[Federal Register Volume 69, Number 133 (Tuesday, July 13, 2004)]
[Rules and Regulations]
[Pages 41946-41967]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-15728]


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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: Final rule.

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SUMMARY: The Department is revising regulations that govern the 
issuance and administration of special use authorizations on National 
Forest System lands to clarify categories of activities for which a 
special use authorization is required. In particular, this final rule 
clarifies requirements regarding the issuance of special use 
authorizations for activities involving National Forest System roads 
and trails. The revised regulations promote consistency in the special 
uses program, improve the agency's ability to resolve management issues 
by requiring permits in certain situations, and reduce the agency's 
administrative costs by eliminating the need to issue a Forest order to 
require a special use permit in certain situations and by providing the 
authorized officer with the discretion to waive the requirement for a 
special use authorization when issuance of a permit serves no 
management purpose. The final rule also adds definitions to part 251, 
revises definitions in part 261, and revises the heading of part 295 to 
ensure consistent terminology in all three parts.

DATES: Effective Date:
    This rule is effective August 12, 2004.

ADDRESSES: The rulemaking record for this final rule contains all the 
documents pertinent to this rulemaking. These documents are available 
for inspection and copying at the office of the Director, Recreation 
and Heritage Resources Staff, Forest Service, USDA, 4th Floor Central, 
Sidney R. Yates Federal Building, 1400 Independence Ave., SW., 
Washington, DC, during regular business hours (8:30 a.m. to 4 p.m.), 
Monday through Friday, except holidays. Those wishing to inspect these 
documents are encouraged to call ahead (202) 205-1399 to facilitate 
access to the building.
    Any other documents not in the rulemaking record that were 
requested in the comments on the proposed rule are beyond the scope of 
this rulemaking conducted pursuant to 5 U.S.C. 553(c). Those interested 
in obtaining these documents may request them under the Freedom of 
Information Act by writing to the USDA Forest Service, Freedom of 
Information Act/Privacy Act Branch, Office of Regulatory and Management 
Services, 1400 Independence Ave., SW., Mail Stop 1143, Washington, DC 
20250-1143.
    Several agency directives are being revised for consistency with 
this final rule, and the directive changes are described in the 
preamble to this final rule. These directives, which include amendments 
to Forest Service Manual (FSM) 2350, 2710, and 2730, and other agency 
directives referenced in the preamble, are available electronically on 
the World Wide Web at http://www.fs.fed.us/im/directives. These 
amendments are numbered as 2300-2004-1, 2700-2004-1, and 2700-2004-2.

FOR FURTHER INFORMATION CONTACT: Carolyn Holbrook, Recreation and 
Heritage Resources Staff, (202) 205-1399, or Melissa Hearst, Lands 
Staff, (202) 205-1196.

SUPPLEMENTARY INFORMATION:

Table of Contents

1. Background

[[Page 41947]]

    Special Uses Program
    Need for Revised Rule
2. Public Comments on Proposed Rule and Department Responses
    Overview
    Response to General Comments
    Proposed Rule Preamble
    Specific Sections by Part
    Part 251--Land Uses
    Part 261--Prohibitions
    Part 295--Use of Motor Vehicles Off National Forest System Roads
    Regulatory Certifications in the Proposed Rule
    Comments Beyond the Scope of This Rulemaking
3. Regulatory Certifications
    Environmental Impact
    Regulatory Impact
    No Takings Implications
    Civil Justice Reform
    Federalism and Consultation and Coordination With Indian Tribal 
Governments
    Energy Effects
    Unfunded Mandates
    Controlling Paperwork Burdens on the Public
4. Text of the Final Rule
    Part 251--Land Uses
    Part 261--Prohibitions
    Part 295--Use of Motor Vehicles Off National Forest System Roads
5. Summary of Provisions in the Final Rules at 36 CFR Parts 251, 
261, and 295
Table 1--Section-by-Section Comparison for the Previous, Proposed, 
and Final Rules

1. Background

Special Uses Program

    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), disposal of 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 and non-Federal 
lands, domestic water supplies and water conveyance systems, utility 
rights-of-way, communications uses, ski areas, resorts, marinas, 
outfitting and guiding services, and public parks and campgrounds. 
About 6,000 special use proposals are submitted to the agency annually 
by various entities wanting to use and occupy National Forest System 
lands.

Need for Revised Rule

    The current regulation at Sec.  251.50(d) provides that a special 
use authorization is not required for use of National Forest System 
roads and trails, unless mandated by an order issued pursuant to Sec.  
261.50 or a regulation issued pursuant to Sec.  261.70. Two 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 Sec.  261.50 that required a 
permit for special uses occurring on National Forest System roads. 
These rulings have created a gap in regulatory coverage that is 
resulting in management inconsistencies for certain types of special 
use activities.
    Additionally, 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.

2. Public Comments on the Proposed Rule and Department Responses

Overview

    On January 22, 2003, the Forest Service published the proposed rule 
in the Federal Register (68 FR 2948) and sought public comment in 
adopting regulations for the revision of parts 251, 261, and 295 to 
clarify when a special use authorization is required. Additionally, 
these proposed regulatory revisions would allow the agency to exempt 
uses from the permit requirement 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. The 
proposed rule gave the authorized officer the discretion to waive the 
special use authorization requirement in such circumstances and 
specified criteria upon which the authorized officer could determine 
that a special use authorization is not required.
    During the 60-day comment period on the proposed rule that ended on 
March 24, 2003, the agency received five requests for an extension of 
the comment period. Respondents indicated that, due to the complexity 
of the proposed regulations, additional time was needed. The Forest 
Service did not extend the comment period because the agency does not 
agree that the proposed regulation was complex and because litigation 
involving certain aspects of the proposed rule is being stayed pending 
conclusion of this rulemaking.
    The proposed rule was posted electronically on the World Wide Web 
on the Federal Register site at www.gpoaccess.gov and on the FirstGov 
e-rulemaking site at www.regulations.gov. The agency also posted the 
proposed rule on its World Wide Web site for special uses at 
www.fs.fed.us/recreation/permits. The Forest Service received 4,055 
letters or electronic messages in response to the proposed rule. Each 
respondent was grouped in one of the following categories:

Business (association, chamber of commerce)--1
Commercial Recreation Permit Holder--20
Individual (unaffiliated or unidentifiable)--3,993
Multiple Use/Wise Use Organization--1
Other (unidentified organizational type)--3
Place-Based Group--1
Preservation/Conservation Organization--20
Recreational Organization--13
State Government--1

    The 4,055 respondents represented 50 States, the District of 
Columbia, Puerto Rico, and 25 foreign countries.
    The majority of comments were from organizations and individuals 
who were concerned about the environmental impact of the agency's not 
requiring a permit for routine operation or maintenance of rights-of-
way. Most of these comments took the form of a standard letter or a 
letter substantially similar to many other comment letters.
    There were many comments from recreational organizations and 
individuals concerned about recreational use of National Forests. Two 
primary subcategories of this group were motorized recreational users 
and recreational clubs. One State agency also submitted comments.
    Holders of commercial recreation permits (specifically, outfitting 
and guiding permits), an industry organization, and individuals 
representing permit holders were another well-represented group among 
respondents.
    Some respondents offered general comments either supporting or not 
supporting the proposed rule. Many respondents offered specific 
comments about sections of the proposed rule that they would like to 
see revised. Many respondents offered specific comments about current 
regulations, other rulemaking efforts, or existing Forest Service 
policy that are beyond the scope of this rulemaking. Nonresponsive 
comments also included those comments expressing a dislike for the 
Forest Service or the Federal Government in general and those

[[Page 41948]]

comments not received in a timely manner.
    Table I, which appears at the end of this final rule, has been 
prepared as an aid to the reader in understanding changes between the 
previous rule, the proposed rule, and the final rule. This table is not 
part of the final rule.

Response to General Comments

    Comment. One respondent observed that research shows an overall 
trend of increasing recreation activities that supports finalizing this 
rule, and believed that the proposed rule would enhance the Forest 
Service's authority to manage National Forest land and resources to 
reduce impacts on the National Forest System.
    Response. The Department agrees that recreation use is increasing 
in the National Forests. In some areas increased use has resulted in 
more user conflicts, increased resource impacts, and safety concerns. 
The rule provides the authority needed to manage special uses occurring 
on National Forest System roads and trails to minimize user conflicts, 
resource impacts, and safety concerns.
    Comment. Several respondents observed that the current rules are 
working well and that there is no need to change them.
    Response. The Department disagrees that there is no need to change 
the current regulations. There are several reasons for the revisions. 
First, an increasing number of people engaged in commercial recreation 
events and outfitting and guiding are relying on the regulatory gap in 
the current rule to conduct activities without a special use 
authorization. Sometimes these activities include the use of National 
Forest System lands outside the rights-of-way for National Forest 
System roads and trails. Monitoring these uses to determine whether the 
use is confined to a road or trail right-of-way is costly and often 
impractical. Requiring a special use authorization for the most common 
types of special uses that use and occupy National Forest System roads 
and trails will eliminate the need to conduct field monitoring to make 
such determinations.
    Second, conducting one of these types of special uses on a National 
Forest System road or trail without an authorization exposes the United 
States to potential liability. Special use authorizations contain 
indemnification and insurance requirements and other provisions that 
protect the United States from claims of liability.
    Third, the regulatory gap creates an uneven playing field among 
businesses, some of which obtain a special use authorization and pay a 
land use fee, while others do not. Additionally, the public should 
realize a market value return for commercial uses of Federal lands, 
which can be achieved only by requiring a special use authorization.
    Comment. Several respondents were concerned that the rule would 
decrease competition and thus would cause economic harm to their 
community. They believed that commercial outfitters supply needed jobs 
and that this rule would put some of them out of business, causing the 
loss of jobs.
    Response. The Department disagrees with this assertion. It is not 
the intent of the rule to put entities out of business, but rather to 
provide for greater equity among entities that conduct special uses on 
National Forest System roads and trails and those that do not.
    The direct effect of this final rule is to require a special use 
authorization for outfitting and guiding, and other specifically 
enumerated special uses even when those activities are conducted 
exclusively on National Forest System roads or trails. Therefore, as a 
result of the final rule, some special uses that currently do not 
require a special use authorization will require one.
    Individuals or entities that conduct outfitting and guiding without 
a special use authorization (because they assert that they are 
conducting those activities within the confines of a National Forest 
System road or trail) are attracting clients and conducting a viable 
business because of the amenities that National Forest System 
landscapes and resources offer, yet they are not paying a land use fee 
and are not required to carry liability insurance or indemnify the 
United States. Those who conduct outfitting and guiding under a special 
use authorization must comply with its terms and conditions, which 
generally include paying a land use fee, carrying liability insurance, 
and indemnifying the United States. This disparity gives unauthorized 
operators an unfair economic advantage over authorized businesses.
    Comment. One respondent stated that documents on which the agency 
relies to make evaluations and form conclusions should be provided.
    Response. The rulemaking record for this final rule contains all 
the documents pertinent to this rulemaking. These documents are 
available for inspection and copying at the location listed in the 
ADDRESSES section. Any other documents requested in comments on this 
rulemaking are beyond the scope of rulemaking conducted pursuant to 5 
U.S.C. 553(c). Respondents interested in obtaining either category of 
documents may request them under the Freedom of Information Act by 
writing to the location listed in the ADDRESSES section for Freedom of 
Information Act requests.

Proposed Rule Preamble

    Comment. One respondent stated that there is no regulatory gap, 
that the playing field is not uneven, and that any inconsistent 
treatment among outfitters has resulted from the agency's failure to 
apply the current regulation. Others observed that the proposed rule 
would promote consistency and fair treatment of commercial service 
providers and other groups using National Forest System lands, thus 
ensuring that the Forest Service administers the commercial use of 
roads and trails in a fair and equitable manner.
    Response. The Department disagrees that there is no regulatory gap 
and agrees that this rule will promote consistency and fairness among 
commercial service providers. A number of current outfitting and 
guiding permit holders commented that this regulatory change will be 
beneficial to commercial permit holders. 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. 
Not paying a fee gives an unfair economic advantage to those who are 
not currently required to obtain a special use authorization. The value 
of these uses of National Forest System roads and trails is directly 
attributable to amenities associated with the National Forest System 
lands and resources these roads and trails traverse. The public should 
realize a market value return for these special uses of National 
Forests, which can be achieved only by requiring a special use 
authorization and assessing a land use fee.
    Comment. One respondent stated that increased use warranting this 
rule change is not evident. Conversely, another respondent observed 
that there is now a near constant flow of traffic that has become a 
problem to residents. This respondent noted that commercial tour jeeps 
are presenting safety problems, as well as noise disturbance, and that 
user conflicts and resource damage are resulting from the increase in 
unregulated use.
    Response. The Department does not agree that use levels do not 
support the need to regulate. The agency needs to regulate these uses 
of National Forest System roads and trails to accomplish management 
objectives and to reduce impacts to National Forest System lands

