[Federal Register Volume 63, Number 229 (Monday, November 30, 1998)]
[Rules and Regulations]
[Pages 65950-65969]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-31564]



[[Page 65949]]

_______________________________________________________________________

Part IV





Department of Agriculture





_______________________________________________________________________



Forest Service



_______________________________________________________________________



36 CFR Part 251



Special Uses; Final Rule

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

[[Page 65950]]



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 adopting amendments to regulations governing 
the use and occupancy of National Forest System lands to streamline and 
make more efficient the process for obtaining special use 
authorizations, to provide for the use of one-time payments for 
easements as presently used in the market place, to limit certain 
liability requirements to amounts determined by a risk assessment, to 
clarify definitions of certain terms, and to clarify requirements 
related to renewal of existing special use authorizations. The intent 
is to improve service and reduce costs to proponents and applicants for 
and holders of National Forest System special use authorizations, to 
expedite decisionmaking, and to permit more ``user-friendly'' 
administration of such authorizations by removing certain requirements 
deemed unnecessary and outdated.

EFFECTIVE DATE: This rule is effective December 30, 1998.

FOR FURTHER INFORMATION CONTACT: Randall Karstaedt, Lands Staff, (202) 
205-1256, or Ken Karkula, Recreation, Heritage, and Wilderness 
Resources Management Staff, (202) 205-1426, Forest Service, USDA.

SUPPLEMENTARY INFORMATION:

Background

    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 serving private residences, apiaries, 
domestic water supply conveyance systems, telephone and electric 
service rights-of-way, oil and gas pipeline rights-of-way, 
hydroelectric power generating facilities, ski areas, resorts, marinas, 
municipal sewage treatment plants, and public parks and playgrounds. 
The agency receives about 6,000 applications for special use 
authorizations each year. These applications are subjected to a 
rigorous, time-consuming, and costly review and decisionmaking process 
in determining whether to approve or reject them.
    There are 14 statutes authorizing special uses on National Forest 
System lands. These authorities, which are listed at 36 CFR 251.53, 
include statutes of broad application, such as the Mineral Leasing Act 
of 1920, the Federal Land Policy and Management Act of 1976, and the 
Bankhead-Jones Farm Tenant Act of 1937, as well as statutes focusing on 
a specific use of Federal lands, such as the National Forest Ski Area 
Permit Act. The basic authority of the Secretary of Agriculture to 
regulate the occupancy and use of National Forest System lands is the 
Act of June 4, 1897 (16 U.S.C. 551).
    Additionally, the Independent Offices Appropriations Act of 1952, 
as amended, (31 U.S.C 9701) and the Office of Management and Budget 
(OMB) Circular A-25 require holders of authorizations to pay for the 
use of the Federal land. The Federal Land Policy and Management Act of 
1976 requires holders of rights-of-way authorizations to pay annually, 
in advance, the fair market value of the use of the Federal land and 
its resources. The 1976 Act also provides that fees may be waived, in 
whole or in part, under specified conditions when equitable and in the 
public interest.
    Requirements of the National Environmental Policy Act, the 
Wilderness Act of 1964, the Endangered Species Act, the Archaeological 
Resources Protection Act of 1979, additional requirements of the 
Federal Land Policy and Management Act of 1976, and Executive Order 
Nos. 11990 (Floodplains) and 11998 (Wetlands) also bear directly on the 
issuance of special use authorizations. These directives and statutory 
authorities require extensive analysis and documentation of the impacts 
of use and occupancy on a wide array of environmental, cultural, and 
historical resources. The practical effect of these requirements has 
been to greatly lengthen the time required and the costs involved in 
processing applications for special use authorizations or reissuing 
authorizations for existing uses. The time and cost impacts weigh on 
both the Forest Service and applicants and holders of authorizations. 
The significance of these impacts has been a principal factor in the 
development of these amendments to the special use regulations.
    On August 14, 1992, the Forest Service published a proposed rule 
(57 FR 36618) and sought public comment to amend regulations governing 
the use and occupancy of National Forest System lands at 36 CFR Part 
251, subpart B. Such use and occupancy is authorized by ``special use 
authorizations,'' which include permits, term permits, easements, 
licenses, and leases. The proposed revisions had several purposes: to 
(1) streamline the application process for special use authorizations, 
(2) enhance efficiency of review of special use proposals, (3) 
authorize one-time payments of rental fees for certain types of special 
use authorizations, (4) limit certain liability requirements, (5) 
clarify certain definitions, and (6) clarify direction on renewal of 
special use authorizations.
    A total of 25 responses were received on the proposed rule. 
Identity of the respondents is as follows:

------------------------------------------------------------------------
                  Respondent category                    Number  Percent
------------------------------------------------------------------------
Individuals...........................................        3       12
Electric Utilities....................................        6       24
Oil & Gas Companies...................................        4       16
Telephone Company.....................................        1        4
Permit Holder Associations............................        8       32
Government Agencies...................................        3       12
                                                       -----------------
    Total.............................................       25      100
------------------------------------------------------------------------

    Readers are advised that a major revision to this subpart was made 
subsequent to the August 14, 1992, proposed rule. On August 30, 1995, 
the agency adopted a final rule revising those portions of subpart B 
governing noncommercial group uses and noncommercial distribution of 
printed material within the National Forest System (60 FR 45293). The 
1995 revisions, referred to in this rulemaking as the ``noncommercial 
group use regulations,'' ensure that the authorization procedures for 
these activities comply with First Amendment requirements of freedom of 
speech, assembly, and religion. They did not directly impact the 
concurrent effort to streamline and make more efficient the process for 
obtaining special use authorizations. However, the 1995 revisions added 
new provisions and revised existing text which required redesignation 
of several sections and paragraphs throughout the subpart. In the 
narrative which follows, the terms ``current rules'' or ``current 
regulations'' refer to the regulations at 36 CFR part 251, subpart B, 
as published in the current volume of Title 36 of the Code of Federal 
Regulations, revised as of July 1, 1997.

General Comments

    Respondents to the 1992 streamlining proposed rule generally 
supported the Forest Service's effort to streamline the permit 
application process and to make the administration of special use

[[Page 65951]]

authorizations more user friendly, although most asked that the final 
rule clarify that the revisions apply to new permits only. These 
respondents felt that the proposed regulations would reduce unnecessary 
paperwork burdens on applicants and, thereby, reduce costs for both the 
applicant and the agency. Indicating that the proposed revisions would 
improve the agency's performance, a number of respondents cited 
examples of the poor quality of service, the lack of experienced field 
personnel, and the length of time taken by the agency's field offices 
in responding to and processing special use permit applications. 
Further, these respondents urged the agency to quickly adopt final 
regulations that implement statutory authorities that have been 
available to the agency for several years, particularly amendments made 
to the Federal Land Policy and Management Act of 1976 by the Act of 
October 27, 1986.
    Several respondents suggested that the agency institute a land and 
resource planning procedure or incorporate into its Forest planning 
activity a process that would pre-authorize certain types of land uses 
and thus avoid or minimize time consuming and costly analysis of 
individual applications for authorizations. These respondents suggested 
the process could be built around standards and guidelines in a 
national forest's land and resource management plan (forest plan). One 
respondent suggested the U.S. Army Corps of Engineers Nationwide Permit 
Program could serve as a model for this process. The types of special 
uses that would be subject to this pre-authorization process are 
described by the respondents as routine activities serving the public, 
such as electric and telephone rights-of-way.
    Three respondents expressed concern that the agency's efforts to 
improve its administration of special use authorizations and make those 
regulations more user friendly will not be successful unless and until 
funding for this activity is dramatically improved. These respondents 
pointed out that the lack of adequate funding at the field office level 
is the biggest single factor responsible for poor service and delays in 
processing applications experienced by permit applicants.
    The Department of the Interior (DOI) urged that Forest Service 
regulations for permitting and administering uses on National Forest 
System lands be more compatible with those of the land-managing 
agencies in the Department of the Interior, particularly the Bureau of 
Land Management (BLM). Because both the Forest Service and the BLM 
derive much of their authority for administering land uses from the 
Federal Land Policy and Management Act of 1976, the DOI believes any 
regulations of the two agencies should be very similar. Further, the 
DOI urged a coordinated effort to review and revise regulations 
promulgated under the 1976 Act.
    The DOI also expressed concern that the proposed delay in 
consideration of the environmental effects of the proposed use could 
result in environmentally unsound projects passing screens only to be 
rejected in later stages of development after substantial time and 
investment have been made by the agency and the proponent. In the same 
context, the DOI suggested that notification of adjacent land-managing 
agencies should be made earlier in the application review process so 
that the concerns of the affected agencies could be made known sooner.
    The U.S. Small Business Administration advised the Forest Service 
that the proposed rule was not in compliance with the Regulatory 
Flexibility Act (5 U.S.C. 601-612). That Act requires Federal 
Government agencies promulgating rules to describe the impact of the 
rulemaking on small entities through preparation of a regulatory 
flexibility analysis. Despite the agency's acknowledgment that the 
proposed rule would have a beneficial impact on a substantial number of 
small entities, the U.S. Small Business Administration stated that the 
aforementioned analysis must nevertheless be prepared.
    Response to the General Comments. The Forest Service and the 
Department are pleased that most respondents generally viewed the 
proposed rule as a positive step toward improving the administration of 
special use authorizations. The agency is aware that its performance in 
responding to applications and administering existing authorizations 
often is inadequate and its service to permit applicants and holders--
its ``customers''--needs to be significantly improved. The Department 
is also mindful of the President's direction to improve service to the 
public. Executive Order No. 12866, dated September 30, 1993, directed 
agencies to reform and make more efficient their regulatory processes. 
The Forest Service initiated this effort with the goal of streamlining 
and making more user friendly its special use regulations and will, 
through the adoption of a final rule, ensure that this goal is met in 
part. Since beginning this particular rulemaking, the Forest Service 
has undertaken a major project to re-engineer special uses 
administration. A team of agency employees is currently at work to 
implement the re-engineering recommendations, which are focused on 
agency procedures. Implementation of these recommendations may lead to 
further changes in rules and will certainly result in additional 
revisions in agency directives governing special uses administration. 
Any revisions to rules or directives will be fully coordinated with the 
revisions made by these final rules.
    The agency agrees with the suggestion that broad guidance for 
considering applications for special use authorizations be made a part 
of its land and resource planning processes. This guidance would allow 
decisions to be made on routine permit activities without further 
analysis. Such a procedure would require that the requisite 
environmental documentation be made in the Forest plan and that the 
documentation be specific enough to cover the proposed use.
    However, the agency believes that such a procedure can be 
implemented without additional regulatory guidance. The forest planning 
process described in the agency's administrative manual (Forest Service 
Manual, Chapter 1920) prescribes the format and content of each Forest 
plan. The initial plans were completed in the early to mid 1980's and 
currently remain in effect. Almost without exception, these plans lack 
any detail regarding authorizations for use and occupancy of National 
Forest System lands. The life of these plans is generally 10-15 years 
and most of the plans for the 123 National Forest planning units of the 
agency are now or soon will be undergoing revision. The Forest Service 
recognizes the need to address land use and occupancy generally in the 
forest plans. The forest plan revision process offers the opportunity 
for units to consider the need for more specific guidance on land uses. 
The Department further notes that public participation is a fundamental 
ingredient in the preparation and revision of Forest plans. Thus, this 
will allow holders of or applicants for authorizations to participate 
directly in the development of the plan and, thereby, identify specific 
opportunities for addressing land use authorizations at the Forest 
level.
    The Department fully agrees with respondents' concerns that 
sufficient funding for administration of special use authorizations 
must be considered along with revisions to the regulations. The Forest 
Service is addressing this matter in a variety of ways. However, the 
Department must emphasize that the budgeting and appropriation process

[[Page 65952]]

takes a much larger view of the management of National Forest System 
lands, balancing the funding of a wide variety of Forest Service 
programs and activities in the context of constraints imposed on the 
Department of Agriculture and the Federal Government as a whole. Thus, 
while the Department agrees that improving funding for this activity is 
desirable, it cannot unilaterally support respondents' urging of 
greater funding for the administration of special use authorizations. 
Instead, the Forest Service will seek recognition in its budget 
requests of the importance of efficient and cost-effective 
administration of land use authorizations and service to its customers.
    The Forest Service concurs with the DOI suggestion that regulations 
governing administration of land uses on Federal lands should be more 
consistent. The Forest Service and the BLM are taking actions to bring 
their regulations into closer agreement, albeit in the context of 
individual uses. The two agencies have agreed that more comprehensive 
action is needed and are undertaking joint examination and coordination 
of regulations. While this action was prompted in part by the 
publication of the proposed special use regulations, additional 
motivation has been provided by the National Performance Review effort 
and Executive Order No. 12866. To the extent that statutory authorities 
permit, the two agencies have embarked on a course to adopt common 
regulatory approaches to land use and occupancy.
    The Department acknowledges the DOI concern that the effort to 
streamline the permit application process may allow environmentally 
unsound projects to be initially considered, only to be rejected later 
after substantial investment of time and money by proponents and the 
agency. The Forest Service has examined the ``screening'' process set 
forth in the proposed regulations (Sec. 251.54(a)) and made appropriate 
revisions to respond to the DOI concern.
    With regard to the DOI's suggestion that Federal agencies managing 
lands adjacent to the National Forest System land being considered for 
a land use authorization be notified sooner in the application process 
so that those agencies' views can be made known, the Department 
suggests that such notification may counteract the intent to streamline 
the application process by inserting a step that is unnecessary. 
Analysis of an application generally requires, as part of environmental 
documentation, a ``scoping'' of the proposal to learn of the concerns 
of other agencies and the public. This process of advising the public 
and affected parties of a proposal provides timely notice to adjacent 
landowners, whether public or private, and allows those landowners to 
bring forth any concerns.
    The Department's response to the U.S. Small Business 
Administration's advice that a regulatory flexibility analysis be 
prepared is found at the conclusion of this supplementary information 
statement.

