Special Uses

SUMMARY: The Department is adopting amendments to regulations governing

the use and occupancy of National Forest System lands to streamline and

make more efficient the process for obtaining special use

authorizations, to provide for the use of one-time payments for

easements as presently used in the market place, to limit certain

liability requirements to amounts determined by a risk assessment, to

clarify definitions of certain terms, and to clarify requirements

related to renewal of existing special use authorizations. The intent

is to improve service and reduce costs to proponents and applicants for

and holders of National Forest System special use authorizations, to

expedite decisionmaking, and to permit more ``user-friendly''

administration of such authorizations by removing certain requirements

deemed unnecessary and outdated.

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

FOR FURTHER INFORMATION CONTACT: Randall Karstaedt, Lands Staff, (202)

205-1256, or Ken Karkula, Recreation, Heritage, and Wilderness

Resources Management Staff, (202) 205-1426, Forest Service, USDA.

SUPPLEMENTARY INFORMATION:

Background

Approximately 72,000 special use authorizations are in effect on

National Forest System lands. These uses cover a variety of activities,

ranging from individual private uses to large-scale commercial

facilities, and public services. Examples of authorized land uses

include road rights-of-way serving private residences, apiaries,

domestic water supply conveyance systems, telephone and electric

service rights-of-way, oil and gas pipeline rights-of-way,

hydroelectric power generating facilities, ski areas, resorts, marinas,

municipal sewage treatment plants, and public parks and playgrounds.

The agency receives about 6,000 applications for special use

authorizations each year. These applications are subjected to a

rigorous, time-consuming, and costly review and decisionmaking process

in determining whether to approve or reject them.

There are 14 statutes authorizing special uses on National Forest

System lands. These authorities, which are listed at 36 CFR 251.53,

include statutes of broad application, such as the Mineral Leasing Act

of 1920, the Federal Land Policy and Management Act of 1976, and the

Bankhead-Jones Farm Tenant Act of 1937, as well as statutes focusing on

a specific use of Federal lands, such as the National Forest Ski Area

Permit Act. The basic authority of the Secretary of Agriculture to

regulate the occupancy and use of National Forest System lands is the

Act of June 4, 1897 (16 U.S.C. 551).

Additionally, the Independent Offices Appropriations Act of 1952,

as amended, (31 U.S.C 9701) and the Office of Management and Budget

(OMB) Circular A-25 require holders of authorizations to pay for the

use of the Federal land. The Federal Land Policy and Management Act of

1976 requires holders of rights-of-way authorizations to pay annually,

in advance, the fair market value of the use of the Federal land and

its resources. The 1976 Act also provides that fees may be waived, in

whole or in part, under specified conditions when equitable and in the

public interest.

Requirements of the National Environmental Policy Act, the

Wilderness Act of 1964, the Endangered Species Act, the Archaeological

Resources Protection Act of 1979, additional requirements of the

Federal Land Policy and Management Act of 1976, and Executive Order

Nos. 11990 (Floodplains) and 11998 (Wetlands) also bear directly on the

issuance of special use authorizations. These directives and statutory

authorities require extensive analysis and documentation of the impacts

of use and occupancy on a wide array of environmental, cultural, and

historical resources. The practical effect of these requirements has

been to greatly lengthen the time required and the costs involved in

processing applications for special use authorizations or reissuing

authorizations for existing uses. The time and cost impacts weigh on

both the Forest Service and applicants and holders of authorizations.

The significance of these impacts has been a principal factor in the

development of these amendments to the special use regulations.

On August 14, 1992, the Forest Service published a proposed rule

(57 FR 36618) and sought public comment to amend regulations governing

the use and occupancy of National Forest System lands at 36 CFR Part

251, subpart B. Such use and occupancy is authorized by ``special use

authorizations,'' which include permits, term permits, easements,

licenses, and leases. The proposed revisions had several purposes: to

(1) streamline the application process for special use authorizations,

(2) enhance efficiency of review of special use proposals, (3)

authorize one-time payments of rental fees for certain types of special

use authorizations, (4) limit certain liability requirements, (5)

clarify certain definitions, and (6) clarify direction on renewal of

special use authorizations.

A total of 25 responses were received on the proposed rule.

Identity of the respondents is as follows:

------------------------------------------------------------------------

Respondent category Number Percent

------------------------------------------------------------------------

Individuals........................................... 3 12

Electric Utilities.................................... 6 24

Oil & Gas Companies................................... 4 16

Telephone Company..................................... 1 4

Permit Holder Associations............................ 8 32

Government Agencies................................... 3 12

-----------------

Total............................................. 25 100

------------------------------------------------------------------------

Readers are advised that a major revision to this subpart was made

subsequent to the August 14, 1992, proposed rule. On August 30, 1995,

the agency adopted a final rule revising those portions of subpart B

governing noncommercial group uses and noncommercial distribution of

printed material within the National Forest System (60 FR 45293). The

1995 revisions, referred to in this rulemaking as the ``noncommercial

group use regulations,'' ensure that the authorization procedures for

these activities comply with First Amendment requirements of freedom of

speech, assembly, and religion. They did not directly impact the

concurrent effort to streamline and make more efficient the process for

obtaining special use authorizations. However, the 1995 revisions added

new provisions and revised existing text which required redesignation

of several sections and paragraphs throughout the subpart. In the

narrative which follows, the terms ``current rules'' or ``current

regulations'' refer to the regulations at 36 CFR part 251, subpart B,

as published in the current volume of Title 36 of the Code of Federal

Regulations, revised as of July 1, 1997.

General Comments

Respondents to the 1992 streamlining proposed rule generally

supported the Forest Service's effort to streamline the permit

application process and to make the administration of special use

[[Page 65951]]

authorizations more user friendly, although most asked that the final

rule clarify that the revisions apply to new permits only. These

respondents felt that the proposed regulations would reduce unnecessary

paperwork burdens on applicants and, thereby, reduce costs for both the

applicant and the agency. Indicating that the proposed revisions would

improve the agency's performance, a number of respondents cited

examples of the poor quality of service, the lack of experienced field

personnel, and the length of time taken by the agency's field offices

in responding to and processing special use permit applications.

Further, these respondents urged the agency to quickly adopt final

regulations that implement statutory authorities that have been

available to the agency for several years, particularly amendments made

to the Federal Land Policy and Management Act of 1976 by the Act of

October 27, 1986.

Several respondents suggested that the agency institute a land and

resource planning procedure or incorporate into its Forest planning

activity a process that would pre-authorize certain types of land uses

and thus avoid or minimize time consuming and costly analysis of

individual applications for authorizations. These respondents suggested

the process could be built around standards and guidelines in a

national forest's land and resource management plan (forest plan). One

respondent suggested the U.S. Army Corps of Engineers Nationwide Permit

Program could serve as a model for this process. The types of special

uses that would be subject to this pre-authorization process are

described by the respondents as routine activities serving the public,

such as electric and telephone rights-of-way.

Three respondents expressed concern that the agency's efforts to

improve its administration of special use authorizations and make those

regulations more user friendly will not be successful unless and until

funding for this activity is dramatically improved. These respondents

pointed out that the lack of adequate funding at the field office level

is the biggest single factor responsible for poor service and delays in

processing applications experienced by permit applicants.

The Department of the Interior (DOI) urged that Forest Service

regulations for permitting and administering uses on National Forest

System lands be more compatible with those of the land-managing

agencies in the Department of the Interior, particularly the Bureau of

Land Management (BLM). Because both the Forest Service and the BLM

derive much of their authority for administering land uses from the

Federal Land Policy and Management Act of 1976, the DOI believes any

regulations of the two agencies should be very similar. Further, the

DOI urged a coordinated effort to review and revise regulations

promulgated under the 1976 Act.

The DOI also expressed concern that the proposed delay in

consideration of the environmental effects of the proposed use could

result in environmentally unsound projects passing screens only to be

rejected in later stages of development after substantial time and

investment have been made by the agency and the proponent. In the same

context, the DOI suggested that notification of adjacent land-managing

agencies should be made earlier in the application review process so

that the concerns of the affected agencies could be made known sooner.