[[Page 41949]]

and resources. The demand for uses of National Forest System lands and 
resources has increased in recent years. Along with the increase in 
demand, there are growing conflicts among users and competing interests 
in the use of a limited land base and its 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 safety concerns on National Forest System roads and 
trails. In several instances, the courts have ordered the Forest 
Service to regulate these uses when these conditions exist. Finally, 
site-or area-specific evaluation of use levels is not the subject of 
this rulemaking. Such evaluations are conducted through the forest 
planning or project decisionmaking process.
    Comment. One respondent stated that intensive monitoring warranting 
this rule change is not evident, and another asserted that the proposed 
rule would increase the Forest Service's monitoring costs.
    Response. The Department disagrees with these assertions. While 
organizers of recreation events or outfitters and guides may assert 
that their activities are confined only to a road or trail, often these 
activities include the use and occupancy of National Forest System 
lands adjacent to or well beyond the rights-of-way for those roads or 
trails. Determining whether a special use is confined to a road or 
trail right-of-way (that is, determining whether a special use 
authorization is necessary) requires intensive, case-specific 
monitoring. The final rule will eliminate the need for this monitoring 
by requiring a special use authorization for all six types of special 
uses, regardless of whether they occur on or off National Forest System 
roads and trails.
    Monitoring a special use to determine whether it goes beyond the 
confines of a National Forest System road or trail, and therefore 
requires a special use authorization, should be distinguished from 
monitoring compliance with a special use authorization. There may be a 
modest increase in the costs of monitoring compliance with special use 
authorizations associated with the small increase in the number of 
authorizations that will be required pursuant to Sec.  251.50(d) of the 
final rule. This modest increase in costs will be more than offset by 
the savings that will be realized by eliminating the need to monitor 
these six types of special uses when they occur primarily on a National 
Forest System road or trail, and by the other regulatory benefits 
achieved through the rulemaking that were previously identified.
    Comment. One respondent stated that the issue of invalidated 
closure orders is local in scope and does not warrant a change in the 
national rule.
    Response. The Department disagrees with this assertion. The need to 
regulate special uses on National Forest System roads and trails has 
surfaced in several Forest Service Regions. The issuance of a May 21, 
1996, letter by the Deputy Chief of the National Forest System 
clarifying the current regulation shows that this issue has been a 
concern to the agency for many years at the national level. The 1996 
Washington Office letter provides that special use authorizations for 
special uses occurring solely on National Forest System roads and 
trails may be required pursuant to a forest order issued under 36 CFR 
part 261, subpart B. However, courts have invalidated these orders.
    Comment. One respondent stated that a recent U.S. General 
Accounting Office report shows off-road vehicles, such as snowmobiles, 
are permitted in nearly 50 percent of the areas managed by the Forest 
Service. Therefore, this respondent stated that the rule is needed to 
put in place clear, consistent terminology to govern treatment of 
forest roads.
    Response. Regulation of off-highway vehicle use is beyond the scope 
of this rulemaking. However, the Department agrees that clear, 
consistent definitions for forest road or trail, National Forest System 
road, and National Forest System trail are needed for this rulemaking.
    Comment. One respondent asserted that dual-sport motorcycle events 
do not have significant impacts on the environment.
    Response. The final rule will require a special use authorization 
for the six types of special uses, including recreation events, 
occurring on National Forest System roads and trails to serve the 
purposes identified in the proposed rule, that is, (1) promoting 
fairness and consistency in authorizing uses; (2) obtaining market 
value for the use of National Forest System lands; (3) mitigating 
traffic and safety concerns; (4) managing impacts on National Forest 
System lands and resources; (5) avoiding and resolving conflicts among 
users and administrative activities; and (6) requiring insurance and 
indemnification of the United States. The potential for impacts on 
National Forest System resources associated with specific recreation 
events, such as dual-sport motorcycle activities, and the measures 
needed to mitigate such impacts, are identified through a site-specific 
environmental analysis in response to applications for such uses. The 
final rule does not change that process, which is set out in Forest 
Service Handbook (FSH) 1909.15.
    Comment. One respondent stated that there would be an increase in 
do-it-yourself jeep touring in private or rented vehicles.
    Response. The final rule will require a special use authorization 
for the six types of special uses occurring on National Forest System 
roads and trails. This requirement will serve the purposes identified 
in the proposed rule and outlined in the preceding response, that is, 
to promote fairness and consistency in authorizing uses, obtain market 
value for the use of National Forest System lands, manage impacts on 
lands and resources, avoid and resolve conflicts among users and 
administrative activities, and require insurance and indemnification of 
the United States. The statement that touring in private or rented 
vehicles will increase as a result of this requirement is speculative 
and thus cannot be addressed in this response.
    Comment. One respondent stated that the Forest Service has not made 
a case that there are unacceptable impacts on roads resulting from the 
current rule.
    Response. Mitigating adverse impacts on roads is not a rationale 
for this rulemaking. Rather, the final rule is intended to provide 
greater consistency in regulating six types of special uses of National 
Forest System lands, including instances in which those types of uses 
occur exclusively within the rights-of-way of National Forest System 
roads or trails.
    Comment. One respondent stated that it is not clear how much damage 
is caused by commercial non-recreational activities and how much by 
commercial recreation groups, noncommercial groups, and individuals.
    Response. As previously stated, addressing adverse impacts on roads 
and trails is not one of the reasons for this rulemaking. The Forest 
Service evaluates the physical impacts caused by the use of its roads 
and trails, user conflicts, and public safety through monitoring and 
site-specific environmental analyses. The agency protects its 
investment in these facilities through an operation and maintenance 
program. Additionally, the Forest Service has the authority to require 
those who use National Forest System roads for commercial purposes to 
maintain the roads commensurate with their use. Such authority is 
provided in the National Forest Roads and Trails Act of 1964 and is 
outside the scope of this rulemaking.

[[Page 41950]]

    Comment. One respondent stated that if roads and trails are unsafe 
for motorized use or may be damaged by motorized use, they can be 
closed by order or regulation. Therefore, this regulation is 
unnecessary.
    Response. The Department agrees that unsafe roads and trails may be 
closed by order or regulation, but disagrees that this authority 
renders the final rule unnecessary. This final rule will not regulate 
road use or maintenance, but will require the regulation of six types 
of special uses wherever they occur on National Forest System lands, 
including those within the rights-of-way of National Forest System 
roads and trails (but not of roads under the jurisdiction of a State, 
County, or local public road authority). Regulating special uses on 
National Forest System roads and trails will enable the agency to 
administer those uses more consistently; to obtain market value for 
those uses, where applicable; to manage impacts on National Forest 
System lands and resources; to eliminate or mitigate conflicts among 
users and administrative activities; and to require insurance and 
indemnification of the United States. It is not the purpose of this 
final rule to address roads and trails that are unsafe for motorized 
use or that may be damaged by motorized use.
    Comment. One respondent stated that it is not likely that there is 
Government liability for the use of roads.
    Response. One rationale for this rulemaking is to minimize the 
liability of the United States associated with special uses occurring 
on National Forest System roads and trails, not the liability of the 
United States associated with the general public's use of National 
Forest System roads. The Department believes that the United States has 
greater protection from liability when a special use occurring on 
National Forest System roads and trails is being conducted pursuant to 
a special use authorization that contains indemnification, insurance, 
and other liability provisions.
    Comment. One respondent observed that the hazards posed by 
outfitters and guides stopping on the road to unload passengers or 
equipment would not be eliminated by the proposed rule change and 
should be addressed through issuance of orders.
    Response. The Department disagrees with these comments and believes 
that a special use authorization and associated operating plan are the 
most effective way to address appropriate methods for outfitters and 
guides to operate on National Forest System roads. Moreover, Forest 
orders would not address the other purposes of this rulemaking.
    Comment. Several respondents expressed concern that it is too much 
to ask private citizens to indemnify the United Sates and carry 
insurance because no one can assume the risk of being in a park. These 
respondents believed that insurance for informal events is unaffordable 
and requested that the Forest Service clarify what constitutes a group 
event requiring insurance.
    Response. Regulations at Sec.  251.56(d)(1) require all holders of 
special use authorizations to indemnify the United States for any and 
all injury, loss, or damage the United States may suffer as a result of 
claims, demands, losses, or judgments caused by the holder's use and 
occupancy. Accordingly, all special use authorizations contain 
indemnification provisions. Many special use authorizations also 
contain insurance provisions that effectuate the indemnification 
requirement. The Department disagrees that a requirement to secure 
liability insurance will be burdensome for recreation events in most 
situations.
    There is no insurance requirement for noncommercial group uses. A 
noncommercial group use is a special use involving 75 or more people, 
where no entry or participation fee is charged and no goods or services 
are sold. If an entry or a participation fee is charged or goods or 
services are sold, generally insurance will be required.
    Comment. Several respondents were concerned that the Forest Service 
cannot fit permit processing into its program of work and that the 
proposed rule would increase, not reduce, permit workload.
    Response. The Department acknowledges that workload in processing 
special use applications is an issue and is conducting a separate 
rulemaking to implement its statutory authority to recover costs 
associated with processing special use applications.
    The Department disagrees that the Forest Service will not be able 
to undertake the workload associated with this rule. Currently the 
Forest Service is administering 7,322 outfitting and guiding permits 
and 1,911 recreation event permits. During fiscal year 2002, the Forest 
Service issued 2,353 outfitting and guiding permits, 971 recreation 
event permits, 381 commercial filming permits, 315 still photography 
permits, and 642 noncommercial group use permits. The agency estimates 
that it will receive fewer than 50 additional outfitting and guiding 
special use applications and 40 additional recreation event 
applications annually as a result of this rule. It is unlikely that 
there will be much of an increase in applications for commercial 
filming or still photography because when these activities occur on 
National Forest System roads or trails, they generally involve the use 
of National Forest System lands outside the right-of-way for the roads 
or trails and therefore are already authorized under a special use 
authorization. There may be an increase in noncommercial group use 
applications as a result of this rule if organizers of recreation 
events, to avoid having to pay a land use fee and the cost of 
insurance, redesign their activities so that they are not charging 
entry or participation fees, thus making their activities qualify as 
noncommercial group uses. There will be no increase as a result of this 
rule in applications for special use authorizations issued under Sec.  
251.110(d) for a landowner's ingress or egress across National Forest 
System lands that requires travel on a National Forest System road that 
is not authorized for general public use, as the agency has been 
issuing these authorizations pursuant to 16 U.S.C. 3210(a).

Specific Sections by Part

Part 251--Land Uses
    Section 251.50(a). This section of the rule defines the type of 
activities on National Forest System lands that are classified as 
``special uses.''
    Comment. One respondent stated that the word ``unless'' in the last 
sentence is confusing and may lead people to determine for themselves 
whether or not an authorization is required.
    Response. The Department disagrees that the word ``unless'' in the 
last sentence needs to be changed. This language in the current rule 
has not been proposed for change. Section 251.50, paragraphs (c) 
through (e), enumerate the bases for waiver of the special use 
authorization requirement. Those proposing to use and occupy National 
Forest System lands are required under Sec.  251.54(a) to contact the 
Forest Service in advance of the proposed use and occupancy, at which 
time applicable requirements can be discussed.
    Section 251.50(b). This section of the rule prescribes 
authorization requirements during emergency situations.
    Comment. One respondent stated that temporary occupancy of National 
Forest System lands in an emergency should not require a permit and 
suggested that ``temporary'' be defined as ``lasting no

[[Page 41951]]

longer than is necessitated by the nature and character of the 
emergency leading to the occupancy.'' This respondent suggested 
striking the sentence, ``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.''
    Response. The Department agrees that temporary occupancy of 
National Forest System lands without a special use authorization is 
appropriate in limited circumstances and subject to specific 
conditions, as enumerated in the final rule. The Department disagrees 
that temporary occupancy should never require a special use 
authorization.
    Under the final rule, temporary occupancy without a special use 
authorization is allowed when necessary for the protection of life and 
property in emergencies, as long as a special use authorization is 
applied for and obtained at the earliest opportunity, unless waived 
pursuant to Sec.  251.50(c) through (e). Emergency situations often 
last longer than originally anticipated. Requiring a special use 
authorization allows the agency to specify terms and conditions of the 
occupancy, and to require changes in the temporary occupancy for 
conformance to the terms and conditions.
    The Department disagrees that ``temporary'' needs to be defined, as 
the rule will require those temporarily occupying National Forest 
System lands to obtain a special use authorization at the earliest 
opportunity. Moreover, in the final rule, paragraph (b) of Sec.  251.50 
has been revised to add the phrase ``when necessary'' as a qualifier to 
temporary occupancy without an authorization; the phrase ``is applied 
for and'' has been inserted before ``obtained at the earliest 
opportunity'' to clarify that a proponent must apply for a special use 
authorization and that the authorized officer has the discretion to 
decide whether to allow the use to continue. Furthermore, the 
Department has added to paragraph (b) the sentence ``The authorized 
officer may, pursuant to Sec.  251.56 of this subpart, impose in that 
authorization such terms and conditions as are deemed necessary or 
appropriate and may require changes to the temporary occupancy to 
conform to those terms and conditions,'' to clarify further that the 
use may be conditioned and that modifications may be required if 
needed.
    The Department disagrees that the sentence imposing liability on 
the temporary occupant should be stricken. This sentence was added to 
the proposed rule to clarify that the temporary occupant has liability 
similar to that imposed on holders of a special use authorization under 
Sec.  251.56(d)(1) of the current rule.
    Section 251.50(c). This section of the rule describes the types of 
noncommercial recreational activities for which a special use 
authorization is not required and the exceptions to those activities.
    Comment. One respondent suggested that bicycling should be added to 
the list of noncommercial recreational activities for which a special 
use authorization is not required. Another respondent suggested that 
use of motorized off-highway vehicles should be added to the list. 
Additionally, one respondent requested that the language ``or similar 
recreational activity'' in the current regulation be retained.
    Response. The Department disagrees with adding additional 
activities to the list of noncommercial recreational activities for 
which a special use authorization is not required. The list is not 
intended to be all-inclusive, but rather to identify examples of common 
recreational activities. Furthermore, the inclusion of mechanized and 
motorized activities to this list could lead to confusion in areas 
where mechanized and motorized equipment is prohibited, such as wild 
sections of wild and scenic rivers and designated wilderness areas. The 
phrase ``or similar recreational activity'' does not appear in Sec.  
251.50(c) of the current regulations.
    Comment. One respondent requested removal of Sec.  251.50(c)(1) 
from the rule.
    Response. The Department disagrees that paragraph (c)(1) in Sec.  
251.50 of the proposed rule should be removed. This paragraph requires 
a special use authorization for noncommercial group uses. Other than a 
nonsubstantive change in sentence structure, paragraph (c)(1) of the 
proposed and final rules is identical to paragraph (c)(3) in the 
current rule. Since the requirement for a special use authorization for 
noncommercial group use was not proposed for change, it is beyond the 
scope of this rulemaking.
    Section 251.50(d). This section of the rule addresses the need for 
a special use authorization for special uses occurring on National 
Forest System roads and trails.
    Comment. Several respondents said that the agency should require a 
permit for special uses conducted on National Forest System roads and 
trails.
    Response. The Department agrees. Furthermore, the Department is 
making a technical change to confirm its preexisting authority to issue 
special use authorizations under Section 1323(a) of the Alaska National 
Interest Lands Conservation Act, 16 U.S.C. 3210(a), and 36 CFR 
251.110(d). The Department is adding to the list in Sec.  251.50(d)(1) 
of special uses occurring on National Forest System roads that require 
a special use authorization a landowner's ingress or egress across 
National Forest System lands that requires travel on a National Forest 
System road that is not authorized for general public use.
    Comment. One respondent said that the growing impact of motorized 
recreation and regulation of large group activities, whether commercial 
or noncommercial, is a concern, and therefore it is important and 
necessary to require special use permits for activities involving 
National Forest System roads and trails.
    Response. The Department agrees that it needs to be able to manage 
commercial and noncommercial special uses occurring on National Forest 
System roads and trails and has therefore pursued this rulemaking.
    Comment. One respondent stated that the proposed rule would require 
permits for businesses that have not previously been subject to 
permitting.
    Response. The final rule will require special use authorizations 
for some businesses that have not previously had to obtain them, such 
as businesses engaged in outfitting and guiding, commercial filming, 
and still photography exclusively within the right-of-way of a National 
Forest System road or trail. However, the Forest Service estimates that 
the number of these new authorizations will be small: 50 for outfitting 
and guiding, an increase of 2 percent over the current number of 
outfitting and guiding authorizations, and 40 for recreation events, an 
increase of 4 percent. The number of new commercial filming and still 
photography authorizations is likely to be fewer than 10 for both 
activities combined.
    Comment. One respondent stated that the use of National Forest 
System trails must remain exempt from the requirement for a special use 
permit.
    Response. The Department disagrees that special uses occurring on 
National Forest System trails should remain exempt from the special use 
authorization requirement. The Forest Service is eliminating the 
exemption for special uses conducted on National Forest System trails 
because there is a 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 are commercial uses of National 
Forest System trails that should be exempted