Specific Comments on Proposed Rule and Response

    The following analysis of and response to comments on the proposed 
rule is organized by the section of the current special use 
regulations.
    Section 251.51 Definitions. The proposed rule combined definitions 
found in other sections of the current regulations into this section 
and added four new definitions intended to improve the implementation 
of the regulations.
    Comment. Three respondents were concerned that the proposed 
definition for ``termination'' would be confusing, because the new 
definition is a reversal of past usage and incorporates the expiration 
of a permit and ending of a permitted use. They noted that termination 
of a permit occurred by the direct action of the authorized officer and 
not by the expiration of a stated period of time.
    Response. New definitions for revocation and termination are 
proposed because over the years the two terms have come to be used 
interchangeably, even though they have distinctly different usages. 
This lack of precision has caused confusion among holders of permits 
and agency personnel. The purpose in adding these two definitions to 
the regulations is to differentiate between cessation of a special use 
permit by action of an authorized officer (revocation) and cessation of 
a special use permit under its own terms without any action by an 
authorized officer (termination). Terms of a permit which would result 
in termination could include: (1) Expiration of the term authorized, 
and (2) transfer of the improvement to another party. Nothing further 
is intended. Adoption of these definitions will in no way bear upon 
reissuance of a permit. There will be no change in policy for reissuing 
a permit that terminates as a result of the application of these 
definitions. Consequently, the definition of ``termination'' will 
remain as defined in the proposed rule, but it has been clarified by 
listing examples of permit terms and conditions that would cause a 
permit to terminate.
    Comment. Three respondents commented that the revised definition 
for ``revocation'' must be revised to limit use of the ``reasons in the 
public interest'' standard to special use permits only, not to 
easements, for consistency with existing laws and regulations.
    Response. Provisions for termination, revocation, and suspension of 
an easement are contained in Sec. 251.60 (g) and (h). Therefore, the 
Department has not included easements under the revocation and 
suspension provisions in Sec. 251.60(a)(2)(i). Moreover, the Department 
disagrees with the respondents concerning leases. Leases may be revoked 
for reasons that are in the public interest, and leases are compensable 
according to their terms as defined in Sec. 251.51. Therefore, leases 
are not exempted from revocation and suspension criteria in 
Sec. 251.60(a)(2)(i). To avoid redundancy in the regulations, the 
definition does not repeat criteria for revoking an authorization that 
are listed in Sec. 251.60(a)(2)(i), but the provision has been amended 
to require that revocation in the public interest must be for reasons 
that are ``specific and compelling.''
    Comment. One respondent suggested that the definition of ``sound 
business management principle'' be expanded to include ``an accepted 
industry practice or method * * *,'' as this would clarify that one 
individual's or company's practice or method is not necessarily more 
correct than others.
    Response. The Department agrees with this suggestion and has made 
this change in the final rule.
    Other Changes. In preparing this final rule, the Department 
discovered that the proposed definition of the word ``lease'' was not 
consistent with the use of that word in the private rental market, and 
as proposed could have led to confusion when applied in the field. 
Specifically, a lease conveys a conditional and limited interest in 
land that may be revocable and compensable according to its terms. 
Accordingly, the final rule reflects this clarification in the 
definition of the word ``lease.''
    In analyzing the comments on and the adequacy of the definitions 
included in Sec. 251.51, the Department considered whether or not to 
include a definition for the word ``license.'' This term is often used 
in connection with the word ``permit'' and may be confused with the 
words ``easement'' and ``lease.'' A separate definition could imply the 
two terms have separate meaning and, thus, that separate rights in the 
land may be conveyed, when, in fact, both permits and licenses convey 
only a privilege to

[[Page 65953]]

use and occupy the land, rather than an interest in the land. 
Therefore, a definition of the term ``license'' is not included in the 
final rule.
    In preparing this final rule, the Department also concluded that 
the goal of clarifying when environmental analysis is conducted on 
proposals for special use authorizations would be enhanced by defining 
the term ``NEPA procedures'' as used in several places in the rule. 
Thus, the term has been added to the definitions included in 
Sec. 251.51 and refers to the agency's written compliance with the 
National Environmental Policy Act.
    Section 251.54  Special use application procedure and 
authorization. This section of the current regulations describes the 
procedures by which the agency accepts and acts upon applications for 
special use authorizations. This section includes direction on holding 
advance discussions with a proponent before an application is 
submitted, where to submit applications, the content of applications, 
and agency response to applications. The current regulations make it 
difficult to deny an application for a special use authorization that 
does not meet certain minimum requirements imposed by law or regulation 
as they lack specific direction guiding the consideration of and 
decision on applications for authorizations. The current regulations 
also result in unnecessary paperwork and expense being imposed on both 
the proponent and the agency.
    The proposed rule would expand this section, adding step-by-step 
procedures that enumerate required activities and outcomes through the 
proposal, application, and authorization phases. Specifically, the 
proposed rule would establish a two-level screening process before a 
formal application is accepted by the agency.
    This section of the proposed rule received the most attention from 
respondents, and consideration of these responses has resulted in 
extensive revision of this section in the final rule.
    General Comments. Several respondents expressed concern that the 
new procedures described in this section could be interpreted to apply 
to reissuance of authorizations for existing uses as well as to 
issuance of new authorizations. While endorsing the initial screening 
process, several respondents also cautioned that any efficiencies that 
might be gained through this process could be lost, unless the agency 
imposed a time limit on itself, such as 30 days, in which to complete 
the proposed screening process and respond to the proponent.
    Some respondents observed that the organization of this section was 
difficult to follow in the proposed rule, noting that the sequence of 
events described by the rule did not seem to correspond with the 
actions taken by the agency's field officers when receiving and 
processing requests for special use authorizations.
    Response. This section applies only to applications for new or 
substantially changed uses. Renewal of special use authorizations is 
covered in Sec. 251.64. To remove the confusion, the title of this 
section has been revised in the final rule to read ``Proposal and 
application requirements and procedures.''
    The Department agrees that the initial screening process should be 
completed as expeditiously as possible. However, because of the number, 
variety, and complexity of special use proposals, it does not believe a 
specified time limit should be imposed on the screening process. The 
Forest Service policy on customer service in combination with proponent 
expression of interest should provide necessary encouragement to field 
offices to act promptly on proposals. Thus, the final rule does not 
specify a time limit on the proposal screening process.
    The Department agrees with those respondents who found the 
organization of this section hard to follow. In considering the 
respondents' comments, and in revising the section to respond to those 
comments and to its own concerns, the Department determined that an 
overall reorganization of the section was needed. The intent of the 
reorganization is to make the process that defines the agency's 
consideration of proposals and applications more logical and 
sequential, and fully consistent with regulations implementing the 
procedural provisions of the National Environmental Policy Act at 40 
CFR Parts 1500-1508 and guidance issued by the Council of Environmental 
Quality.
    Readers are advised that the reorganization of this section 
requires that a clearer distinction be made between actions by 
proponents and actions by the agency during the process by which a 
request for an authorization is considered. Hence, a ``proponent'' 
makes a ``proposal'' for a special use authorization. That proposal is 
subjected to the screening processes described in paragraph (e). Upon 
meeting the criteria in the initial and second-level screenings, the 
proposal becomes an ``application'' and the proponent becomes an 
``applicant.''
    Because of the extensiveness of the revisions to the proposed rule, 
readers are advised that Sec. 251.54 has been presented in the final 
rule in its entirety, thus including provisions not revised in the 
proposed rule. Presentation of the entire section, therefore, includes 
amendments made by the adoption in 1995 of the noncommercial group use 
regulations. The following table displays the provisions of Sec. 251.54 
in the final rule with the same provisions as 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.

[[Page 65954]]

 
(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 Sec. 251.54 as proposed and the 
Departmental response follow.
    Section 251.54, Paragraph (a)--Initial screening. In a general 
comment on this paragraph of the proposed rule, a number of respondents 
stated a concern that the initial screening process would add another 
step to the already lengthy process of evaluating an application, which 
would place an additional burden on the applicant. Respondents 
suggested that paragraph (a)(1) should make clear that the initial 
screening begins only with a written notice or application.
    Response. The Department does not agree that the screening process 
would impose additional burdens on a proponent. In fact, the screening 
process is expected to reduce the burden by preventing unsuitable or 
inconsistent projects from proceeding to full-scale applications. The 
screening process would require only a very simple abstract of the 
proposed use and would not require a lengthy analysis by the authorized 
officer. The purpose of the screening is to eliminate those proposed 
uses which are obviously unsuitable on National Forest System (NFS) 
lands. The initial screening process appears as paragraph (e)(1) of 
Sec. 251.54 in the final rule.
    The Department also does not agree that any proposal for use of NFS 
lands that would trigger the screening process must be in writing. 
Currently, many requests to use National Forest System lands begin with 
a verbal request by a proponent to the District Ranger's staff. The 
final rule has been clarified to state that a written notice is not 
required until a proposal has cleared the initial and second-level 
screening processes and is ready to be considered as an application for 
a special use authorization. However, for more complex special use 
proposals, proponents may be advised to prepare a brief written summary 
to ensure that the Forest Service has a full understanding of the scope 
of the proposal.
    Readers are also advised that the final rule makes a technical 
modification to language adopted by the noncommercial group use 
amendments to this subpart on August 30, 1995, to ensure consistency 
with the overall intent of this revision to subpart B. The proposed 
rule would have established nine minimum requirements (or criteria) to 
be applied at the initial screening stage. These were listed in 
paragraph (a)(1) of the proposed rule. Comments received on these 
requirements and the Department's response follow.
    Minimum requirement (i). A suggestion was made that this criterion, 
requiring all special uses to be consistent with laws, regulations, 
orders, and policies, should state that the agency has an obligation to 
protect the environmental integrity of the area proposed for a special 
use. Another respondent commented that under the Federal Power Act, the 
Federal Energy Regulatory Commission (FERC) determines whether proposed 
hydroelectric uses on NFS lands are consistent and that FERC's 
authority should not be prejudiced by the agency authorizing official.
    Response. The Forest Service obligation to protect the environment 
is adequately covered, since laws pertaining to environmental 
protection are included in the laws, regulations, and policies referred 
to in this criterion. All special uses must comply with environmental 
law. Thus, this suggested revision has not been adopted in the final 
rule.
    FERC does not have sole responsibility for determining the 
consistency of hydroelectric uses on NFS lands. As part of its 
responsibility under Section 4(e) of the Federal Power Act, the Forest 
Service must make a consistency determination on proposed hydroelectric 
uses. The FERC determines whether the proposed hydroelectric project 
should be licensed, based in part on the consistency determination by 
the Forest Service. That consistency determination is based on the 
direction found in the applicable forest plan, as set forth in minimum 
requirement (ii). Therefore, the text of this requirement (a)(1)(i) is 
unchanged in the final rule, but now appears at paragraph (e)(1)(i).
    Minimum requirement (ii). No comments were received recommending 
revision or change to this criterion, which would require the proposed 
use to be consistent with the applicable forest plan for the area. The 
intent of this requirement is to capture the provision in section 6(i) 
of the National Forest Management Act of 1976 (90 Stat. 2955). The 
agency did streamline the language of this requirement from that in the 
proposed rule but made no substantive change in the text of the 
requirement, which now appears at paragraph (e)(1)(ii) in the final 
rule.
    Minimum requirement (iii). A respondent suggested that this 
criterion, which would require that the proposed use not pose a serious 
or substantial risk to public health and safety, include a list of 
examples which are considered acceptable from a health and safety 
standpoint.
    Response. The Department agrees that examples would clarify the 
intent of this criterion, but believes that it would be more 
appropriate to include such examples in the Forest Service's internal 
procedural handbooks. This possibility will be explored following 
adoption of this final rule. Further, the agency believes that the 
phrase ``serious and substantial risk'' will limit the discretion of 
the authorized officer to findings of genuine risk to public health and 
safety. Therefore, no changes were made to this requirement in the 
final rule, which appears at paragraph (e)(1)(iii).
    Minimum requirement (iv). Several respondents stated that utility 
companies seeking rights-of-way across NFS lands should be exempted 
from this criterion, which would cause rejection of a proposed use if 
it created an exclusive or perpetual right of use or occupancy. The 
respondents contended