The U.S. Small Business Administration advised the Forest Service

that the proposed rule was not in compliance with the Regulatory

Flexibility Act (5 U.S.C. 601-612). That Act requires Federal

Government agencies promulgating rules to describe the impact of the

rulemaking on small entities through preparation of a regulatory

flexibility analysis. Despite the agency's acknowledgment that the

proposed rule would have a beneficial impact on a substantial number of

small entities, the U.S. Small Business Administration stated that the

aforementioned analysis must nevertheless be prepared.

Response to the General Comments. The Forest Service and the

Department are pleased that most respondents generally viewed the

proposed rule as a positive step toward improving the administration of

special use authorizations. The agency is aware that its performance in

responding to applications and administering existing authorizations

often is inadequate and its service to permit applicants and holders--

its ``customers''--needs to be significantly improved. The Department

is also mindful of the President's direction to improve service to the

public. Executive Order No. 12866, dated September 30, 1993, directed

agencies to reform and make more efficient their regulatory processes.

The Forest Service initiated this effort with the goal of streamlining

and making more user friendly its special use regulations and will,

through the adoption of a final rule, ensure that this goal is met in

part. Since beginning this particular rulemaking, the Forest Service

has undertaken a major project to re-engineer special uses

administration. A team of agency employees is currently at work to

implement the re-engineering recommendations, which are focused on

agency procedures. Implementation of these recommendations may lead to

further changes in rules and will certainly result in additional

revisions in agency directives governing special uses administration.

Any revisions to rules or directives will be fully coordinated with the

revisions made by these final rules.

The agency agrees with the suggestion that broad guidance for

considering applications for special use authorizations be made a part

of its land and resource planning processes. This guidance would allow

decisions to be made on routine permit activities without further

analysis. Such a procedure would require that the requisite

environmental documentation be made in the Forest plan and that the

documentation be specific enough to cover the proposed use.

However, the agency believes that such a procedure can be

implemented without additional regulatory guidance. The forest planning

process described in the agency's administrative manual (Forest Service

Manual, Chapter 1920) prescribes the format and content of each Forest

plan. The initial plans were completed in the early to mid 1980's and

currently remain in effect. Almost without exception, these plans lack

any detail regarding authorizations for use and occupancy of National

Forest System lands. The life of these plans is generally 10-15 years

and most of the plans for the 123 National Forest planning units of the

agency are now or soon will be undergoing revision. The Forest Service

recognizes the need to address land use and occupancy generally in the

forest plans. The forest plan revision process offers the opportunity

for units to consider the need for more specific guidance on land uses.

The Department further notes that public participation is a fundamental

ingredient in the preparation and revision of Forest plans. Thus, this

will allow holders of or applicants for authorizations to participate

directly in the development of the plan and, thereby, identify specific

opportunities for addressing land use authorizations at the Forest

level.

The Department fully agrees with respondents' concerns that

sufficient funding for administration of special use authorizations

must be considered along with revisions to the regulations. The Forest

Service is addressing this matter in a variety of ways. However, the

Department must emphasize that the budgeting and appropriation process

[[Page 65952]]

takes a much larger view of the management of National Forest System

lands, balancing the funding of a wide variety of Forest Service

programs and activities in the context of constraints imposed on the

Department of Agriculture and the Federal Government as a whole. Thus,

while the Department agrees that improving funding for this activity is

desirable, it cannot unilaterally support respondents' urging of

greater funding for the administration of special use authorizations.

Instead, the Forest Service will seek recognition in its budget

requests of the importance of efficient and cost-effective

administration of land use authorizations and service to its customers.

The Forest Service concurs with the DOI suggestion that regulations

governing administration of land uses on Federal lands should be more

consistent. The Forest Service and the BLM are taking actions to bring

their regulations into closer agreement, albeit in the context of

individual uses. The two agencies have agreed that more comprehensive

action is needed and are undertaking joint examination and coordination

of regulations. While this action was prompted in part by the

publication of the proposed special use regulations, additional

motivation has been provided by the National Performance Review effort

and Executive Order No. 12866. To the extent that statutory authorities

permit, the two agencies have embarked on a course to adopt common

regulatory approaches to land use and occupancy.

The Department acknowledges the DOI concern that the effort to

streamline the permit application process may allow environmentally

unsound projects to be initially considered, only to be rejected later

after substantial investment of time and money by proponents and the

agency. The Forest Service has examined the ``screening'' process set

forth in the proposed regulations (Sec. 251.54(a)) and made appropriate

revisions to respond to the DOI concern.

With regard to the DOI's suggestion that Federal agencies managing

lands adjacent to the National Forest System land being considered for

a land use authorization be notified sooner in the application process

so that those agencies' views can be made known, the Department

suggests that such notification may counteract the intent to streamline

the application process by inserting a step that is unnecessary.

Analysis of an application generally requires, as part of environmental

documentation, a ``scoping'' of the proposal to learn of the concerns

of other agencies and the public. This process of advising the public

and affected parties of a proposal provides timely notice to adjacent

landowners, whether public or private, and allows those landowners to

bring forth any concerns.

The Department's response to the U.S. Small Business

Administration's advice that a regulatory flexibility analysis be

prepared is found at the conclusion of this supplementary information

statement.

Specific Comments on Proposed Rule and Response

The following analysis of and response to comments on the proposed

rule is organized by the section of the current special use

regulations.

Section 251.51 Definitions. The proposed rule combined definitions

found in other sections of the current regulations into this section

and added four new definitions intended to improve the implementation

of the regulations.

Comment. Three respondents were concerned that the proposed

definition for ``termination'' would be confusing, because the new

definition is a reversal of past usage and incorporates the expiration

of a permit and ending of a permitted use. They noted that termination

of a permit occurred by the direct action of the authorized officer and

not by the expiration of a stated period of time.

Response. New definitions for revocation and termination are

proposed because over the years the two terms have come to be used

interchangeably, even though they have distinctly different usages.

This lack of precision has caused confusion among holders of permits

and agency personnel. The purpose in adding these two definitions to

the regulations is to differentiate between cessation of a special use

permit by action of an authorized officer (revocation) and cessation of

a special use permit under its own terms without any action by an

authorized officer (termination). Terms of a permit which would result

in termination could include: (1) Expiration of the term authorized,

and (2) transfer of the improvement to another party. Nothing further

is intended. Adoption of these definitions will in no way bear upon

reissuance of a permit. There will be no change in policy for reissuing

a permit that terminates as a result of the application of these

definitions. Consequently, the definition of ``termination'' will

remain as defined in the proposed rule, but it has been clarified by

listing examples of permit terms and conditions that would cause a

permit to terminate.

Comment. Three respondents commented that the revised definition

for ``revocation'' must be revised to limit use of the ``reasons in the

public interest'' standard to special use permits only, not to

easements, for consistency with existing laws and regulations.

Response. Provisions for termination, revocation, and suspension of

an easement are contained in Sec. 251.60 (g) and (h). Therefore, the

Department has not included easements under the revocation and

suspension provisions in Sec. 251.60(a)(2)(i). Moreover, the Department

disagrees with the respondents concerning leases. Leases may be revoked

for reasons that are in the public interest, and leases are compensable

according to their terms as defined in Sec. 251.51. Therefore, leases

are not exempted from revocation and suspension criteria in

Sec. 251.60(a)(2)(i). To avoid redundancy in the regulations, the

definition does not repeat criteria for revoking an authorization that

are listed in Sec. 251.60(a)(2)(i), but the provision has been amended

to require that revocation in the public interest must be for reasons

that are ``specific and compelling.''

Comment. One respondent suggested that the definition of ``sound

business management principle'' be expanded to include ``an accepted

industry practice or method * * *,'' as this would clarify that one

individual's or company's practice or method is not necessarily more

correct than others.

Response. The Department agrees with this suggestion and has made

this change in the final rule.

Other Changes. In preparing this final rule, the Department

discovered that the proposed definition of the word ``lease'' was not

consistent with the use of that word in the private rental market, and

as proposed could have led to confusion when applied in the field.

Specifically, a lease conveys a conditional and limited interest in

land that may be revocable and compensable according to its terms.

Accordingly, the final rule reflects this clarification in the

definition of the word ``lease.''