[[Page 41952]]

from the special use authorization requirement, as there are for many 
uses of National Forest System roads (such as the delivery of goods 
within and through the National Forests). Additionally, there have been 
several instances where courts have ordered the Forest Service to 
regulate special uses on trails.
    Comment. One respondent requested that the Forest Service specify 
that use on a National Forest System trail does not require a special 
use permit unless it is commercial in nature. Several respondents 
stated that special use permits should not be required for 
noncommercial activities.
    Response. Under the final rule, a noncommercial activity occurring 
on National Forest System trails that qualifies as a special use will 
require a special use authorization. One of these special uses is 
noncommercial group use. In addition, other noncommercial uses of a 
National Forest System trail could require a special use authorization 
in certain situations, such as still photography, or pursuant to an 
order issued under Sec.  261.50 or a regulation issued under Sec.  
261.70. Under current law, a special use authorization is required for 
still photography and noncommercial group uses. Whether a special use 
authorization should be required for these activities is therefore 
beyond the scope of this rulemaking.
    Comment. One respondent observed that special use permits should be 
required for commercial activities and/or recreation events. Another 
respondent stated that commercial users should pay a fee or tax.
    Response. The final rule will require a special use authorization 
for recreation events and other commercial special uses occurring on 
National Forest System roads and trails. Most commercial special use 
authorizations require payment of a land use fee. The regulations 
governing land use fees are found at Sec.  251.57. No changes to this 
section of the regulation were proposed as part of this rulemaking.
    Comment. Several respondents asserted that a permit should not be 
required for public roads. They believe that if a road has been built, 
it should be open to all for free travel and suggested that this rule 
is a disturbing departure from the practice of all other government 
agencies, which allow free access on all public thoroughfares. Several 
respondents asserted that events conducted on forest roads and trails 
should not require fees because a gas tax and fees for off-highway 
vehicle stickers are already paid. One respondent stated that Forest 
Service roads have already been paid for. Another respondent stated 
that the proposed rule is just the first step to closing roads. Another 
stated that the requirement for permits for use of roads and trails 
runs counter to a Forest Service study that calls for reducing permit 
requirements for minor uses.
    Response. The final rule will not require a special use 
authorization for use of public roads. Rather, the final rule will 
require a special use authorization for six types of special uses 
wherever they occur on National Forest System lands, including on 
National Forest System roads (but not on roads under the jurisdiction 
of a State, County, or local public road authority). This approach is 
consistent with that of other Federal land management agencies. For 
example, the Bureau of Land Management requires special recreation 
permits for commercial and competitive uses (43 CFR 8372.1).
    The scope of this rulemaking does not include establishment of 
criteria for identifying which National Forest System roads should be 
closed or remain open.
    The study being referred to, presumably, is the Forest Service's 
special uses reengineering study conducted in 1997. The study 
recommended that the Forest Service consider whether or not a special 
use authorization should be required for minor uses. Examples of minor 
uses mentioned in the study are mailboxes and private driveways. This 
recommendation is incorporated in paragraphs (e)(1) and (2) of Sec.  
251.50 in the final rule, which gives authorized officers the 
discretion to waive the requirement for a special use authorization for 
uses having nominal effects on National Forest System lands, resources, 
or programs, or for uses that are adequately regulated by another 
governmental entity.
    However, the Department does not believe that the six special uses 
occurring on National Forest System roads and trails (outfitting and 
guiding, recreation events, noncommercial group uses, commercial 
filming, still photography, and a landowner's ingress or egress across 
National Forest System lands that requires travel on a National Forest 
System road that is not authorized for general public use) are minor 
uses. The 1997 reengineering study did not address situations where 
regulatory authority needs to be expanded, as is the case for uses 
occurring on National Forest System roads and trails that are addressed 
in the final rule.
    Comment. One respondent stated that there should be no permit 
requirement if people merely travel along a road and do not stop.
    Response. of the objectives of this rulemaking is to provide 
greater equity in the agency's management of six types of special uses 
wherever they occur on National Forest System lands, including on 
National Forest System roads and trails (but not on roads under the 
jurisdiction of a State, County, or local public road authority), even 
if those engaging in these types of special uses do not stop along 
those roads or trails.
    Comment. Several respondents proposed clarifying that the special 
use authorization requirement for outfitters and guides to use roads 
would not mandate a new or additional authorization for operations 
conducted on National Forest System roads or trails for which 
outfitters and guides already have authorizations. Accordingly, this 
respondent proposed adding the following to Sec.  251.50(d): ``If a 
guiding or outfitting entity already holds a special use authorization 
for which use of National Forest System roads and trails is a necessary 
or integral part of the authorized activity, no additional or 
supplemental permit is needed.''
    Response. The Department agrees that under the final rule, a new or 
supplemental special use authorization is not needed for outfitting and 
guiding conducted on a National Forest System road or trail that is 
already covered by a special use authorization or that may be covered 
by an amendment to an existing special use authorization. However, the 
Department disagrees that the language in paragraph (d)(1) should be 
revised. Training of special use permit administrators is a more 
appropriate way to achieve agency consistency in application of the 
final rule with respect to the issue identified in this comment.
    Comment. Several respondents asserted that outfitters and guides 
should have to pay only a special use fee and not a road use fee. One 
respondent suggested clarifying that no special fee or assessment other 
than applicable special use permit fees would be assessed on outfitters 
and guides for the use of these roads.
    Response. The authority in the final rule to regulate special uses 
occurring on National Forest System roads will not supplant Forest 
Service authority to regulate road use and to require commercial users 
to perform or pay for maintenance made necessary by their use of 
National Forest System roads under applicable laws, including the 
National Forest Roads and Trails Act of 1964 (FRTA). Rather, these two 
sets of authorities are complementary with

[[Page 41953]]

respect to activities occurring on National Forest System roads. For 
example, a separate road use permit could be issued to an entity 
(pursuant to FRTA and corresponding direction in Forest Service Manual 
(FSM) 7731.16 and Forest Service Handbook (FSH) 7709.59, section 24) 
concerning the responsibilities for commensurate maintenance made 
necessary by the entity's commercial use of a road, coincidentally with 
a special use authorization issued under the final rule. Alternatively, 
the operation and use of the road for commercial purposes, including 
terms and conditions that address cost-sharing for road maintenance, 
could be incorporated into a special use authorization issued under the 
final rule, which also would include a citation of the appropriate 
statutory authorities concerning road maintenance requirements.
    Comment. The Forest Service cannot require a permit for activities 
conducted totally off National Forest System lands.
    Response. The Forest Service generally does not regulate uses 
occurring entirely off National Forest System lands. Special uses 
conducted on National Forest System roads and trails are on National 
Forest System lands.
    Comment. Several respondents stated that it is not clear which 
roads will require a permit and that it is not clear how commercial bus 
drivers will know when they have crossed onto Bureau of Land 
Management, State, or county roads.
    Response. First, this final rule will require a special use 
authorization for five types of special uses wherever they occur on 
National Forest System lands, including on National Forest System roads 
and trails (but not on roads under the jurisdiction of a State, County, 
or local public road authority).
    Second, the Department disagrees that it will be difficult to 
determine whether a special use authorization is required under the 
final rule. To comply with the special use authorization requirement 
under the final rule, it will not be necessary to know where National 
Forest System roads end and roads under other jurisdictions begin. It 
will be necessary to know only whether a noncommercial group use, 
recreation event, outfitting and guiding activity, commercial filming 
activity, or still photography activity, as defined in Sec.  251.51 of 
the final rule, will be conducted in whole or in part on a National 
Forest System road. If so, a special use authorization will be 
required. National Forest System roads are enumerated in the forest 
transportation atlas for each National Forest (Sec.  212.2) and are 
commonly posted along the roadway with Forest Service signs. In 
addition, National Forest maps distinguish National Forest System roads 
from other types of roads through the use of symbols and colors.
    Comment. One respondent observed that the proposed rule narrows the 
exemption from the permit requirement for roads and eliminates the 
exemption from the permit requirement for trails, but noted that the 
Forest Service designates some facilities as trails that could be 
considered roads.
    Response. Regulations for the classification and management of 
roads and trails are found at 36 CFR part 212 and are beyond the scope 
of this rulemaking.
    Comment. Several respondents observed that Sec. Sec.  212.6, 
251.53, and 251.54 and part 261 distinguish between road use and land 
use. One respondent commented that the regulation should clarify when a 
particular use should be regulated by a special use permit and when it 
should be subject to a cost-share agreement. Another respondent stated 
that use of the road network should not require a permit.
    Response. The Department agrees that road use and land use are 
distinct and separate. However, special uses are land uses regardless 
of whether they occur on or off roads and trails. Under this final 
rule, the Forest Service will 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 will 
require special use authorizations and charge land use fees for 
commercial filming and still photography under the Act of May 26, 2000, 
16 U.S.C. 460l-6d, for outfitting and guiding and recreation events 
under the Land and Water Conservation Fund Act, 16 U.S.C. 460l-6a(c), 
and for a landowner's ingress or egress across National Forest System 
lands that requires travel on a National Forest System road that is not 
authorized for general public use under Section 1323(a) of the Alaska 
National Interest Lands Conservation Act, 16 U.S.C. 3210(a). Permits 
for noncommercial group uses will be issued under the agency's Organic 
Act, 16 U.S.C. 551. No fee is assessed for noncommercial group use 
permits. Further authority for assessing land use fees is found in the 
Independent Offices Appropriations Act, 31 U.S.C. 9701, Office of 
Management and Budget Circular No. A-25, and Sec.  251.57(a). For most 
types of special uses, land use fees are assessed annually. For 
temporary uses of less than one year, the land use fee is commonly 
assessed upon issuance of the authorization. These fees are based upon 
the market value of the authorized use of National Forest System lands.
    The use, operation, and maintenance of National Forest System roads 
are regulated under separate authority at 16 U.S.C. 532 et seq. and 36 
CFR part 212. When appropriate, commercial users may be required to 
contribute to the cost of road maintenance and reconstruction. For 
holders of special use authorizations, contributing to these costs may 
be accomplished by adding appropriate clauses to their authorization or 
by issuing a separate road use permit. To clarify the distinction 
between road use permits and special use authorizations, the Department 
has added ``sharing use of roads (part 212)'' to the list of uses not 
considered special uses in Sec.  251.50(a).
    Comment. One respondent pointed out that FSM 2719 and 2734.4 do not 
require a permit for the commercial use of forest development roads 
unless closed by order.
    Response. The Department agrees that there is a discrepancy between 
the final rule and FSM 2719, paragraph 7. In addition, the Department 
believes that the introductory text to FSM 2719 is unclear and that 
paragraph 6 of FSM 2719 needs to be revised to be more consistent with 
the corresponding regulation at 36 CFR 251.50(c) and to reflect that 
noncommercial group use and still photography are not exempted from the 
special use authorization requirement. Consequently, the introductory 
text and paragraphs 6 and 7 will be revised, a new paragraph 8 will be 
added, and current paragraphs 8, 9, and 10 will be renumbered. The 
revised text of FSM 2719 reads as follows:
    ``Consult with the Office of the General Counsel on a case-by-case 
basis to confirm that a special use authorization is not required for a 
proposed use in any of the following categories:
    ``6. Noncommercial recreational activities, such as camping, 
picnicking, hiking, fishing, hunting, horseback riding, and boating, as 
well as noncommercial activities involving the expression of views such 
as assemblies, meetings, demonstrations, and parades, except for 
noncommercial group use and still photography. Noncommercial 
recreational activities that are exempted from the requirement for a 
special use authorization may require payment of a prescribed fee for 
use or occupancy of sites having an established schedule of fees.

