[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deemed unnecessary and outdated.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
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[GRAPHIC] [TIFF OMITTED] TR30NO98.000
[FR Doc. 98-31564 Filed 11-30-98; 8:45 am]
BILLING CODE 3410-11-C