[[Page 65955]]

that a perpetual right of use is the basis under which all utility 
service is provided. Another respondent asked that the language be 
revised to ensure that applications for permanent easements, such as 
those authorized by the Forest Roads and Trails Act of 1964, would be 
accepted. Finally, a respondent suggested that the language of the 
proposed rule could be interpreted to mean that a proponent, after 
having an application approved and expending capital to implement the 
use, would not have an exclusive right to receive the proceeds 
resulting from the use.
    Response. The Department recognizes the concerns of these 
respondents but rejects the suggestions that utility companies should 
be exempted from this criterion because they must have an exclusive and 
perpetual use of Federal land. To grant such use would, in effect, 
grant fee title to Federal land to an authorization holder. 
Longstanding Congressional and Executive Branch policy dictates that 
authorizations to use NFS lands cannot grant a permit holder an 
exclusive or perpetual right of occupancy in lands owned by the public. 
The direction contained in this requirement is no different from that 
contained in the current regulations at Sec. 251.55(b). Similarly, the 
respondent's assertion that a proponent without exclusive right would 
not have the exclusive right to receive the proceeds from the use is 
without merit since such rights are provided by the terms of an 
easement or lease. Accordingly, the recommendation that the criterion 
allow automatic acceptance of an application for a permanent road 
easement is not adopted. Such applications should be subjected to the 
same screening as all other applications. The language of this 
requirement remains unchanged in the final rule and appears at 
paragraph (e)(1)(iv).
    Minimum requirement (v). Three comments were received on this 
criterion, which would prohibit approval of proposed uses that would 
unreasonably conflict or interfere with administrative use by the 
agency, with other existing uses, or with use of adjacent non-NFS 
lands. These respondents were concerned that this criterion was overly 
broad and would lead to abuses by local agency officials when reviewing 
applications and recommended that clarifying guidelines be added. 
Additionally, the respondents suggested that proposals that may have an 
effect on adjacent non-NFS lands, whether unreasonable or not, should 
prompt local Forest Service officials to inform adjacent landowners, 
including land-managing government agencies, of the proposal and 
possible impacts on adjoining lands.
    Response. The criterion is limited to unreasonable conflicts or 
interference; some conflict or interference with existing uses would 
still be allowed. Therefore, the Department does not agree that 
additional guidance is needed in the rule and has retained the text of 
this requirement in the final rule (paragraph (e)(1)(v)) without 
change. The appropriate place for more detailed, cautionary guidance is 
in the agency's administrative Manual and Handbooks. Upon adoption of 
this final rule, the applicable Manual and Handbooks will be reviewed 
to determine if there is a need for additional guidance to prevent 
overly broad application of this requirement.
    Minimum requirement (vi). This criterion stated that proposals will 
not be considered if the proponent has outstanding debts owed to the 
Forest Service under a prior authorization. Seven respondents suggested 
that an exception to this criterion be allowed if the delinquent debt 
is the result of an administrative appeal decision, a fee review, or 
similar legal or administrative process. By contrast, another 
respondent suggested that the authorized officer check with the BLM to 
determine if a proponent owes any debts to that agency. Finally, a 
respondent suggested that the criterion not be interpreted to include 
obligations of a proponent who is a cooperator with the agency through 
a road cost-share and use agreement.
    Response. Without this requirement, a proponent's bad faith under a 
prior authorization could not be used to disqualify the applicant from 
receiving another authorization. To reward an applicant with a 
delinquent debt with a new authorization is not a prudent management 
practice and would be unacceptable on privately owned lands. The 
Department agrees with the suggestion that debts owed the Government as 
a result of an administrative appeal or similar legal process, 
including that involving a review of annual rental fees, should not be 
considered in applying this criterion and has revised the rule to 
specify that debts owed as a result of decisions in administrative 
appeals or fee reviews will not be included under this criterion. 
However, such debts must be current and the proponent in good standing 
on a payment schedule.
    While the Department agrees that debts owed other Federal agencies 
are important, requiring authorized officers to check with other 
agencies could lengthen the time involved in the initial screening 
process. Indebtedness in general, and delinquent debts owed to the 
Federal government in particular, should be revealed at the second-
level screening process.
    Finally, road cost-share and use agreements are not special use 
authorizations; outstanding obligations existing under these agreements 
are not considered debts for the purpose of applying this criterion. 
Therefore, this requirement does not need to be revised to respond to 
this concern. For this reason, no changes were made to this provision 
in the final rule, which appears as paragraph (e)(1)(vi).
    Minimum requirement (vii). This criterion would prohibit 
consideration of a proposed use that involves gambling or providing 
sexually oriented services. No comments were received on this 
requirement which has been long-standing agency administrative policy. 
It is retained in the final rule without change as paragraph 
(e)(1)(vii).
    Minimum requirement (viii). This criterion would codify 
longstanding agency policy to prohibit consideration of a proposed use 
if it involves military or paramilitary training or exercises by 
private organizations or individuals, unless the training is federally 
funded. No comments were received on this criterion, and it is retained 
without change in the final rule as paragraph (e)(1)(viii).
    Minimum requirement (ix). This criterion would prohibit 
consideration of a proposed use if it involves disposal of solid waste 
or storage or disposal of radioactive or other hazardous material. Two 
responses were received on this criterion. One respondent suggested 
that the term ``hazardous material'' be changed to ``hazardous 
substances'' to conform to the definitions in the Comprehensive 
Environmental Response, Compensation, and Liability Act and the 
Resource Conservation and Recovery Act. The other respondent suggested 
that the reference to ``storage'' of hazardous materials be deleted 
because it would prohibit storage at an authorized use area of crude 
oil and chemicals necessary to maintain oil and gas production.
    Response. The Department agrees that the terms used in this rule 
should conform to definitions set forth in other Federal statutes and 
has, therefore, revised the wording of this requirement in the final 
rule. The Department also agrees that materials to be used in 
conducting activities at the use area, even though considered 
hazardous, should not be cause to reject a proposed use. Since controls 
prescribed by other Federal statutes should ensure that proper care is 
taken, the term ``storage'' has not been included in this

[[Page 65956]]

requirement in the final rule, which appears as paragraph (e)(1)(ix) in 
the final rule.
    Other Changes. No comments were received on paragraphs (a)(2) and 
(3) of Sec. 251.54 of the proposed rule.
    Paragraph (a)(2) stated that if a proposed use did not meet all the 
minimum requirements, as set forth in paragraphs (a)(1)(i)-(ix), it 
would not be considered further and the applicant would be notified of 
this action in writing. Paragraph (a)(2) does not appear in the current 
regulation. The text of paragraph (a)(2) is included in the final rule 
as paragraph (e)(2) and it has been revised to state that the 
authorized officer would not have to notify in writing a proponent who 
makes an oral request that the proposal will not receive further 
consideration. Requests for special use authorizations are frequently 
made orally to local agency officials, and, as such, would not require 
a written response.
    Paragraph (a)(3) of the proposed rule stated that if a proposed use 
appears to meet the minimum requirements, the authorized officer would 
provide the applicant with information relevant to obtaining a special 
use authorization. The content of paragraph (a)(3) of the proposed rule 
was unchanged from that already in effect, Sec. 251.54(a)(1)-(8). 
However, when reviewing paragraph (a)(3) of the proposed rule in the 
context of the overall public review and comment, the Department 
determined that the phrase ``appear to'' might suggest the possibility 
of arbitrary action and, therefore, removed the words in the final 
rule. This material appears at paragraphs (e)(3)(i)-(viii) in the final 
rule.
    In addition, minor editing changes have been made to paragraphs 
(e)(2) and (3) in the final rule for clarity and to incorporate changed 
terminology.
    Section 251.54, Paragraph (a)(4). This paragraph of the proposed 
rule would have directed the agency, if requested by the proponent, and 
to the extent reasonable and authorized by law, not to disclose project 
and program information revealed during pre-application consideration 
and screening. Respondents stated their concern that this provision 
could prevent public scrutiny of a proposal, particularly one involving 
large commercial projects, thus giving the proponent an inside track on 
approval.
    Response. The Department disagrees that maintaining 
confidentiality, to the extent reasonable and authorized by law, at the 
pre-application stage of a proposal having commercial application would 
preclude public scrutiny. Confidentiality would be maintained only 
prior to the agency's acceptance of a formal written application that 
has cleared the screening processes, and only to the extent it is 
reasonable and authorized by law. Once an application is accepted and 
initial review determines that an environmental assessment or 
environmental impact statement must be prepared, law and agency policy 
require public disclosure in the review and approval process. 
Applications for relatively minor proposals which a review indicates 
can be categorically excluded from documentation in an environmental 
assessment or environmental impact statement under current rules, 
generally do not include the public review and disclosure of 
information envisioned by this paragraph.
    This paragraph appears in the final rule at paragraph (e)(4) under 
the heading ``Confidentiality.'' The text has been revised in the final 
rule to substitute the word ``shall'' for ``will'' in the direction 
regarding the disclosure of project and program information, and the 
paragraph has also been edited to improve clarity of the provision's 
intent.
    Section 251.54,Paragraph (b)--Filing applications. Paragraph (b) of 
current Sec. 251.54 gives direction on where and with whom applications 
for authorizations should be filed. This paragraph appears at 
Sec. 251.54(b), entitled ``Filing proposals,'' in this final rule. The 
text has been revised to conform to changed terminology; namely, to 
change ``application'' to ``proposal'' and ``applicant'' to 
``proponent,'' or the plural forms of these words.
    Section 251.54, Paragraph (c)--Coordination of applications. The 
proposed change to this paragraph would have eliminated the requirement 
that proponents of projects requiring use of National Forest System 
(NFS) lands who must obtain a license or permit from a State, county, 
or other Federal agencies for that project must simultaneously file an 
application with the Forest Service. The proposed rule stated that the 
Forest Service may require in its authorization that the applicant 
obtain licenses, permits, certificates, or similar approval documents 
from other entities or agencies.
    Comment. Four respondents suggested that this provision describes a 
requirement in an authorization and thus should not be included in this 
section describing the proposal and application process. Instead, the 
respondents recommended that the provision be placed in Sec. 251.56(a).
    Response. The Department agrees that revision and relocation of 
this provision is appropriate and has placed it at Sec. 251.56(a)(2) in 
the final rule. This action will benefit the applicant by not requiring 
that other approval documents be obtained until a decision is made on 
the application to use NFS lands. However, the provision has been 
revised in the final rule to make clear to holders that such licenses, 
permits, certificates, or other approval documents must be obtained 
prior to commencement of any activities on NFS lands.
    No revision was proposed to paragraph (d), ``Rights of 
applicants,'' of section 251.54 of the regulations. While the text 
remains unchanged, this paragraph has been redesignated as paragraph 
(c), ``Rights of proponents,'' in the final rule.
    Section 251.54, Paragraph (e)--Application content. This paragraph 
of the proposed rule defined the minimum content of an application for 
a special use authorization. In the proposed rule, the agency proposed 
revising paragraph (e)(3), ``Project description,'' to make it 
consistent with the proposed addition which addresses the issuance of 
planning permits for major commercial developments. Paragraph (e)(4) in 
the current rules also required an applicant to describe the impact of 
the proposed use on the environment. However, to streamline the 
proposal/application process, the proposed rule would have moved this 
requirement to paragraph (j), which described actions to be taken by 
the agency after an application has been accepted.
    Comment. Some respondents were concerned with the removal from 
paragraph (e)(3) of the requirement that applicants address the 
proposed uses's impact on the environment, and with a companion 
provision in paragraph (e)(5) that the application include a plan for 
protection and rehabilitation of the environment during the life of the 
proposed project. These respondents believe early consideration of 
environmental effects is essential to ensure that environmentally 
unacceptable projects do not proceed to the application stage and 
recommended that all of the provisions in paragraphs (e)(3) and (4) be 
retained.
    Response. Paragraph (e) was extensively revised by the 
noncommercial group use amendments of August 30, 1995 (60 FR 45294). As 
revised by those amendments, this paragraph distinguishes between 
noncommercial group uses (paragraph (e)(2)(i)) and all other special 
uses (paragraph (e)(2)(ii)), in describing the information required for 
an application for a special use authorization. This final rule 
redesignates this paragraph as (d), retitles it as ``Proposal 
content,'' and