[[Page 41954]]

    ``7. Temporary occupancy of National Forest System lands without a 
special use authorization when necessary for the protection of life and 
property in emergencies, if a special use authorization is applied for 
and obtained at the earliest opportunity, unless waived pursuant to 
Title 36, Code of Federal Regulation, section 251.50, paragraphs (c) 
through (e)(3) (36 CFR 251.50(c) through (e)(3)).
    ``8. Travel on National Forest System roads, unless the travel is 
for the purpose of engaging in a noncommercial group use, outfitting 
and guiding, a recreation event, commercial filming, or still 
photography, as defined in 36 CFR 251.51, for a landowner's ingress or 
egress across National Forest System lands that requires travel on a 
National Forest System road that is not authorized for general public 
use, pursuant to 36 CFR 251.110(d), or authorization of that use is 
required by an order issued under 36 CFR 261.50 or by a regulation 
issued under 36 CFR 261.70.''
    Additionally, the Department agrees that there is a discrepancy 
between the final rule and FSM 2734.4. Therefore, FSM 2734.4 will be 
revised to read as follows:
    ``Regulations at Title 36, Code of Federal Regulations, section 
212.5(a)(1) (36 CFR 212.5(a)(1)) provide that traffic on National 
Forest System roads is subject to State laws where applicable, except 
when in conflict with the rules established under 36 CFR part 261. 
Regulations at 36 CFR 212.5(a)(2) enumerate specific traffic rules that 
apply on National Forest System roads unless different rules are 
established in 36 CFR part 261.
    ``Special use authorizations are not necessary for travel on 
National Forest System roads, unless:
    ``1. The travel is for the purpose of engaging in a noncommercial 
group use, outfitting and guiding, a recreation event, commercial 
filming, or still photography, as defined in 36 CFR 251.51, or for a 
landowner's ingress or egress across National Forest System lands that 
requires travel on a National Forest System road that is not authorized 
for general public use, pursuant to 36 CFR 251.110(d); or
    ``2. A special use authorization is required by an order issued 
under 36 CFR 261.50 or by a regulation issued under 36 CFR 261.70.
    ``Special use authorizations issued pursuant to 36 CFR part 251, 
subpart B, should be distinguished from road use permits that are 
issued pursuant to 16 U.S.C. 532 and 36 CFR part 212. Road use permits 
may be issued for such activities as construction, reconstruction, 
grading, or snow removal.
    ``Special use authorizations are required for special uses 
conducted on National Forest System trails. The use of motor vehicles 
is prohibited on the Appalachian Trail, Pacific Crest Trail, and other 
Congressionally designated trails pursuant to 16 U.S.C. 1246(c) and on 
trails within Congressionally designated wilderness areas pursuant to 
36 CFR 261.16. Motor vehicle use in other areas may be prohibited or 
restricted pursuant to 36 CFR 261.12 and 261.55.''
    Comment. One respondent indicated that land use fees should not be 
grouped with road use fees because they are determined differently. 
Additionally, this respondent stated that it is not clear how market 
value would be determined for land use and road use.
    Response. The Department agrees that land use fees should not be 
grouped with cost-sharing for road maintenance, and emphasizes that 
they are separate types of assessments. Forest Service regulations 
already provide for assessment of land use fees for special use 
authorizations at Sec.  251.57. These fees are charged under various 
authorities, and fee systems have been established for the various 
types of special uses in FSM 2710 and 2720. There is no fee for 
noncommercial group use. The authority for cost-sharing for road 
maintenance is independent of the authorities to assess land use fees 
and accordingly is implemented under separate regulations at 36 CFR 
part 212.
    Comment. Respondents asserted that the proposed rule would limit 
public access, would limit access for seniors and low-or fixed-income 
visitors, would limit access for church groups and charities, would 
restrict access to National Forest System roads and trails, or would 
eliminate most group travel activities. Other respondents suggested 
that the proposed rule would end use of National Forest System roads 
and trails by organized dual-sport events.
    Response. The Department disagrees that the final rule will limit 
access to National Forest System lands in any of the ways identified in 
these comments. Rather, the final rule merely requires a special use 
authorization for six types of special uses wherever they occur on 
National Forest System lands, including on National Forest System roads 
and trails (but not on roads under the jurisdiction of a State, County, 
or local public road authority).
    Comment. One respondent stated that ``use of'' should not be 
changed to ``travel on.''
    Response. The Department disagrees with this comment. There are 
other activities associated with roads that are subject to the special 
use authorization requirement, such as construction of a road 
authorized under an easement. Substituting ``travel on'' for ``use of'' 
clarifies the agency's intent not to exempt these activities from the 
special use authorization requirement. Moreover, ``travel on'' more 
clearly describes the type of use of roads associated with 
noncommercial group use, outfitting and guiding, recreation events, 
commercial filming, still photography, and a landowner's ingress or 
egress across National Forest System lands that requires travel on a 
National Forest System road that is not authorized for general public 
use.
    Comment. Several respondents requested that the Forest Service not 
include in paragraph (d)(1) one or more of the following: noncommercial 
group use, recreation events, and still photography.
    Response. The Department does not agree that noncommercial group 
use, recreation events, and still photography conducted on National 
Forest System roads and trails should be exempted from the special use 
authorization requirement. Each of these uses has characteristics that 
warrant management wherever these uses occur in the National Forest 
System, including on National Forest System roads and trails (but not 
on roads under the jurisdiction of a State, County, or local public 
road authority). Regulating these uses when they are conducted on 
National Forest System roads and trails meets the objectives of this 
rulemaking.
    Section Sec.  251.50(e). This section of the rule provides 
additional criteria to the authorized officer for determining when a 
special use authorization is required.
    Comment. Several respondents requested removal of the phrase 
``other than noncommercial group use.''
    Response. The Department disagrees that the phrase ``other than 
noncommercial group use'' should be removed from the introductory text 
of paragraph (e). The Department does not intend the waiver provisions 
in paragraph (e) to apply to noncommercial group use. The criteria for 
waiver in paragraph (e) involve the exercise of discretion by the 
authorized officer. If these criteria were applied to noncommercial 
group use, they could render the permitting scheme for noncommercial 
group use unconstitutional. The criteria for requiring a special use 
permit for noncommercial group use are clearly

[[Page 41955]]

articulated elsewhere in part 251, subpart B.
    Comment. Several respondents stated that there are no guidelines 
for the criteria for determining when a special use authorization is 
needed.
    Response. The Department agrees that there is some ambiguity as to 
the basis upon which a determination to waive the special use 
authorization requirement will be made under paragraph (e) of Sec.  
251.50. Consequently, the Department is proposing to add ``based upon a 
review of a proposal'' to the introductory text of paragraph (e), so 
that it reads as follows: ``For proposed uses other than a 
noncommercial group use, a special use authorization is not required 
if, based upon a review of a proposal, the authorized officer 
determines that the proposed use has one or more of the following 
characteristics.'' This revision will ensure that the authorized 
officer is provided sufficient information about the proposed activity 
to determine whether a special use authorization is required.
    Comment. One respondent stated that the proposed rule at paragraph 
(e) conflicts with Sec.  261.10(a), which prohibits constructing, 
placing, or maintaining any kind of road, trail, or facilities on 
National Forest System lands without a special use authorization, 
contract, or approved operating plan.
    Response. The Department agrees that there is a conflict between 
paragraph (e) in the proposed rule and Sec.  261.10(a). Therefore, 
Sec.  261.10(a) is being modified to read as follows: ``Constructing, 
placing, or maintaining any kind of road, trail, structure, fence, 
enclosure, communications equipment, or other improvement on National 
Forest System lands or facilities without a special use authorization, 
contract, or approved operating plan, unless such authorization, 
contract, or operating plan is waived pursuant to Sec.  251.50(e) of 
this chapter.''
    Comment. The permit requirement should not be waived. Rather a 
permit should be required so that the activity will be subject to the 
National Environmental Policy Act (NEPA). It is the Forest Service's 
responsibility to review all project proposals for environmental 
impacts.
    Response. Under the Forest Service's special use regulations at 36 
CFR 251.54(e)(6) and (g)(1) and (2), environmental analysis under NEPA 
is not required until a special use proposal has met two levels of 
screening criteria. Paragraph (e)(3) of Sec.  251.50 applies to special 
use proposals at the initial level of screening.
    The Department appreciates the importance of compliance with NEPA 
and stresses that paragraph (e) is not intended to circumvent NEPA in 
any way. Rather, paragraph (e) is intended to dispense with the 
requirement for a special use authorization in specifically identified 
circumstances based on a case-specific determination by the Forest 
Service that there is no programmatic need for the authorization.
    Section 251.50(e)(1). This section of the rule provides for waiver 
of the special use authorization requirement for uses with nominal 
effects.
    Comment. Several respondents stated that the term ``nominal'' is 
vague and that a definition should be provided. Another stated that 
``nominal effects'' is unclear. Yet another stated that research 
scientists should determine whether effects are nominal.
    Response. The Department disagrees that the phrase ``nominal 
effects'' needs to be defined in this regulation. There is adequate 
guidance on effects in the Forest Service's Environmental Policy and 
Procedures Handbook (FSH 1909.15) and Forest Service Manual (FSM) 1950.
    Comment. One respondent proposed that ornithological research be 
exempt from the permit requirement.
    Response. The Department disagrees that ornithological research 
should be categorically exempt from the special use authorization 
requirement. Whether a specific ornithological research project is 
exempt from the special use authorization requirement would be 
determined based on the characteristics of that proposal in accordance 
with Sec.  251.50(e) of the final rule.
    Comment. One respondent stated that the phrase ``necessary to 
establish terms and conditions in a special use authorization * * * to 
avoid conflict with National Forest System programs'' most likely would 
be interpreted by the Forest Service to include any permitted 
outfitting and guiding operation, so that no proposed outfitting and 
guiding use would ever qualify for an exemption from the authorization 
requirement if it is perceived to be in competition with the activities 
of a permitted outfitter and guide.
    Response. The Department disagrees with this characterization of 
how the Forest Service will interpret Sec.  251.50(e)(1) of the final 
rule. Generally, outfitting and guiding will not qualify for an 
exemption from the special use authorization requirement under 
paragraph (e)(1) because an outfitting and guiding use generally has 
more than nominal effects on National Forest System lands, resources, 
and programs. For purposes of paragraph (e)(1), an example of the need 
to establish terms and conditions in a special use authorization to 
avoid conflict with agency programs or operations is when a proposed 
use would conflict with other uses or administrative use by the Forest 
Service.
    Section 251.50(e)(2). This section of the rule provides for waiver 
of the special use authorization requirement for uses that are 
adequately regulated by a State agency or other Federal agency.
    Comment. Several respondents stated that the Forest Service should 
not waive the permit requirement for activities that are regulated by 
State or other Federal agencies.
    Response. The Department disagrees with this comment. In 1997 the 
Forest Service completed a reengineering study of its special uses 
program that recommended managing special uses in a more businesslike 
manner. The study found that authorizations are being issued for some 
special uses that are being regulated by other agencies in a manner 
that adequately protects National Forest System lands and resources and 
that avoids conflict with National Forest System programs or 
operations. The final rule will provide that if an authorized officer 
concludes that a use is being regulated by another Federal or State 
agency in a manner that adequately addresses National Forest System 
lands, resources, and management concerns, the authorized officer may 
waive the requirement for a special use authorization.
    Comment. One respondent suggested adding ``or other Forest Service 
authorization or use agreement'' to the items that do not require a 
permit. Another suggested exempting from the permit requirement 
operations like grooming of snowmobile trails that are covered by an 
agreement.
    Response. The Department believes that it would be unnecessary to 
add special uses that are already covered under a special use 
authorization to the provision in paragraph (e)(2) waiving the special 
use authorization requirement. Rather, the Department will emphasize to 
special use administrators that redundancy in permitting is not 
appropriate. It would not be appropriate to add ``use agreement'' to 
the waiver provision in paragraph (e)(2) because agreements, such as 
memoranda of understanding or memoranda of agreement, do not constitute 
special use authorizations. It also would not be appropriate to add 
grooming of snowmobile trails to the provision in paragraph (e)(2) 
because grooming of snowmobile trails is not always regulated by 
another

[[Page 41956]]

