USFS, Special Uses Requiring Authorization Comments P1

[Ed A. Stevens]

Special Use Permits
2948 Federal Register / Vol. 68, No. 14 /
Wednesday, January 22, 2003 / Proposed Rules

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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Parts 251, 261, and 295

RIN 0596-AB74

Land Uses; Special Uses Requiring Authorization

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AGENCY: Forest Service, USDA.

ACTION: Proposed rule.

SUMMARY:

The Forest Service proposes to amend the regulations at part 251 that
govern special uses of National Forest System lands to address management
issues related to the special uses program and to clarify categories of
activities for which a special use authorization is required. The proposed
rule would promote consistent treatment of special uses requiring an
authorization; improve the agency's ability to resolve management issues by
requiring permits; and reduce the agency's administrative cost by
eliminating the need for issuing an order to require a special use permit
and not requiring special use authorizations where they serve no management
purpose. The proposed rule clarifies requirements regarding authorizations
for special uses involving National Forest System roads and trails. The
proposed rule also would add definitions to part 251, would revise
definitions in part 261, and would revise a term in the heading of part
295, to ensure use of consistent terminology in these parts. Public comment
is invited and will be considered in development of the final rule.

DATES:

Comments must be received in writing by March 24, 2003.
ADDRESSES:

Send written comments to Forest Service, USDA, Attn: Director,
Recreation, Heritage and Wilderness Resources (RHWR) Staff, (2720), Mail
Stop 1125, Washington, DC 20250-1125.

E-mail comments to: [email protected]

All comments, including names and addresses when provided, will be
placed in the record and will be available for public inspection and
copying. The public may inspect comments received on this proposed rule in
the Office of the Director, RHWR Staff, 4th Floor Central, Sidney R. Yates
Federal Building, 14th and Independence Avenue, SW., Washington, DC, on
business days between the hours of 8:30 a.m. and 4:30 p.m. Those wishing to
inspect comments are encouraged to call ahead at (202) 205-1706 or (202)
205-1399 to facilitate entry into the building.

FOR FURTHER INFORMATION CONTACT:

Carolyn Holbrook, Recreation, Heritage, and Wilderness Resources Staff,
(202) 205-1399, or Randy Karstaedt, Lands Staff, (202) 205-1256.

SUPPLEMENTARY INFORMATION:

Background and Need for Rule

Forest Service regulations at 36 CFR part 251, subpart B, govern
authorizations for occupancy and use of National Forest System lands.
Section 251.50 of this subpart characterizes as "special uses" all uses of
National Forest System lands, improvements, and resources, except those
authorized by the regulations governing the disposal of timber (part 223)
and minerals (part 228) and the grazing of livestock (part 222). The
regulation requires an authorization for all "special uses," with certain
exceptions.

Approximately 72,000 special use authorizations are in effect on
National Forest System lands. These uses cover a variety of activities
ranging from individual private uses to large-scale commercial facilities
and public services. Examples of authorized land uses include road
rights-of-way accessing private residences, apiaries, domestic water
supplies and water conveyance systems, telephone and electric service
rights-of-way, ski areas, resorts, marinas, outfitter and guide services,
and public parks and campgrounds. About 6,000 special use proposals are
submitted annually by various entities wanting to use and occupy National
Forest System lands. This proposed rule would clarify which activities
require a special use authorization. The rule also would revise the term
"National Forest System road" (formerly, "forest development road") to
conform to changes in the road management rule at part 212.

In addition, the proposed rule would make the following technical
amendments: (1) Revising the definitions for "National Forest System road"
and "National Forest System trail" in section 261.2 to make them consistent
with 23 U.S.C. 101; (2) in section 261.55, changing the term "forest
development trail" to "National Forest System trail," in conformance with
the terminology used in part 212 and this proposed rule; and (3) changing
the term "Forest Service Roads" to "National Forest System Roads" in the
title of the heading for part 295.

Clarification of Special Uses Requiring an Authorization

Revision of sections 251.50 and 251.51 is needed to address management
issues related to the special uses program and to special use
authorizations involving National Forest System roads and trails.

The current regulation at 36 CFR 251.50(d) provides that a special use
authorization is not required for use of National Forest System roads and
trails, unless required by an order issued pursuant to section 261.50 or a
regulation issued pursuant to section 261.70. Courts have construed this
provision as not requiring an authorization for special uses that occur on
National Forest System roads and trails and have invalidated orders issued
pursuant to section 261.50 that required a permit for special uses
occurring on National Forest System roads. These rulings have created a gap
in regulatory coverage in the special uses program.

The requirement for a special use authorization should be triggered
whenever a special use is conducted on National Forest System lands,
including on a road or trail. Therefore, the Forest Service proposes to
clarify that activities requiring a special use authorization on National
Forest System lands are also subject to the requirement for a special use
authorization when they are conducted on National Forest System roads and
trails (formerly known as forest development roads and trails). The Forest
Service has identified four types of special uses that occur on National
Forest System roads and trails: noncommercial group uses, outfitting and
guiding, recreation events, and commercial filming. The agency is proposing
to narrow the exemption for the authorization requirement in section
251.50(d) to exclude special uses occurring on National Forest System
roads, and to eliminate the exemption for the authorization requirement for
special uses occurring on National Forest System trails. The Forest Service
is proposing to eliminate the exemption for special uses conducted on
National Forest System trails because there is great potential for resource
damage on trails that may not be designed or constructed for the level or
type of use that occurs. Furthermore, it is unlikely that there is
commercial use of National Forest System trails that should be exempted
from the special use authorization requirement.