In analyzing the comments on and the adequacy of the definitions

included in Sec. 251.51, the Department considered whether or not to

include a definition for the word ``license.'' This term is often used

in connection with the word ``permit'' and may be confused with the

words ``easement'' and ``lease.'' A separate definition could imply the

two terms have separate meaning and, thus, that separate rights in the

land may be conveyed, when, in fact, both permits and licenses convey

only a privilege to

[[Page 65953]]

use and occupy the land, rather than an interest in the land.

Therefore, a definition of the term ``license'' is not included in the

final rule.

In preparing this final rule, the Department also concluded that

the goal of clarifying when environmental analysis is conducted on

proposals for special use authorizations would be enhanced by defining

the term ``NEPA procedures'' as used in several places in the rule.

Thus, the term has been added to the definitions included in

Sec. 251.51 and refers to the agency's written compliance with the

National Environmental Policy Act.

Section 251.54 Special use application procedure and

authorization. This section of the current regulations describes the

procedures by which the agency accepts and acts upon applications for

special use authorizations. This section includes direction on holding

advance discussions with a proponent before an application is

submitted, where to submit applications, the content of applications,

and agency response to applications. The current regulations make it

difficult to deny an application for a special use authorization that

does not meet certain minimum requirements imposed by law or regulation

as they lack specific direction guiding the consideration of and

decision on applications for authorizations. The current regulations

also result in unnecessary paperwork and expense being imposed on both

the proponent and the agency.

The proposed rule would expand this section, adding step-by-step

procedures that enumerate required activities and outcomes through the

proposal, application, and authorization phases. Specifically, the

proposed rule would establish a two-level screening process before a

formal application is accepted by the agency.

This section of the proposed rule received the most attention from

respondents, and consideration of these responses has resulted in

extensive revision of this section in the final rule.

General Comments. Several respondents expressed concern that the

new procedures described in this section could be interpreted to apply

to reissuance of authorizations for existing uses as well as to

issuance of new authorizations. While endorsing the initial screening

process, several respondents also cautioned that any efficiencies that

might be gained through this process could be lost, unless the agency

imposed a time limit on itself, such as 30 days, in which to complete

the proposed screening process and respond to the proponent.

Some respondents observed that the organization of this section was

difficult to follow in the proposed rule, noting that the sequence of

events described by the rule did not seem to correspond with the

actions taken by the agency's field officers when receiving and

processing requests for special use authorizations.

Response. This section applies only to applications for new or

substantially changed uses. Renewal of special use authorizations is

covered in Sec. 251.64. To remove the confusion, the title of this

section has been revised in the final rule to read ``Proposal and

application requirements and procedures.''

The Department agrees that the initial screening process should be

completed as expeditiously as possible. However, because of the number,

variety, and complexity of special use proposals, it does not believe a

specified time limit should be imposed on the screening process. The

Forest Service policy on customer service in combination with proponent

expression of interest should provide necessary encouragement to field

offices to act promptly on proposals. Thus, the final rule does not

specify a time limit on the proposal screening process.

The Department agrees with those respondents who found the

organization of this section hard to follow. In considering the

respondents' comments, and in revising the section to respond to those

comments and to its own concerns, the Department determined that an

overall reorganization of the section was needed. The intent of the

reorganization is to make the process that defines the agency's

consideration of proposals and applications more logical and

sequential, and fully consistent with regulations implementing the

procedural provisions of the National Environmental Policy Act at 40

CFR Parts 1500-1508 and guidance issued by the Council of Environmental

Quality.

Readers are advised that the reorganization of this section

requires that a clearer distinction be made between actions by

proponents and actions by the agency during the process by which a

request for an authorization is considered. Hence, a ``proponent''

makes a ``proposal'' for a special use authorization. That proposal is

subjected to the screening processes described in paragraph (e). Upon

meeting the criteria in the initial and second-level screenings, the

proposal becomes an ``application'' and the proponent becomes an

``applicant.''

Because of the extensiveness of the revisions to the proposed rule,

readers are advised that Sec. 251.54 has been presented in the final

rule in its entirety, thus including provisions not revised in the

proposed rule. Presentation of the entire section, therefore, includes

amendments made by the adoption in 1995 of the noncommercial group use

regulations. The following table displays the provisions of Sec. 251.54

in the final rule with the same provisions as located in the proposed

rule:

----------------------------------------------------------------------------------------------------------------

Final rule Proposed rule

----------------------------------------------------------------------------------------------------------------

(a) Early notice....................................... (a)(1) (Untitled).

(b) Filing proposals................................... (b) Filing applications.

(c) Rights of proponents............................... (d) Rights of applicants.

(d) Proposal content................................... (e) Application content.

(1) Proponent identification........................... (1) Applicant identification.

(2) Required information.

(i) Noncommercial group uses.

(ii) All other special uses.

(3) Technical and financial capability................. (2) Technical and financial capability.

(4) Project description................................ (3) Project description.

(5) Additional information............................. (4) Additional information.

(e) Pre-application actions............................ (f) Receipt and denial of applications for uses.

(1) Initial screening.................................. (a) Initial screening.

(2) Results of initial screening.

(3) Guidance and information to proponents............. (a)(3) (Untitled).

(4) Confidentiality.................................... (a)(4) (Untitled).

(5) Second-level screening of proposed uses............ (i) Response to applications for all other special

uses.

[[Page 65954]]

(6) NEPA compliance for second-level screening process.

(f) Special requirements for certain proposals......... (h) Special application procedures.

(1) Oil and gas pipeline rights-of-way................. (1) Oil and gas pipeline rights-of-way.

(2) Electric power transmission lines 66 KV or over.... (2) Electric power transmission lines 66 KV or over.

(3) Major development.................................. (3) Major resort development.

(g) Application processing and response.

(1) Acceptance of applications......................... (f)(1).

(2) Processing applications............................ (g) Processing applications, and

(c) Coordination of applications.

(3) Response to applications for non-commercial group

uses.

(4) Response to all other applications................. (j) Action taken on accepted applications.

(5) Authorization of a special use..................... (k) Authorization and reauthorization of a special use.

----------------------------------------------------------------------------------------------------------------

Comments on specific provisions of Sec. 251.54 as proposed and the

Departmental response follow.

Section 251.54, Paragraph (a)--Initial screening. In a general

comment on this paragraph of the proposed rule, a number of respondents

stated a concern that the initial screening process would add another

step to the already lengthy process of evaluating an application, which

would place an additional burden on the applicant. Respondents

suggested that paragraph (a)(1) should make clear that the initial

screening begins only with a written notice or application.

Response. The Department does not agree that the screening process

would impose additional burdens on a proponent. In fact, the screening

process is expected to reduce the burden by preventing unsuitable or

inconsistent projects from proceeding to full-scale applications. The

screening process would require only a very simple abstract of the

proposed use and would not require a lengthy analysis by the authorized

officer. The purpose of the screening is to eliminate those proposed

uses which are obviously unsuitable on National Forest System (NFS)

lands. The initial screening process appears as paragraph (e)(1) of

Sec. 251.54 in the final rule.

The Department also does not agree that any proposal for use of NFS

lands that would trigger the screening process must be in writing.

Currently, many requests to use National Forest System lands begin with

a verbal request by a proponent to the District Ranger's staff. The

final rule has been clarified to state that a written notice is not

required until a proposal has cleared the initial and second-level

screening processes and is ready to be considered as an application for

a special use authorization. However, for more complex special use

proposals, proponents may be advised to prepare a brief written summary

to ensure that the Forest Service has a full understanding of the scope

of the proposal.

Readers are also advised that the final rule makes a technical

modification to language adopted by the noncommercial group use

amendments to this subpart on August 30, 1995, to ensure consistency

with the overall intent of this revision to subpart B. The proposed

rule would have established nine minimum requirements (or criteria) to

be applied at the initial screening stage. These were listed in

paragraph (a)(1) of the proposed rule. Comments received on these

requirements and the Department's response follow.

Minimum requirement (i). A suggestion was made that this criterion,

requiring all special uses to be consistent with laws, regulations,

orders, and policies, should state that the agency has an obligation to

protect the environmental integrity of the area proposed for a special

use. Another respondent commented that under the Federal Power Act, the

Federal Energy Regulatory Commission (FERC) determines whether proposed

hydroelectric uses on NFS lands are consistent and that FERC's

authority should not be prejudiced by the agency authorizing official.