governmental entity and it is an activity that the Forest Service needs 
to regulate. This particular activity can be authorized in one of many 
ways. When the snowmobile trails to be groomed coincide with alignment 
of a National Forest System road, the activity could be authorized by a 
road use permit. More commonly, the activity is authorized by either a 
special use authorization issued specifically for the grooming 
activity, or by adding provisions to a special use authorization (or 
its operating plan) for another type of special use when, for example, 
the grooming activities are ancillary to the operation of a larger 
special use (such as a ski area or winter resort).
    Section 251.50(e)(3). This section of the rule provides for waiver 
of the special use authorization requirement for routine operation or 
maintenance activities within the scope of an R.S. 2477 or R.S. 2339 
right-of-way or within the express scope of a documented linear right-
of-way that is not located in a Congressionally designated wilderness 
area.
    Comment. Several respondents stated that claimed R.S. 2477 rights-
of-way have been proven not to exist and that the existence of such a 
right-of-way is something a field official may be unable to determine 
without legal research. These respondents believed that claimants may 
assert rights that cannot be verified and that there is no requirement 
in the proposed rule that the claimed right-of-way be proven to exist 
on the ground before bulldozing can occur. One respondent expressed 
support for paragraph (e)(3) in the proposed rule because it would 
streamline the means to maintain R.S. 2477 rights-of-way. Several 
respondents stated that the proposed rule failed to define ``within the 
scope'' of an R.S. 2477 right-of-way and that the proposed rule did not 
specify the standards to be used to determine what is within the scope 
of an R.S. 2477 right-of-way.
    Many respondents stated that it was not clear how the Forest 
Service would determine what constitutes a valid property right. They 
believed that the proposed rule fails to define the terms ``outstanding 
statutory right'' and ``outstanding property right,'' and that the 
latter term could refer to a property right that has not been finally 
adjudicated or decided. Several respondents indicated that it is not 
clear whether ``within the scope'' refers to a clearly articulated 
activity specified within a ``valid reserved, granted, or outstanding 
property right, such as a right-of-way, easement, or reservation,'' or 
whether the definition allows for a vague, general set of activities 
not directly specified in a property right.
    One respondent expressed concern with the maintenance and 
improvement of rights-of-way in Congressionally designated wilderness 
and inventoried roadless areas and on other important public lands, 
such as national wild and scenic river corridors.
    Another respondent stated that it is unclear how the Forest Service 
could be cognizant of a right-of-way holder's activities if the Forest 
Service concludes that an authorization is generally not required. 
Another stated that waiving the requirement for a special use 
authorization for certain operation or maintenance activities 
associated with property rights constitutes a give-away to industry. 
Several respondents believed that authorized officers should not be 
empowered to make a decision pertaining to what constitutes a routine 
operation or maintenance activity within the scope of a valid reserved 
or outstanding property right. Many respondents believed that the 
Forest Service should continue to require a special use permit for 
maintenance activities conducted within the scope of rights-of-way to 
protect land, streams, and wildlife habitat. These respondents believed 
that decisions to authorize operation or maintenance of R.S. 2477 
rights-of-way should be subjected to public notice and comment pursuant 
to NEPA and expressed opposition to the exemption from the permit 
requirement in paragraph (e)(3).
    Many respondents believed that the proposed rule fails to delineate 
or define what would constitute operation or maintenance, as opposed to 
construction, and stated that the proposed rule provides no guidance on 
or explanation of ``routine.'' One respondent stated that part 212 
defines maintenance, but that these rules generally apply only to 
Forest Service numbered routes that are considered part of the Forest 
Service's road system, and thus do not apply to R.S. 2477 rights-of-
way. Another respondent asked whether property right holders would be 
required to propose activities that are considered to be routine 
operation or maintenance within the scope of a right-of-way, or just 
those that are considered to be other than routine operation or 
maintenance or outside the scope of an existing right.
    Response. The Department wishes to clarify that the criteria for 
determining whether an R.S. 2477 right-of-way has been established are 
beyond the scope of this rulemaking. Rather, only R.S. 2477 rights-of 
way that have been adjudicated by a court or otherwise recognized by 
the Forest Service will be subject to the waiver provision in paragraph 
(e)(3).
    The Department agrees that clarification of paragraph (e)(3) is 
needed. The word ``right'' in the proposed rule has been replaced with 
``right-of-way'' in the final rule to describe more clearly the nature 
of R.S. 2477 and R.S. 2339 rights-of-way. Additionally, the final rule 
adds the phrase ``routine operation or maintenance within the express 
scope of a documented linear right-or-way'' and adds a definition for 
linear right-of-way to delineate more clearly those activities that may 
be exempt from the special use authorization requirement. The word 
``outstanding'' is superfluous and has been removed. Finally, the 
Department agrees that property interests located within 
Congressionally designated wilderness areas require closer scrutiny and 
that activities conducted in exercising those property interests should 
not be included in the exemption from the requirement for a special use 
authorization pursuant to paragraph (e)(3) of the final rule. 
Therefore, the phrase ``the proposed use is not situated in a 
Congressionally designated wilderness area'' has been added in the 
final rule to limit the waiver to those R.S. 2477 and R.S. 2339 rights-
of-way and documented linear rights-of-way that are not located in a 
Congressionally designated wilderness area.
    Consequently, in the final rule, Sec.  251.50(e)(3) reads as 
follows: ``The proposed use is not situated in a Congressionally 
designated wilderness area, and is a routine operation or maintenance 
activity within the scope of a statutory right-of-way for a highway 
pursuant to R.S. 2477 (43 U.S.C. 932, repealed Oct. 21, 1976) or for a 
ditch or canal pursuant to R.S. 2339 (43 U.S.C. 661, as amended), or 
the proposed use is a routine operation or maintenance activity within 
the express scope of a documented linear right-of-way.''
    The Department disagrees that a special use authorization should be 
required for routine operation or maintenance activities within the 
scope of these rights-of-way. Paragraph (e)(3) of the final rule 
identifies uses for which the special use authorization requirement may 
be waived. Under paragraph (e)(3) of the final rule, routine operation 
or maintenance activities that are not in a Congressionally designated 
wilderness area and that are within the scope of an R.S. 2477 or R.S. 
2339 right-of-way or within the express scope of a documented linear 
right-of-way will not be subject to the requirement for a special use 
authorization. The Department has determined that

[[Page 41957]]

waiving the authorization requirement in this context not only will 
improve management efficiency, but also will demonstrate recognition of 
those rights and privileges that have been granted by statute under 
R.S. 2477 or R.S. 2339 or that are exercised under easements, deeds, or 
reservations for linear rights-of-way.
    The Department does not believe that the activities covered by 
paragraph (e)(3) should be subject to public notice and comment in 
connection with NEPA compliance. These types of activities are 
typically categorically excluded from documentation in an environmental 
assessment or environmental impact statement under FSH 1909.15, chapter 
30.
    The Department agrees that under paragraph (e)(3) of the proposed 
rule there was some ambiguity as to whether right-of-way holders are 
required to propose for the authorized officer's review activities that 
are considered to be routine operation or maintenance within the scope 
of a right-of-way, or just those that are considered to be other than 
routine operation or maintenance or outside the scope of a right-of-
way. Both sets of activities must be proposed for the authorized 
officer's review. The Forest Service, not the right-of-way holder or 
applicant, has the authority to determine whether a special use 
authorization is required. To underscore this point, the Department is 
adding ``based upon a review of a proposal'' to the introductory text 
of Sec.  251.50(e), so that it reads as follows: ``For proposed uses 
other than a noncommercial group use, a special use authorization is 
not required if, based upon a review of a proposal, the authorized 
officer determines that the proposed use has one or more of the 
following characteristics'' (the subsequent paragraphs (e)(1) through 
(e)(3) set out the characteristics). This revision makes it explicit 
that authority to determine whether a special use authorization is 
necessary continues to rest with the Forest Service. In addition, the 
revision ensures that the authorized officer is provided sufficient 
information about the proposed activity to determine whether a special 
use authorization is required.
    The Department agrees that clarification of ``routine operation or 
maintenance'' is needed, but disagrees that this clarification needs to 
be in the final rule. Therefore, the agency is adding to FSM 2719, 
paragraph 10, examples of what constitutes routine operation or 
maintenance within the scope of an R.S. 2477 or R.S. 2339 right-of-way 
or within the express scope of a documented linear right-of-way. 
Paragraph 10 of FSM 2719 has been renumbered to fit the sequence of 
previously referenced revisions to this section of the FSM made 
necessary by this rulemaking and has been revised to read as follows:
    ``10. Routine Operation and Maintenance Activities Within the Scope 
of a Statutory Right-of-Way or Documented Linear Right-of-Way. Routine 
operation and maintenance activities within the scope of a statutory 
right-of-way for a highway pursuant to R.S. 2477 (43 U.S.C. 932, 
repealed Oct. 21, 1976) or for a ditch or canal pursuant to R.S. 2339 
(43 U.S.C. 661, as amended), or routine operation or maintenance 
activities within the express scope of a documented linear right-of-
way, when these uses do not occur within a Congressionally designated 
wilderness area. A formal grant or document is not required under these 
authorities. Observe the boundaries that existed at the time the grant 
was accepted, unless State law existing at the time of acceptance 
provides for a different width.
    ``a. Routine Operation or Maintenance Activities Within the Scope 
of R.S. 2477 Right-of-Way. Routine operation or maintenance activities 
within the scope of a statutory right-of-way for a highway pursuant to 
R.S. 2477 include a variety of activities to preserve the integrity and 
safe use of the road, such as surface rock replacement; grading; snow 
removal; seal coats and asphalt overlays; culvert and bridge 
replacements; removal of rock and landslides from the road prism; 
repair of washouts and other damage from erosion; and the installation 
and maintenance of signs and other devices for traffic control, 
information, and safety.
    ``b. Routine Operation or Maintenance Activities Within the Scope 
of R.S. 2339 Right-of-Way. Routine operation or maintenance activities 
within the scope of a statutory right for a ditch or canal pursuant to 
R.S. 2339 include such activities as recurrent removal and deposition 
of silt and sediment from fish screens, diversion structures, canals, 
weirs, and ditches; armoring of dams, ditches, or canals with rocks or 
other protective materials to prevent or remedy damage from erosion, 
avalanches, or landslides; lining of ditches to prevent or repair leaks 
and seepage; minor cutting or pruning of vegetation within or 
immediately adjacent to a water development facility that might be 
impeding or precluding the storage, diversion, or free-flowing 
transmission of water; and recurrent adjustment, opening, and closing 
of diversions, headgates, valves, and other devices necessary to 
control the timing and volume of water flows consistent with the use of 
the water being stored, diverted, and transmitted within the right-of-
way.
    ``c. Activities That Require a Special Use Authorization. A special 
use authorization is required for any activities other than routine 
operation or maintenance, such as construction or reconstruction, that 
are within the scope of an R.S. 2477 or R.S. 2339 right-of-way or 
within the express scope of a documented linear right-of-way. A special 
use authorization is also required for any activities (including 
operation, maintenance, construction, or reconstruction) that are 
outside the scope of an R.S. 2477 or R.S. 2339 right-of-way or outside 
the express scope of a documented linear right-of-way.''
    Section 251.51 Definitions. This section of the rule defines 
technical terms contained in the rule.
    Commercial filming. No comments were received on the definition of 
commercial filming.
    Forest road or trail. No comments were received on this definition 
in part 251. However, extensive comments were received on this 
definition in part 261. The response to these comments appears in the 
following discussion of comments under part 261--Prohibitions at Sec.  
261.2. This definition has not been changed in the final rule.
    Guiding. Comment. One respondent stated that the definition of 
guiding is too broad. Another stated that an exemption should be made 
for guiding by noncommercial, nonprofit organizations. Another 
commented that guiding should not include direction, instruction, or 
interpretation by nonprofit organizations in exchange for a donation to 
that organization.
    Response. The Department disagrees that the definition of guiding 
in this rule is too broad. The definition of guiding in this rule is 
the same as the definition of guiding in FSH 2709.11, section 43.53c, 
which was published in the Federal Register for public notice and 
comment (55 FR 14445, April 18, 1990; 60 FR 30830, June 12, 1995).
    The Department also disagrees that an exemption to the definition 
for guiding should be made for nonprofit entities. Nonprofit entities 
engaging in outfitting and guiding activities as defined by the final 
rule and agency policy are considered to be outfitters and guides. The 
policy governing administration of outfitting and guiding permits 
specifically refers to institutional and semi-public outfitting and 
guiding (FSH 2709.11, sec. 41.53l). The land use fee policy for 
outfitters and guides specifically refers to fees for nonprofit 
organizations and educational

[[Page 41958]]

institutions (FSH 2709.11, sec. 37.21j and 37.21k). Both of these 
policies were published in the Federal Register for public notice and 
comment (55 FR 14445, April 18, 1990; 60 FR 30830, June 12, 1995).
    The Department also disagrees that an exemption to the definition 
for guiding should be made for noncommercial group activities. 
Noncommercial group activities with fewer than 75 people do not require 
a special use authorization. Noncommercial group activities involving 
75 or more people require a noncommercial group use permit.
    National Forest System road. Comment. One respondent stated that 
the terms ``National Forest System road'' and ``National Forest System 
trail'' are not defined in 36 CFR part 212. Another stated that 
definitions for these terms must be deduced from Sec.  212.20.
    Response. The Department concurs that ``National Forest System 
road'' and ``National Forest System trail'' are not defined in 36 CFR 
part 212. They are currently defined in Sec.  261.2. The final rule 
modifies the definitions for National Forest System road and National 
Forest System trail in Sec.  261.2 to make them consistent with 23 
U.S.C. 101. National Forest System road is also defined in FSM 7705.
    Noncommercial Use or Activity and Group Use. Comment. Several 
respondents stated that the Forest Service should clearly define 
noncommercial group use. Another stated that the two separate 
definitions for noncommercial use or activity and group use should be 
combined. One respondent commented that 50 to 100 riders should not 
trigger the permit requirement. Another stated that noncommercial group 
use should be defined as ``an organized and publicized activity 
expected to attract 100 or more persons and the use of National Forest 
System lands, resources, or facilities, except where only National 
Forest System roads and/or trails will be used, with no minor and 
incidental use of National Forest System lands, resources, and/or 
facilities.'' One respondent stated that the definition for group use 
should be removed from the current regulation, and that group use 
should be revised to clarify that it means 75 or more people at one 
time. Another stated that noncommercial group use is targeted. One 
respondent recommended changing the definition for commercial use or 
activity to ``any use or activity on National Forest System lands (a) 
where an entry or participation fee is charged, except where such entry 
or participation fee is less than $5.00 per user, or (b) where the 
primary purpose is the sale of a good or service, and in either case, 
regardless of whether the use or activity is intended to produce a 
profit.''
    Response. The definitions for commercial use or activity, group 
use, and noncommercial use or activity were not proposed for change in 
this rulemaking and are therefore beyond its scope. The definition for 
group use has been included in the regulation at Sec.  251.51 since 
1995 and has been very successfully applied in the context of the 
special uses program. This definition is a key component of the special 
use authorization requirement for noncommercial group uses. The 
Department disagrees that noncommercial group use should be defined in 
such a way as to exclude activities that occur on National Forest 
System roads or trails. For the reasons previously identified for 
revising Sec.  251.50(d), the Department believes that regulating 
special uses occurring on National Forest System roads and trails, 
including noncommercial group uses, is appropriate. Noncommercial group 
use is not targeted in any way in the final rule. To the contrary, for 
purposes of the special use authorization requirement in the final 
rule, noncommercial group use is treated equally with outfitting and 
guiding, commercial filming, still photography, and recreation event 
special uses that are conducted on National Forest System roads or 
trails. The definition for commercial use or activity is beyond the 
scope of this rulemaking and does not warrant any revision.
    Outfitting. No comments were received on the definition of 
outfitting.
    Recreation event. Comment. One respondent stated that the 
definition for recreation event should be revised to exclude events 
when entry fees only recover costs. One respondent stated that 
donations should not be considered an entry fee. Another stated that 
recreation events should not require a permit. Another commented that a 
permit should not be required for non-speed competitive events, but 
that a permit should be required for speed competitive events, unless 
only one person is participating. This respondent also stated that 
marking a course should require a permit.
    Response. The Department disagrees that the definition for 
recreation event should exempt events that limit entry fees to amounts 
that only recover event costs. The Department also disagrees that 
donations should not be considered an entry fee. The definition for 
recreation event tracks the definition for commercial use or activity 
in the current regulations and is based on current agency policy and 
practice. The definition in the current regulations does not exempt 
certain types of events or provide that donations should not be 
considered entry fees. In addition, exempting events when entry fees 
only recover event costs or when a donation, rather than an entry fee, 
is collected would require the Forest Service to engage in an 
intensive, fact-specific inquiry to determine whether a recreation 
event requires a special use authorization.
    Comment. One respondent believed that under the proposed rule, any 
recreational activity for which an entry or participation fee is 
charged would be treated as commercial and would require a permit. 
Another stated that unorganized groups are not commercial and should 
not be treated as commercial. Another stated that the definition for 
commercial use should be revised to exclude events conducted by 
nonprofits. Several respondents stated that permits and fees should not 
apply to certain nonprofit and noncommercial organizations. A 
respondent commented that volunteer work should be excluded from a 
permit requirement. Another stated that event preparation often 
provides the Forest Service with valuable volunteer work such as trail 
maintenance. Another noted that organized clubs pick up trash, clear 
trails, and exhibit care for the land and resources because they are 
gratified to have the opportunity to use National Forest System lands. 
One respondent stated that a fee should not be charged for an 
organizational ride. Another respondent asserted that special use 
permits and fees should not be required for recreation events when 
there is no fee-based requirement for attendance. One respondent 
commented that if a group with 75 or more bikes wants to ride when no 
fee is to be charged and no money is to be raised, then no permit 
should be required. One respondent stated that permits and permit fees 
will create a hardship for nonprofit recreation groups. Another 
respondent commented that there should be an exemption for minimal-
impact users such as recreational outfitters, clubs, and groups like 
the girl scouts, the YWCA, and seniors.
    Response. A recreation event requires a special use authorization. 
In the final rule, a recreation event is any recreation 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. Under 
this definition, the fee is being charged by a person or entity other 
than the Forest Service for participation in an organized event. An 
entry or participation fee for an