[[Page 65957]]

makes additional changes. Changes in terminology are made throughout 
paragraph (d) to be consistent with changes made earlier in this 
section. Paragraph (e)(3), ``Technical and financial 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 the 
final rule and revised to make the exception in the first sentence 
applicable to all major developments, rather than just to ``major 
resort development.'' This revision is consistent with the revision to 
paragraph (f)(3) of the final rule which describes the requirements for 
requesting authorizations for major developments.
    The Department recognizes respondents' concern with paragraph 
(e)(5), ``Environmental protection plan.'' It emphasizes that it does 
not seek to avoid consideration of environmental effects when 
evaluating proposals. However, the removal of environmental analysis 
requirements in this paragraph is consistent with the overall objective 
of streamlining the regulation. It will save the proponent and the 
agency the time and expense of conducting an environmental analysis on 
proposals that would be rejected on other grounds. For example, the 
agency has found that applications often are not approved because the 
proponent lacks sufficient technical or financial capability to operate 
the proposal successfully, or because the Forest plan for the area 
precludes the proposed use. Readers are reminded that the procedure 
proposed in the rule to screen proposals is intended to screen out 
those proposals which do not meet minimum requirements/criteria before 
they become proposals as defined by the National Environmental Policy 
Act (NEPA) and its implementing regulations, which would require 
environmental analysis and documentation. Once an application has been 
accepted by the agency, analysis of the proposed use's environmental 
effects must be considered (Sec. 251.54(g)(2) of the final rule).
    Section 251.54, Paragraph (f)--Receipt and denial of applications 
for special uses. This paragraph of the proposed regulation, which has 
been paragraph (i) in the previous regulations describing agency 
response to applications, would mark the point in processing requests 
for special use authorizations at which the proposal is considered 
received by the agency.
    Comment. Respondents suggested that a time limit be set for 
completion of the application analysis set forth in paragraph (f)(2): 
30 days was suggested. One respondent stated that proposals for 
hydroelectric projects, which are also governed by the Federal Power 
Act, would not be subject to the criteria listed in paragraph (f)(2), 
since the ultimate approval of these projects lies with the FERC. A 
respondent suggested that subjecting an application for reissuance of 
an authorization for an existing use to this second-level screening 
seemed unfair and inconsistent with due process requirements.
    Response. The Department does not agree that a rigid time limit 
should be applied to analysis of applications. The wide variation in 
scope and complexity of applications requires flexibility in response 
time. Thus, while the Department recognizes the appropriateness of 
prompt action, it will not impose time limits on its decisionmaking 
responsibility. Also, the Forest Service has affirmative responsibility 
with respect to applications for hydroelectric projects. Section 4(e) 
of the Federal Power Act requires the agency to provide the FERC a 
determination of whether the project is consistent with the purpose for 
which the National Forest is established. This statutory requirement, 
coupled with the agency's internal policy on hydroelectric projects, 
serves as sufficient guidance in recognizing the unique actions 
necessary for these projects.
    The screening/analysis process described in paragraph (f)(2) (now 
(e)(5) in the final rule) is tiered to the initial screening process 
and thus applies only to applications for new authorizations, not 
renewals for existing uses, which are covered by Sec. 251.64. 
Therefore, the criteria in proposed paragraph (f)(2) have been retained 
in the final rule as paragraph (e)(5)(i)-(v) since this second-level 
screening is intended to apply to proposals that have met the criteria 
of the initial screening and which would be subjected to additional 
scrutiny and consideration. This shift presents the agency's process 
for considering requests for special use authorizations in a more 
logical sequence than that of the proposed rule.
    No comments were received on proposed paragraphs (f)(1) and (3) of 
this section of the proposed rule. Proposed paragraph (f)(1) of the 
proposed rule was a new provision stating that an application that 
passes the initial screening set forth in paragraph (a) would be 
received but not accepted by the agency for consideration. The 
paragraph appears in the final rule as (g)(1), ``Acceptance of 
applications,'' but has been revised to state that a proposal meeting 
the criteria of both the initial and second-level screening processes 
(paragraphs (e)(1) and (e)(5)) would be accepted by the agency as a 
formal application for the use. If the request does not meet the 
criteria for the screening processes, it is not accepted as a formal 
application. Proposed paragraph (f)(3), also a new provision, stated 
that the decision to deny a special use application based on the 
factors listed in paragraph (f)(2) would not constitute a ``proposal'' 
as defined by Council on Environmental Quality regulations and thus 
would not require the agency to conduct an environmental analysis. This 
paragraph applies to proposals which have been screened under the 
second-level screening process. It is retained as paragraph (e)(6) in 
the final rule, but edited to clarify its intent.
    Other comments relevant to Section 251.54(f).
    Four respondents objected to the removal of an unnumbered paragraph 
which has been at the end of Sec. 251.54(i) requiring the authorized 
officer, when denying an application under two conditions, to offer the 
applicant an alternative site or time for the proposed use. These 
respondents believed that removal of this provision would alter the 
agency's obligation to consider alternatives to the proposed use under 
current Council on Environmental Quality regulations and the agency's 
own policies for environmental analysis and documentation. The 
respondents urged that the provision be retained to provide applicants 
additional flexibility in obtaining authorizations to use NFS lands. 
However, one respondent supported the elimination of this provision, 
stating that it avoided unnecessary duplication in the application 
process and thus would be helpful to applicants.
    Response. The removal of the provision requiring that an 
alternative site be offered when denying an application does not 
circumvent NEPA requirements to consider reasonable alternatives to a 
proposed action when documenting environmental impacts. The Forest 
Service believes that it has no affirmative duty to provide alternative 
sites for a proposed use when a use is denied because it is 
inconsistent or incompatible with the purposes for which the lands are 
managed, or because the applicant is not qualified. Therefore, this 
provision has not been included in the final rule.
    This determination on the offering of an alternative site for 
special use authorizations in general differs from that in the recently 
adopted revisions to this subpart concerning noncommercial group uses 
and noncommercial

[[Page 65958]]

distribution of printed material. Constitutional requirements 
concerning ample alternatives for communication of information dictated 
that an alternative site provision be included in the noncommercial 
group use regulations.
    Section 251.54, Paragraph (g)--Processing Applications. Paragraph 
(g) of the proposed rule, which has until now appeared as paragraph (f) 
of Sec. 251.54, describes the procedure to be followed when an 
application is accepted for processing. The proposed rule revised this 
paragraph to be consistent with revisions made elsewhere in the 
regulations. Central to these revisions was the removal of those 
provisions in paragraph (f)(1) that required the authorized officer to 
complete environmental documentation requirements, consult with other 
agencies and interested parties, hold public meetings, and take other 
actions necessary to evaluate an application. These provisions were 
moved to paragraph (i) of the proposed rule to achieve the consistency 
sought by the overall revision to subpart B.
    A new paragraph (3) was proposed to provide guidance on processing 
applications for planning permits, principally those for major resort 
developments. This addition was tied to a revision in paragraph (h) of 
this section describing major commercial developments. This proposed 
new provision would limit application information to that needed to 
make a decision on issuance of a planning permit; that is, a permit 
authorizing only minor disturbance of the proposed site in order to 
gather information and data to prepare an application for the 
development project which would be submitted later. If the planning 
resulted in an application to develop the project, the detailed 
information and requisite environmental documentation would be 
completed.
    There were no comments received on proposed paragraph (g). 
Nevertheless, as noted in the discussion of and comments on proposed 
paragraph (f), this paragraph has been revised extensively in the final 
rule to conform to the overall reorganization of this section. In 
particular, it should be noted that this paragraph was reformatted to 
accommodate the August 30, 1995, noncommercial group use regulations 
which are redesignated as paragraph (g)(3) in the final rule.
    In the final rule, paragraph (g)(2) requires the authorized officer 
to evaluate formal applications for special use authorizations, 
including evaluation of effects on the environment, and, where required 
by NEPA procedures, to provide notice to the public with an opportunity 
to comment on the application. This provision appeared in paragraph (j) 
of the proposed rule. Paragraph (g)(2) represents the point of the 
special use proposal/application process at which the proposal becomes 
an application as defined by 40 CFR 1508.23, and thus requires 
environmental analysis and documentation. In the final rule, paragraph 
(g)(2) also incorporates provisions previously found elsewhere in the 
rule regarding notice to and consideration of findings of other 
Federal, State, and local government agencies concerning the 
application.
    Section 251.54, Paragraph (h)--Special application procedures. This 
paragraph of the proposed rule described special requirements and 
procedures for handling applications for oil and gas pipelines and 
large electric transmission line rights-of-way. In the proposal, a 
third type of special use requiring special procedures when applying 
for an authorization would have been added--that is, proponents for a 
major resort development on NFS lands could apply for a 5-year planning 
permit.
    This provision would substantially change the way proposals for 
major commercial recreation development would be considered. 
Previously, an application for this use would trigger full-scale 
economic and environmental analysis--before the proponent has fully 
defined the project and prepared a master development plan. Once a 
project is fully defined in a development plan, a project different 
from that described in the application often results, thus requiring 
reconsideration of the original analysis and decision and sometimes 
requiring a supplemental environmental impact statement. This 
supplemental analysis can impose considerable additional cost on the 
proponent and the agency. Under the proposed rule, a proponent who 
passed the initial screening criteria would apply for a planning 
permit. This application would be subjected to the established 
procedures for review and decision by the agency. Approval of the 
planning permit application would allow the proponent to complete the 
master development plan, which would then become the basis for an 
application for an authorization to construct and operate the major 
resort development. The second application would be subject to separate 
analysis and decision.
    Comment. Respondents generally endorsed the proposed 2-part 
permitting process for major commercial recreation development. 
However, they urged that the process be available for all large-scale 
commercial developments. The respondents suggested that oil and gas 
pipelines or hydroelectric projects, for example, would qualify for 
this procedure. The respondents believed that this procedure would 
further reduce the regulatory burden on both the applicant and the 
agency.
    Response. The Department agrees that the proposed planning permit 
for major resort developments should be available for all types of 
major developments on NFS lands and has adopted this change in the 
final rule. Further, the Department believes that a fixed term of five 
years for the planning permit may not be adequate for some types of 
major development, which are subject to separate licensing/approval 
actions by other Federal and State agencies. Accordingly, the final 
rule states that planning permits may be issued for up to 10 years.
    Paragraph (h) of the proposed rule has been redesignated as (f) in 
the final rule, with the new provision concerning major developments 
appearing as paragraph (f)(3). This redesignation places this paragraph 
ahead of the regulations on processing applications; thus it occupies a 
more logical location in the sequence of processing requests for 
authorizations. The title of paragraph (f) has been revised to read 
``Special requirements for certain proposals,'' to more accurately 
reflect the paragraph's purpose.
    Section 251.54, Paragraph (j)--Action taken on accepted 
applications. This provision of the proposed rule would require the 
authorized officer to evaluate the effects of the accepted application, 
including effects on the environment, and to make a decision on whether 
to approve or disapprove the application. The proposed paragraph 
described the three types of action that could be taken by the 
authorized officer on an accepted application: (1) approval; (2) 
denial; or (3) approval with modification. By specifying the range of 
decisions available, this provision would enable the agency to define 
more clearly in the environmental documentation the purpose of and need 
for the project to which the agency is responding.
    Comment. Respondents stated that the agency needed to describe in 
greater detail the review and analysis process that culminates in a 
decision on the application. For example, respondents suggested that 
this paragraph address the backgrounds, or areas of expertise, of those 
who will review the application and the regulations, policies, and 
agency procedures that will apply to the review. This suggestion was 
offered in the belief that a more complete decision record is needed. 
Respondents also

[[Page 65959]]

urged the agency to include a time limit in this paragraph for making a 
decision on an application. If a decision was not made within the time 
specified, the application would be considered approved under standard 
permit terms and conditions.
    One respondent suggested that due to the magnitude of the revisions 
proposed in its comments on this and other sections of the proposed 
rule, the agency should reissue proposed regulations and provide for an 
additional comment period.
    Two respondents objected to the sentence in this paragraph that 
would allow several similar special use applications to be approved in 
one decision and its documentation. These respondents felt that an 
application's approval could be delayed by incomplete applications for 
similar projects of others and suggested that this provision be amended 
to require that a combined decision be made only with the concurrence 
of the applicants. Another respondent believed that all applications 
need to be considered individually to give adjacent land managers 
adequate opportunity to consider a proposed use.
    Response. Expanding paragraph (j) to describe in detail the process 
for reaching a decision on an application is not necessary or 
appropriate to a regulation. While no change will be made in this 
regard in the final regulations, upon adoption of final regulations, 
the Forest Service will review its Manual and Handbook direction to 
determine if revision is necessary to improve consistent interpretation 
among field units.
    It also would be inappropriate to place a time limit on the 
authorized officer to render a decision on an accepted application. 
Such a provision could prevent the authorized officer from reaching a 
sound decision, particularly where unforeseen events, such as an 
extended period of forest fire emergency, prevent the authorized 
officer from performing the administrative duties involved in 
evaluating a special use application. Thus, this suggestion is not 
adopted in the final regulation.
    Similarly, it is not appropriate to reissue proposed regulations 
reflecting the Department's response to respondents' suggestions. 
Comments of all respondents were carefully considered and their 
appropriateness and applicability determined. Acknowledgment of the 
Department's response to those comments, as explained in this 
supplementary information section, is considered to be sufficient 
explanation of the rulemaking decision.
    The Department recognizes respondents' concerns about combining 
applications into one decision. However, it is the agency's intent that 
uses that could be grouped under one decision would be homogeneous and 
have relatively minor impact. Applications for complex proposals could 
not be grouped due to the variations in impacts and the resulting 
variation in the depth of analysis required for each proposal. An 
example of how this provision could be used occurs in the Pacific 
Northwest, where a large number of applications are received each year 
to place bee hives temporarily on NFS lands where timber harvest 
activities have recently occurred. While the hives may be scattered 
over an area of several hundred acres, the impact of each hive is 
essentially the same as that of all others. Thus, a single decision 
could authorize placement of all hives. Therefore, the Department has 
decided to retain the language of this provision as Sec. 251.54(g)(4) 
in the final rule, but has added clarifying guidance limiting the 
application of this provision to those uses having minor impacts.
    The Department disagrees with the respondent who believes each 
application must be considered individually to ensure that it does not 
adversely affect management of adjoining land. Even if several 
applications were acted upon in one decision, the impacts of each 
proposed use, including those on adjacent lands, would have to be 
considered. Further, where an environmental assessment or environmental 
impact statement is prepared, the public, including the adjacent 
landowner, would have the opportunity to be involved in the analysis of 
the proposed use.
    Paragraph (j) has been relocated in the final rule as part of the 
overall reorganization of this section to achieve a more logical 
sequential process. A portion of the first sentence of proposed 
paragraph (j) concerning evaluation of the proposed use has been moved 
to paragraph (g)(2), while the remainder of the paragraph has been 
moved to paragraph (g)(4) in the final rule. These provisions have been 
edited in the final regulation to improve clarity.
    As part of the overall reorganization of Sec. 251.54, the rules 
applicable to noncommercial group uses are now codified as paragraph 
(g)(3). A provision previously in paragraph (f)(5) stating that 
applications for noncommercial group uses are automatically granted 
unless denied within 48 hours of receipt has been moved to paragraph 
(g)(3) in the final rule since the provision concerns the response to 
rather than the processing of the application. Also, the text of 
paragraph (g)(3) has been revised to correct citations to other parts 
of this subpart which have been revised in the final rule and to 
correct incorrect uses of the word ``shall''; however, the Department 
emphasizes that no substantive changes have been made.
    Section 251.54, Paragraph (k)--Authorization and reauthorization of 
a special use. This proposed paragraph would govern issuance of a 
special use authorization after a decision is made to authorize the 
use. The use thus authorized may be reauthorized as long as it remains 
consistent with the original decision. However, if new information 
becomes available, or new circumstances have developed, new analysis 
must support a decision to reauthorize the use.
    Comment. Eight respondents commented on paragraph (k). These 
respondents suggested that the direction regarding reauthorizing uses 
is not appropriate since Sec. 251.54 applies only to new 
authorizations. Respondents also stated that the language on 
reauthorizations does not provide sufficient protection from an 
arbitrary decision not to reissue an authorization. One respondent 
suggested that reauthorizations should be allowed at any time, not just 
upon expiration of the authorization.
    Response. The Department agrees that this language concerning 
reauthorization of the special use authorization is out of place. Thus, 
the second sentence of proposed paragraph (k) has been moved to 
Sec. 251.64(a) in the final rule, which deals with renewals of special 
use authorizations. The heading of Sec. 251.54 has been revised to make 
clear that this section deals solely with the special use proposal and 
application process. Further, the agency believes that placement of the 
language concerning reauthorization in Sec. 251.64 responds to 
respondent concerns that decisions disallowing reauthorization may be 
arbitrary. The language in Sec. 251.64(a), as modified by the final 
rule, prescribes additional requirements that must be observed when 
reauthorization is considered. These requirements will help prevent 
arbitrary decisions.
    The adoption of the noncommercial group use regulations on August 
30, 1995, to this subpart did not affect proposed paragraph (k). 
However, the first sentence of proposed paragraph (k) has been 
redesignated as (g)(5) in the final rule in keeping with the placement 
of all actions related to processing and responding to applications in 
paragraph

