[Federal Register Volume 68, Number 14 (Wednesday, January 22, 2003)]
[Proposed Rules]
[Pages 2948-2953]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-1291]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Parts 251, 261, and 295

RIN 0596-AB74


Land Uses; Special Uses Requiring Authorization

AGENCY: Forest Service, USDA.

ACTION: Proposed rule.

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

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

ADDRESSES: Send written comments to Forest Service, USDA, Attn: 
Director, Recreation, Heritage and Wilderness Resources (RHWR) Staff, 
(2720), Mail Stop 1125, Washington, DC 20250-1125 or to [email protected].
    All comments, including names and addresses when provided, will be 
placed in the record and will be available for public inspection and 
copying. The public may inspect comments received on this proposed rule 
in the Office of the Director, RHWR Staff, 4th Floor Central, Sidney R. 
Yates Federal Building, 14th and Independence Avenue, SW., Washington, 
DC, on business days between the hours of 8:30 a.m. and 4:30 p.m. Those 
wishing to inspect comments are encouraged to call ahead at (202) 205-
1706 or (202) 205-1399 to facilitate entry into the building.

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

SUPPLEMENTARY INFORMATION: 

Background and Need for Rule

    Forest Service regulations at 36 CFR part 251, subpart B, govern 
authorizations for occupancy and use of National Forest System lands. 
Section 251.50 of this subpart characterizes as ``special uses'' all 
uses of National Forest System lands, improvements, and resources, 
except those authorized by the regulations governing the disposal of 
timber (part 223) and minerals (part 228) and the grazing of livestock 
(part 222). The regulation requires an authorization for all ``special 
uses,'' with certain exceptions.
    Approximately 72,000 special use authorizations are in effect on 
National Forest System lands. These uses cover a variety of activities 
ranging from individual private uses to large-scale commercial 
facilities and public services. Examples of authorized land uses 
include road rights-of-way accessing private residences, apiaries, 
domestic water supplies and water conveyance systems, telephone and 
electric service rights-of-way, ski areas, resorts, marinas, outfitter 
and guide services, and public parks and campgrounds. About 6,000 
special use proposals are submitted annually by various entities 
wanting to use and occupy National Forest System lands. This proposed 
rule would clarify which activities require a special use 
authorization. The rule also would revise the term ``National Forest 
System road'' (formerly, ``forest development road'') to conform to 
changes in the road management rule at part 212.
    In addition, the proposed rule would make the following technical 
amendments: (1) Revising the definitions for ``National Forest System 
road'' and ``National Forest System trail'' in section 261.2 to make 
them consistent with 23 U.S.C. 101; (2) in section 261.55, changing the 
term ``forest development trail'' to ``National Forest System trail,'' 
in conformance with the terminology used in part 212 and this proposed 
rule; and (3) changing the term ``Forest Service Roads'' to ``National 
Forest System Roads'' in the title of the heading for part 295.

Clarification of Special Uses Requiring an Authorization

    Revision of sections 251.50 and 251.51 is needed to address 
management issues related to the special uses program and to special 
use authorizations involving National Forest System roads and trails.
    The current regulation at 36 CFR 251.50(d) provides that a special 
use authorization is not required for use of National Forest System 
roads and trails, unless required by an order issued pursuant to 
section 261.50 or a regulation issued pursuant to section 261.70. 
Courts have construed this provision as not requiring an authorization 
for special uses that occur on National Forest System roads and trails 
and have invalidated orders issued pursuant to section 261.50 that 
required a permit for special uses occurring on National Forest System 
roads. These

[[Page 2949]]

