[Federal Register Volume 64, Number 174 (Thursday, September 9, 1999)]
[Rules and Regulations]
[Pages 48959-48960]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-23339]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 251
Land Uses; Noncommercial Group Use Permit Approval
AGENCY: Forest Service, USDA.
ACTION: Interpretive rule.
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SUMMARY: The Department is adopting this interpretive rule to make
explicit the intended interpretation and application of the term
``public interest'' in 36 CFR Sec. 251.56 as it relates to
noncommercial group uses of National Forest System Lands.
EFFECTIVE DATE: This interpretive rule is effective September 9, 1999.
ADDRESSES: Written queries about this interpretive rule may be
addressed to Director Recreation, Heritage, and Wilderness Resources
Staff, 2720, 4th Floor-Central, Sidney R. Yates Federal Building,
Forest Service, USDA, P.O. Box 96090, Washington, DC 20090-6090, or via
e-mail to dbschor/[email protected].
FOR FURTHER INFORMATION CONTACT:
Alice Carlton, Recreation, Heritage, and Wilderness Resources Staff,
202-205-1399.
SUPPLEMENTARY INFORMATION:
In August 1995, the Secretary of Agriculture adopted a final rule
at 36 CFR part 251, subpart B, governing issuance and administration of
permits for groups of 75 or more people who wish to use National Forest
System lands for noncommercial activities (60 FR 45258; August 30,
1995). The intent in promulgating the rule was to ensure that
authorization procedures for these activities comply with First
Amendment requirements of freedom of speech, assembly, and religion,
while simultaneously providing a reasonable administrative system for
allocating space among scheduled and existing uses of National Forests
and Grasslands, for addressing concerns for public health and safety,
and for controlling or preventing adverse impacts on forest resources.
The regulation as written is constitutional. It is a content-
neutral, narrowly tailored time, place, and manner restriction. In
particular, the rule sufficiently limits the discretion of authorized
officers to place terms and conditions in noncommercial group use
permits. The imposition of term and conditions in noncommercial group
use permits is limited to those designed to further the three public
interests identified by the Forest Service in promulgating the
noncommercial group use rule, i.e., the need to address concerns of
public health and safety, to minimize damage to National Forest System
resources, and to allocate space among actual or potential uses and
activities.
Despite the clarity of the existing regulation, some confusion has
persisted with respect to the amount of discretion allowed an
authorized officer by 36 CFR 251.56(a)(1)(ii)(G) with regard to placing
terms and conditions on noncommercial group uses. Under paragraph
(a)(1)(ii) of Sec. 251.56, the authorized officer may place into a
special use authorization such terms and conditions as the officer
deems necessary for seven purposes. Paragraph (a)(1)(ii)(G) authorizes
terms and conditions deemed necessary by the authorized officer that
``otherwise protect the public interest.'' Out of an abundance of
caution, the Department is issuing this interpretive rule to make
explicit preexisting law and the agency's intent regarding
Sec. 251.56(a)(1)(ii)(G) as applied to noncommercial group uses.
Therefore, in the context of noncommercial group uses, the reference to
``public interest'' in Sec. 251.56(a)(1)(ii)(G) will be interpreted and
applied as allowing only those terms and conditions furthering the
three public interests served by the noncommercial group use rule.
This rule qualifies as an interpretive rule under the
Administrative Procedure Act because it is a rule or statement issued
by an agency to advise the pubic of the agency's preexisting
construction of one of the rules it administers, i.e., 36 CFR
251.56(a)(1)(ii)(G) in the context of noncommercial group uses. See,
e.g., Shalala, Secretary of Health and Human Service v. Guernsey
Memorial Hosp., 514 U.S. 87, 99 (1995). Under 5 U.S.C.
[[Page 48960]]
553(b)(A), this interpretive rule is exempt from the notice and comment
requirements in the Administrative Procedure Act. Under 5 U.S.C.
553(d)(2), this interpretive rule is effective immediately upon
publication in the Federal Register.