Response. The Forest Service obligation to protect the environment

is adequately covered, since laws pertaining to environmental

protection are included in the laws, regulations, and policies referred

to in this criterion. All special uses must comply with environmental

law. Thus, this suggested revision has not been adopted in the final

rule.

FERC does not have sole responsibility for determining the

consistency of hydroelectric uses on NFS lands. As part of its

responsibility under Section 4(e) of the Federal Power Act, the Forest

Service must make a consistency determination on proposed hydroelectric

uses. The FERC determines whether the proposed hydroelectric project

should be licensed, based in part on the consistency determination by

the Forest Service. That consistency determination is based on the

direction found in the applicable forest plan, as set forth in minimum

requirement (ii). Therefore, the text of this requirement (a)(1)(i) is

unchanged in the final rule, but now appears at paragraph (e)(1)(i).

Minimum requirement (ii). No comments were received recommending

revision or change to this criterion, which would require the proposed

use to be consistent with the applicable forest plan for the area. The

intent of this requirement is to capture the provision in section 6(i)

of the National Forest Management Act of 1976 (90 Stat. 2955). The

agency did streamline the language of this requirement from that in the

proposed rule but made no substantive change in the text of the

requirement, which now appears at paragraph (e)(1)(ii) in the final

rule.

Minimum requirement (iii). A respondent suggested that this

criterion, which would require that the proposed use not pose a serious

or substantial risk to public health and safety, include a list of

examples which are considered acceptable from a health and safety

standpoint.

Response. The Department agrees that examples would clarify the

intent of this criterion, but believes that it would be more

appropriate to include such examples in the Forest Service's internal

procedural handbooks. This possibility will be explored following

adoption of this final rule. Further, the agency believes that the

phrase ``serious and substantial risk'' will limit the discretion of

the authorized officer to findings of genuine risk to public health and

safety. Therefore, no changes were made to this requirement in the

final rule, which appears at paragraph (e)(1)(iii).

Minimum requirement (iv). Several respondents stated that utility

companies seeking rights-of-way across NFS lands should be exempted

from this criterion, which would cause rejection of a proposed use if

it created an exclusive or perpetual right of use or occupancy. The

respondents contended

[[Page 65955]]

that a perpetual right of use is the basis under which all utility

service is provided. Another respondent asked that the language be

revised to ensure that applications for permanent easements, such as

those authorized by the Forest Roads and Trails Act of 1964, would be

accepted. Finally, a respondent suggested that the language of the

proposed rule could be interpreted to mean that a proponent, after

having an application approved and expending capital to implement the

use, would not have an exclusive right to receive the proceeds

resulting from the use.

Response. The Department recognizes the concerns of these

respondents but rejects the suggestions that utility companies should

be exempted from this criterion because they must have an exclusive and

perpetual use of Federal land. To grant such use would, in effect,

grant fee title to Federal land to an authorization holder.

Longstanding Congressional and Executive Branch policy dictates that

authorizations to use NFS lands cannot grant a permit holder an

exclusive or perpetual right of occupancy in lands owned by the public.

The direction contained in this requirement is no different from that

contained in the current regulations at Sec. 251.55(b). Similarly, the

respondent's assertion that a proponent without exclusive right would

not have the exclusive right to receive the proceeds from the use is

without merit since such rights are provided by the terms of an

easement or lease. Accordingly, the recommendation that the criterion

allow automatic acceptance of an application for a permanent road

easement is not adopted. Such applications should be subjected to the

same screening as all other applications. The language of this

requirement remains unchanged in the final rule and appears at

paragraph (e)(1)(iv).

Minimum requirement (v). Three comments were received on this

criterion, which would prohibit approval of proposed uses that would

unreasonably conflict or interfere with administrative use by the

agency, with other existing uses, or with use of adjacent non-NFS

lands. These respondents were concerned that this criterion was overly

broad and would lead to abuses by local agency officials when reviewing

applications and recommended that clarifying guidelines be added.

Additionally, the respondents suggested that proposals that may have an

effect on adjacent non-NFS lands, whether unreasonable or not, should

prompt local Forest Service officials to inform adjacent landowners,

including land-managing government agencies, of the proposal and

possible impacts on adjoining lands.

Response. The criterion is limited to unreasonable conflicts or

interference; some conflict or interference with existing uses would

still be allowed. Therefore, the Department does not agree that

additional guidance is needed in the rule and has retained the text of

this requirement in the final rule (paragraph (e)(1)(v)) without

change. The appropriate place for more detailed, cautionary guidance is

in the agency's administrative Manual and Handbooks. Upon adoption of

this final rule, the applicable Manual and Handbooks will be reviewed

to determine if there is a need for additional guidance to prevent

overly broad application of this requirement.

Minimum requirement (vi). This criterion stated that proposals will

not be considered if the proponent has outstanding debts owed to the

Forest Service under a prior authorization. Seven respondents suggested

that an exception to this criterion be allowed if the delinquent debt

is the result of an administrative appeal decision, a fee review, or

similar legal or administrative process. By contrast, another

respondent suggested that the authorized officer check with the BLM to

determine if a proponent owes any debts to that agency. Finally, a

respondent suggested that the criterion not be interpreted to include

obligations of a proponent who is a cooperator with the agency through

a road cost-share and use agreement.

Response. Without this requirement, a proponent's bad faith under a

prior authorization could not be used to disqualify the applicant from

receiving another authorization. To reward an applicant with a

delinquent debt with a new authorization is not a prudent management

practice and would be unacceptable on privately owned lands. The

Department agrees with the suggestion that debts owed the Government as

a result of an administrative appeal or similar legal process,

including that involving a review of annual rental fees, should not be

considered in applying this criterion and has revised the rule to

specify that debts owed as a result of decisions in administrative

appeals or fee reviews will not be included under this criterion.

However, such debts must be current and the proponent in good standing

on a payment schedule.

While the Department agrees that debts owed other Federal agencies

are important, requiring authorized officers to check with other

agencies could lengthen the time involved in the initial screening

process. Indebtedness in general, and delinquent debts owed to the

Federal government in particular, should be revealed at the second-

level screening process.

Finally, road cost-share and use agreements are not special use

authorizations; outstanding obligations existing under these agreements

are not considered debts for the purpose of applying this criterion.

Therefore, this requirement does not need to be revised to respond to

this concern. For this reason, no changes were made to this provision

in the final rule, which appears as paragraph (e)(1)(vi).

Minimum requirement (vii). This criterion would prohibit

consideration of a proposed use that involves gambling or providing

sexually oriented services. No comments were received on this

requirement which has been long-standing agency administrative policy.

It is retained in the final rule without change as paragraph

(e)(1)(vii).

Minimum requirement (viii). This criterion would codify

longstanding agency policy to prohibit consideration of a proposed use

if it involves military or paramilitary training or exercises by

private organizations or individuals, unless the training is federally

funded. No comments were received on this criterion, and it is retained

without change in the final rule as paragraph (e)(1)(viii).

Minimum requirement (ix). This criterion would prohibit

consideration of a proposed use if it involves disposal of solid waste

or storage or disposal of radioactive or other hazardous material. Two

responses were received on this criterion. One respondent suggested

that the term ``hazardous material'' be changed to ``hazardous

substances'' to conform to the definitions in the Comprehensive

Environmental Response, Compensation, and Liability Act and the

Resource Conservation and Recovery Act. The other respondent suggested

that the reference to ``storage'' of hazardous materials be deleted

because it would prohibit storage at an authorized use area of crude

oil and chemicals necessary to maintain oil and gas production.

Response. The Department agrees that the terms used in this rule

should conform to definitions set forth in other Federal statutes and

has, therefore, revised the wording of this requirement in the final

rule. The Department also agrees that materials to be used in

conducting activities at the use area, even though considered

hazardous, should not be cause to reject a proposed use. Since controls

prescribed by other Federal statutes should ensure that proper care is

taken, the term ``storage'' has not been included in this

[[Page 65956]]

requirement in the final rule, which appears as paragraph (e)(1)(ix) in

the final rule.