rulings have created a gap in regulatory coverage in the special uses 
program.
    The requirement for a special use authorization should be triggered 
whenever a special use is conducted on National Forest System lands, 
including on a road or trail. Therefore, the Forest Service proposes to 
clarify that activities requiring a special use authorization on 
National Forest System lands are also subject to the requirement for a 
special use authorization when they are conducted on National Forest 
System roads and trails (formerly known as forest development roads and 
trails). The Forest Service has identified four types of special uses 
that occur on National Forest System roads and trails: noncommercial 
group uses, outfitting and guiding, recreation events, and commercial 
filming. The agency is proposing to narrow the exemption for the 
authorization requirement in section 251.50(d) to exclude special uses 
occurring on National Forest System roads, and to eliminate the 
exemption for the authorization requirement for special uses occurring 
on National Forest System trails. The Forest Service is proposing to 
eliminate the exemption for special uses conducted on National Forest 
System trails because there is great potential for resource damage on 
trails that may not be designed or constructed for the level or type of 
use that occurs. Furthermore, it is unlikely that there is commercial 
use of National Forest System trails that should be exempted from the 
special use authorization requirement.
    Under these proposed revisions to the rule, the Forest Service 
would require special use authorizations and the fees for those 
authorizations under statutes governing use and occupancy of National 
Forest System lands. Specifically, for occupancy and use of National 
Forest System lands, the Forest Service would require commercial 
filming and still photography permits and permit fees under Public Law 
106-206; outfitting and guiding permits and recreation event permits, 
and permit fees under the Land and Water Conservation Fund Act, 16 
U.S.C. 460l-6a(c); and noncommercial group use permits (no fee is 
charged for noncommercial group use permits) under the agency's Organic 
Act, 16 U.S.C. 551. Further authority for these permit fees is found in 
the Independent Offices Appropriations Act, 31 U.S.C. 9701, Office of 
Management and Budget Circular No. A-25, and 36 CFR 251.57(a). These 
fees would be charged annually for commercial special uses of National 
Forest System lands, and would be based on the fair market value of the 
authorized uses of those lands.
    The agency has several reasons for proposing that these types of 
activities set out at section 251.50 require a special use 
authorization when conducted on National Forest System roads and 
trails.
    First, a growing number of parties engaged in commercial recreation 
events and outfitting and guiding use this regulatory gap in the 
current rule to conduct these activities without a special use 
authorization. They do so by confining their use and occupancy of 
National Forest System lands only to National Forest System roads and 
trails. While the organizers or commercial operators of these types of 
uses may assert that their activities are confined only to a road or 
trail, sometimes their activities include the use and occupancy of 
National Forest System lands adjacent to the road or trail. Determining 
whether a use is confined to a road or trail requires intensive, case-
specific monitoring. The proposed rule would eliminate the need for 
this monitoring by requiring an authorization for all types of special 
uses that involve the use of National Forest System lands, regardless 
of whether they occur on or off National Forest System roads and 
trails.
    Second, some commercial operators design their services to fit the 
regulatory gap, potentially compromising the quality of the recreation 
experience, public safety, and the interests of the United States. For 
example, some operators may stop on a road to unload people and 
equipment to avoid getting off the road. Requiring a special use 
authorization would eliminate this practice when a safer alternative is 
available and would require that necessary safety procedures be 
followed when no such alternative is available. In addition, conducting 
a special use without an authorization exposes the United States to 
potential liability. Special use authorizations contain 
indemnification, insurance, and other provisions that protect the 
United States from liability arising in connection with the holder's 
use and occupancy.
    Third, the regulatory gap creates an uneven playing field among 
businesses, some of which operate under a special use authorization and 
pay a land use fee, while others do not. The Forest Service is required 
to obtain fair market value for the commercial use of National Forest 
System lands. The value of these uses of National Forest System roads 
and trails is directly attributable to the presence of National Forest 
System lands and resources located outside the confines of the roads 
and trails. The public should realize a fair market value return for 
these commercial uses of Federal lands and resources, which can be 
achieved only by requiring a special use authorization for these uses 
and charging a land use fee for the authorization.
    Fourth, the agency needs to regulate these uses of National Forest 
System roads and trails to accomplish management objectives and reduce 
impacts to National Forest System lands and resources. The demand for 
uses of National Forest System lands and resources has increased in 
recent years. Along with the growth in demand, there are more conflicts 
among users and increased pressure on limited land and resources. In 
some cases, the demand is so great that it is necessary to limit use. 
When an area becomes popular, uncontrolled use can result in land and 
resource impacts, user conflicts, or increased vehicular and pedestrian 
traffic with associated traffic safety concerns on National Forest 
System roads and trails. The agency attempts to balance the needs of 
individuals, private groups, and commercial operators when managing 
uses. The agency proposes to address these concerns and conflicts 
through special use authorizations for special uses that occur on 
National Forest System roads and trails.
    Additionally, this rule would replace the term ``forest development 
roads'' with ``National Forest System roads'' to conform to recent 
regulatory changes made to 36 CFR part 212.
    The authority in the proposed rule to regulate special uses 
occurring on National Forest System roads would not supplant Forest 
Service authority to regulate road use within the National Forest 
System under applicable law, including the National Forest Roads and 
Trails Act. Rather, these authorities would be complementary. For 
example, a separate road use permit could be issued under Forest 
Service Manual 7731.16 and Forest Service Handbook 7709.59, section 24, 
in conjunction with a special use authorization issued under the 
proposed rule, or road use issues could be addressed within the context 
of a special use authorization issued under the proposed rule.

