251.51 Definitions.

* * * * *Easement—a type of special use

authorization (usually granted for linearrights-of-way) that is utilized in thosesituations where a conveyance of alimited and transferable interest inNational Forest System land isnecessary or desirable to serve orfacilitate authorized long-term uses, andthat may be compensable according toits terms.* * * * *

Lease—a type of special useauthorization (usually granted for usesother than linear rights-of-way) that isused when substantial capitalinvestment is required and whenconveyance of a conditional andtransferable interest in National ForestSystem lands is necessary or desirableto serve or facilitate authorized long-term uses, and that may be revocableand compensable according to its terms.* * * * *

NEPA procedures—the rules, policies,and procedures governing agencycompliance with the NationalEnvironmental Policy Act set forth in 50CFR parts 1500–1508, 7 CFR part 1b,Forest Service Manual Chapter 1950,and Forest Service Handbook 1909.15.* * * * *

Revocation—the cessation of a specialuse authorization by action of anauthorized officer before the end of thespecified period of occupancy or use forreasons set forth in § 251.60(a)(1)(i),(a)(2)(i), (g), and (h) of this subpart.* * * * *

Sound business managementprinciples—a phrase that refers toaccepted industry practices or methodsof establishing fees and charges that areused or applied by the Forest Service tohelp establish the appropriate charge for

a special use. Examples of suchpractices and methods include, but arenot limited to, appraisals, fee schedules,competitive bidding, negotiation of fees,and application of other economicfactors, such as cost efficiency, supplyand demand, and administrative costs.* * * * *

Suspension—a temporary revocationof a special use authorization.* * * * *

Termination—the cessation of aspecial use authorization by operationof law or by operation of a fixed oragreed-upon condition, event, or time asspecified in an authorization withoutthe necessity for any decision or actionby the authorized officer; for example,expiration of the authorized term ortransfer of the authorized improvementto another party.

3. Revise § 251.54 to read as follows:

§ 251.54 Proposal and applicationrequirements and procedures.

(a) Early notice. When an individualor entity proposes to occupy and useNational Forest System lands, theproponent is required to contact theForest Service office(s) responsible forthe management of the affected land asearly as possible in advance of theproposed use.

(b) Filing proposals. Proposals forspecial uses must be filed in writingwith or presented orally to the DistrictRanger or Forest Supervisor havingjurisdiction over the affected land(§ 200.2 of this chapter), except asfollows:

(1) Proposals for projects on landsunder the jurisdiction of two or moreadministrative units of the ForestService may be filed at the mostconvenient Forest Service office havingjurisdiction over part of the project, andthe proponent will be notified where todirect subsequent communications;

(2) Proposals for cost-share and otherroad easements to be issued under§ 251.53(j) must be filed in accordancewith regulations in § 212.10(c) and (d) ofthis chapter; and

(3) Proposals for oil and gas pipelinerights-of-way crossing Federal landsunder the jurisdiction of two or moreFederal agencies must be filed with theState Office, Bureau of LandManagement, pursuant to regulations at43 CFR part 2882.

(c) Rights of proponents. A proposalto obtain a special use authorizationdoes not grant any right or privilege touse National Forest System lands.Rights or privileges to occupy and useNational Forest System lands under thissubpart are conveyed only throughissuance of a special use authorization.

(d) Proposal content—(1) Proponentidentification. Any proponent for aspecial use authorization must providethe proponent’s name and mailingaddress, and, if the proponent is not anindividual, the name and address of theproponent’s agent who is authorized toreceive notice of actions pertaining tothe proposal.

(2) Required information—(i)Noncommercial group uses. Paragraphs(d)(3) through (d)(5) of this section donot apply to proposals fornoncommercial group uses. Aproponent for noncommercial groupuses shall provide the following:

(A) A description of the proposedactivity;

(B) The location and a description ofthe National Forest System lands andfacilities the proponent would like touse;

(C) The estimated number ofparticipants and spectators;

(D) The starting and ending time anddate of the proposed activity; and

(E) The name of the person or persons21 years of age or older who will signa special use authorization on behalf ofthe proponent.