Other Changes. No comments were received on paragraphs (a)(2) and

(3) of Sec. 251.54 of the proposed rule.

Paragraph (a)(2) stated that if a proposed use did not meet all the

minimum requirements, as set forth in paragraphs (a)(1)(i)-(ix), it

would not be considered further and the applicant would be notified of

this action in writing. Paragraph (a)(2) does not appear in the current

regulation. The text of paragraph (a)(2) is included in the final rule

as paragraph (e)(2) and it has been revised to state that the

authorized officer would not have to notify in writing a proponent who

makes an oral request that the proposal will not receive further

consideration. Requests for special use authorizations are frequently

made orally to local agency officials, and, as such, would not require

a written response.

Paragraph (a)(3) of the proposed rule stated that if a proposed use

appears to meet the minimum requirements, the authorized officer would

provide the applicant with information relevant to obtaining a special

use authorization. The content of paragraph (a)(3) of the proposed rule

was unchanged from that already in effect, Sec. 251.54(a)(1)-(8).

However, when reviewing paragraph (a)(3) of the proposed rule in the

context of the overall public review and comment, the Department

determined that the phrase ``appear to'' might suggest the possibility

of arbitrary action and, therefore, removed the words in the final

rule. This material appears at paragraphs (e)(3)(i)-(viii) in the final

rule.

In addition, minor editing changes have been made to paragraphs

(e)(2) and (3) in the final rule for clarity and to incorporate changed

terminology.

Section 251.54, Paragraph (a)(4). This paragraph of the proposed

rule would have directed the agency, if requested by the proponent, and

to the extent reasonable and authorized by law, not to disclose project

and program information revealed during pre-application consideration

and screening. Respondents stated their concern that this provision

could prevent public scrutiny of a proposal, particularly one involving

large commercial projects, thus giving the proponent an inside track on

approval.

Response. The Department disagrees that maintaining

confidentiality, to the extent reasonable and authorized by law, at the

pre-application stage of a proposal having commercial application would

preclude public scrutiny. Confidentiality would be maintained only

prior to the agency's acceptance of a formal written application that

has cleared the screening processes, and only to the extent it is

reasonable and authorized by law. Once an application is accepted and

initial review determines that an environmental assessment or

environmental impact statement must be prepared, law and agency policy

require public disclosure in the review and approval process.

Applications for relatively minor proposals which a review indicates

can be categorically excluded from documentation in an environmental

assessment or environmental impact statement under current rules,

generally do not include the public review and disclosure of

information envisioned by this paragraph.

This paragraph appears in the final rule at paragraph (e)(4) under

the heading ``Confidentiality.'' The text has been revised in the final

rule to substitute the word ``shall'' for ``will'' in the direction

regarding the disclosure of project and program information, and the

paragraph has also been edited to improve clarity of the provision's

intent.

Section 251.54,Paragraph (b)--Filing applications. Paragraph (b) of

current Sec. 251.54 gives direction on where and with whom applications

for authorizations should be filed. This paragraph appears at

Sec. 251.54(b), entitled ``Filing proposals,'' in this final rule. The

text has been revised to conform to changed terminology; namely, to

change ``application'' to ``proposal'' and ``applicant'' to

``proponent,'' or the plural forms of these words.

Section 251.54, Paragraph (c)--Coordination of applications. The

proposed change to this paragraph would have eliminated the requirement

that proponents of projects requiring use of National Forest System

(NFS) lands who must obtain a license or permit from a State, county,

or other Federal agencies for that project must simultaneously file an

application with the Forest Service. The proposed rule stated that the

Forest Service may require in its authorization that the applicant

obtain licenses, permits, certificates, or similar approval documents

from other entities or agencies.

Comment. Four respondents suggested that this provision describes a

requirement in an authorization and thus should not be included in this

section describing the proposal and application process. Instead, the

respondents recommended that the provision be placed in Sec. 251.56(a).

Response. The Department agrees that revision and relocation of

this provision is appropriate and has placed it at Sec. 251.56(a)(2) in

the final rule. This action will benefit the applicant by not requiring

that other approval documents be obtained until a decision is made on

the application to use NFS lands. However, the provision has been

revised in the final rule to make clear to holders that such licenses,

permits, certificates, or other approval documents must be obtained

prior to commencement of any activities on NFS lands.

No revision was proposed to paragraph (d), ``Rights of

applicants,'' of section 251.54 of the regulations. While the text

remains unchanged, this paragraph has been redesignated as paragraph

(c), ``Rights of proponents,'' in the final rule.

Section 251.54, Paragraph (e)--Application content. This paragraph

of the proposed rule defined the minimum content of an application for

a special use authorization. In the proposed rule, the agency proposed

revising paragraph (e)(3), ``Project description,'' to make it

consistent with the proposed addition which addresses the issuance of

planning permits for major commercial developments. Paragraph (e)(4) in

the current rules also required an applicant to describe the impact of

the proposed use on the environment. However, to streamline the

proposal/application process, the proposed rule would have moved this

requirement to paragraph (j), which described actions to be taken by

the agency after an application has been accepted.

Comment. Some respondents were concerned with the removal from

paragraph (e)(3) of the requirement that applicants address the

proposed uses's impact on the environment, and with a companion

provision in paragraph (e)(5) that the application include a plan for

protection and rehabilitation of the environment during the life of the

proposed project. These respondents believe early consideration of

environmental effects is essential to ensure that environmentally

unacceptable projects do not proceed to the application stage and

recommended that all of the provisions in paragraphs (e)(3) and (4) be

retained.

Response. Paragraph (e) was extensively revised by the

noncommercial group use amendments of August 30, 1995 (60 FR 45294). As

revised by those amendments, this paragraph distinguishes between

noncommercial group uses (paragraph (e)(2)(i)) and all other special

uses (paragraph (e)(2)(ii)), in describing the information required for

an application for a special use authorization. This final rule

redesignates this paragraph as (d), retitles it as ``Proposal

content,'' and

[[Page 65957]]

makes additional changes. Changes in terminology are made throughout

paragraph (d) to be consistent with changes made earlier in this

section. Paragraph (e)(3), ``Technical and financial capability,'' is

redesignated as (d)(3), but is unchanged in the final rule. Paragraph

(e)(4), ``Project description,'' has been redesignated as (d)(4) in the

final rule and revised to make the exception in the first sentence

applicable to all major developments, rather than just to ``major

resort development.'' This revision is consistent with the revision to

paragraph (f)(3) of the final rule which describes the requirements for

requesting authorizations for major developments.

The Department recognizes respondents' concern with paragraph

(e)(5), ``Environmental protection plan.'' It emphasizes that it does

not seek to avoid consideration of environmental effects when

evaluating proposals. However, the removal of environmental analysis

requirements in this paragraph is consistent with the overall objective

of streamlining the regulation. It will save the proponent and the

agency the time and expense of conducting an environmental analysis on

proposals that would be rejected on other grounds. For example, the

agency has found that applications often are not approved because the

proponent lacks sufficient technical or financial capability to operate

the proposal successfully, or because the Forest plan for the area

precludes the proposed use. Readers are reminded that the procedure

proposed in the rule to screen proposals is intended to screen out

those proposals which do not meet minimum requirements/criteria before

they become proposals as defined by the National Environmental Policy

Act (NEPA) and its implementing regulations, which would require

environmental analysis and documentation. Once an application has been

accepted by the agency, analysis of the proposed use's environmental

effects must be considered (Sec. 251.54(g)(2) of the final rule).

Section 251.54, Paragraph (f)--Receipt and denial of applications

for special uses. This paragraph of the proposed regulation, which has

been paragraph (i) in the previous regulations describing agency

response to applications, would mark the point in processing requests

for special use authorizations at which the proposal is considered

received by the agency.

Comment. Respondents suggested that a time limit be set for

completion of the application analysis set forth in paragraph (f)(2):

30 days was suggested. One respondent stated that proposals for

hydroelectric projects, which are also governed by the Federal Power

Act, would not be subject to the criteria listed in paragraph (f)(2),

since the ultimate approval of these projects lies with the FERC. A

respondent suggested that subjecting an application for reissuance of

an authorization for an existing use to this second-level screening

seemed unfair and inconsistent with due process requirements.