Clarification of Special Uses Not Requiring an Authorization

    The agency prefers not to regulate uses when it is unnecessary to 
establish terms and conditions to protect National Forest System lands 
and resources or to avoid conflict with agency programs or operations. 
In April 1997, the Forest Service completed a reengineering study of 
its special uses program that recommended managing special uses in a 
more businesslike and customer service-oriented manner. The study

[[Page 2950]]

found that many special use authorizations are issued for (1) minor 
uses of National Forest System lands that have nominal effects on 
National Forest System lands, resources, and programs, (2) uses that 
are regulated by other agencies in a manner that is adequate to protect 
National Forest System lands and resources and to avoid conflict with 
Forest Service programs and operations, and (3) routine operation or 
maintenance within the scope of a valid reserved or outstanding 
property right. The reengineering study recommended that the agency not 
require a special use authorization in these cases, as it is 
unnecessary for purposes of National Forest System land and resource 
management.
    Accordingly, under the proposed rule, for uses other than a 
noncommercial group use, a special use authorization would not be 
required if the authorized officer determines that the proposed use has 
one or more of the following characteristics: (1) the proposed use will 
have such nominal effects on National Forest System lands, resources, 
or programs that it is not necessary to establish terms and conditions 
in a special use authorization to protect National Forest System lands 
and resources or to avoid conflict with National Forest System programs 
or operations; (2) the proposed use is regulated by a State or another 
Federal agency in a manner that is adequate to protect National Forest 
System lands and resources and to avoid conflict with National Forest 
System programs or operations; or (3) the proposed use is a routine 
operation or maintenance activity within the scope of a valid reserved 
or outstanding property right, such as a right-of-way, easement, or 
reservation.