(ii) All other special uses. At aminimum, proposals for special usesother than noncommercial group usesmust include the information containedin paragraphs (d)(3) through (d)(5) ofthis section. In addition, if requested byan authorized officer, a proponent inone of the following categories mustfurnish the information specified forthat category:

(A) If the proponent is a State or localgovernment agency: a copy of theauthorization under which the proposalis made;

(B) If the proponent is a publiccorporation: the statute or otherauthority under which it was organized;

(C) If the proponent is a FederalGovernment agency: the title of theagency official delegated the authorityto file the proposal;

(D) If the proponent is a privatecorporation:

(1) Evidence of incorporation and itscurrent good standing;

(2) If reasonably obtainable by theproponent, the name and address ofeach shareholder owning three percentor more of the shares, together with thenumber and percentage of any class ofvoting shares of the entity which suchshareholder is authorized to vote;

(3) The name and address of eachaffiliate of the entity;

(4) In the case of an affiliate which iscontrolled by the entity, the number ofshares and the percentage of any classof voting stock of the affiliate that the


entity owns either directly or indirectly;or

(5) In the case of an affiliate whichcontrols that entity, the number ofshares and the percentage of any classof voting stock of that entity owned,either directly or indirectly by theaffiliate; or

(E) If the proponent is a partnership,association, or other unincorporatedentity: a certified copy of thepartnership agreement or other similardocument, if any, creating the entity, ora certificate of good standing under thelaws of the State.

(3) Technical and financial capability.The proponent is required to providesufficient evidence to satisfy theauthorized officer that the proponenthas, or prior to commencement ofconstruction will have, the technicaland financial capability to construct,operate, maintain, and terminate theproject for which an authorization isrequested, and the proponent isotherwise acceptable.

(4) Project description. Except forrequests for planning permits for amajor development, a proponent mustprovide a project description, includingmaps and appropriate resourceinformation, in sufficient detail toenable the authorized officer todetermine the feasibility of a proposedproject or activity, any benefits to beprovided to the public, the safety of theproposal, the lands to be occupied orused, the terms and conditions to beincluded, and the proposal’scompliance with applicable laws,regulations, and orders.

(5) Additional information. Theauthorized officer may require any otherinformation and data necessary todetermine feasibility of a project oractivity proposed; compliance withapplicable laws, regulations, and orders;compliance with requirements forassociated clearances, certificates,permits, or licenses; and suitable termsand conditions to be included in theauthorization. The authorized officershall make requests for any additionalinformation in writing.

(e) Pre-application actions. (1) Initialscreening. Upon receipt of a request forany proposed use other than fornoncommercial group use, theauthorized officer shall screen theproposal to ensure that the use meetsthe following minimum requirementsapplicable to all special uses:

(i) The proposed use is consistentwith the laws, regulations, orders, andpolicies establishing or governingNational Forest System lands, withother applicable Federal law, and withapplicable State and local health andsanitation laws.

(ii) The proposed use is consistent orcan be made consistent with standardsand guidelines in the applicable forestland and resource management planprepared under the National ForestManagement Act and 36 CFR part 219.

(iii) The proposed use will not posea serious or substantial risk to publichealth or safety.

(iv) The proposed use will not createan exclusive or perpetual right of use oroccupancy.

(v) The proposed use will notunreasonably conflict or interfere withadministrative use by the Forest Service,other scheduled or authorized existinguses of the National Forest System, oruse of adjacent non-National ForestSystem lands.

(vi) The proponent does not have anydelinquent debt owed to the ForestService under terms and conditions of aprior or existing authorization, unlesssuch debt results from a decision on anadministrative appeal or from a feereview and the proponent is currentwith the payment schedule.

(vii) The proposed use does notinvolve gambling or providing ofsexually oriented commercial services,even if permitted under State law.

(viii) The proposed use does notinvolve military or paramilitary trainingor exercises by private organizations orindividuals, unless such training orexercises are federally funded.

(ix) The proposed use does notinvolve disposal of solid waste ordisposal of radioactive or otherhazardous substances.