[[Page 41959]]

organized event should be distinguished from a fee charged to the 
public by the Forest Service for admission to or use of National Forest 
System lands for recreational purposes.
    The Department disagrees that activities conducted by unorganized 
or nonprofit groups can never be commercial. Under the current 
regulations at Sec.  251.51, commercial use or activity is defined as 
``any use or activity on National Forest System lands (a) where an 
entry or participation fee is charged, or (b) where the primary purpose 
is the sale of a good or service, and in either case, regardless of 
whether the use or activity is intended to produce a profit.'' Thus, 
under the final rule, any recreation activity conducted on National 
Forest System lands for which an entry or participation fee is charged 
is commercial and requires a special use authorization, regardless of 
whether the activity is conducted by an organized or unorganized group 
or by a for-profit or nonprofit entity.
    Whether land use fees should be charged for particular special use 
authorizations is beyond the scope of this rulemaking and is already 
addressed in Sec.  251.57 and agency policy. Section 251.57(b)(2) 
authorizes waiver, subject to certain conditions, of all or part of the 
land use fee for a special use authorization for nonprofit entities 
engaged in a public or semi-public activity to further public health, 
safety, or welfare. This provision recognizes and encourages the 
contributions these entities make to National Forest management.
    Volunteers working under the supervision of the Forest Service do 
not require a special use authorization. Groups of fewer than 75 
volunteers organized by an individual or entity other than the Forest 
Service to perform environmental stewardship on National Forest System 
lands do not require a special use authorization. If such a group has 
75 or more volunteers, it would require a noncommercial group use 
permit. However, fees are not charged for noncommercial group use 
permits. If an event is organized involving 75 or more people and there 
is no entry or participation fee and the primary purpose is not the 
sale of a good or service, the event would be noncommercial, but would 
still require a permit as a noncommercial group use.
    The Department disagrees that special use authorizations and 
special use authorization fees will create a hardship for nonprofit 
recreation groups, many of whom already hold a special use 
authorization. The Department does not want to create an exemption from 
the special use authorization requirement for minimal-impact users. 
Applying such an exemption would require the Forest Service to engage 
in a subjective, fact-intensive inquiry as to what constitutes minimal 
impact. In addition, the special use authorization requirement serves 
other purposes besides addressing resource impacts.
    Comment. One respondent stated that there should be two categories 
of permits: a one-time event permit and a yearly tour operator permit.
    Response. The definitions in the final rule and current agency 
policy distinguish between one-time, short-term recreation events and 
noncommercial group uses versus ongoing, long-term outfitting and 
guiding activities. The Forest Service has the authority to issue 
special use authorizations for either a one-time event or for yearlong 
or ongoing uses and occupancies. That authority is outside the scope of 
this rulemaking and is not affected by this final rule.
    Still photography. Comment. Respondents observed that still 
photography should not require a permit, that the proposed rule appears 
to extend the permit requirement to noncommercial photography, and that 
the rule does not differentiate ``models or props'' from picnic tables, 
volleyball nets, teepees, and campsite decorations that might show up 
in a photograph. They suggested that there is no apparent Governmental 
interest in regulating commercial filming and still photography other 
than for large-scale commercial filming and still photography 
productions.
    Response. The Department disagrees that the definition for still 
photography should be modified. The Act of May 26, 2000 (16 U.S.C. 
460l-6d) specifies the types of still photography that require a 
special use authorization on National Forest System lands. The agency's 
definition of still photography in the final rule is consistent with 
the provisions of the act and agency policy. Pursuant to 16 U.S.C. 
460l-6d and FSM Interim Directive 2720-2003-1, National Forest visitors 
and recreational, professional, and amateur photographers do not need a 
special use authorization for still photography unless the activity (1) 
uses models, sets, or props that are not part of the site's natural or 
cultural resources or administrative facilities; (2) takes place where 
members of the public generally are not allowed; or (3) takes place at 
a location where additional administrative costs are likely. 
Definitions of models and props also are included in FSM Interim 
Directive 2720-2003-1.
    The determination of when a special use authorization is required 
under 16 U.S.C. 460l-6d and the definition for still photography in the 
final rule do not depend on whether still photography is commercial or 
noncommercial. Thus, a noncommercial activity that meets the criteria 
for still photography in 16 U.S.C. 460l-6d and Sec.  251.51 requires a 
special use authorization. This requirement, however, conflicts with 
the exemption from the special use authorization requirement for 
noncommercial recreation activities in Sec.  251.50(c). To make Sec.  
251.50(c) consistent with 16 U.S.C. 460l-6d and the definition for 
still photography in Sec.  251.51, the Department is adding a new 
paragraph (2) to Sec.  251.50(c) to read as follows: ``(2) The proposed 
use is still photography as defined in Sec.  251.51 of this subpart.''
Part 261--Prohibitions
    Section 261.2. This section of the rule defines technical terms 
contained in the rule.
    Forest road or trail. Comment. One respondent stated that the 
definition of ``forest road or trail'' should be revised to read, ``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, except those roads or trails in 
which another entity holds a superior right-of-way, to which roads or 
trails the Forest Service makes no claim of title or jurisdiction.''
    Response. The Department disagrees with changing the definition for 
forest road or trail in the final rule because that definition is taken 
verbatim from 23 U.S.C. 101.
    National Forest System road. Comment. One respondent suggested that 
the definition of National Forest System road should be revised to 
read, ``a road under the jurisdiction of the Forest Service that is 
listed in the appropriate forest transportation atlas.''
    Response. The Department disagrees that this change should be made. 
The Department has modified the definition for National Forest System 
road in Sec.  261.2 to make it consistent with the definition for 
forest development road in 23 U.S.C. 101. The final rule does not 
remove the requirement that a National Forest System road or trail be 
listed in the appropriate forest transportation atlas. This requirement 
is set out in Sec.  212.2.
    Comment. One respondent stated that the new definitions for 
National Forest System road and National Forest System trail blur the 
distinction among an area,

[[Page 41960]]

a National Forest System road, and a National Forest System trail that 
is critical for law enforcement purposes. Another respondent stated 
that it is not clear how a road will be deemed ``necessary.''
    Response. The Department disagrees that the definitions for 
National Forest System road and National Forest System trail blur the 
distinction among an area, a National Forest System road, and a 
National Forest System trail. The definitions of a National Forest 
System road and a National Forest System trail in the final rule will 
simplify the determination of what constitutes a National Forest System 
road or trail. To qualify as a National Forest System road or trail, a 
forest road or trail only needs to fall under the jurisdiction of the 
Forest Service. No determination of the necessity of the road or trail 
or its inclusion in a forest transportation atlas is required.
    National Forest System trail. Comment. One respondent objected to 
replacing ``forest development trail'' in Sec.  261.55 with ``National 
Forest System trail.'' This respondent stated that the term ``National 
Forest System trail'' is neither used nor defined in 23 U.S.C. 101 and, 
therefore, replacing ``forest development trail'' with ``National 
Forest System trail'' does not bring about conformance with 23 U.S.C. 
101.
    Response. ``National Forest System trail'' is currently defined in 
Sec.  261.2. The term ``National Forest System trail'' in the final 
rule is intended to be synonymous with the term ``forest development 
trail'' in 23 U.S.C. 101. Therefore, the Department has modified the 
definition for National Forest System trail in the final rule to make 
it consistent with the definition for forest development trail in 23 
U.S.C. 101. The Department concurs that this change in terminology is 
not reflected in Forest Service policy. FSM 2350 is currently being 
revised, and during the course of those revisions, ``forest development 
trail'' will be changed to ``National Forest System trail.''
    Comment. One respondent stated that the definition of National 
Forest System trail should be revised to read, ``a trail under the 
jurisdiction of the Forest Service that is listed in the appropriate 
forest transportation atlas,'' and observed that the revised definition 
removes the requirement that a National Forest System trail be listed 
in the appropriate forest transportation atlas.
    Response. The Department disagrees that this change should be made. 
The Department has modified the definition for National Forest System 
trail in Sec.  261.2 to make it consistent with the definition for 
forest development trail in 23 U.S.C. 101. The final rule does not 
remove the requirement that a National Forest System trail be listed in 
the appropriate forest transportation atlas. This requirement is set 
out in Sec.  212.2.
    Comment. One respondent observed that when read in conjunction with 
the definition of forest road or trail, the proposed definition of 
National Forest System trail would define a National Forest System 
trail as a trail under the jurisdiction of the Forest Service 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. This respondent objected to the proposed definition 
of National Forest System trail because this respondent believed that 
it could significantly reduce the number of forest trails that would be 
subject to special use regulation. This respondent noted that pioneered 
trails and other trails not considered ``necessary for the protection, 
administration, and utilization of the National Forest System and the 
use and development of its resources'' would not be included in the new 
definition and that therefore special uses on pioneered trails would 
not be subject to the special use authorization requirement under the 
proposed regulation.
    Response. The terms ``forest development trail'' and ``National 
Forest System trail'' are synonymous. The final rule defines ``National 
Forest System trail'' as a forest trail under the jurisdiction of the 
Forest Service.
    The Department disagrees that the definition for National Forest 
System trail in the final rule creates an exemption from the permit 
requirement for special uses on pioneered and other trails that are not 
National Forest System trails. The final rule will remove National 
Forest System trails from the exemption from the special use 
authorization requirement in Sec.  251.50(d). Special uses on National 
Forest System lands, including special uses conducted on National 
Forest System and non-National Forest System trails, will require a 
special use authorization under the final rule. Therefore, it is 
immaterial whether pioneered trails are National Forest System trails 
for purposes of applicability of the permit requirement in the final 
rule. A special use occurring on a pioneered trail will require a 
special use permit.
    Section 261.55. This section of the rule changes ``forest 
development trail'' to ``National Forest System trail'' in the heading 
and introductory text.
    No comments were received on this section.
Part 295--Use of Motor Vehicles Off National Forest System Roads
    No comments were received on this part.

Regulatory Certifications in the Proposed Rule

Environmental Impact
    Comment. Two respondents asserted that the agency did not follow 
applicable environmental policy and procedures for this rulemaking and 
that scoping for this rulemaking was inadequate. One respondent stated 
that there is no categorical exclusion that applies to this rulemaking 
and that extraordinary circumstances are implicated by this rulemaking.
    Response. The Department has determined that this final rule falls 
within the category of actions excluded from documentation in an 
environmental assessment or environmental impact statement (FSH 
1909.15, section 31.1b). This provision 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. No extraordinary 
circumstances enumerated in the Forest Service NEPA procedures exist in 
conjunction with this rulemaking that would preclude reliance on this 
categorical exclusion. Issuance of a special use authorization for a 
specific use as provided in this rule, however, may trigger the need 
for documentation of environmental analysis on a case-by-case basis 
under NEPA.
Regulatory Impact
    Comment. Several respondents asserted that the proposed rule would 
have significant economic impacts on a substantial number of small 
businesses and that its economic effects would exceed the $100 million 
threshold for determining that effects are insignificant under the 
Regulatory Flexibility Act.
    Response. Section 251.50(d) of the final rule requires a special 
use authorization and land use fee for special uses conducted on 
National Forest System roads and trails. The net regulatory effect of 
this section of the final rule is the difference between the current 
special uses program and the special uses program under the final rule. 
The following is a breakdown of the revenue generated nationally by the 
special uses affected by Sec.  251.50(d) of the final rule:


[[Page 41961]]


Commercial Filming and Still Photography--$ .2 million
Noncommercial Group Use--No fee
Outfitting and Guiding--$4.5 million
Recreation Events--$ .4 million

    The Forest Service estimates that there will be a 2 percent 
increase in the number of special use authorizations for outfitting and 
guiding and a 4 percent increase in the number of authorizations for 
recreation events issued as a result of the final rule. It is not 
likely that there will be much of an increase in the number of 
commercial filming, still photography, or noncommercial group use 
special use authorizations. There may be an increase in special use 
authorizations for noncommercial group use if organizers of recreation 
events, to avoid having to pay a land use fee and the cost of 
insurance, redesign their activities so that they are not charging 
entry or participation fees, thus making their activities qualify as 
noncommercial group uses. No land use fee is charged for noncommercial 
group use. The estimated increase in the number of authorizations and 
their associated land use fees (which includes authorizations issued to 
and fees paid by all individuals and entities, not just small 
businesses) would not have significant economic impacts on a 
substantial number of small businesses, nor does the increase in 
authorizations and fees rise to the $100 million threshold for 
determining whether a regulation is significant.
    Moreover, the comment fails to address benefits associated with 
this rulemaking. The final rule levels the playing field for special 
uses by closing the regulatory gap for uses conducted entirely on 
National Forest System roads and trails. In addition, there will be a 
decrease in impacts on small businesses under the final rule. Section 
251.50(e) of the final rule provides the authorized officer with the 
discretion, under specific circumstances, to waive the requirement for 
a special use authorization, thereby decreasing the economic impact on 
small businesses to the extent that they otherwise would have had to 
obtain an authorization and pay a land use fee for certain types of 
special uses.
    The Department has prepared an analysis of the economic effects of 
this rulemaking, which is included in the rulemaking record.
No Takings Implications
    Comment. One respondent stated that the proposed rule effects a 
taking of small business.
    Response. There is no taking, either express or implied, of any 
property rights or any other constitutional violation from 
implementation of this rule. The final rule merely requires a special 
use authorization for special uses wherever they occur on National 
Forest System lands, including on National Forest System roads and 
trails (but not on roads under the jurisdiction of a State, County, or 
local public road authority).
Civil Justice Reform
    Comment. One respondent stated that it is not clear what is meant 
by the determination that this rule will not have any retroactive 
effect for purposes of Executive Order 12988 on civil justice reform.
    Response. The determination that the final rule will not have any 
retroactive effect for purposes of Executive Order 12988 means that the 
final rule will not be applied retroactively, that is, it will not be 
applied before its effective date.
Federalism and Consultation and Coordination With Indian Tribal 
Governments
    Comment. One respondent asserted that the proposed rule has tribal 
implications and may pose a taking of Indian Tribal rights with respect 
to economic development.
    Response. The proposed rule does not have Tribal implications 
pursuant to Executive Order 13175.
Energy Effects
    No comments were received on this section.
Unfunded Mandates
    No comments were received on this section.
Controlling Paperwork Burdens on the Public
    Comment. One respondent observed that there is no paperwork 
reduction associated with the proposed rule.
    Response. This rulemaking fully complies with the Paperwork 
Reduction Act and its implementing regulations. 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 final 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.