Proposed Rule Changes

Section 251.50

    Current paragraph (a) of section 251.50 requires an authorization 
for all special uses, unless that requirement is waived as provided in 
paragraph (c). Proposed paragraph (a) would be revised to identify two 
additional exceptions, which would be enumerated in proposed paragraphs 
(d) and (e).
    Furthermore, the reference in paragraph (a) concerning the disposal 
of timber would be expanded to include special forest products, such as 
greens, mushrooms, medicinal plants, and other plant material collected 
or gathered for commercial or noncommercial use. Proposed paragraph (a) 
would state that the disposal of these materials is regulated by part 
223. Many forest managers have mistakenly administered these activities 
as special uses. Adding a reference to special forest products would 
distinguish the disposal of forest products as an activity authorized 
by other than a special use authorization.
    Current paragraph (b) of section 251.50 provides for the temporary 
occupancy of National Forest System lands in an emergency for the 
protection of life and property, as long as a special use authorization 
is obtained at the earliest opportunity, unless the requirement for a 
special use authorization is waived. Proposed paragraph (b) would be 
expanded to clarify that those temporarily occupying National Forest 
System lands without a special use authorization assume liability, and 
must indemnify the United States, for all injury, loss, or damage 
arising in connection with the temporary occupancy. This added 
provision is necessary to protect the public interest should injury, 
loss, or damage occur as a result of the temporary occupancy prompted 
by an emergency.
    With limited exceptions, current paragraph (c) states that 
noncommercial recreational activities, other than noncommercial group 
use, do not require a special use authorization, and gives examples of 
these activities. The agency is proposing no change to this list. 
Paragraphs (c)(1) and (c)(2) would be combined and redesignated as 
proposed paragraph (c)(2). Paragraph (c)(3) would be redesignated as 
proposed paragraph (c)(1).
    Paragraph (d) would be revised. The existing paragraph provides 
that, unless otherwise required by order issued pursuant to section 
261.50 or by regulation issued pursuant to section 261.70, any use of 
existing forest development roads or trails does not require a special 
use authorization. The agency proposes to revise paragraph (d) by 
changing ``forest development road'' to ``National Forest System road'' 
to conform to changes made to parts 212, 261, and 295 regarding roads, 
and by removing the word ``trail.'' In addition the agency proposes to 
change ``use of'' to ``travel on'' a road or trail.
    Proposed paragraphs (d) and (d)(1) also would clarify that 
noncommercial group uses, outfitting and guiding, recreation events, 
and commercial filming conducted on National Forest System roads 
require a special use authorization. For example, a special use 
authorization would be required for an outfitter who charges a customer 
for the delivery of livestock or recreation equipment on a National 
Forest System road for the customers to use on adjacent National Forest 
System lands. A second example is a guide who conducts commercial, 
vehicular tours on National Forest System roads, regardless of whether 
the guide's customers are confined to the vehicle. A third example is 
the use of motion picture equipment on a National Forest System road 
that involves the advertisement of a product or service. A final 
example is an endurance ride involving hundreds of participants, for 
which no entry fee is charged, conducted on a National Forest System 
road.
    The proposed paragraph (d)(2) would include the authority currently 
in paragraph (d) for Regional Foresters and Forest Supervisors to issue 
orders (section 261.50) and regulations (section 261.70) to prohibit or 
regulate other uses of National Forest System roads, on a case-specific 
basis.
    Proposed paragraph (e) would be added to specify instances where 
the requirement to obtain a special use authorization may be waived for 
certain uses other than a noncommercial group use. Under this proposed 
paragraph, the special use authorization requirement would be waived 
only after a proposal for a special use is submitted and the authorized 
officer determines that the proposed use meets the criteria for waiver.
    Proposed paragraph (e)(1) would be added to allow the authorized 
officer to waive the special use authorization requirement for minor, 
incidental uses that will have such nominal effects on National Forest 
System lands, resources, or programs that it is not necessary to 
establish terms and conditions in a special use authorization to 
protect National Forest System lands and resources or to avoid conflict 
with National Forest System programs or operations. Examples of minor, 
incidental uses could include mailboxes on approved mounts or small 
identification signs for property. This proposed rule would not relieve 
a party from requesting advance approval from an authorized officer for 
such uses or occupancies. Rather, the proposed rule would provide the 
authorized officer with the ability to waive the requirement for a 
special use authorization when, based upon professional judgment and 
experience with comparable uses, the authorized officer determines that 
no forest management objectives would be achieved through issuance of 
an authorization. Generally, experience has demonstrated that the cost 
to the agency to issue and administer authorizations for these types of 
minor, incidental uses far exceeds any public benefit in terms of land 
and resource protection.

[[Page 2951]]

    Paragraph (e)(2) would be added to exempt proposed uses that are 
regulated by another agency in a manner that is adequate to protect 
National Forest System lands and resources and to avoid conflict with 
National Forest System programs or operations. An example would be the 
taking of game or other animals, which is regulated by States. Another 
example is the delegation of authority by the Forest Service to a 
different agency to serve as lead agency for regulating certain uses, 
such as in connection with administration of an oil or gas pipeline 
special use authorization under the Mineral Leasing Act. This provision 
would serve to reduce the dual regulation of uses by the Forest Service 
and other agencies, where another agency's regulatory jurisdiction is 
satisfactory to meet Forest Service management objectives.
    Paragraph (e)(3) would be added to clarify that no special use 
authorization is required for activities already authorized within the 
scope of a valid reserved, granted, or outstanding property right, such 
as a right-of-way, easement, or reservation. Paragraph (e)(3) also 
would provide that no special use authorization is required for 
conducting routine operation and maintenance activities within the 
scope of an outstanding statutory right for certain highways, ditches, 
or canals. Conversely, under this proposed provision, any activities 
(including operation, maintenance, construction, or reconstruction) 
that are outside the scope of an outstanding statutory right would 
require a special use authorization. In addition, any activities other 
than routine operation or maintenance, such as construction or 
reconstruction, that are within the scope of an outstanding statutory 
right would require a special use authorization. The proposed 
regulation would require holders of any of these rights to propose on-
the-ground activities to the authorized officer before conducting them. 
The authorized officer would then have the opportunity to determine 
whether all or some of the proposed activities qualify for the waiver 
provided under proposed paragraph (e)(3) and can be conducted without a 
special use authorization.
    Waiving the requirement for a special use authorization under the 
circumstances identified in proposed paragraphs (e)(1) through (e)(3) 
would improve management efficiency and allow the agency to focus its 
limited appropriations on management of special uses that have a 
greater potential impact on National Forest System lands, resources, or 
programs.