(2) Results of initial screening. Anyproposed use other than anoncommercial group use that does notmeet all of the minimum requirementsof paragraphs (e)(1)(i)-(ix) of this sectionshall not receive further evaluation andprocessing. In such event, theauthorized officer shall advise theproponent that the use does not meetthe minimum requirements. If theproposal was submitted orally, theauthorized officer may respond orally. Ifthe proposal was made in writing, theauthorized officer shall notify theproponent in writing that the proposeduse does not meet the minimumrequirements and shall simultaneouslyreturn the request.

(3) Guidance and information toproponents. For proposals fornoncommercial group use as well as forthose proposals that meet the minimumrequirements of paragraphs (e)(1)(i)-(ix),the authorized officer, to the extentpracticable, shall provide the proponentguidance and information on thefollowing:

(i) Possible land use conflicts asidentified by review of forest land and

resource management plans,landownership records, and otherreadily available sources;

(ii) Proposal and applicationprocedures and probable timerequirements;

(iii) Proponent qualifications;(iv) Applicable fees, charges, bonding,

and/or security requirements;(v) Necessary associated clearances,

permits, and licenses;(vi) Environmental and management

considerations;(vii) Special conditions; and(viii) identification of on-the-ground

investigations which will requiretemporary use permits.

(4) Confidentiality. If requested by theproponent, the authorized officer, orother Forest Service official, to theextent reasonable and authorized bylaw, shall hold confidential any projectand program information revealedduring pre-application contacts.

(5) Second-level screening ofproposed uses. A proposal which passesthe initial screening set forth inparagraph (e)(1) and for which theproponent has submitted information asrequired in paragraph (d)(2)(ii) of thissection, proceeds to second-levelscreening and consideration. In order tocomplete this screening andconsideration, the authorized officermay request such additionalinformation as necessary to obtain a fulldescription of the proposed use and itseffects. An authorized officer shall rejectany proposal, including a proposal forcommercial group uses, if, upon furtherconsideration, the officer determinesthat:

(i) The proposed use would beinconsistent or incompatible with thepurposes for which the lands aremanaged, or with other uses; or

(ii) The proposed use would not be inthe public interest; or

(iii) The proponent is not qualified; or(iv) The proponent does not or cannot

demonstrate technical or economicfeasibility of the proposed use or thefinancial or technical capability toundertake the use and to fully complywith the terms and conditions of theauthorization; or

(v) There is no person or entityauthorized to sign a special useauthorization and/or there is no personor entity willing to accept responsibilityfor adherence to the terms andconditions of the authorization.

(6) NEPA compliance for second-levelscreening process. A request for aspecial use authorization that does notmeet the criteria established inparagraphs (e)(5)(i) through (e)(5)(v) ofthis section does not constitute anagency proposal as defined in 40 CFR


1508.23 and, therefore, does not requireenvironmental analysis anddocumentation.

(f) Special requirements for certainproposals. (1) Oil and gas pipelinerights-of-way. These proposals mustinclude the citizenship of theproponent(s) and disclose the identity ofits participants as follows:

(i) Citizens of another country, thelaws, customs, or regulations of whichdeny similar or like privileges tocitizens or corporations of the UnitedStates, shall not own an appreciableinterest in any oil and gas pipelineright-of-way or associated permit; and

(ii) The authorized officer shall notifythe House Committee on Resources andthe Senate Committee on Energy andNatural Resources promptly uponreceipt of a proposal for a right-of-wayfor a pipeline twenty-four (24) inches ormore in diameter, and no right-of-wayfor such a pipeline shall be granted untilsixty (60) days (not counting days onwhich the House of Representatives orthe Senate has adjourned for more thanthree (3) days) after a notice of intentionto grant the right-of-way, together withthe authorized officer’s detailed findingsas to terms and conditions the officerproposes to impose, has been submittedto such committees, unless eachcommittee by resolution waives thewaiting period.