Under these proposed revisions to the rule, the Forest Service would
require special use authorizations and the fees for those authorizations
under statutes governing use and occupancy of National Forest System lands.
Specifically, for occupancy and use of National Forest System lands, the
Forest Service would require commercial filming and still photography
permits and permit fees under Public Law 106- 206; outfitting and guiding
permits and recreation event permits, and permit fees under the Land and
Water Conservation Fund Act, 16 U.S.C. 460l- 6a(c); and noncommercial group
use permits (no fee is charged for noncommercial group use permits) under
the agency's Organic Act, 16 U.S.C. 551. Further authority for these permit
fees is found in the Independent Offices Appropriations Act, 31 U.S.C.
9701, Office of Management and Budget Circular No. A-25, and 36 CFR
251.57(a). These fees would be charged annually for commercial special uses
of National Forest System lands, and would be based on the fair market
value of the authorized uses of those lands.

The agency has several reasons for proposing that these types of
activities set out at section 251.50 require a special use authorization
when conducted on National Forest System roads and trails.

 

[Ed A. Stevens]

USFS, Special Uses Requiring Authorization Comments P2

First, a growing number of parties engaged in commercial recreation
events and outfitting and guiding use this regulatory gap in the current
rule to conduct these activities without a special use authorization. They
do so by confining their use and occupancy of National Forest System lands
only to National Forest System roads and trails. While the organizers or
commercial operators of these types of uses may assert that their
activities are confined only to a road or trail, sometimes their activities
include the use and occupancy of National Forest System lands adjacent to
the road or trail. Determining whether a use is confined to a road or trail
requires intensive, case-specific monitoring. The proposed rule would
eliminate the need for this monitoring by requiring an authorization for
all types of special uses that involve the use of National Forest System
lands, regardless of whether they occur on or off National Forest System
roads and trails.

Second, some commercial operators design their services to fit the
regulatory gap, potentially compromising the quality of the recreation
experience, public safety, and the interests of the United States. For
example, some operators may stop on a road to unload people and equipment
to avoid getting off the road. Requiring a special use authorization would
eliminate this practice when a safer alternative is available and would
require that necessary safety procedures be followed when no such
alternative is available. In addition, conducting a special use without an
authorization exposes the United States to potential liability. Special use
authorizations contain indemnification, insurance, and other provisions
that protect the United States from liability arising in connection with
the holder's use and occupancy.

Third, the regulatory gap creates an uneven playing field among
businesses, some of which operate under a special use authorization and pay
a land use fee, while others do not. The Forest Service is required to
obtain fair market value for the commercial use of National Forest System
lands. The value of these uses of National Forest System roads and trails
is directly attributable to the presence of National Forest System lands
and resources located outside the confines of the roads and trails. The
public should realize a fair market value return for these commercial uses
of Federal lands and resources, which can be achieved only by requiring a
special use authorization for these uses and charging a land use fee for
the authorization.

Fourth, the agency needs to regulate these uses of National Forest
System roads and trails to accomplish management objectives and reduce
impacts to National Forest System lands and resources. The demand for uses
of National Forest System lands and resources has increased in recent
years. Along with the growth in demand, there are more conflicts among
users and increased pressure on limited land and resources. In some cases,
the demand is so great that it is necessary to limit use. When an area
becomes popular, uncontrolled use can result in land and resource impacts,
user conflicts, or increased vehicular and pedestrian traffic with
associated traffic safety concerns on National Forest System roads and
trails. The agency attempts to balance the needs of individuals, private
groups, and commercial operators when managing uses. The agency proposes to
address these concerns and conflicts through special use authorizations for
special uses that occur on National Forest System roads and trails.

Additionally, this rule would replace the term "forest development
roads" with "National Forest System roads" to conform to recent regulatory
changes made to 36 CFR part 212.

The authority in the proposed rule to regulate special uses occurring on
National Forest System roads would not supplant Forest Service authority to
regulate road use within the National Forest System under applicable law,
including the National Forest Roads and Trails Act. Rather, these
authorities would be complementary. For example, a separate road use permit
could be issued under Forest Service Manual 7731.16 and Forest Service
Handbook 7709.59, section 24, in conjunction with a special use
authorization issued under the proposed rule, or road use issues could be
addressed within the context of a special use authorization issued under
the proposed rule.


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The proposed changes will state that noncommercial group uses,
outfitting and guiding, recreation events, and commercial filming conducted
on National Forest System roads require a special use authorization.

For example, a special use authorization would be required for an
outfitter who charges a customer for the delivery of livestock or
recreation equipment on a National Forest System road for the customers to
use on adjacent National Forest System lands. A second example is a guide
who conducts commercial, vehicular tours on National Forest System roads,
regardless of whether the guide's customers are confined to the vehicle. A
third example is the use of motion picture equipment on a National Forest
System road that involves the advertisement of a product or service. A
final example is an endurance ride involving hundreds of participants, for
which no entry fee is charged, conducted on a National Forest System road.

The proposed changes would include the authority for Regional Foresters
and Forest Supervisors to issue orders and regulations to prohibit or
regulate other uses of National Forest System roads, on a case-specific
basis.


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