Section 251.51

    Section 251.51 of the current regulations defines the more 
significant and commonly used terms and phrases in part 251, subpart B. 
The proposed section 251.51 would add definitions for the following 
terms: ``Commercial filming,'' ``forest road or trail,'' ``guiding,'' 
``National Forest System road,'' ``outfitting,'' ``recreation event,'' 
and ``still photography.'' Providing a definition for these terms would 
improve public and agency understanding and interpretation of the 
proposed revisions to section 251.50 provided in this notice.

Section 261.2

    The definitions of ``National Forest System road'' and ``National 
Forest System trail'' in proposed section 261.2 would be revised and a 
new definition for ``forest road or trail'' would be added for 
consistency with 23 U.S.C. 101 and this part.

Section 261.55

    The term ``forest development trails'' would be changed to 
``National Forest System trails'' in the heading and introductory text 
of proposed section 261.55.

Part 295

    The term ``forest Service road'' in the current title of the part 
295 heading would be changed to ``National Forest System road'' in the 
proposed title of this part for consistency with the terminology in 
parts 251 and 261.

Regulatory Certifications

Environmental Impact

    The proposed changes to the rule at 36 CFR 251.50 and 251.51 would 
provide more consistent procedures for processing special use proposals 
and applications and administering special use authorizations for use 
and occupancy of National Forest System lands. The proposed rule also 
would make terminology consistent in parts 251, 261, and 295. The 
changes are intended to improve administrative efficiencies and would 
have no environmental effects. Section 31.1b of Forest Service Handbook 
1909.15 (57 FR 43180, September 18, 1992) excludes from documentation 
in an environmental assessment or environmental impact statement rules, 
regulations, or policies to establish Service-wide administrative 
procedures, program processes, or instructions. The agency's 
preliminary assessment is that this proposed rule falls within this 
category of actions and that no extraordinary circumstances exist as 
currently defined that would require preparation of an environmental 
assessment or environmental impact statement. A final determination 
will be made for the final rule.

Regulatory Impact

    This proposed 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 proposed rule 
would not have an annual effect of $100 million or more on the economy, 
nor would it adversely affect productivity, competition, jobs, the 
environment, public health and safety, or State or local governments. 
This proposed rule would not interfere with an action taken or planned 
by another agency, nor would it raise new legal or policy issues. 
Finally, this proposed rule would not alter the budgetary impact of 
entitlement, grant, user fee, or loan programs or the rights and 
obligations of beneficiaries of such programs. Accordingly, this 
proposed rule is not subject to Office of Management and Budget review 
under Executive Order 12866.
    Moreover, this proposed rule has been considered in light of the 
Regulatory Flexibility Act (5 U.S.C. 602 et seq.). It has been 
determined that this proposed rule would not have a significant 
economic impact on a substantial number of small entities as defined by 
the act because the proposed rule would not impose record-keeping 
requirements on them; it would not affect their competitive position in 
relation to large entities; and it would not affect their cash flow, 
liquidity, or ability to remain in the market. To the contrary, the 
efficiencies and consistency to be achieved by this rule should benefit 
small businesses that seek to use and occupy National Forest System 
lands by ensuring consistency in procedures across forests and regions 
and by eliminating costly, time-consuming, and unnecessary processing 
of certain special use applications and administration of certain 
special use authorizations. The benefits, most of which cannot be 
quantified, are not likely substantially to alter costs to small 
businesses.

No Takings Implications

    This proposed rule has been analyzed in accordance with the 
principles and criteria contained in Executive Order 12630, and it has 
been determined that the proposed rule would not pose the risk of a 
taking of private property.

[[Page 2952]]

Civil Justice Reform

    This proposed rule has been reviewed under Executive Order 12988 on 
civil justice reform. If this proposed rule were adopted, (1) all State 
and local laws and regulations that are in conflict with this proposed 
rule or that would impede its full implementation would be preempted; 
(2) no retroactive effect would be given to this proposed rule; and (3) 
it would not require administrative proceedings before parties may file 
suit in court challenging its provisions.