[[Page 65960]]

(g)--Application processing and response.
    Because of the complexity of the screening and application 
processes, the Department has prepared Exhibit 1 to display the entire 
special use authorization approval process defined in Sec. 251.54. 
Exhibit 1 is set out at the end of this rule but will not appear in the 
Code of Federal Regulations.
    Section 251.56 Terms and conditions. This section of the current 
regulations sets forth the terms and conditions to be included in each 
special use authorization. Paragraph (d) prescribes the liability 
requirements to be imposed on a holder of an authorization. The 
proposed rule would have revised only paragraph (d)(2) of this section. 
The revision was intended to clarify that the maximum limit of 
liability for certain high hazard authorized uses would be determined 
by an assessment of the risk associated with the use rather than an 
amount set by the authorized officer. This is usually $1,000,000, the 
maximum liability amount previously established by the regulations at 
Sec. 251.56(d)(2).
    Comment. Most respondents commenting on this revision agreed with 
the proposal to require risk assessments in order to establish 
liability limits for a specific use. Several respondents suggested 
factors to be included in the risk assessment, such as the holder's 
past performance and the historical frequency of incidents where 
negligence associated with the holder's use and occupancy has 
contributed to the liability of the Forest Service. Some respondents 
proposed that holders of authorizations with a lower risk of accidents 
and negative impacts on the land should not pay the same fee as holders 
of authorizations with a higher risk use.
    Three respondents objected to the current provision, for which 
revision was not proposed, that requires holders of authorizations for 
high-risk uses to be liable for all injury, loss, or damage without 
regard to the holder's negligence. These respondents stated that since 
the holder does not have exclusive use of the lands and cannot control 
the activities of others on those lands, the holder should not be 
liable for the actions of third parties.
    Finally, one respondent recommended that the regulations be revised 
to allow the agency to obtain restitution in excess of the amount 
established by a risk assessment, or $1,000,000 as authorized by law, 
should special circumstances arise or actual costs incurred by the 
agency exceed the established amount. This respondent further suggested 
that the regulations provide that damages paid to the agency under the 
liability provision be made available to adjacent landowners who suffer 
losses as a result of a holder's activities on Federal lands.
    Response. Factors to be included in a risk assessment to determine 
the maximum limit of liability should be identified, in order to avoid 
standardizing the liability and thus creating inequities among holders 
of authorizations involving high-risk uses. However, this type of 
information is more appropriately included in the Forest Service's 
internal directive system; namely, the Special Uses Handbook (FSH 
2709.11). The agency will add direction on how to conduct liability 
risk assessment to the Special Uses Handbook. Factors to be included in 
this risk assessment will recognize uses having less risk of damage to 
National Forest System resources and improvements.
    The Department does not agree with those respondents who object to 
placing liability for all injury, loss, or damage on holders without 
regard to the holders' negligence. Placing the burden of risk on the 
holder of the authorization rather than the landowner is an established 
practice in transactions involving private lands and is justified as a 
reasonable requirement to insure against potential liability from any 
cause. Therefore, no change has been made to this provision in the 
final rule.
    State laws governing rules of ordinary negligence allow the agency 
to litigate to seek damages in excess of an amount established by law 
or regulation for strict liability. These State laws offer sufficient 
protection to the Federal Government, and these same laws allow 
adjacent landowners the opportunity to seek damages from the holder, 
instead of claiming a share of damages received by the Forest Service. 
Thus, no change was made in the final regulations to respond to this 
comment.
    Paragraph (a) of Sec. 251.56 has been reformatted and slightly 
revised in the final rule to clarify the content of a special use 
authorization. A new paragraph (a)(2) has been added to this section, 
which states that authorizations may be conditioned to require 
approvals from other government agencies. This paragraph was previously 
at Sec. 251.54(c).
    Section 251.57 Rental fees. This section of the regulations 
currently requires that holders of authorizations pay an annual rental 
fee in advance based on the fair market value of the rights and 
privileges authorized. In addition, this section prescribes the 
conditions under which all or a part of those annual fees may be waived 
and the circumstances under which additional fees may be assessed.
    The proposed rule incorporated into paragraph (a) of the regulation 
an amendment made to the Federal Land Policy and Management Act of 1976 
(FLPMA) (43 U.S.C. 1701 et seq.) by the Act of October 27, 1986 (Pub. 
L. 99-545). That amendment allows the Secretary of Agriculture to 
require payment of fees either annually or for more than one year at a 
time. The 1986 amendment also gives private individuals (holders of 
authorizations who are not commercial or governmental entities and are 
acting in an individual capacity) whose annual rental fees are greater 
than $100 the option of paying annually or for more than one year at a 
time.
    The supplementary information section for the proposed rule 
explained that in accordance with Title V of FLPMA, the agency is 
authorized to issue easements and leases, instead of annual permits, 
when authorizing certain types of special uses, particularly those 
involving large-scale commercial operations but that this authority had 
not been implemented in agency practice. (See the definitions for 
``easement'' and ``lease'' in Sec. 251.51.) The agency can provide an 
extended authorization period by using easements or leases to authorize 
commercial land uses, such as communication sites, utility rights-of-
way, and roads. In the case of easements, the commonly accepted 
practice in the private marketplace is to receive a onetime payment 
when the easement is negotiated that recognizes the fair market value 
of the rights and privileges granted, as determined by appraisal or 
other sound business management practices. The proposed rule indicated 
that if the Forest Service uses this approach when authorizing use of 
NFS lands by an easement, considerable cost-savings could accrue to the 
agency and to the holder of the authorization through avoidance of 
annual administrative costs and the costs of permit renewal activities. 
It is also possible (although uncommon in the private market) that the 
acquisition of an easement could be accomplished by periodic payments, 
in which case the purchase value would be amortized over an agreed-upon 
timeframe, and an appropriate interest rate on the unpaid balance would 
be applied.
    Comment. Eleven respondents commented on this section. Five 
respondents suggested that the option of annual versus multi-year 
payments not be limited to private individuals, suggesting that 
partnerships and corporations be given this option as

[[Page 65961]]

well. Five respondents supported the agency's proposal to allow use of 
easements and leases, but suggested that the conversion of permits be 
made at the request of the holder rather than upon expiration of the 
permit. Some respondents expressed concern that allowing a one-time 
payment would not allow the agency to keep pace with inflation, thus 
preventing receipt of fair market value. Finally, some respondents 
asked how the proposed revisions to this section would be implemented 
by the agency, suggesting that modification of the agency's directive 
system would be necessary.
    Response. The provision in the proposed rule allowing private 
individuals the option of paying fees annually or for more than one 
year at a time if their annual fees are more than $100 precisely tracks 
with the language in the 1986 amendment to FLPMA. Thus, since the law 
limits the revision to private individuals, the suggestion to allow 
partnerships, corporations, and governmental entities the same 
privilege in the final rule cannot be adopted. However, the language of 
proposed paragraph (a)(2) of this section has been revised in the final 
rule to simplify and clarify the provision.
    Allowing immediate use of easements and leases would be desirable; 
however, the workload imposed on the agency's field staff should this 
occur could be overwhelming. Thus, the agency will revise its current 
administrative direction to indicate that conversion to easements and 
leases will be made as permits expire, or as mutually agreed upon 
between the holder and the authorized officer, in order to spread out 
the workload of conversion. Also, it should be noted that many of the 
authorizations that would be affected by this provision can be 
terminated annually by mutual agreement of the agency and the holder, 
thus accomplishing what has been suggested by the respondents.
    The Department disagrees with those respondents who suggest that 
the effects of inflation should be a part of the fee calculation 
process when providing for a one-time payment of fees. The fair market 
value of an easement is indicated by comparable transactions in the 
private market place. The agency assumes that inflation is considered 
by the grantor in determining the value of the easement in the same 
manner that the additional rights granted are recognized in determining 
value. For example, an easement could convey additional rights to the 
holder, such as tenure, transferability, and compensation in the event 
of termination. In addition, the holder could treat the easement as a 
capital asset, thereby gaining favorable financial treatment. The value 
of these additional rights would be realized in increased fees, 
providing increased returns to the Treasury. Thus, a one-time payment 
can represent fair market value for the entire term of the 
authorization, and no loss to the Government will occur. Upon adoption 
of this final rule, the agency's directives will be amended to reflect 
this regulatory revision.
    The proposed regulation would have removed paragraph (g) of 
Sec. 251.57. Subsequently redesignated as paragraph (h) by the 1995 
noncommercial group use rule, this paragraph provides special authority 
to the Supervisor of the Mark Twain National Forest to waive fees under 
certain specified conditions. This provision was added to the 
regulations to test a procedure to reduce costs to the agency and 
contained an expiration date of December 31, 1990. Thus, the provision 
is no longer in effect and should be removed from the section. No 
comments were received on the removal of this paragraph, and no 
additional information has come to light bearing on this provision. 
Therefore, this provision is removed by adoption of this final rule.
    Section 251.59 Transfer of special use privileges. This section 
sets forth the requirements for transferring a special use 
authorization from the current holder to a new holder. No change was 
proposed to this section in the 1992 proposed rule. However, as a 
result of its review of public comments and the overall analysis of 
subpart B, the Department has determined that this section contains 
incorrect and misleading requirements. Specifically, the language of 
this section can be interpreted to contradict itself by stating in the 
first sentence that a permit may be transferred and, then, by stating 
in the last sentence that, if the holder through transfer of the 
authorized improvements ceases to be the owner, the permit is subject 
to termination.
    Section 504(c) of FLPMA (90 Stat. 2778) provides discretionary 
authority to the agency (delegated through the Secretary of 
Agriculture) to specify the terms and conditions applicable to 
authorizations it grants. The Department's longstanding position has 
been and remains that, with the exception of easements, an 
authorization itself has no value. To allow transfer of the 
authorization would simply imply that it is a valuable asset to the 
owner of the improvements. Accordingly, the Forest Service requires as 
a provision of the authorizing document that new owners of improvements 
covered by a special use authorization must first obtain a new 
authorization. Therefore, except for certain types of easements and 
leases, the agency does not actually transfer an authorization when the 
authorized improvements are sold or otherwise transferred between 
parties. Rather, upon a change of ownership, the agency deems the 
original authorization terminated and issues a new authorization to the 
new owner of the improvements upon a determination that the new owner 
is eligible to hold a special use authorization.
    Therefore, the agency has revised the title and the text of this 
section to remove the current ambiguity and to reflect more accurately 
its purpose and intent. In the final rule, the title reads ``Transfer 
of authorized improvements.'' The text of the section has been 
reorganized and edited for precision and clarity. It now states that a 
special use authorization terminates when the holder of the 
authorization ceases to be the owner of the authorized improvements. A 
new owner of the improvements may be issued an authorization upon 
applying for and receiving approval from the authorized officer.
    The Department considers this change to be a technical correction 
that reflects longstanding policy and practice and that it has no 
substantial effect on administration of current special use 
authorizations.
    Section 251.60 Termination, revocation, and suspension. This 
section of the regulation prescribes the conditions under which a 
special use authorization may be suspended, terminated, or revoked. 
Revisions to paragraphs (b), (e), (f), and (h) of this section were 
proposed to be consistent with proposed definitions of these terms in 
Sec. 251.51. Revision to paragraphs (g) and (i) of this section was 
necessary to correct identification of regulations pertaining to 
administrative appeals of decisions relating to special use 
authorizations.
    Comment. Five respondents commented on the proposed revisions to 
this section. These respondents noted that the use of the word 
``termination'' in paragraph (a) implies an action by the authorized 
officer, which is inconsistent with the proposed definition in 
Sec. 251.51. One respondent recommended that the proposed revision 
require the authorized officer to follow agency policy and procedures 
when decisions to terminate, revoke, or suspend a permit are under 
consideration. Another respondent recommended that decisions to suspend 
or revoke a permit not be delegated to agency officials below the