Response. The Department does not agree that a rigid time limit

should be applied to analysis of applications. The wide variation in

scope and complexity of applications requires flexibility in response

time. Thus, while the Department recognizes the appropriateness of

prompt action, it will not impose time limits on its decisionmaking

responsibility. Also, the Forest Service has affirmative responsibility

with respect to applications for hydroelectric projects. Section 4(e)

of the Federal Power Act requires the agency to provide the FERC a

determination of whether the project is consistent with the purpose for

which the National Forest is established. This statutory requirement,

coupled with the agency's internal policy on hydroelectric projects,

serves as sufficient guidance in recognizing the unique actions

necessary for these projects.

The screening/analysis process described in paragraph (f)(2) (now

(e)(5) in the final rule) is tiered to the initial screening process

and thus applies only to applications for new authorizations, not

renewals for existing uses, which are covered by Sec. 251.64.

Therefore, the criteria in proposed paragraph (f)(2) have been retained

in the final rule as paragraph (e)(5)(i)-(v) since this second-level

screening is intended to apply to proposals that have met the criteria

of the initial screening and which would be subjected to additional

scrutiny and consideration. This shift presents the agency's process

for considering requests for special use authorizations in a more

logical sequence than that of the proposed rule.

No comments were received on proposed paragraphs (f)(1) and (3) of

this section of the proposed rule. Proposed paragraph (f)(1) of the

proposed rule was a new provision stating that an application that

passes the initial screening set forth in paragraph (a) would be

received but not accepted by the agency for consideration. The

paragraph appears in the final rule as (g)(1), ``Acceptance of

applications,'' but has been revised to state that a proposal meeting

the criteria of both the initial and second-level screening processes

(paragraphs (e)(1) and (e)(5)) would be accepted by the agency as a

formal application for the use. If the request does not meet the

criteria for the screening processes, it is not accepted as a formal

application. Proposed paragraph (f)(3), also a new provision, stated

that the decision to deny a special use application based on the

factors listed in paragraph (f)(2) would not constitute a ``proposal''

as defined by Council on Environmental Quality regulations and thus

would not require the agency to conduct an environmental analysis. This

paragraph applies to proposals which have been screened under the

second-level screening process. It is retained as paragraph (e)(6) in

the final rule, but edited to clarify its intent.

Other comments relevant to Section 251.54(f).

Four respondents objected to the removal of an unnumbered paragraph

which has been at the end of Sec. 251.54(i) requiring the authorized

officer, when denying an application under two conditions, to offer the

applicant an alternative site or time for the proposed use. These

respondents believed that removal of this provision would alter the

agency's obligation to consider alternatives to the proposed use under

current Council on Environmental Quality regulations and the agency's

own policies for environmental analysis and documentation. The

respondents urged that the provision be retained to provide applicants

additional flexibility in obtaining authorizations to use NFS lands.

However, one respondent supported the elimination of this provision,

stating that it avoided unnecessary duplication in the application

process and thus would be helpful to applicants.

Response. The removal of the provision requiring that an

alternative site be offered when denying an application does not

circumvent NEPA requirements to consider reasonable alternatives to a

proposed action when documenting environmental impacts. The Forest

Service believes that it has no affirmative duty to provide alternative

sites for a proposed use when a use is denied because it is

inconsistent or incompatible with the purposes for which the lands are

managed, or because the applicant is not qualified. Therefore, this

provision has not been included in the final rule.

This determination on the offering of an alternative site for

special use authorizations in general differs from that in the recently

adopted revisions to this subpart concerning noncommercial group uses

and noncommercial

[[Page 65958]]

distribution of printed material. Constitutional requirements

concerning ample alternatives for communication of information dictated

that an alternative site provision be included in the noncommercial

group use regulations.

Section 251.54, Paragraph (g)--Processing Applications. Paragraph

(g) of the proposed rule, which has until now appeared as paragraph (f)

of Sec. 251.54, describes the procedure to be followed when an

application is accepted for processing. The proposed rule revised this

paragraph to be consistent with revisions made elsewhere in the

regulations. Central to these revisions was the removal of those

provisions in paragraph (f)(1) that required the authorized officer to

complete environmental documentation requirements, consult with other

agencies and interested parties, hold public meetings, and take other

actions necessary to evaluate an application. These provisions were

moved to paragraph (i) of the proposed rule to achieve the consistency

sought by the overall revision to subpart B.

A new paragraph (3) was proposed to provide guidance on processing

applications for planning permits, principally those for major resort

developments. This addition was tied to a revision in paragraph (h) of

this section describing major commercial developments. This proposed

new provision would limit application information to that needed to

make a decision on issuance of a planning permit; that is, a permit

authorizing only minor disturbance of the proposed site in order to

gather information and data to prepare an application for the

development project which would be submitted later. If the planning

resulted in an application to develop the project, the detailed

information and requisite environmental documentation would be

completed.

There were no comments received on proposed paragraph (g).

Nevertheless, as noted in the discussion of and comments on proposed

paragraph (f), this paragraph has been revised extensively in the final

rule to conform to the overall reorganization of this section. In

particular, it should be noted that this paragraph was reformatted to

accommodate the August 30, 1995, noncommercial group use regulations

which are redesignated as paragraph (g)(3) in the final rule.

In the final rule, paragraph (g)(2) requires the authorized officer

to evaluate formal applications for special use authorizations,

including evaluation of effects on the environment, and, where required

by NEPA procedures, to provide notice to the public with an opportunity

to comment on the application. This provision appeared in paragraph (j)

of the proposed rule. Paragraph (g)(2) represents the point of the

special use proposal/application process at which the proposal becomes

an application as defined by 40 CFR 1508.23, and thus requires

environmental analysis and documentation. In the final rule, paragraph

(g)(2) also incorporates provisions previously found elsewhere in the

rule regarding notice to and consideration of findings of other

Federal, State, and local government agencies concerning the

application.

Section 251.54, Paragraph (h)--Special application procedures. This

paragraph of the proposed rule described special requirements and

procedures for handling applications for oil and gas pipelines and

large electric transmission line rights-of-way. In the proposal, a

third type of special use requiring special procedures when applying

for an authorization would have been added--that is, proponents for a

major resort development on NFS lands could apply for a 5-year planning

permit.

This provision would substantially change the way proposals for

major commercial recreation development would be considered.

Previously, an application for this use would trigger full-scale

economic and environmental analysis--before the proponent has fully

defined the project and prepared a master development plan. Once a

project is fully defined in a development plan, a project different

from that described in the application often results, thus requiring

reconsideration of the original analysis and decision and sometimes

requiring a supplemental environmental impact statement. This

supplemental analysis can impose considerable additional cost on the

proponent and the agency. Under the proposed rule, a proponent who

passed the initial screening criteria would apply for a planning

permit. This application would be subjected to the established

procedures for review and decision by the agency. Approval of the

planning permit application would allow the proponent to complete the

master development plan, which would then become the basis for an

application for an authorization to construct and operate the major

resort development. The second application would be subject to separate

analysis and decision.

Comment. Respondents generally endorsed the proposed 2-part

permitting process for major commercial recreation development.

However, they urged that the process be available for all large-scale

commercial developments. The respondents suggested that oil and gas

pipelines or hydroelectric projects, for example, would qualify for

this procedure. The respondents believed that this procedure would

further reduce the regulatory burden on both the applicant and the

agency.

Response. The Department agrees that the proposed planning permit

for major resort developments should be available for all types of

major developments on NFS lands and has adopted this change in the

final rule. Further, the Department believes that a fixed term of five

years for the planning permit may not be adequate for some types of

major development, which are subject to separate licensing/approval

actions by other Federal and State agencies. Accordingly, the final

rule states that planning permits may be issued for up to 10 years.

Paragraph (h) of the proposed rule has been redesignated as (f) in

the final rule, with the new provision concerning major developments

appearing as paragraph (f)(3). This redesignation places this paragraph

ahead of the regulations on processing applications; thus it occupies a

more logical location in the sequence of processing requests for

authorizations. The title of paragraph (f) has been revised to read

``Special requirements for certain proposals,'' to more accurately

reflect the paragraph's purpose.