Comments Beyond the Scope of This Rulemaking

    Comment. Some respondents stated that roads and trails on National 
Forest System lands should be kept open for motorized recreationists.
    Response. The final rule merely requires a special use 
authorization for special uses occurring on National Forest System 
roads and trails. The final rule does not effectuate decisions as to 
which roads or trails should be kept open for motor vehicle use. Such 
decisions are made through the forest planning process and through 
project-specific environmental analysis, typically by Forest 
Supervisors at the National Forest level. Decisions involving 
management, operation, and maintenance of National Forest System roads 
are made pursuant to a roads analysis conducted in accordance with FSM 
7712.1.
    Comment. One respondent observed that general public use, not 
commercial use, should be regulated.
    Response. The rule at 36 CFR part 251, subpart B, regulates special 
uses, not general public use. With limited exceptions, the rule exempts 
general public use from the special use authorization requirement 
(Sec.  251.50(c)). The final rule clarifies which activities require a 
special use authorization. In situations where resource management 
concerns arise as a result of heavy public use, management alternatives 
would be evaluated at the local level in accordance with procedures in 
FSH 1909.15.
    Comment. Several respondents requested designation of land for off-
highway vehicle use. They noted that wilderness for them is a drive-
through experience. They are concerned that available land for off-
highway vehicle use is diminishing and that the proposed rule would 
take away land for off-highway vehicle use.
    Response. The final rule does not address allocation of National 
Forest System lands for off-highway vehicle use. The final rule does 
not impose any additional restrictions on off-highway vehicle use or 
any other use of a road or trail, unless it constitutes one of the six 
special uses identified in the final rule, that is, noncommercial group 
use (which involves 75 or more people), outfitting and guiding, a 
recreation event, commercial filming, still photography, or a 
landowner's ingress or egress across National Forest System lands that 
requires travel on a National Forest System road that is not authorized 
for general public use. Designation of lands for off-highway vehicle 
use is conducted at the local level, through each Forest's land 
management planning process and environmental analysis.
    Comment. Several respondents observed that use restrictions may be

[[Page 41962]]

necessary, and that it is not clear how the agency will allocate use. 
Other respondents observed that it is not in the interest of the public 
to grant all permits to one company. These respondents were concerned 
that some companies do not utilize all of their allocation, that some 
companies have too much use, and that there needs to be a 
redistribution of existing use. Some respondents observed that there is 
a need to strike a fair balance between commercial and noncommercial 
programs in the allocation of use and that only commercial providers 
receive permits. Others observed that there is too much bias against 
commercial operations.
    Response. This final rule does not affect allocation of use on 
National Forest System lands. Allocation of use is established through 
forest planning and site-specific environmental analysis. For 
outfitting and guiding, allocation is addressed in FSH 2709.11, 
sections 41.53(f) (Applications and Issuance of Permits), 41.53(g) 
(Assignment and Management of Temporary Use), 41.53(h) (Assignment and 
Management of Priority Use), and 41.53(i) (Reduction of Use in Service 
Days). These procedures for outfitting and guiding were implemented 
after publication for public notice and comment (55 FR 14445, April 18, 
1990; 60 FR 30830, June 12, 1995).
    Comment. One respondent stated that nonprofit institutional groups 
should be able to provide visitor services and that the Forest Service 
should not award all use to commercial outfitters.
    Response. The final rule specifies which uses require special use 
authorizations; it does not affect allocation of use at the local 
level. Nonprofit groups, as well as for-profit entities, are valued 
providers of recreation experiences to the public on the National 
Forests. Nonprofit entities are not precluded from obtaining a special 
use authorization. To the contrary, Forest Service outfitting and 
guiding policy specifically refers to institutional and semi-public 
outfitting and guiding and land use fees for nonprofit organizations 
and educational institutions (FSH 2709.11, sec. 37.21j, 37.21k, and 
41.53l).
    Comment. Several respondents stated that permit fees for recreation 
events should not be based on costs incurred in organizing an event.
    Response. The regulations governing land use fees are found at 
Sec.  251.57 and are beyond the scope of this rulemaking. Revenue 
exclusions for recreation events are addressed in FSM 2721.49 and 
include the cost of prizes awarded.
    Comment. Several respondents observed that because there are so 
many fees, it seems that one pays twice for the same thing. Another 
respondent stated that charging a fee for a special use authorization 
is unfair when the public is already paying taxes and, in some cases, 
other use fees, or when a member of the public has limited income. 
Respondents objected to the proposed rule on the grounds that they 
already pay an annual all-terrain vehicle fee or that parks have 
already been paid for by tax dollars. One respondent opposed any 
regulation that would result in fees of any kind. One respondent 
suggested that only organized events should pay fees. Another 
respondent stated that individual participants should be required to 
have Adventure Passes. Another commented that it is not clear how 
special use fees relate to individual use fees.
    Response. Fees charged by the Forest Service are beyond the scope 
of this rulemaking.
    The Department disagrees that charging a public admission or use 
fee and charging a land use fee for a special use authorization are 
equivalent or duplicative. The Forest Service has the authority under 
the Land and Water Conservation Fund Act and the Recreational Fee 
Demonstration Program to charge fees to the public for admission to or 
use of recreation sites, facilities, and services. The authority to 
charge public admission and use fees is set out in 16 U.S.C. 460l-6a 
and section 315 of Public Law 104-134. (The Adventure Pass is required 
under the Recreational Fee Demonstration Program for recreational use 
and is assessed for vehicular access on the four Southern California 
National Forests.) These public admission and use fees are different 
from land use fees charged for commercial special use authorizations 
under 36 CFR 251.57. The regulations at Sec.  251.57(b) and Forest 
Service policy in Forest Service Handbook (FSH) 2709.11, chapter 30, 
provide that land use fees for special use authorizations may be waived 
in a number of circumstances when equitable and in the public interest.
    Comment. One respondent suggested that the agency should charge a 
fee for an annual license for travel on forest trails, rather than 
requiring a special use permit.
    Response. For the reasons identified above, the Forest Service is 
regulating special uses that are conducted on National Forest System 
trails, not travel on National Forest System trails. Charging a fee for 
an annual license for travel on National Forest System trails is 
therefore beyond the scope of this rulemaking.
    Comment. One respondent asserted that club dues and other 
membership charges should not be subject to a permit fee and that there 
should not be invasive inquiries for membership names, telephone 
numbers, income, and dues.
    Response. Land use fees charged for special use authorizations 
issued to clubs, and the administration of such authorizations, are 
addressed in existing regulations at Sec.  251.57 and agency policy in 
Forest Service Manual (FSM) 2340 and Forest Service Handbook (FSH) 
2709.11, and are beyond the scope of this rulemaking.
    Comment. The Forest Service does not have authority to charge fees 
for use of R.S. 2477 rights-of-way.
    Response. This final rule does not establish a requirement to 
assess land use fees or in any way address fees for use of R.S. 2477 
rights-of-way. Rather, this rule exempts certain activities that are 
conducted within the scope of R.S. 2477 rights-of-way from the 
requirement to obtain a special use authorization. Therefore, the 
concern expressed in this comment is beyond the scope of this 
rulemaking.
    Comment. One respondent stated that the criteria for issuing 
permits and the number of permits to be issued should be disclosed.
    Response. This comment is beyond the scope of this rulemaking. 
Procedures for issuing new special use authorizations are found at 
Sec.  251.54. Procedures for issuing new outfitting and guiding permits 
are set out in FSH 2709.11, section 41.53f, paragraph 2. The Forest 
Service prospectus process, which is used when competitive interest 
exists, is set out at FSM 2712.1. The competitive selection process 
requires that the prospectus specify the criteria to be used for 
issuing special use authorizations. Further direction on allocation of 
authorized outfitting and guiding use is found at FSH 2709.11, sections 
41.53(f) through 41.53(i). The number of special use authorizations to 
be issued is a local decision subject to the forest planning process 
and environmental analysis as provided in FSH 1909.15.
    Comment. Several respondents are concerned that the regulations do 
not provide enough detail on requiring that applicants for special use 
permits obtain consistent treatment from different Forests in the 
application process.
    Response. The existing regulation at Sec.  251.54 provides guidance 
for screening proposals and evaluating applications. This portion of 
the

[[Page 41963]]

existing regulation is beyond the scope of this rulemaking.
    Comment. Several respondents stated that District Rangers have too 
much power to regulate outfitting and guiding.
    Response. District Rangers have delegated authority to issue and 
administer special use authorizations as set out in FSM 2703.34. 
Delegations of authority are not the subject of this rulemaking.
    Comment. One respondent commented that it was burdensome to have to 
get permits from three different agencies.
    Response. The Federal land management agencies operate under 
different laws, regulations, and policies, which often dictate the need 
for each agency to issue an authorization for activities that are 
limited to the Federal lands and resources administered by that agency. 
The necessity for separate Federal permitting procedures is beyond the 
scope of this rulemaking.
    Comment. The public needs freedom to change activities without 
government oversight.
    Response. The final rule does not affect the public's ability to 
change activities without government oversight. Rather, the final rule 
merely specifies the activities for which special use authorizations 
are required.
    Comment. One respondent asked numerous specific questions that do 
not relate directly to this rulemaking and that involve issues that are 
the subject of pending litigation.
    Response. The Department believes that it is inappropriate to 
respond to these questions because they are beyond the scope of this 
rulemaking and because they involve issues that are the subject of 
pending litigation.
    Comment. One respondent observed that there should be more 
outfitter and guide involvement in visitor education and management.
    Response. The final rule does not address outfitter and guide 
involvement in visitor education and management. Outfitters and guides 
are encouraged to work with their local District Ranger to identify 
such opportunities.
    Comment. One respondent suggested that trails should have a 
separate set of guidelines or regulations.
    Response. Policy pertaining to trail management can be found in FSM 
2353 and FSH 2309.18 (Trails Management Handbook). Regulations relating 
to trail management can be found at 36 CFR parts 212, 261, and 295. The 
only aspect of trail management related to this rulemaking is the 
requirement for a special use authorization for special uses conducted 
on National Forest System trails.
    Comment. One respondent stated that the rule would reverse the 
burden of proof in the exercise of regulatory power.
    Response. The concept of burden of proof does not apply in this 
context. The final rule identifies the Forest Service's authorities for 
requiring a special use authorization for special uses occurring on 
National Forest System roads and trails. All of these special uses are 
already regulated elsewhere in the National Forest System.
    Comment. One respondent objected to any special use authorization 
that would include a fee for noncommercial group use, outfitting and 
guiding, and recreation events.
    Response. The regulations that address land use fees are found at 
Sec.  251.57 and are beyond the scope of this rulemaking.
    Comment. One respondent suggested that by foreclosing any permit 
exemption for noncommercial group uses, the proposed rule would subject 
them to the National Environmental Policy Act (NEPA), which would 
render the proposed rule constitutionally invalid.
    Response. The Department disagrees with this assertion. Compliance 
with both NEPA and constitutional requirements was fully addressed in 
promulgating the final noncommercial group use rule (60 FR 45258) and 
is embodied at Sec.  251.54(g)(3)(ii)(C). Numerous Federal district 
courts and courts of appeals have upheld the constitutionality of the 
noncommercial group use regulation.
    Comment. Two respondents were concerned that costs for 
environmental assessments are high. One respondent believed that these 
costs should be borne by permit applicants.
    Response. The Department recognizes that conducting environmental 
assessments is costly. Recovery of these costs is the subject of a 
separate rulemaking, which was published for public notice and comment 
November 24, 1999 (64 FR 66343).
    Comment. Several respondents stated that permit fees should be 
spent on upkeep of trails and alleviating environmental impacts, but 
that permit fees instead have been spent on forest fires.
    Response. The Forest Service's authority to retain and spend land 
use fees collected for special use authorizations is beyond the scope 
of this rulemaking.
    Comment. One respondent suggested that the Forest Service include 
language in the FSM requiring that roads and trails be listed in the 
appropriate forest transportation atlas and require each National 
Forest to maintain a list of National Forest System roads and trails.
    Response. The requirement for inclusion of forest roads and trails 
in a forest transportation atlas is contained in Sec.  212.2 and is not 
the subject of this rulemaking.

3. Regulatory Certifications

Environmental Impact

    The changes in the final rule at Sec.  251.50 and Sec.  251.51 
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 final rule also 
makes terminology consistent in parts 251, 261, and 295. The changes 
are intended to improve administrative efficiencies and have no 
environmental effects. Section 31.1b of FSH 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 Department's conclusion is that this 
final rule falls within this category of actions and that no 
extraordinary circumstances exist as currently defined that require 
preparation of an environmental assessment or environmental impact 
statement.