[[Page 65962]]

Regional Forester. Two respondents suggested that the on-site review 
set forth in paragraph (f), proposed to be conducted within 10 days 
following the request of the holder when a permit is suspended, is too 
long a period for public utilities such as hydroelectric facilities or 
electric or gas transmission lines. These respondents suggested that 
the review be conducted within 24 hours of a suspension.
    One respondent suggested that the proposed regulation be revised to 
require that all authorizations issued to holders providing public 
utilities must be renewed as long as the holder is in compliance with 
all laws and regulations affecting the authorization. One respondent 
suggested that the proposed definition for ``termination'' would 
require review of all related laws, regulations, and policies and 
revision of many individual permits to make them conform to the 
proposed definition. As a result, the agency would face a major 
increase in regulatory burden and costs.
    Response. Readers are advised that the adoption of the 
noncommercial group use amendments on August 30, 1995, resulted in 
extensive revision to paragraphs (a) and (b) of Sec. 251.60. The 
amendments, in specifying the grounds for termination, revocation, and 
suspension of special use authorizations, distinguished between 
noncommercial group uses (paragraph (a)(1)) and all other special uses 
(paragraph (a)(2)). In responding to comments to this section of the 
proposed rule, the agency was required to take special consideration of 
the August 30, 1995, amendments. The revisions also caused paragraph 
(b), as amended in 1995, to be reorganized to be consistent with 
paragraph (a). The revision of paragraphs (a) and (b) of this section 
resulted in the elimination in the final rule of paragraph (g), 
concerning appeals of termination, revocation, and suspension decisions 
by an authorized officer. This provision has been incorporated into 
both paragraphs (a) and (b).
    The Department agrees that the language of paragraph (a) of the 
proposed regulations (previously paragraph (a)(2)) was inconsistent 
with the new definition for ``termination'' in Sec. 251.51 and has 
revised this paragraph to remove the inconsistency. The agency 
disagrees that additional language should be added in the final rule to 
ensure that authorized officers follow policy and procedures when 
considering decisions to terminate, revoke, or suspend permits. The 
delegation of authority to agency officials carries with it the 
responsibility to follow agency policies and procedures; therefore, no 
additional regulatory guidance is necessary. The suggestion that 
decisions to suspend or revoke permits not be delegated below the 
Regional Forester has not been adopted. Decisions by authorized 
officers below the Regional Forester are reviewable by line officers 
one level above the deciding officers under current administrative 
appeal regulations. The Department believes that this procedure offers 
sufficient protection for holders.
    In response to the concern about the proposed 10-day period to 
review conditions leading to suspension of a permit, readers should be 
aware that paragraph (f) would be invoked only in an emergency to 
protect the public health and safety or the environment. In a normal 
situation where suspension of a permit is contemplated, written notice 
would be given and a reasonable time to cure the condition leading to 
the suspension would be provided. However, the Department agrees that 
10 days is too long to respond in an emergency situation and has 
revised the provision in the final rule to provide for a 48-hour 
response period.
    The Department disagrees with the respondent who suggested that all 
authorizations for utility rights-of-way must be renewed, if the holder 
is in compliance with applicable laws and regulations. This proposal 
would inappropriately restrict the actions of the authorized officer 
responsible for protecting and managing the NFS lands.
    The Department also disagrees with the respondent who believed that 
the definition of the word ``termination'' would increase regulatory 
burden and agency costs. Upon adoption of this final rule, the agency 
will make necessary revision to its internal directives to ensure 
consistency and conformity with the regulations. Conformance of these 
directives with the use of the terms adopted by this rule will be a 
part of this effort. Thus, no change has been made to this provision in 
the final rule.
    The agency determined during its analysis of the proposed rule and 
the public comments that the regulation does not clearly identify the 
agency official who may initiate termination, revocation, or suspension 
of authorizations. Thus, the final rule provides that for the purposes 
of section 251.60 the authorized officer is the officer who issues the 
authorization or that officer's successor.
    In addition to the revisions and new language included in this 
section, the final rule also reflects some minor editing to clarify and 
simplify the text.
    Section 251.61 Modifications. This section of the regulation 
describes those actions which a holder is required to undertake when it 
becomes necessary to modify an existing authorization and the 
information which the holder must supply to the authorized officer when 
modification becomes necessary. The proposed rule would have clarified 
paragraph (c) of this section, to provide that modifications to an 
authorization requiring the approval of the authorized officer include 
all activities that would impact the environment, other users, or the 
public, not just those involving ``maintenance or other activities.''
    Three respondents were concerned that the wording of the proposed 
revision would apply to all activities that would impact the 
environment, other users, or the public, not just those activities for 
which modification is proposed. They suggested that the language be 
clarified to allow implementation of activities already approved in the 
permit that are not subject to modification to proceed without further 
approval.
    Response. The Department agrees that the language of proposed 
paragraph (c) was overly broad. In response to respondents' concerns, 
the Department has revised paragraph (c) to require the holder to 
obtain prior approval for all modifications to approved uses that will 
impact the environment, other users, or the public.
    Section 251.64 Renewals. This section of the regulation enumerates 
the criteria for renewing an authorization when it provides for renewal 
and when it does not. There were no changes proposed to this section, 
nor did the adoption of the noncommercial group use regulations on 
August 30, 1995, to this subpart, affect this section. However, the 
agency has revised this section to incorporate a provision moved from 
Sec. 251.54(k) into paragraph (a) of this section which respondents had 
indicated was out of place in that section.
    Section 251.65 Information collection requirements. This section of 
the regulation describes the requirements imposed on the agency when 
collecting information from applicants. The regulation sets forth in 
paragraph (b) the agency's estimate of the time required for a 
proponent/applicant to provide the information requested in an 
application for a special use authorization, which is estimated to 
range from 30 minutes for simple projects (or uses) to several months 
for complex ones with an average of four hours for each project (or 
use). There were no changes proposed to this section.
    The Department notes it is no longer required to set forth the 
information

[[Page 65963]]

contained in paragraph (b) of Sec. 251.65 concerning estimates of the 
information collection requirement burden. Thus, this paragraph has 
been removed in the final rule as a technical revision to the section. 
The text of former paragraph ``(a)'' is retained but as an undesignated 
paragraph.

Summary

    This final rule responds to direction from the President to reduce 
the regulatory burden imposed on those entities holding or seeking to 
obtain authorizations to use and occupy National Forest System (NFS) 
lands. The current special use regulations at 36 CFR Part 251, Subpart 
B addresses the rights of all citizens regarding uses of National 
Forest System lands are protected. The regulations provide the means to 
protect the health and safety of the public when using the services of 
commercial entities authorized to use the Federal lands; ensure that 
the services or facilities authorized are operated in compliance with 
Title VI of the Civil Rights Act of 1964; and ensure that environmental 
safeguards are employed and that authorized uses do not have adverse 
environmental effects on National Forest System lands.
    This final rule will retain these basic safeguards. The rule will 
enhance efficiency in the review of applications, the approval/denial 
process, and the administration of authorizations, thereby providing 
significant cost savings to applicants, holders, and the Federal 
Government. The intent of the final rule is to make the issuance and 
administration of special use authorizations a less cumbersome and 
costly process, thereby reducing the burden on that segment of the 
public making use of these Federal lands, improving productivity of 
agency employees, and streamlining operations of the agency. Screening 
a proposed use will permit review of the proposal before the proponent 
invests time and expense in providing detailed information to accompany 
the application or the Forest Service invests time and expense in 
performing a detailed evaluation of the proposed use, including an 
analysis of the impacts on the environment. By eliminating time-
consuming and costly processing of proposals that cannot meet minimum 
requirements, a faster agency response on those applications that pass 
the initial screening would result.
    The final rule also incorporates into regulation statutory 
authority that has been available to the Forest Service that expands 
its authority to administer special use authorizations. The final rule 
underscores that the agency may issue long-term easements instead of 
annual or short-term permits and that those easements may allow for a 
one-time fee payment rather than annual fee payments. Holders of 
authorizations for high-risk uses such as electric transmission lines 
will be subject to strict liability for damage or loss that will be 
determined by a risk assessment rather than a fixed dollar amount 
specified in regulations. Finally, the agency has made the regulations 
more ''user-friendly'' by clarifying certain provisions and removing 
unnecessary language, and carefully reorganizing the text to flow in a 
logical sequence.

Regulatory Impact

    This final rule has been reviewed under USDA procedures and 
Executive Order 12866 on Regulatory Planning and Review. It has been 
determined that this is not a significant rule. This rule will not have 
an annual effect of $100 million or more on the economy nor adversely 
affect productivity, competition, jobs, the environment, public health 
or safety, nor State or local governments. This rule will not interfere 
with an action taken or planned by another agency nor raise new legal 
or policy issues. Finally, this action will not alter the budgetary 
impact of entitlements, grants, user fees, or loan programs or the 
rights and obligations of recipients of such programs. Accordingly, 
this final rule is not subject to OMB review under Executive Order 
12866. To the contrary, adoption of this final rule will have positive 
effects on the economy by creating efficiencies for the Forest Service 
and special use proponents and holders. The expected benefits of this 
rule outweigh the expected costs to society, the rule is fashioned to 
maximize net benefits to society, and the rule provides clarity to the 
regulated community.
    Moreover, this final rule has been considered in light of the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and it has been 
certified that this action will not have a significant economic impact 
on a substantial number of small entities as defined by that Act. 
Therefore, contrary to the views of the Small Business Administration, 
a regulatory flexibility analysis is not required. The efficiencies and 
cost savings to be achieved by the rule will benefit both small 
entities who apply for or hold special use authorizations as well as 
large-scale entities.

No Taking Implications

    This rule has been analyzed in accordance with the principles and 
criteria contained in Executive Order 12630, and it has been determined 
that the rule does not pose the risk of a taking of constitutionally 
protected private property rights. This rule applies to the 
discretionary use of Federally owned land.

Unfunded Mandates Reform

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), which the President signed into law on March 22, 
1995, the Department has assessed the effects of this rule on State, 
local, and tribal governments and the private sector. This rule does 
not compel the expenditure of $100 million or more by any State, local, 
or tribal governments or anyone in the private sector. Therefore, a 
statement under section 202 of the Act is not required.

Civil Justice Reform Act

    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. With adoption of this final rule, (1) all State 
and local laws and regulations that are in conflict with this final 
rule or which would impede its full implementation would be preempted; 
(2) no retroactive effect would be given to this final rule; and (3) it 
would not require administrative proceedings before parties may file 
suit in court challenging its provisions.

Environmental Impact

    Section 31.1b of Forest Service Handbook 1909.15 (57 FR 43180; 
September 18, 1992) excludes from documentation in an environmental 
assessment or impact statement ``rules, regulations, or policies to 
establish Service-wide administrative procedures, program processes or 
instructions.'' Based on consideration of the comments received and the 
nature and scope of this rulemaking, the Department has determined that 
this rule falls within this category of actions and that no 
extraordinary circumstances exist which would require preparation of an 
environmental assessment or environmental impact statement.

Controlling Paperwork Burdens on the Public

    This rule will not result in additional paperwork not already 
required by law or not already approved for use. Therefore, the review 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et 
seq.) and implementing regulations at 5 CFR 1320 do not apply.

List of Subjects in 36 CFR Part 251

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


[[Page 65964]]


    Therefore, for the reasons set forth in the preamble, subpart B of 
part 251 of title 36 of the Code of Federal Regulations is amended as 
follows:

PART 251--LAND USES

Subpart B--Special Uses

    1. The authority citation for subpart B continues 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 Sec. 251.51, revise the definitions for ``Easement'' and 
``Lease,'' and add definitions for ``NEPA procedures,'' ``Revocation,'' 
``Sound business management principles,'' ``Suspension,'' and 
``Termination'' in the appropriate alphabetical order to read as 
follows:


Sec. 251.51  Definitions.