Federalism and Consultation and Coordination With Indian Tribal 
Governments

    The agency has considered this proposed rule under the requirements 
of Executive Order 13132 on federalism, and has made an assessment that 
the proposed rule conforms with the federalism principles set out in 
this Executive order; would not impose any compliance costs on the 
States; and would not have substantial direct effects on the States, 
the relationship between the Federal government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government. Therefore, the agency has determined that no further 
assessment of federalism implications is necessary at this time.
    Moreover, this proposed rule does not have tribal implications as 
defined by Executive Order 13175, Consultation and Coordination With 
Indian Tribal Governments, and therefore advance consultation with 
tribes is not required.

Energy Effects

    This proposed rule has been reviewed under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. It has been determined that this proposed rule 
does not constitute a significant energy action as defined in the 
Executive order.

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 proposed rule on 
State, local, and tribal governments and the private sector. This 
proposed rule would 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

    The forms for special use applications and authorizations have been 
approved for use by the Office of Management and Budget (OMB) and 
assigned OMB control number 0596-0082. Therefore, this proposed rule 
does not contain any record-keeping or reporting requirements or other 
information collection requirements as defined in 5 CFR part 1320 that 
are not already required by law or not already approved for use. 
Moreover, the proposed rule will reduce the number of applicants for 
special use authorizations by clarifying those circumstances when 
special use authorizations are not required. Accordingly, the review 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.) and its implementing regulations at 5 CFR part 1320 do not apply.

List of Subjects

36 CFR Part 251

    Administrative practice and procedure, Electric power, National 
forests, Public lands-rights-of-way, Reporting and recordkeeping 
requirements, Water resources.

36 CFR Part 261

    Law Enforcement, National forests.

36 CFR Part 295

    National forests, Traffic regulations.

    Therefore, for the reasons set out in the preamble, the Forest 
Service proposes to amend subpart B of part 251, subpart A of part 261, 
and part 295 of Title 36 of the Code of Federal Regulations 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. Revise Sec.  251.50 to read as follows:


Sec.  251.50  Scope.

    (a) All uses of National Forest System lands, improvements, and 
resources, except those authorized by the regulations governing 
disposal of timber and special forest products, such as greens, 
mushrooms, and medicinal plants (part 223), minerals (part 228), and 
grazing of livestock (part 222), are designated ``special uses.'' 
Before conducting a special use, individuals or entities must submit a 
proposal to the authorized officer and must obtain a special use 
authorization from the authorized officer, unless that requirement is 
waived by paragraphs (c) through (e) of this section.
    (b) Nothing in this section prohibits the temporary occupancy of 
National Forest System lands without a special use authorization for 
the protection of life and property in emergencies, if a special use 
authorization for that occupancy is obtained at the earliest 
opportunity, unless waived pursuant to paragraphs (c) through (e) of 
this section. Those temporarily occupying National Forest System lands 
without a special use authorization assume liability and must indemnify 
the United States for all injury, loss, or damage arising in connection 
with the temporary occupancy.
    (c) A special use authorization is not required for noncommercial 
recreational activities, such as camping, picnicking, hiking, fishing, 
boating, hunting, and horseback riding, or for noncommercial activities 
involving the expression of views, such as assemblies, meetings, 
demonstrations, and parades, unless:
    (1) The proposed use is a noncommercial group use as defined in 
Sec.  251.51; or
    (2) Authorization of that use is required by an order issued 
pursuant to Sec.  261.50 or by a regulation issued pursuant to Sec.  
261.70 of this chapter.
    (d) Travel on any National Forest System road must comply with all 
Federal and State law governing the road to be used. Travel on any 
National Forest System road does not require a special use 
authorization, unless:
    (1) The travel is for the purpose of engaging in a noncommercial 
group use, outfitting or guiding, a recreation event, commercial 
filming, or still photography, as defined in Sec.  251.51; or
    (2) Authorization of that use is required by an order issued under 
Sec.  261.50 of this chapter or by a regulation issued under Sec.  
261.70 of this chapter.
    (e) For proposed uses other than a noncommercial group use, a 
special use authorization is not required if the authorized officer 
determines that the proposed use has one or more of the following 
characteristics:
    (1) The proposed use will have such nominal effects on National 
Forest System lands, resources, or programs that it is not necessary to 
establish terms and conditions in a special use authorization to 
protect National Forest System lands and resources or to avoid conflict 
with National Forest System programs or operations;
    (2) The proposed use is regulated by a State agency or another 
Federal agency in a manner that is adequate to protect