Environmental Impact
This interpretive rule has no direct or indirect effect on the
environment, as it merely makes explicit preexisting law regarding a
provision related to terms and conditions of special use permits as
applied to noncommercial group uses. 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 the nature and
scope of this rulemaking, the agency has determined that this
interpretive 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.
Regulatory Impact
It has been determined that this is not a significant rule. This
interpretive rule will not have an annual effect of $100 million or
more on the economy, nor will it adversely affect productivity,
competition, jobs, the environment, public health, or safety, or State
or local governments. This interpretive rule will not interfere with an
action taken or planned by another agency, nor will it raise new legal
or policy issues. Finally, this interpretive rule 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 interpretive rule is not subject to Office of
Management and Budget (OMB) review under Executive Order 12866.
Moreover, this interpretive rule has been considered in light of
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). It has been
determined that this interpretive rule will not have a significant
economic impact on a substantial number of small entities as defined by
the Act. This interpretive rule will not impose record keeping
requirements; it will not affect their competitive position in relation
to large entities; and it will not affect their cash flow, liquidity,
or ability to remain in the market.
No Takings Implications
This interpretive rule has been analyzed in accordance with the
principles and criteria contained in Executive Order 12630, and it has
been determined that the interpretive rule will not pose the risk of a
taking of private property, as the rule is limited to approval and
administration of noncommercial group uses on Federal lands.
Civil Justice Reform
This interpretive rule has been reviewed under Executive Order
12988, Civil Justice Reform. After adoption of this interpretive rule,
(1) All State and local laws and regulations that conflict with this
interpretive rule or that impede its full implementation will be
preempted; (2) no retroactive effect will be given to this interpretive
rule; and (3) it will not require administrative proceedings before
parties may file suit in court challenging its provisions.
Unfunded Mandates
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 agency has assessed the effects of this interpretive rule on
State, local, and tribal governments and the private sector. This
interpretive rule will not compel the expenditure of $100 million or
more by any State, local, or tribal government or anyone in the private
sector. Therefore, a statement under section 202 of the act is not
required.
Controlling Paperwork Burdens on the Public
This interpretive rule does not contain any record keeping or
reporting requirements or other information collection requirements as
defined in 5 CFR part 1320. Accordingly, the review provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and
implementing regulations at 5 CFR part 1320 do not apply.
List of Subjects in Part 251
Electric power, Mineral resources, National forests, Rights-of-way,
Water resources.
Therefore, for the reasons set forth in the preamble, 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. 251.56, add a note following paragraph (a)(1)(ii)(G) to
read as follows:
Sec. 251.56 Terms and conditions
(a) * * *
(1) * * *
(ii) * * *
(G) * * *
Note to paragraph (a)(1)(ii)(G): The Department is making explicit
its preexisting understanding of Sec. 251.56(a)(1)(ii)(G) of this
subpart in the context of authorizing noncommercial group uses of
National Forest System lands. Section 251.56(a)(1)(ii)(G) provides that
each special use authorization shall contain such terms and conditions
as the authorized officer deems necessary to otherwise protect the
public interest. In the context of noncommercial group uses, the Forest
Service interprets the term ``public interest'' found in
Sec. 251.56(a)(1)(ii)(G) to refer to the three public interests
identified by the Forest Service on August 30, 1995. These public
interests include the protection of resources and improvements on
National Forest System lands, the allocation of space among potential
or existing uses and activities, and public health and safety concerns.
Under this construction, Sec. 251.56(a)(1)(ii)(G) allows the Forest
Service to impose terms and conditions that are not specifically
addressed in Sec. 251.56(a)(1)(ii)(A)-(F) but only those that further
these public interests. The Forest Service shall implement and enforce
Sec. 251.56(a)(1)(ii)(G) in accordance with this interpretation.
Dated: September 2, 1999.
Dennis E. Bschor,
Acting Deputy Under Secretary, Natural Resources and the Environment.
[FR Doc. 99-23339 Filed 9-8-99; 8:45 am]
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