* * * * *
    Easement--a type of special use authorization (usually granted for 
linear rights-of-way) that is utilized in those situations where a 
conveyance of a limited and transferable interest in National Forest 
System land is necessary or desirable to serve or facilitate authorized 
long-term uses, and that may be compensable according to its terms.
* * * * *
    Lease--a type of special use authorization (usually granted for 
uses other than linear rights-of-way) that is used when substantial 
capital investment is required and when conveyance of a conditional and 
transferable interest in National Forest System lands is necessary or 
desirable to serve or facilitate authorized long-term uses, and that 
may be revocable and compensable according to its terms.
* * * * *
    NEPA procedures--the rules, policies, and procedures governing 
agency compliance with the National Environmental Policy Act set forth 
in 50 CFR parts 1500-1508, 7 CFR part 1b, Forest Service Manual Chapter 
1950, and Forest Service Handbook 1909.15.
* * * * *
    Revocation--the cessation of a special use authorization by action 
of an authorized officer before the end of the specified period of 
occupancy or use for reasons set forth in Sec. 251.60(a)(1)(i), 
(a)(2)(i), (g), and (h) of this subpart.
* * * * *
    Sound business management principles--a phrase that refers to 
accepted industry practices or methods of establishing fees and charges 
that are used or applied by the Forest Service to help establish the 
appropriate charge for a special use. Examples of such practices and 
methods include, but are not limited to, appraisals, fee schedules, 
competitive bidding, negotiation of fees, and application of other 
economic factors, such as cost efficiency, supply and demand, and 
administrative costs.
* * * * *
    Suspension--a temporary revocation of a special use authorization.
* * * * *
    Termination--the cessation of a special use authorization by 
operation of law or by operation of a fixed or agreed-upon condition, 
event, or time as specified in an authorization without the necessity 
for any decision or action by the authorized officer; for example, 
expiration of the authorized term or transfer of the authorized 
improvement to another party.
    3. Revise Sec. 251.54 to read as follows:


Sec. 251.54  Proposal and application requirements and procedures.

    (a) Early notice. When an individual or entity proposes to occupy 
and use National Forest System lands, the proponent is required to 
contact the Forest Service office(s) responsible for the management of 
the affected land as early as possible in advance of the proposed use.
    (b) Filing proposals. Proposals for special uses must be filed in 
writing with or presented orally to the District Ranger or Forest 
Supervisor having jurisdiction over the affected land (Sec. 200.2 of 
this chapter), except as follows:
    (1) Proposals for projects on lands under the jurisdiction of two 
or more administrative units of the Forest Service may be filed at the 
most convenient Forest Service office having jurisdiction over part of 
the project, and the proponent will be notified where to direct 
subsequent communications;
    (2) Proposals for cost-share and other road easements to be issued 
under Sec. 251.53(j) must be filed in accordance with regulations in 
Sec. 212.10(c) and (d) of this chapter; and
    (3) Proposals for oil and gas pipeline rights-of-way crossing 
Federal lands under the jurisdiction of two or more Federal agencies 
must be filed with the State Office, Bureau of Land Management, 
pursuant to regulations at 43 CFR part 2882.
    (c) Rights of proponents. A proposal to obtain a special use 
authorization does not grant any right or privilege to use National 
Forest System lands. Rights or privileges to occupy and use National 
Forest System lands under this subpart are conveyed only through 
issuance of a special use authorization.
    (d) Proposal content--(1) Proponent identification. Any proponent 
for a special use authorization must provide the proponent's name and 
mailing address, and, if the proponent is not an individual, the name 
and address of the proponent's agent who is authorized to receive 
notice of actions pertaining to the proposal.
    (2) Required information--(i) Noncommercial group uses. Paragraphs 
(d)(3) through (d)(5) of this section do not apply to proposals for 
noncommercial group uses. A proponent for noncommercial group uses 
shall provide the following:
    (A) A description of the proposed activity;
    (B) The location and a description of the National Forest System 
lands and facilities the proponent would like to use;
    (C) The estimated number of participants and spectators;
    (D) The starting and ending time and date of the proposed activity; 
and
    (E) The name of the person or persons 21 years of age or older who 
will sign a special use authorization on behalf of the proponent.
    (ii) All other special uses. At a minimum, proposals for special 
uses other than noncommercial group uses must include the information 
contained in paragraphs (d)(3) through (d)(5) of this section. In 
addition, if requested by an authorized officer, a proponent in one of 
the following categories must furnish the information specified for 
that category:
    (A) If the proponent is a State or local government agency: a copy 
of the authorization under which the proposal is made;
    (B) If the proponent is a public corporation: the statute or other 
authority under which it was organized;
    (C) If the proponent is a Federal Government agency: the title of 
the agency official delegated the authority to file the proposal;
    (D) If the proponent is a private corporation:
    (1) Evidence of incorporation and its current good standing;
    (2) If reasonably obtainable by the proponent, the name and address 
of each shareholder owning three percent or more of the shares, 
together with the number and percentage of any class of voting shares 
of the entity which such shareholder is authorized to vote;
    (3) The name and address of each affiliate of the entity;
    (4) In the case of an affiliate which is controlled by the entity, 
the number of shares and the percentage of any class of voting stock of 
the affiliate that the

[[Page 65965]]

entity owns either directly or indirectly; or
    (5) In the case of an affiliate which controls that entity, the 
number of shares and the percentage of any class of voting stock of 
that entity owned, either directly or indirectly by the affiliate; or
    (E) If the proponent is a partnership, association, or other 
unincorporated entity: a certified copy of the partnership agreement or 
other similar document, if any, creating the entity, or a certificate 
of good standing under the laws of the State.
    (3) Technical and financial capability. The proponent is required 
to provide sufficient evidence to satisfy the authorized officer that 
the proponent has, or prior to commencement of construction will have, 
the technical and financial capability to construct, operate, maintain, 
and terminate the project for which an authorization is requested, and 
the proponent is otherwise acceptable.
    (4) Project description. Except for requests for planning permits 
for a major development, a proponent must provide a project 
description, including maps and appropriate resource information, in 
sufficient detail to enable the authorized officer to determine the 
feasibility of a proposed project or activity, any benefits to be 
provided to the public, the safety of the proposal, the lands to be 
occupied or used, the terms and conditions to be included, and the 
proposal's compliance with applicable laws, regulations, and orders.
    (5) Additional information. The authorized officer may require any 
other information and data necessary to determine feasibility of a 
project or activity proposed; compliance with applicable laws, 
regulations, and orders; compliance with requirements for associated 
clearances, certificates, permits, or licenses; and suitable terms and 
conditions to be included in the authorization. The authorized officer 
shall make requests for any additional information in writing.
    (e) Pre-application actions. (1) Initial screening. Upon receipt of 
a request for any proposed use other than for noncommercial group use, 
the authorized officer shall screen the proposal to ensure that the use 
meets the following minimum requirements applicable to all special 
uses:
    (i) The proposed use is consistent with the laws, regulations, 
orders, and policies establishing or governing National Forest System 
lands, with other applicable Federal law, and with applicable State and 
local health and sanitation laws.
    (ii) The proposed use is consistent or can be made consistent with 
standards and guidelines in the applicable forest land and resource 
management plan prepared under the National Forest Management Act and 
36 CFR part 219.
    (iii) The proposed use will not pose a serious or substantial risk 
to public health or safety.
    (iv) The proposed use will not create an exclusive or perpetual 
right of use or occupancy.
    (v) The proposed use will not unreasonably conflict or interfere 
with administrative use by the Forest Service, other scheduled or 
authorized existing uses of the National Forest System, or use of 
adjacent non-National Forest System lands.
    (vi) The proponent does not have any delinquent debt owed to the 
Forest Service under terms and conditions of a prior or existing 
authorization, unless such debt results from a decision on an 
administrative appeal or from a fee review and the proponent is current 
with the payment schedule.
    (vii) The proposed use does not involve gambling or providing of 
sexually oriented commercial services, even if permitted under State 
law.
    (viii) The proposed use does not involve military or paramilitary 
training or exercises by private organizations or individuals, unless 
such training or exercises are federally funded.
    (ix) The proposed use does not involve disposal of solid waste or 
disposal of radioactive or other hazardous substances.
    (2) Results of initial screening. Any proposed use other than a 
noncommercial group use that does not meet all of the minimum 
requirements of paragraphs (e)(1)(i)-(ix) of this section shall not 
receive further evaluation and processing. In such event, the 
authorized officer shall advise the proponent that the use does not 
meet the minimum requirements. If the proposal was submitted orally, 
the authorized officer may respond orally. If the proposal was made in 
writing, the authorized officer shall notify the proponent in writing 
that the proposed use does not meet the minimum requirements and shall 
simultaneously return the request.
    (3) Guidance and information to proponents. For proposals for 
noncommercial group use as well as for those proposals that meet the 
minimum requirements of paragraphs (e)(1)(i)-(ix), the authorized 
officer, to the extent practicable, shall provide the proponent 
guidance and information on the following:
    (i) Possible land use conflicts as identified by review of forest 
land and resource management plans, landownership records, and other 
readily available sources;
    (ii) Proposal and application procedures and probable time 
requirements;
    (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 
require temporary use permits.
    (4) Confidentiality. If requested by the proponent, the authorized 
officer, or other Forest Service official, to the extent reasonable and 
authorized by law, shall hold confidential any project and program 
information revealed during pre-application contacts.
    (5) Second-level screening of proposed uses. A proposal which 
passes the initial screening set forth in paragraph (e)(1) and for 
which the proponent has submitted information as required in paragraph 
(d)(2)(ii) of this section, proceeds to second-level screening and 
consideration. In order to complete this screening and consideration, 
the authorized officer may request such additional information as 
necessary to obtain a full description of the proposed use and its 
effects. An authorized officer shall reject any proposal, including a 
proposal for commercial group uses, if, upon further consideration, the 
officer determines that:
    (i) The proposed use would be inconsistent or incompatible with the 
purposes for which the lands are managed, or with other uses; or
    (ii) The proposed use would not be in the public interest; or
    (iii) The proponent is not qualified; or
    (iv) The proponent does not or cannot demonstrate technical or 
economic feasibility of the proposed use or the financial or technical 
capability to undertake the use and to fully comply with the terms and 
conditions of the authorization; or
    (v) There is no person or entity authorized to sign a special use 
authorization and/or there is no person or entity willing to accept 
responsibility for adherence to the terms and conditions of the 
authorization.
    (6) NEPA compliance for second-level screening process. A request 
for a special use authorization that does not meet the criteria 
established in paragraphs (e)(5)(i) through (e)(5)(v) of this section 
does not constitute an agency proposal as defined in 40 CFR

[[Page 65966]]

1508.23 and, therefore, does not require environmental analysis and 
documentation.
    (f) Special requirements for certain proposals. (1) Oil and gas 
pipeline rights-of-way. These proposals must include the citizenship of 
the proponent(s) and disclose the identity of its participants as 
follows:
    (i) Citizens of another country, the laws, customs, or regulations 
of which deny similar or like privileges to citizens or corporations of 
the United States, shall not own an appreciable interest in any oil and 
gas pipeline right-of-way or associated permit; and
    (ii) The authorized officer shall notify the House Committee on 
Resources and the Senate Committee on Energy and Natural Resources 
promptly upon receipt of a proposal for a right-of-way for a pipeline 
twenty-four (24) inches or more in diameter, and no right-of-way for 
such a pipeline shall be granted until sixty (60) days (not counting 
days on which the House of Representatives or the Senate has adjourned 
for more than three (3) days) after a notice of intention to grant the 
right-of-way, together with the authorized officer's detailed findings 
as to terms and conditions the officer proposes to impose, has been 
submitted to such committees, unless each committee by resolution 
waives the waiting period.
    (2) Electric power transmission lines 66 KV or over. Any proposal 
for authority to construct and maintain a facility for the generation 
of electric power and energy or for the transmission or distribution of 
electric power and energy of 66 kilovolts or higher under this section 
must be referred to the Secretary of Energy for consultation.
    (3) Major development. Proponents of a major development may submit 
a request for a planning permit of up to 10 years in duration. Requests 
for a planning permit must include the information contained in 
paragraphs (d)(1) through (d)(3) of this section. Upon completion of a 
master development plan developed under a planning permit, proponents 
may then submit a request for a long-term authorization to construct 
and operate the development. At a minimum, a request for a long-term 
permit for a major development must include the information contained 
in paragraphs (d)(1) and (d)(2)(ii) through (d)(5) of this section. 
Issuance of a planning permit does not prejudice approval or denial of 
a subsequent request for a special use permit for the development.
    (g) Application processing and response. (1) Acceptance of 
applications. Except for proposals for noncommercial group uses, if a 
request does not meet the criteria of both screening processes or is 
subsequently denied, the proponent must be notified with a written 
explanation of the rejection or denial and any written proposal 
returned to the proponent. If a request for a proposed use meets the 
criteria of both the initial and second-level screening processes as 
described in paragraph (e) of this section, the authorized officer 
shall notify the proponent that the agency is prepared to accept a 
written formal application for a special use authorization and shall, 
as appropriate or necessary, provide the proponent guidance and 
information of the type described in paragraphs (e)(3)(i) through 
(e)(3)(viii) of this section.
    (2) Processing applications. (i) Upon acceptance of an application 
for a special use authorization other than a planning permit, the 
authorized officer shall evaluate the proposed use for the requested 
site, including effects on the environment. The authorized officer may 
request such additional information as necessary to obtain a full 
description of the proposed use and its effects.
    (ii) Federal, State, and local government agencies and the public 
shall receive adequate notice and an opportunity to comment upon a 
special use proposal accepted as a formal application in accordance 
with Forest Service NEPA procedures.
    (iii) The authorized officer shall give due deference to the 
findings of another agency such as a Public Utility Commission, the 
Federal Regulatory Energy Commission, or the Interstate Commerce 
Commission in lieu of another detailed finding. If this information is 
already on file with the Forest Service, it need not be refiled, if 
reference is made to the previous filing date, place, and case number.
    (iv) Applications for noncommercial group uses must be received at 
least 72 hours in advance of the proposed activity. Applications for 
noncommercial group uses shall be processed in order of receipt, and 
the use of a particular area shall be allocated in order of receipt of 
fully executed applications, subject to any relevant limitations set 
forth in this section.
    (v) For applications for planning permits, including those issued 
for a major development as described in paragraph (f)(3) of this 
section, the authorized officer shall assess only the applicant's 
financial and technical qualifications and determine compliance with 
other applicable laws, regulations, and orders. Planning permits may be 
categorically excluded from documentation in an environmental 
assessment or environmental impact statement pursuant to Forest Service 
Handbook 1909.15 (36 CFR 200.4).
    (3) Response to applications for noncommercial group uses. (i) All 
applications for noncommercial group uses shall be deemed granted and 
an authorization shall be issued for those uses pursuant to the 
determination as set forth below, unless applications are denied within 
48 hours of receipt. Where an application for a noncommercial group use 
has been granted or is deemed to have been granted and an authorization 
has been issued under this paragraph, an authorized officer may revoke 
that authorization only as provided under Sec. 251.60(a)(1)(i).
    (ii) An authorized officer shall grant an application for a special 
use authorization for a noncommercial group use upon a determination 
that:
    (A) Authorization of the proposed activity is not prohibited by the 
rules at 36 CFR part 261, subpart B, or by Federal, State, or local law 
unrelated to the content of expressive activity;
    (B) Authorization of the proposed activity is consistent or can be 
made consistent with the standards and guidelines in the applicable 
forest land and resource management plan required under the National 
Forest Management Act and 36 CFR part 219;
    (C) The proposed activity does not materially impact the 
characteristics or functions of the environmentally sensitive resources 
or lands identified in Forest Service Handbook 1909.15, chapter 30;
    (D) The proposed activity will not delay, halt, or prevent 
administrative use of an area by the Forest Service or other scheduled 
or existing uses or activities on National Forest System lands, 
including but not limited to uses and activities authorized under parts 
222, 223, 228, and 251 of this chapter;
    (E) The proposed activity does not violate State and local public 
health laws and regulations as applied to the proposed site. Issues 
addressed by State and local public health laws and regulations as 
applied to the proposed site include but are not limited to:
    (1) The sufficiency of sanitation facilities;
    (2) The sufficiency of waste-disposal facilities;
    (3) The availability of sufficient potable drinking water;
    (4) The risk of disease from the physical characteristics of the 
proposed site or natural conditions associated with the proposed site; 
and