[[Page 2953]]

National Forest System lands and resources and to avoid conflict with 
National Forest System programs or operations; or
    (3) The proposed use is an activity within the scope of a valid 
reserved, granted, or outstanding property right, such as a right-of-
way, easement, or reservation, or is a routine operation or maintenance 
activity within the scope of an outstanding statutory right for a 
highway pursuant to R.S. 2477 (43 U.S.C. 932, repealed Oct. 21, 1976) 
or for ditches and canals pursuant to R.S. 2339 (43 U.S.C. 661, as 
amended).
    3. Add the following definitions in alphabetical order to Sec.  
251.51:


Sec.  251.51  Definitions.

* * * * *
    Commercial filming--use of motion picture, videotaping, sound 
recording, or any other moving image or audio recording equipment on 
National Forest System lands that involves the advertisement of a 
product or service, the creation of a product for sale, or the use of 
models, actors, sets, or props, but not including activities associated 
with broadcasting breaking news.
* * * * *
    Forest road or trail--a road or trail wholly or partly within or 
adjacent to and serving the National Forest System, and which is 
necessary for the protection, administration, and utilization of the 
National Forest System and the use and development of its resources.
* * * * *
    Guiding--providing services or assistance (such as supervision, 
protection, education, training, packing, touring, subsistence, 
transporting people, or interpretation) for pecuniary remuneration or 
other gain to individuals or groups in pursuit of a natural resource-
based outdoor activity on National Forest System lands.
* * * * *
    National Forest System road--a forest road under the jurisdiction 
of the Forest Service.
* * * * *
    Outfitting--renting on or delivering to National Forest System 
lands for pecuniary remuneration or other gain any saddle or pack 
animal, vehicle, boat, camping gear, or similar supplies or equipment 
for the pursuit of a natural resource-based outdoor activity.
* * * * *
    Recreation event--a recreational activity conducted on National 
Forest System lands for which an entry or participation fee is charged, 
such as animal, vehicle, or boat races; dog trials; fishing contests; 
rodeos; adventure games; and fairs.
* * * * *
    Still photography--use of still photographic equipment on National 
Forest System lands that (1) takes place at a location where members of 
the public are generally not allowed or where additional administrative 
costs are likely, or (2) uses models or props that are not a part of 
the site's natural or cultural resources or administrative facilities.
* * * * *

PART 261--PROHIBITIONS

Subpart A--General Prohibitions

    4. The authority citation for subpart A continues to read as 
follows:

    Authority: 16 U.S.C. 551; 16 U.S.C. 472; 7 U.S.C. 1011(f); 16 
U.S.C. 1246(i); 16 U.S.C.1133(C)-(d)(1); 16 U.S.C. 620(f).
    5. Revise Sec.  261.2 to add a definition for ``Forest road or 
trail'' in alphabetical order and to revise the definitions for 
``National Forest System road'' and ``National Forest System trail'' to 
read as follows:


Sec.  261.2  Definitions.

* * * * *
    Forest road or trail--a road or trail wholly or partly within or 
adjacent to and serving the National Forest System, and which is 
necessary for the protection, administration, and utilization of the 
National Forest System and the use and development of its resources.
* * * * *
    National Forest System road--a forest road under the jurisdiction 
of the Forest Service.
    National Forest System trail--a forest trail under the jurisdiction 
of the Forest Service.
* * * * *
    6. Revise the heading and introductory text of Sec.  261.55, to 
read as follows:


Sec.  261.55  National Forest System trails.

    When pursuant to an order issued in accordance with Sec.  261.50 of 
this subpart, the following are prohibited on a National Forest System 
trail: * * *
* * * * *
    7. Revise the heading for part 295 to read as follows:

PART 295--USE OF MOTOR VEHICLES OFF NATIONAL FOREST SYSTEM ROADS

    8. The authority citation for part 295 continues to read as 
follows:

    Authority: 30 Stat. 35, as amended (16 U.S.C. 551): 50 Stat. 
525, as amended (7 U.S.C. 1011): E.O. 11644, 11989 (42 FR 26959).

    Dated: January 8, 2003.
Dale N. Bosworth,
Chief.
[FR Doc. 03-1291 Filed 1-21-03; 8:45 am]
BILLING CODE 3410-11-P