(2) Electric power transmission lines66 KV or over. Any proposal forauthority to construct and maintain afacility for the generation of electricpower and energy or for thetransmission or distribution of electricpower and energy of 66 kilovolts orhigher under this section must bereferred to the Secretary of Energy forconsultation.

(3) Major development. Proponents ofa major development may submit arequest for a planning permit of up to10 years in duration. Requests for aplanning permit must include theinformation contained in paragraphs(d)(1) through (d)(3) of this section.Upon completion of a masterdevelopment plan developed under aplanning permit, proponents may thensubmit a request for a long-termauthorization to construct and operatethe development. At a minimum, arequest for a long-term permit for amajor development must include theinformation contained in paragraphs(d)(1) and (d)(2)(ii) through (d)(5) of thissection. Issuance of a planning permitdoes not prejudice approval or denial ofa subsequent request for a special usepermit for the development.

(g) Application processing andresponse. (1) Acceptance ofapplications. Except for proposals for

noncommercial group uses, if a requestdoes not meet the criteria of bothscreening processes or is subsequentlydenied, the proponent must be notifiedwith a written explanation of therejection or denial and any writtenproposal returned to the proponent. If arequest for a proposed use meets thecriteria of both the initial and second-level screening processes as describedin paragraph (e) of this section, theauthorized officer shall notify theproponent that the agency is prepared toaccept a written formal application fora special use authorization and shall, asappropriate or necessary, provide theproponent guidance and information ofthe type described in paragraphs (e)(3)(i)through (e)(3)(viii) of this section.

(2) Processing applications. (i) Uponacceptance of an application for aspecial use authorization other than aplanning permit, the authorized officershall evaluate the proposed use for therequested site, including effects on theenvironment. The authorized officermay request such additionalinformation as necessary to obtain a fulldescription of the proposed use and itseffects.

(ii) Federal, State, and localgovernment agencies and the publicshall receive adequate notice and anopportunity to comment upon a specialuse proposal accepted as a formalapplication in accordance with ForestService NEPA procedures.

(iii) The authorized officer shall givedue deference to the findings of anotheragency such as a Public UtilityCommission, the Federal RegulatoryEnergy Commission, or the InterstateCommerce Commission in lieu ofanother detailed finding. If thisinformation is already on file with theForest Service, it need not be refiled, ifreference is made to the previous filingdate, place, and case number.

(iv) Applications for noncommercialgroup uses must be received at least 72hours in advance of the proposedactivity. Applications fornoncommercial group uses shall beprocessed in order of receipt, and theuse of a particular area shall beallocated in order of receipt of fullyexecuted applications, subject to anyrelevant limitations set forth in thissection.

(v) For applications for planningpermits, including those issued for amajor development as described inparagraph (f)(3) of this section, theauthorized officer shall assess only theapplicant’s financial and technicalqualifications and determinecompliance with other applicable laws,regulations, and orders. Planningpermits may be categorically excluded

from documentation in anenvironmental assessment orenvironmental impact statementpursuant to Forest Service Handbook1909.15 (36 CFR 200.4).

(3) Response to applications fornoncommercial group uses. (i) Allapplications for noncommercial groupuses shall be deemed granted and anauthorization shall be issued for thoseuses pursuant to the determination asset forth below, unless applications aredenied within 48 hours of receipt.Where an application for anoncommercial group use has beengranted or is deemed to have beengranted and an authorization has beenissued under this paragraph, anauthorized officer may revoke thatauthorization only as provided under§ 251.60(a)(1)(i).

(ii) An authorized officer shall grantan application for a special useauthorization for a noncommercialgroup use upon a determination that:

(A) Authorization of the proposedactivity is not prohibited by the rules at36 CFR part 261, subpart B, or byFederal, State, or local law unrelated tothe content of expressive activity;

(B) Authorization of the proposedactivity is consistent or can be madeconsistent with the standards andguidelines in the applicable forest landand resource management plan requiredunder the National Forest ManagementAct and 36 CFR part 219;

(C) The proposed activity does notmaterially impact the characteristics orfunctions of the environmentallysensitive resources or lands identified inForest Service Handbook 1909.15,chapter 30;