[[Page 65967]]

    (5) The risk of contamination of the water supply;
    (F) The proposed activity will not pose a substantial danger to 
public safety. Considerations of public safety must not include 
concerns about possible reaction to the users' identity or beliefs from 
non-members of the group that is seeking an authorization and shall be 
limited to the following:
    (1) The potential for physical injury to other forest users from 
the proposed activity;
    (2) The potential for physical injury to users from the physical 
characteristics of the proposed site or natural conditions associated 
with the proposed site;
    (3) The potential for physical injury to users from scheduled or 
existing uses or activities on National Forest System lands; and
    (4) The adequacy of ingress and egress in case of an emergency;
    (G) The proposed activity does not involve military or paramilitary 
training or exercises by private organizations or individuals, unless 
such training or exercises are federally funded; and
    (H) A person or persons 21 years of age or older have been 
designated to sign and do sign a special use authorization on behalf of 
the applicant.
    (iii) If an authorized officer denies an application because it 
does not meet the criteria in paragraphs (g)(3)(ii)(A) through 
(g)(3)(ii)(H) of this section, the authorized officer shall notify the 
applicant in writing of the reasons for the denial. If an alternative 
time, place, or manner will allow the applicant to meet the eight 
evaluation criteria, an authorized officer shall offer that 
alternative. If an application is denied solely under paragraph 
(g)(3)(ii)(C) of this section and all alternatives suggested are 
unacceptable to the applicant, the authorized officer shall offer to 
have completed the requisite environmental and other analyses for the 
requested site. A decision to grant or deny the application for which 
an environmental assessment or an environmental impact statement is 
prepared is subject to the notice and appeal procedures at 36 CFR part 
215 and shall be made within 48 hours after the decision becomes final 
under that appeal process. A denial of an application under paragraphs 
(g)(3)(ii)(A) through (g)(3)(ii)(H) of this section constitutes final 
agency action and is immediately subject to judicial review.
    (4) Response to all other applications. Based on evaluation of the 
information provided by the applicant and other relevant information 
such as environmental findings, the authorized officer shall decide 
whether to approve the proposed use, approve the proposed use with 
modifications, or deny the proposed use. A group of applications for 
similar uses having minor environmental impacts may be evaluated with 
one analysis and approved in one decision.
    (5) Authorization of a special use. Upon a decision to approve a 
special use or a group of similar special uses, the authorized officer 
may issue one or more special use authorizations as defined in 
Sec. 251.51 of this subpart.
    4. In Sec. 251.56, revise paragraphs (a) and (d)(2), to read as 
follows:


Sec. 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 and 
regulations issued thereunder;
    (B) Minimize damage to scenic and esthetic values and fish and 
wildlife habitat and otherwise protect the environment;
    (C) Require compliance with applicable air and water quality 
standards established by or pursuant to applicable Federal or State 
law; and
    (D) Require compliance with State standards for public health and 
safety, environmental protection, and siting, construction, operation, 
and maintenance if those standards are more stringent than applicable 
Federal standards.
    (ii) Such terms and conditions as the authorized officer deems 
necessary to:
    (A) Protect Federal property and economic interests;
    (B) Manage efficiently the lands subject to the use and adjacent 
thereto;
    (C) Protect other lawful users of the lands adjacent to or occupied 
by such use;
    (D) Protect lives and property;
    (E) Protect the interests of individuals living in the general area 
of the use who rely on the fish, wildlife, and other biotic resources 
of the area for subsistence purposes;
    (F) Require siting to cause the least damage to the environment, 
taking into consideration feasibility and other relevant factors; and
    (G) Otherwise protect the public interest.
    (2) Authorizations for use of National Forest System lands may be 
conditioned to require State, county, or other Federal agency licenses, 
permits, certificates, or other approval documents, such as a Federal 
Communication Commission license, a Federal Energy Regulatory 
Commission license, a State water right, or a county building permit.
* * * * *
    (d) * * *
    (2) Holders of special use authorizations for high risk use and 
occupancy, such as, but not limited to, powerlines and oil and gas 
pipelines, shall be held liable for all injury, loss, or damage, 
including fire suppression costs, caused by the holder's use or 
occupancy, without regard to the holder's negligence, provided that 
maximum liability shall be specified in the special use authorization 
as determined by a risk assessment, prepared in accordance with 
established agency procedures, but shall not exceed $1,000,000 for any 
one occurrence. Liability for injury, loss, or damage, including fire 
suppression costs, in excess of the specified maximum shall be 
determined by the laws governing ordinary negligence of the 
jurisdiction in which the damage or injury occurred.
* * * * *
    5. In Sec. 251.57, remove paragraph (h), redesignate paragraph (i) 
as (h), and revise paragraph (a) to read as follows:


Sec. 251.57  Rental fees.

    (a) Except as otherwise provided in this part or when specifically 
authorized by the Secretary of Agriculture, special use authorizations 
shall require the payment in advance of an annual rental fee as 
determined by the authorized officer.
    (1) The fee shall be based on the fair market value of the rights 
and privileges authorized, as determined by appraisal or other sound 
business management principles.
    (2) Where annual fees of one hundred dollars ($100) or less are 
assessed, the authorized officer may require either annual payment or a 
payment covering more than one year at a time. If the annual fee is 
greater than one hundred dollars ($100), holders who are private 
individuals (that is, acting in an individual capacity), as opposed to 
those who are commercial, other corporate, or business or government 
entities, may, at their option, elect to make either annual payments or 
payments covering more than one year.
* * * * *
    6. Revise Sec. 251.59 to read as follows:


Sec. 251.59  Transfer of authorized improvements.

    If the holder, through death, voluntary sale, transfer, or through 
enforcement of a valid legal proceeding or operation of law, ceases to 
be the owner of the authorized improvements, the authorization 
terminates upon change of ownership. Except for easements issued under 
authorities other than Sec. 251.53(e) and leases and easements under 
Sec. 251.53(l) of this subpart, the new

[[Page 65968]]

owner of the authorized improvements must apply for and receive a new 
special use authorization. The new owner must meet requirements under 
applicable regulations of this subpart and agree to comply with the 
terms and conditions of the authorization and any new terms and 
conditions warranted by existing or prospective circumstances.
    7. Amend Sec. 251.60 as follows:
    a. Remove paragraph (g);
    b. Redesignate paragraphs (h), (i), and (j) as (g), (h), and (i), 
respectively; and
    c. Revise paragraphs (a)(2), (b), (e), (f), and newly redesignated 
(g), (h), and (i) to read as follows:


Sec. 251.60  Termination, revocation, and suspension.

    (a) * * *
    (2) All other special uses. (i) Revocation or suspension. An 
authorized officer may revoke or suspend a special use authorization 
for all other special uses, except an easement issued pursuant to 
Sec. 251.53 (e) and (l):
    (A) For noncompliance with applicable statutes, regulations, or the 
terms and conditions of the authorization;
    (B) For failure of the holder to exercise the rights or privileges 
granted;
    (C) With the consent of the holder; or
    (D) At the discretion of the authorized officer for specific and 
compelling reasons in the public interest.
    (ii) Administrative review. Except for revocation or suspension of 
an easement issued pursuant to Sec. 251.53 (e) and (l) of this subpart, 
a suspension or revocation of a special use authorization under this 
paragraph is subject to administrative appeal and review in accordance 
with 36 CFR part 251, subpart C, of this chapter.
    (iii) Termination. For all special uses except noncommercial group 
uses, a special use authorization terminates when, by its terms, a 
fixed or agreed-upon condition, event, or time occurs. Termination of a 
special use authorization under this paragraph does not involve agency 
action and is not subject to administrative or judicial review.
    (b) For purposes of this section, the authorized officer is that 
person who issues the authorization or that officer's successor.
* * * * *
    (e) Except when immediate suspension pursuant to paragraph (f) of 
this section is indicated, the authorized officer shall give the holder 
written notice of the grounds for suspension or revocation under 
paragraph (a) of this section and reasonable time to cure any 
noncompliance, prior to suspension or revocation pursuant to paragraph 
(a) of this section,
    (f) Immediate suspension of a special use authorization, in whole 
or in part, may be required when the authorized officer deems it 
necessary to protect the public health or safety or the environment. In 
any such case, within 48 hours of a request of the holder, the superior 
of the authorized officer shall arrange for an on-site review of the 
adverse conditions with the holder. Following this review, the superior 
officer shall take prompt action to affirm, modify, or cancel the 
suspension.
    (g) The authorized officer may suspend or revoke easements issued 
pursuant to Sec. 251.53 (e) and (l) of this subpart under the Rules of 
Practice Governing Formal Adjudicatory Administrative Proceedings 
instituted by the Secretary under 7 CFR 1.130 through 1.151. No 
administrative proceeding shall be required if the easement, by its 
terms, provides that it terminates on the occurrence of a fixed or 
agreed-upon condition, event, or time.
    (h)(1) The Chief may revoke any easement granted under the 
provisions of the Act of October 13, 1964, 78 Stat. 1089, 16 U.S.C. 
534:
    (i) By consent of the owner of the easement;
    (ii) By condemnation; or
    (iii) Upon abandonment after a 5-year period of nonuse by the owner 
of the easement.
    (2) Before any such easement is revoked for nonuse or abandonment, 
the owner of the easement shall be given notice and, upon the owner's 
request made within 60 days after receipt of the notice, an opportunity 
to present relevant information in accordance with the provisions of 36 
CFR part 251, subpart C, of this chapter.
    (i) Upon revocation or termination of a special use authorization, 
the holder must remove within a reasonable time the structures and 
improvements and shall restore the site to a condition satisfactory to 
the authorized officer, unless the requirement to remove structures or 
improvements is otherwise waived in writing or in the authorization. If 
the holder fails to remove the structures or improvements within a 
reasonable period, as determined by the authorized officer, they shall 
become the property of the United States, but holder shall remain 
liable for the costs of removal and site restoration.
    8. In Sec. 251.61, revise paragraph (c) to read as follows:


Sec. 251.61  Modifications.

* * * * *
    (c) A holder shall obtain prior approval from the authorized 
officer for modifications to approved uses that involve any activity 
impacting the environment, other users, or the public.
    9. In Sec. 251.64, add two sentences at the end of paragraph (a) to 
read as follows:


Sec. 251.64  Renewals.

    (a) * * * Special uses may be reauthorized upon expiration so long 
as such use remains consistent with the decision that approved the 
expiring special use or group of uses. If significant new information 
or circumstances have developed, appropriate environmental analysis 
must accompany the decision to reauthorize the special use.
* * * * *
    10. Revise Sec. 251.65 to read as follows:


Sec. 251.65  Information collection requirements.

    The rules of this subpart governing special use applications 
(Sec. 251.54 and Sec. 251.59), terms and conditions (Sec. 251.54), 
rental fees (Sec. 251.57), and modifications (Sec. 251.61) specify the 
information that proponents or applicants for special use 
authorizations or holders of existing authorizations must provide in 
order for an authorized officer to act on a request or administer the 
authorization. As such, these rules contain information requirements as 
defined in 5 CFR part 1320. These information requirements are assigned 
OMB Control Number 0596-0082.

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

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

BILLING CODE 3410-11-P

[[Page 65969]]

[GRAPHIC] [TIFF OMITTED] TR30NO98.000


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