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 final rule does 
not have an annual effect of $100 million or more on the economy, nor 
does it adversely affect productivity, competition, jobs, the 
environment, public health and safety, or State or local governments. 
This final rule does not interfere with an action taken or planned by 
another agency, nor does it raise new legal or policy issues. Finally, 
this final rule does 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 final rule is not 
subject to Office of Management and Budget (OMB) review under Executive 
Order 12866.

Regulatory Flexibility Act

    This final rule has been considered in light of the Regulatory 
Flexibility Act (5 U.S.C. 602 et seq.). Based on a threshold Regulatory 
Flexibility Act analysis prepared by the Forest Service for this

[[Page 41964]]

final rule, it has been determined that this final rule does not have a 
significant economic impact on a substantial number of small entities 
as defined by the act because the final rule does not impose record-
keeping requirements on them; it does not affect their competitive 
position in relation to large entities; and it does not affect their 
cash flow, liquidity, or ability to remain in the market.
    This final rule does not impact a substantial number of small 
entities because the Forest Service estimates that fewer than 40 
recreation event authorizations, 50 outfitting and guiding 
authorizations, 3 still photography authorizations, 4 commercial 
filming authorizations, and 64 noncommercial group use permits will be 
issued as a result of this rule. The efficiencies 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 National 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 to 
alter costs substantially to small businesses.

No Takings Implications

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 12630. It has been determined 
that the final rule does not pose the risk of a taking of private 
property.

Civil Justice Reform

    This final rule has been reviewed under Executive Order 12988 on 
civil justice reform. After adoption of this final rule, (1) all State 
and local laws and regulations that conflict with this rule or that 
impede its full implementation will be preempted; (2) no retroactive 
effect will be given to this final rule; and (3) it will 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 final rule under the requirements of 
Executive Order 13132 on federalism, and has determined that the final 
rule conforms with the federalism principles set out in this Executive 
Order; does not impose any compliance costs on the States; and does not 
have substantial direct effects on the States, the relationship between 
the Federal government and the States, or 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.
    Moreover, this final 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 final rule has been reviewed under Executive Order 13211 of 
May 18, 2001, Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use. It has been determined that this 
final 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 final rule on State, 
local, and Tribal governments and the private sector. This final rule 
does 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 OMB and assigned OMB control number 0596-0082. 
Therefore, this final 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 final rule should 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.

4. Text of the Final Rule

List of Subjects

36 CFR Part 251

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

36 CFR Part 261

    Law enforcement, National forests.

36 CFR Part 295

    National forests, Traffic regulations.


0
For the reasons set out in the preamble, amend subparts B and D of part 
251, subpart A of part 261, and part 295 of Title 36 of the Code of 
Federal Regulations to read as follows:

PART 251--LAND USES

Subpart B--Special Uses

0
1. Revise the authority citation for subpart B to read as follows:

    Authority: 7 U.S.C. 1011(f); 16 U.S.C. 460l-6a(c), 460l-6d, 472, 
497b, 497c, 551, 580d, 1134, 3210; 30 U.S.C. 185; 43 U.S.C. 1740, 
1761-1771.

0
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 sharing 
use of roads (Sec.  212.9); grazing and livestock use (part 222); the 
sale and disposal of timber and special forest products, such as 
greens, mushrooms, and medicinal plants (part 223); and minerals (part 
228) 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)(3) of this section.
    (b) Nothing in this section prohibits the temporary occupancy of 
National Forest System lands without a special use authorization when 
necessary for the protection of life and property in emergencies, if a 
special use authorization is applied for and obtained at the earliest 
opportunity, unless waived pursuant to paragraphs (c) through (e)(3) of 
this section. The authorized officer may, pursuant to Sec.  251.56 of 
this subpart, impose in that authorization such terms and conditions as 
are deemed necessary or appropriate and may require changes to the 
temporary occupancy to conform to those terms and conditions. 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.

[[Page 41965]]

    (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 of this subpart;
    (2) The proposed use is still photography as defined in Sec.  
251.51 of this subpart; or
    (3) Authorization of that use is required by an order issued under 
Sec.  261.50 or by a regulation issued under Sec.  261.70 of this 
chapter.
    (d) Travel on any National Forest System road shall comply with all 
Federal and State laws governing the road to be used and 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 of this 
subpart, or for a landowner's ingress or egress across National Forest 
System lands that requires travel on a National Forest System road that 
is not authorized for general public use under Sec.  251.110(d) of this 
part; or
    (2) Authorization of that use is required by an order issued under 
Sec.  261.50 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, based upon review of a 
proposal, 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 National Forest 
System lands and resources and to avoid conflict with National Forest 
System programs or operations; or
    (3) The proposed use is not situated in a congressionally 
designated wilderness area, and is a routine operation or maintenance 
activity within the scope of a statutory right-of-way for a highway 
pursuant to R.S. 2477 (43 U.S.C. 932, repealed Oct. 21, 1976) or for a 
ditch or canal pursuant to R.S. 2339 (43 U.S.C. 661, as amended), or 
the proposed use is a routine operation or maintenance activity within 
the express scope of a documented linear right-of-way.

0
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, as defined in FSH 2709.11, chapter 40.
* * * * *
    Forest road or trail--a road or trail wholly or partly within or 
adjacent to and serving the National Forest System that the Forest 
Service determines is necessary for the protection, administration, and 
utilization of the National Forest System and the use and development 
of its resources, and that is included in a forest transportation 
atlas.
* * * * *
    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 on National Forest System lands.
* * * * *
    Linear right-of-way--a right-of-way for a linear facility, such as 
a road, trail, pipeline, electronic transmission line, fence, water 
transmission facility, or fiber optic cable.
* * * * *
    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.
* * * * *
    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 takes place at a location where members of the 
public generally are not allowed or where additional administrative 
costs are likely, or uses models, sets, 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

0
4. Revise the authority citation for part 261 to read as follows:

    Authority: 7 U.S.C. 1011(f); 16 U.S.C. 472, 551, 620(f), 
1133(c), (d)(1), 1246(i).


0
5. Amend 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 that the Forest 
Service determines is necessary for the protection, administration, and 
utilization of the National Forest System and the use and development 
of its resources, and that is included in a forest transportation 
atlas.
* * * * *
    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.
* * * * *

0
6. Revise Sec. 261.10(a) to read as follows:


Sec.  261.10  Occupancy and use.

* * * * *
    (a) Constructing, placing, or maintaining any kind of road, trail, 
structure, fence, enclosure, communications equipment, or other 
improvement on National Forest System lands or facilities without a 
special use authorization, contract, or approved operating plan, unless 
such authorization, contract, or operating plan is waived pursuant to 
Sec.  251.50(e) of this chapter.

0
7. 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: * * *
* * * * *

[[Page 41966]]

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

0
8. Revise the authority citation for part 295 to read as follows:

    Authority: 7 U.S.C. 1011(f); 16 U.S.C. 551; E.O. 11644, 11989 
(42 FR 26959).

0
9. Revise the heading for part 295 to read as set forth above.

    Dated: July 4, 2004.
Mark Rey,
Under Secretary, Natural Resources and Environment.

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

5. Summary of Provisions in the Final Rules at 36 CFR Parts 251, 261, 
and 295

 Table I.--Section-by-Section Comparison for the Previous, Proposed, and
                               Final Rules
------------------------------------------------------------------------
          Previous rule              Proposed rule        Final rule
------------------------------------------------------------------------
Sec.   251.50(a)--Specified that  Sec.   251.50(a)--  Sec.   251.50(a)--
 all uses of National Forest       Added disposal of   In numerical
 System lands are special uses,    forest products,    order, adds
 except for disposal of timber     such as greens,     sharing use of
 and minerals and grazing of       mushrooms, and      roads (part 212)
 livestock. Also specified         medicinal plants    and disposal of
 actions required prior to         (part 223) to the   forest products,
 conducting a special use.         list of uses that   such as greens,
                                   are not             mushrooms, and
                                   considered          medicinal plants
                                   special uses.       (part 223), to
                                                       the list of uses
                                                       that are not
                                                       considered
                                                       special uses.
Sec.   251.50(b)--Allowed         Sec.   251.50(b)--  Sec.   251.50(b)--
 temporary occupancy without a     Provided that the   Retains the
 special use authorization for     requirement to      changes in the
 emergencies, if a special use     obtain a special    proposed rule and
 authorization was obtained at     use authorization   adds the phrases
 the earliest opportunity.         at the earliest     ``when
                                   opportunity is      necessary'' and
                                   subject to the      ``is applied for
                                   waiver provisions   and'' to qualify
                                   in paragraphs (c)   temporary
                                   through (e).        occupancy. Also
                                   Clarified that      clarifies that
                                   the temporary       when an
                                   occupant has        authorization is
                                   liability similar   issued, it may be
                                   to that imposed     conditioned
                                   on a permit         pursuant to Sec.
                                   holder under Sec.    251.56 and that
                                     251.56(d)(1).     changes may be
                                                       required to bring
                                                       the occupancy
                                                       into compliance.
Sec.   251.50(c)--Identified      Sec.   251.50(c)--  Sec.   251.50(c)--
 noncommercial recreational        Changed the         Makes changes
 activities for which no special   sequence of         similar to the
 use authorization was required.   activities listed   proposed rule,
                                   but not the         but also excludes
                                   activities          still photography
                                   themselves.         from the
                                   Substituted the     exemption from
                                   word ``unless''     the special use
                                   for ``except        authorization
                                   for''.              requirement for
                                                       noncommercial
                                                       recreational
                                                       activities.
Sec.   251.50(d)--Specified that  Sec.   251.50(d)--  Sec.
 use of forest roads and trails    Specified that      251.50(d)(1)--Mak
 did not require a special use     travel on           es technical
 authorization unless required     National Forest     change to confirm
 by order.                         System roads does   preexisting
                                   not require a       authority to
                                   special use         issue special use
                                   authorization,      authorizations
                                   unless required     under 16 U.S.C.
                                   by order or         3210(a) and 36
                                   regulation issued   CFR 251.110(d),
                                   under part 261,     by adding to the
                                   or the travel is    list of special
                                   for the purpose     uses occurring on
                                   of engaging in a    National Forest
                                   noncommercial       System roads that
                                   group use,          require a special
                                   outfitting or       use authorization
                                   guiding, a          a landowner's
                                   recreation event,   ingress or egress
                                   commercial          across National
                                   filming, or still   Forest System
                                   photography as      lands that
                                   defined in Sec.     requires travel
                                   251.51. Removed     on a National
                                   trails from the     Forest System
                                   exemption from a    road that is not
                                   special use         authorized for
                                   authorization.      general public
                                                       use.
Sec.   251.50(e)--These           Sec.   251.50(e)--  Sec.   251.50(e)--
 provisions are new and did not    Provided for the    Retains the
 exist in the previous             authorized          language of the
 regulations.                      officer to waive    proposed rule and
                                   the requirement     adds the
                                   for a special use   requirement that
                                   authorization if    a waiver decision
                                   the proposed use    be based upon
                                   had certain         review of a
                                   characteristics.    proposal.
                                  Sec.                Sec.
                                   251.50(e)(1)--Pro   251.50(e)(1)--Mak
                                   vided for waiver    es no change from
                                   of the special      the proposed
                                   use authorization   rule.
                                   requirement for
                                   uses with nominal
                                   effects.
                                  Sec.                Sec.
                                   251.50(e)(2)--Pro   251.50(e)(2)--Mak
                                   vided for waiver    es no change from
                                   of the special      the proposed
                                   use authorization   rule.
                                   requirement for
                                   uses that were
                                   adequately
                                   regulated by a
                                   State agency or
                                   other Federal
                                   agency..
                                  Sec.                Sec.
                                   251.50(e)(3)--Pro   251.50(e)(3)--Cla
                                   vided for waiver    rifies that a
                                   of the special      right in the
                                   use authorization   context of R.S.
                                   requirement for     2477 and R.S.
                                   activities within   2339 means a
                                   the scope of a      right-of-way.
                                   valid reserved      Narrows the scope
                                   right or            of the waiver so
                                   outstanding         that it applies
                                   property right,     only to routine
                                   or for routine      operation or
                                   operation and       maintenance
                                   maintenance         activities within
                                   activity within     the scope of an
                                   the scope of an     R.S. 2477 or R.S.
                                   outstanding         2339 right-of-way
                                   statutory right.    or within the
                                                       express scope of
                                                       a documented
                                                       linear right-of-
                                                       way that are not
                                                       located in a
                                                       Congressionally
                                                       designated
                                                       wilderness area.
Sec.   251.51--Defined            Sec.   251.51--     Sec.   251.51--
 terminology used in the rule.     Added definitions   Makes no changes
                                   for commercial      from the proposed
                                   filming, Forest     rule.
                                   road or trail,
                                   guiding, National
                                   Forest System
                                   road, outfitting,
                                   recreation event,
                                   and still
                                   photography.
Sec.   261.2--Used a definition   Sec.   261.2--      Sec.   261.2--
 for National Forest System road   Added a             Makes no changes
 and National Forest System        definition for      from the proposed
 trail different from that in      forest road or      rule.
 the proposed and final rules.     trail and revised
                                   definitions for
                                   National Forest
                                   System road and
                                   National Forest
                                   System trail.

[[Page 41967]]

 
Sec.   261.10(a)--Prohibited      Sec.   261.10(a)--  Sec.   261.10(a)--
 improvements on National Forest   Not addressed by    Provides that
 System land or facilities         the proposed rule.  this prohibition
 without a special use                                 is subject to the
 authorization, contract, or                           waiver provisions
 approved operating plan.                              in Sec.
                                                       251.50(c) through
                                                       (e).
Sec.   261.55--Specified          Sec.   261.55--     Sec.   261.55--
 prohibitions on trails.           Changed ``forest    Makes no change
                                   development         from the proposed
                                   trail'' to          rule.
                                   ``National Forest
                                   System trail'' in
                                   the heading and
                                   introductory text.
Part 295--Pertained to the        Part 295--Changed   Part 295--Makes no
 administration of motor vehicle   ``Forest Service    change from the
 use off National Forest System    roads'' to          proposed rule.
 roads.                            ``National Forest
                                   System roads''.
------------------------------------------------------------------------

[FR Doc. 04-15728 Filed 7-12-04; 8:45 am]
BILLING CODE 3410-11-P