Section 251.54, Paragraph (j)--Action taken on accepted

applications. This provision of the proposed rule would require the

authorized officer to evaluate the effects of the accepted application,

including effects on the environment, and to make a decision on whether

to approve or disapprove the application. The proposed paragraph

described the three types of action that could be taken by the

authorized officer on an accepted application: (1) approval; (2)

denial; or (3) approval with modification. By specifying the range of

decisions available, this provision would enable the agency to define

more clearly in the environmental documentation the purpose of and need

for the project to which the agency is responding.

Comment. Respondents stated that the agency needed to describe in

greater detail the review and analysis process that culminates in a

decision on the application. For example, respondents suggested that

this paragraph address the backgrounds, or areas of expertise, of those

who will review the application and the regulations, policies, and

agency procedures that will apply to the review. This suggestion was

offered in the belief that a more complete decision record is needed.

Respondents also

[[Page 65959]]

urged the agency to include a time limit in this paragraph for making a

decision on an application. If a decision was not made within the time

specified, the application would be considered approved under standard

permit terms and conditions.

One respondent suggested that due to the magnitude of the revisions

proposed in its comments on this and other sections of the proposed

rule, the agency should reissue proposed regulations and provide for an

additional comment period.

Two respondents objected to the sentence in this paragraph that

would allow several similar special use applications to be approved in

one decision and its documentation. These respondents felt that an

application's approval could be delayed by incomplete applications for

similar projects of others and suggested that this provision be amended

to require that a combined decision be made only with the concurrence

of the applicants. Another respondent believed that all applications

need to be considered individually to give adjacent land managers

adequate opportunity to consider a proposed use.

Response. Expanding paragraph (j) to describe in detail the process

for reaching a decision on an application is not necessary or

appropriate to a regulation. While no change will be made in this

regard in the final regulations, upon adoption of final regulations,

the Forest Service will review its Manual and Handbook direction to

determine if revision is necessary to improve consistent interpretation

among field units.

It also would be inappropriate to place a time limit on the

authorized officer to render a decision on an accepted application.

Such a provision could prevent the authorized officer from reaching a

sound decision, particularly where unforeseen events, such as an

extended period of forest fire emergency, prevent the authorized

officer from performing the administrative duties involved in

evaluating a special use application. Thus, this suggestion is not

adopted in the final regulation.

Similarly, it is not appropriate to reissue proposed regulations

reflecting the Department's response to respondents' suggestions.

Comments of all respondents were carefully considered and their

appropriateness and applicability determined. Acknowledgment of the

Department's response to those comments, as explained in this

supplementary information section, is considered to be sufficient

explanation of the rulemaking decision.

The Department recognizes respondents' concerns about combining

applications into one decision. However, it is the agency's intent that

uses that could be grouped under one decision would be homogeneous and

have relatively minor impact. Applications for complex proposals could

not be grouped due to the variations in impacts and the resulting

variation in the depth of analysis required for each proposal. An

example of how this provision could be used occurs in the Pacific

Northwest, where a large number of applications are received each year

to place bee hives temporarily on NFS lands where timber harvest

activities have recently occurred. While the hives may be scattered

over an area of several hundred acres, the impact of each hive is

essentially the same as that of all others. Thus, a single decision

could authorize placement of all hives. Therefore, the Department has

decided to retain the language of this provision as Sec. 251.54(g)(4)

in the final rule, but has added clarifying guidance limiting the

application of this provision to those uses having minor impacts.

The Department disagrees with the respondent who believes each

application must be considered individually to ensure that it does not

adversely affect management of adjoining land. Even if several

applications were acted upon in one decision, the impacts of each

proposed use, including those on adjacent lands, would have to be

considered. Further, where an environmental assessment or environmental

impact statement is prepared, the public, including the adjacent

landowner, would have the opportunity to be involved in the analysis of

the proposed use.

Paragraph (j) has been relocated in the final rule as part of the

overall reorganization of this section to achieve a more logical

sequential process. A portion of the first sentence of proposed

paragraph (j) concerning evaluation of the proposed use has been moved

to paragraph (g)(2), while the remainder of the paragraph has been

moved to paragraph (g)(4) in the final rule. These provisions have been

edited in the final regulation to improve clarity.

As part of the overall reorganization of Sec. 251.54, the rules

applicable to noncommercial group uses are now codified as paragraph

(g)(3). A provision previously in paragraph (f)(5) stating that

applications for noncommercial group uses are automatically granted

unless denied within 48 hours of receipt has been moved to paragraph

(g)(3) in the final rule since the provision concerns the response to

rather than the processing of the application. Also, the text of

paragraph (g)(3) has been revised to correct citations to other parts

of this subpart which have been revised in the final rule and to

correct incorrect uses of the word ``shall''; however, the Department

emphasizes that no substantive changes have been made.

Section 251.54, Paragraph (k)--Authorization and reauthorization of

a special use. This proposed paragraph would govern issuance of a

special use authorization after a decision is made to authorize the

use. The use thus authorized may be reauthorized as long as it remains

consistent with the original decision. However, if new information

becomes available, or new circumstances have developed, new analysis

must support a decision to reauthorize the use.

Comment. Eight respondents commented on paragraph (k). These

respondents suggested that the direction regarding reauthorizing uses

is not appropriate since Sec. 251.54 applies only to new

authorizations. Respondents also stated that the language on

reauthorizations does not provide sufficient protection from an

arbitrary decision not to reissue an authorization. One respondent

suggested that reauthorizations should be allowed at any time, not just

upon expiration of the authorization.

Response. The Department agrees that this language concerning

reauthorization of the special use authorization is out of place. Thus,

the second sentence of proposed paragraph (k) has been moved to

Sec. 251.64(a) in the final rule, which deals with renewals of special

use authorizations. The heading of Sec. 251.54 has been revised to make

clear that this section deals solely with the special use proposal and

application process. Further, the agency believes that placement of the

language concerning reauthorization in Sec. 251.64 responds to

respondent concerns that decisions disallowing reauthorization may be

arbitrary. The language in Sec. 251.64(a), as modified by the final

rule, prescribes additional requirements that must be observed when

reauthorization is considered. These requirements will help prevent

arbitrary decisions.

The adoption of the noncommercial group use regulations on August

30, 1995, to this subpart did not affect proposed paragraph (k).

However, the first sentence of proposed paragraph (k) has been

redesignated as (g)(5) in the final rule in keeping with the placement

of all actions related to processing and responding to applications in

paragraph

[[Page 65960]]

(g)--Application processing and response.

Because of the complexity of the screening and application

processes, the Department has prepared Exhibit 1 to display the entire

special use authorization approval process defined in Sec. 251.54.

Exhibit 1 is set out at the end of this rule but will not appear in the

Code of Federal Regulations.

Section 251.56 Terms and conditions. This section of the current

regulations sets forth the terms and conditions to be included in each

special use authorization. Paragraph (d) prescribes the liability

requirements to be imposed on a holder of an authorization. The

proposed rule would have revised only paragraph (d)(2) of this section.

The revision was intended to clarify that the maximum limit of

liability for certain high hazard authorized uses would be determined

by an assessment of the risk associated with the use rather than an

amount set by the authorized officer. This is usually $1,000,000, the

maximum liability amount previously established by the regulations at

Sec. 251.56(d)(2).

Comment. Most respondents commenting on this revision agreed with

the proposal to require risk assessments in order to establish

liability limits for a specific use. Several respondents suggested

factors to be included in the risk assessment, such as the holder's

past performance and the historical frequency of incidents where

negligence associated with the holder's use and occupancy has

contributed to the liability of the Forest Service. Some respondents

proposed that holders of authorizations with a lower risk of accidents

and negative impacts on the land should not pay the same fee as holders

of authorizations with a higher risk use.

Three respondents objected to the current provision, for which

revision was not proposed, that requires holders of authorizations for

high-risk uses to be liable for all injury, loss, or damage without

regard to the holder's negligence. These respondents stated that since

the holder does not have exclusive use of the lands and cannot control

the activities of others on those lands, the holder should not be

liable for the actions of third parties.