(D) The proposed activity will notdelay, halt, or prevent administrativeuse of an area by the Forest Service orother scheduled or existing uses oractivities on National Forest Systemlands, including but not limited to usesand activities authorized under parts222, 223, 228, and 251 of this chapter;

(E) The proposed activity does notviolate State and local public healthlaws and regulations as applied to theproposed site. Issues addressed by Stateand local public health laws andregulations as applied to the proposedsite include but are not limited to:

(1) The sufficiency of sanitationfacilities;

(2) The sufficiency of waste-disposalfacilities;

(3) The availability of sufficientpotable drinking water;

(4) The risk of disease from thephysical characteristics of the proposedsite or natural conditions associatedwith the proposed site; and


(5) The risk of contamination of thewater supply;

(F) The proposed activity will notpose a substantial danger to publicsafety. Considerations of public safetymust not include concerns aboutpossible reaction to the users’ identityor beliefs from non-members of thegroup that is seeking an authorizationand shall be limited to the following:

(1) The potential for physical injury toother forest users from the proposedactivity;

(2) The potential for physical injury tousers from the physical characteristicsof the proposed site or naturalconditions associated with the proposedsite;

(3) The potential for physical injury tousers from scheduled or existing uses oractivities on National Forest Systemlands; and

(4) The adequacy of ingress and egressin case of an emergency;

(G) The proposed activity does notinvolve military or paramilitary trainingor exercises by private organizations orindividuals, unless such training orexercises are federally funded; and

(H) A person or persons 21 years ofage or older have been designated tosign and do sign a special useauthorization on behalf of the applicant.

(iii) If an authorized officer denies anapplication because it does not meet thecriteria in paragraphs (g)(3)(ii)(A)through (g)(3)(ii)(H) of this section, theauthorized officer shall notify theapplicant in writing of the reasons forthe denial. If an alternative time, place,or manner will allow the applicant tomeet the eight evaluation criteria, anauthorized officer shall offer thatalternative. If an application is deniedsolely under paragraph (g)(3)(ii)(C) ofthis section and all alternativessuggested are unacceptable to theapplicant, the authorized officer shalloffer to have completed the requisiteenvironmental and other analyses forthe requested site. A decision to grant ordeny the application for which anenvironmental assessment or anenvironmental impact statement isprepared is subject to the notice andappeal procedures at 36 CFR part 215and shall be made within 48 hours afterthe decision becomes final under thatappeal process. A denial of anapplication under paragraphs(g)(3)(ii)(A) through (g)(3)(ii)(H) of thissection constitutes final agency actionand is immediately subject to judicialreview.

(4) Response to all other applications.Based on evaluation of the informationprovided by the applicant and otherrelevant information such asenvironmental findings, the authorized

officer shall decide whether to approvethe proposed use, approve the proposeduse with modifications, or deny theproposed use. A group of applicationsfor similar uses having minorenvironmental impacts may beevaluated with one analysis andapproved in one decision.

(5) Authorization of a special use.Upon a decision to approve a specialuse or a group of similar special uses,the authorized officer may issue one ormore special use authorizations asdefined in § 251.51 of this subpart.

4. In § 251.56, revise paragraphs (a)and (d)(2), to read as follows:

§ 251.56 Terms and conditions.(a) General. (1) Each special use

authorization must contain:(i) Terms and conditions which will:(A) Carry out the purposes of

applicable statutes and rules andregulations issued thereunder;

(B) Minimize damage to scenic andesthetic values and fish and wildlifehabitat and otherwise protect theenvironment;

(C) Require compliance withapplicable air and water qualitystandards established by or pursuant toapplicable Federal or State law; and

(D) Require compliance with Statestandards for public health and safety,environmental protection, and siting,construction, operation, andmaintenance if those standards are morestringent than applicable Federalstandards.

(ii) Such terms and conditions as theauthorized officer deems necessary to:

(A) Protect Federal property andeconomic interests;

(B) Manage efficiently the landssubject to the use and adjacent thereto;

(C) Protect other lawful users of thelands adjacent to or occupied by suchuse;

(D) Protect lives and property;(E) Protect the interests of individuals

living in the general area of the use whorely on the fish, wildlife, and otherbiotic resources of the area forsubsistence purposes;

(F) Require siting to cause the leastdamage to the environment, taking intoconsideration feasibility and otherrelevant factors; and

(G) Otherwise protect the publicinterest.

(2) Authorizations for use of NationalForest System lands may be conditionedto require State, county, or other Federalagency licenses, permits, certificates, orother approval documents, such as aFederal Communication Commissionlicense, a Federal Energy RegulatoryCommission license, a State water right,or a county building permit.* * * * *

(d) * * *(2) Holders of special use

authorizations for high risk use andoccupancy, such as, but not limited to,powerlines and oil and gas pipelines,shall be held liable for all injury, loss,or damage, including fire suppressioncosts, caused by the holder’s use oroccupancy, without regard to theholder’s negligence, provided thatmaximum liability shall be specified inthe special use authorization asdetermined by a risk assessment,prepared in accordance with establishedagency procedures, but shall not exceed$1,000,000 for any one occurrence.Liability for injury, loss, or damage,including fire suppression costs, inexcess of the specified maximum shallbe determined by the laws governingordinary negligence of the jurisdictionin which the damage or injury occurred.* * * * *

5. In § 251.57, remove paragraph (h),redesignate paragraph (i) as (h), andrevise paragraph (a) to read as follows:

§ 251.57 Rental fees.(a) Except as otherwise provided in

this part or when specifically authorizedby the Secretary of Agriculture, specialuse authorizations shall require thepayment in advance of an annual rentalfee as determined by the authorizedofficer.

(1) The fee shall be based on the fairmarket value of the rights and privilegesauthorized, as determined by appraisalor other sound business managementprinciples.

(2) Where annual fees of one hundreddollars ($100) or less are assessed, theauthorized officer may require eitherannual payment or a payment coveringmore than one year at a time. If theannual fee is greater than one hundreddollars ($100), holders who are privateindividuals (that is, acting in anindividual capacity), as opposed tothose who are commercial, othercorporate, or business or governmententities, may, at their option, elect tomake either annual payments orpayments covering more than one year.* * * * *


§ 251.59 Transfer of authorizedimprovements.

If the holder, through death, voluntarysale, transfer, or through enforcement ofa valid legal proceeding or operation oflaw, ceases to be the owner of theauthorized improvements, theauthorization terminates upon change ofownership. Except for easements issuedunder authorities other than § 251.53(e)and leases and easements under§ 251.53(l) of this subpart, the new


owner of the authorized improvementsmust apply for and receive a newspecial use authorization. The newowner must meet requirements underapplicable regulations of this subpartand agree to comply with the terms andconditions of the authorization and anynew terms and conditions warranted byexisting or prospective circumstances.

7. Amend § 251.60 as follows:a. Remove paragraph (g);b. Redesignate paragraphs (h), (i), and

(j) as (g), (h), and (i), respectively; andc. Revise paragraphs (a)(2), (b), (e), (f),

and newly redesignated (g), (h), and (i)to read as follows:

§ 251.60 Termination, revocation, andsuspension.

(a) * * *(2) All other special uses. (i)

Revocation or suspension. Anauthorized officer may revoke orsuspend a special use authorization forall other special uses, except aneasement issued pursuant to § 251.53 (e)and (l):

(A) For noncompliance withapplicable statutes, regulations, or theterms and conditions of theauthorization;

(B) For failure of the holder toexercise the rights or privileges granted;

(C) With the consent of the holder; or(D) At the discretion of the authorized

officer for specific and compellingreasons in the public interest.

(ii) Administrative review. Except forrevocation or suspension of an easementissued pursuant to § 251.53 (e) and (l) ofthis subpart, a suspension or revocationof a special use authorization under thisparagraph is subject to administrativeappeal and review in accordance with36 CFR part 251, subpart C, of thischapter.

(iii) Termination. For all special usesexcept noncommercial group uses, aspecial use authorization terminateswhen, by its terms, a fixed or agreed-upon condition, event, or time occurs.Termination of a special useauthorization under this paragraph doesnot involve agency action and is notsubject to administrative or judicialreview.

(b) For purposes of this section, theauthorized officer is that person whoissues the authorization or that officer’ssuccessor.* * * * *

(e) Except when immediatesuspension pursuant to paragraph (f) of

this section is indicated, the authorizedofficer shall give the holder writtennotice of the grounds for suspension orrevocation under paragraph (a) of thissection and reasonable time to cure anynoncompliance, prior to suspension orrevocation pursuant to paragraph (a) ofthis section,

(f) Immediate suspension of a specialuse authorization, in whole or in part,may be required when the authorizedofficer deems it necessary to protect thepublic health or safety or theenvironment. In any such case, within48 hours of a request of the holder, thesuperior of the authorized officer shallarrange for an on-site review of theadverse conditions with the holder.Following this review, the superiorofficer shall take prompt action toaffirm, modify, or cancel thesuspension.

(g) The authorized officer maysuspend or revoke easements issuedpursuant to § 251.53 (e) and (l) of thissubpart under the Rules of PracticeGoverning Formal AdjudicatoryAdministrative Proceedings institutedby the Secretary under 7 CFR 1.130through 1.151. No administrativeproceeding shall be required if theeasement, by its terms, provides that itterminates on the occurrence of a fixedor agreed-upon condition, event, ortime.

(h)(1) The Chief may revoke anyeasement granted under the provisionsof the Act of October 13, 1964, 78 Stat.1089, 16 U.S.C. 534:

(i) By consent of the owner of theeasement;

(ii) By condemnation; or(iii) Upon abandonment after a 5-year

period of nonuse by the owner of theeasement.

(2) Before any such easement isrevoked for nonuse or abandonment, theowner of the easement shall be givennotice and, upon the owner’s requestmade within 60 days after receipt of thenotice, an opportunity to presentrelevant information in accordance withthe provisions of 36 CFR part 251,subpart C, of this chapter.

(i) Upon revocation or termination ofa special use authorization, the holdermust remove within a reasonable timethe structures and improvements andshall restore the site to a conditionsatisfactory to the authorized officer,unless the requirement to removestructures or improvements is otherwisewaived in writing or in the

authorization. If the holder fails toremove the structures or improvementswithin a reasonable period, asdetermined by the authorized officer,they shall become the property of theUnited States, but holder shall remainliable for the costs of removal and siterestoration.

8. In § 251.61, revise paragraph (c) toread as follows:

§ 251.61 Modifications.

* * * * *

(c) A holder shall obtain priorapproval from the authorized officer formodifications to approved uses thatinvolve any activity impacting theenvironment, other users, or the public.

9. In § 251.64, add two sentences atthe end of paragraph (a) to read asfollows:

§ 251.64 Renewals.

(a) * * * Special uses may bereauthorized upon expiration so long assuch use remains consistent with thedecision that approved the expiringspecial use or group of uses. Ifsignificant new information orcircumstances have developed,appropriate environmental analysismust accompany the decision toreauthorize the special use.* * * * *


§ 251.65 Information collectionrequirements.

The rules of this subpart governingspecial use applications (§ 251.54 and§ 251.59), terms and conditions(§ 251.54), rental fees (§ 251.57), andmodifications (§ 251.61) specify theinformation that proponents orapplicants for special use authorizationsor holders of existing authorizationsmust provide in order for an authorizedofficer to act on a request or administerthe authorization. As such, these rulescontain information requirements asdefined in 5 CFR part 1320. Theseinformation requirements are assignedOMB Control Number 0596–0082.

Dated: October 31, 1998.Anne Kennedy,Deputy Under Secretary, Natural Resourcesand Environment.

Note: The following exhibit will not appearin the Code of Federal Regulations.

BILLING CODE 3410–11–P


[FR Doc. 98–31564 Filed 11–30–98; 8:45 am]BILLING CODE 3410–11–C

part iv - us forest service · federal register 65949 monday november 30, 1998 part iv department...

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