Finally, one respondent recommended that the regulations be revised

to allow the agency to obtain restitution in excess of the amount

established by a risk assessment, or $1,000,000 as authorized by law,

should special circumstances arise or actual costs incurred by the

agency exceed the established amount. This respondent further suggested

that the regulations provide that damages paid to the agency under the

liability provision be made available to adjacent landowners who suffer

losses as a result of a holder's activities on Federal lands.

Response. Factors to be included in a risk assessment to determine

the maximum limit of liability should be identified, in order to avoid

standardizing the liability and thus creating inequities among holders

of authorizations involving high-risk uses. However, this type of

information is more appropriately included in the Forest Service's

internal directive system; namely, the Special Uses Handbook (FSH

2709.11). The agency will add direction on how to conduct liability

risk assessment to the Special Uses Handbook. Factors to be included in

this risk assessment will recognize uses having less risk of damage to

National Forest System resources and improvements.

The Department does not agree with those respondents who object to

placing liability for all injury, loss, or damage on holders without

regard to the holders' negligence. Placing the burden of risk on the

holder of the authorization rather than the landowner is an established

practice in transactions involving private lands and is justified as a

reasonable requirement to insure against potential liability from any

cause. Therefore, no change has been made to this provision in the

final rule.

State laws governing rules of ordinary negligence allow the agency

to litigate to seek damages in excess of an amount established by law

or regulation for strict liability. These State laws offer sufficient

protection to the Federal Government, and these same laws allow

adjacent landowners the opportunity to seek damages from the holder,

instead of claiming a share of damages received by the Forest Service.

Thus, no change was made in the final regulations to respond to this

comment.

Paragraph (a) of Sec. 251.56 has been reformatted and slightly

revised in the final rule to clarify the content of a special use

authorization. A new paragraph (a)(2) has been added to this section,

which states that authorizations may be conditioned to require

approvals from other government agencies. This paragraph was previously

at Sec. 251.54(c).

Section 251.57 Rental fees. This section of the regulations

currently requires that holders of authorizations pay an annual rental

fee in advance based on the fair market value of the rights and

privileges authorized. In addition, this section prescribes the

conditions under which all or a part of those annual fees may be waived

and the circumstances under which additional fees may be assessed.

The proposed rule incorporated into paragraph (a) of the regulation

an amendment made to the Federal Land Policy and Management Act of 1976

(FLPMA) (43 U.S.C. 1701 et seq.) by the Act of October 27, 1986 (Pub.

L. 99-545). That amendment allows the Secretary of Agriculture to

require payment of fees either annually or for more than one year at a

time. The 1986 amendment also gives private individuals (holders of

authorizations who are not commercial or governmental entities and are

acting in an individual capacity) whose annual rental fees are greater

than $100 the option of paying annually or for more than one year at a

time.

The supplementary information section for the proposed rule

explained that in accordance with Title V of FLPMA, the agency is

authorized to issue easements and leases, instead of annual permits,

when authorizing certain types of special uses, particularly those

involving large-scale commercial operations but that this authority had

not been implemented in agency practice. (See the definitions for

``easement'' and ``lease'' in Sec. 251.51.) The agency can provide an

extended authorization period by using easements or leases to authorize

commercial land uses, such as communication sites, utility rights-of-

way, and roads. In the case of easements, the commonly accepted

practice in the private marketplace is to receive a onetime payment

when the easement is negotiated that recognizes the fair market value

of the rights and privileges granted, as determined by appraisal or

other sound business management practices. The proposed rule indicated

that if the Forest Service uses this approach when authorizing use of

NFS lands by an easement, considerable cost-savings could accrue to the

agency and to the holder of the authorization through avoidance of

annual administrative costs and the costs of permit renewal activities.

It is also possible (although uncommon in the private market) that the

acquisition of an easement could be accomplished by periodic payments,

in which case the purchase value would be amortized over an agreed-upon

timeframe, and an appropriate interest rate on the unpaid balance would

be applied.

Comment. Eleven respondents commented on this section. Five

respondents suggested that the option of annual versus multi-year

payments not be limited to private individuals, suggesting that

partnerships and corporations be given this option as

[[Page 65961]]

well. Five respondents supported the agency's proposal to allow use of

easements and leases, but suggested that the conversion of permits be

made at the request of the holder rather than upon expiration of the

permit. Some respondents expressed concern that allowing a one-time

payment would not allow the agency to keep pace with inflation, thus

preventing receipt of fair market value. Finally, some respondents

asked how the proposed revisions to this section would be implemented

by the agency, suggesting that modification of the agency's directive

system would be necessary.

Response. The provision in the proposed rule allowing private

individuals the option of paying fees annually or for more than one

year at a time if their annual fees are more than $100 precisely tracks

with the language in the 1986 amendment to FLPMA. Thus, since the law

limits the revision to private individuals, the suggestion to allow

partnerships, corporations, and governmental entities the same

privilege in the final rule cannot be adopted. However, the language of

proposed paragraph (a)(2) of this section has been revised in the final

rule to simplify and clarify the provision.

Allowing immediate use of easements and leases would be desirable;

however, the workload imposed on the agency's field staff should this

occur could be overwhelming. Thus, the agency will revise its current

administrative direction to indicate that conversion to easements and

leases will be made as permits expire, or as mutually agreed upon

between the holder and the authorized officer, in order to spread out

the workload of conversion. Also, it should be noted that many of the

authorizations that would be affected by this provision can be

terminated annually by mutual agreement of the agency and the holder,

thus accomplishing what has been suggested by the respondents.

The Department disagrees with those respondents who suggest that

the effects of inflation should be a part of the fee calculation

process when providing for a one-time payment of fees. The fair market

value of an easement is indicated by comparable transactions in the

private market place. The agency assumes that inflation is considered

by the grantor in determining the value of the easement in the same

manner that the additional rights granted are recognized in determining

value. For example, an easement could convey additional rights to the

holder, such as tenure, transferability, and compensation in the event

of termination. In addition, the holder could treat the easement as a

capital asset, thereby gaining favorable financial treatment. The value

of these additional rights would be realized in increased fees,

providing increased returns to the Treasury. Thus, a one-time payment

can represent fair market value for the entire term of the

authorization, and no loss to the Government will occur. Upon adoption

of this final rule, the agency's directives will be amended to reflect

this regulatory revision.

The proposed regulation would have removed paragraph (g) of

Sec. 251.57. Subsequently redesignated as paragraph (h) by the 1995

noncommercial group use rule, this paragraph provides special authority

to the Supervisor of the Mark Twain National Forest to waive fees under

certain specified conditions. This provision was added to the

regulations to test a procedure to reduce costs to the agency and

contained an expiration date of December 31, 1990. Thus, the provision

is no longer in effect and should be removed from the section. No

comments were received on the removal of this paragraph, and no

additional information has come to light bearing on this provision.

Therefore, this provision is removed by adoption of this final rule.

Section 251.59 Transfer of special use privileges. This section

sets forth the requirements for transferring a special use

authorization from the current holder to a new holder. No change was

proposed to this section in the 1992 proposed rule. However, as a

result of its review of public comments and the overall analysis of

subpart B, the Department has determined that this section contains

incorrect and misleading requirements. Specifically, the language of

this section can be interpreted to contradict itself by stating in the

first sentence that a permit may be transferred and, then, by stating

in the last sentence that, if the holder through transfer of the

authorized improvements ceases to be the owner, the permit is subject

to termination.

Section 504(c) of FLPMA (90 Stat. 2778) provides discretionary

authority to the agency (delegated through the Secretary of

Agriculture) to specify the terms and conditions applicable to

authorizations it grants. The Department's longstanding position has

been and remains that, with the exception of easements, an

authorization itself has no value. To allow transfer of the

authorization would simply imply that it is a valuable asset to the

owner of the improvements. Accordingly, the Forest Service requires as

a provision of the authorizing document that new owners of improvements

covered by a special use authorization must first obtain a new

authorization. Therefore, except for certain types of easements and

leases, the agency does not actually transfer an authorization when the

authorized improvements are sold or otherwise transferred between

parties. Rather, upon a change of ownership, the agency deems the

original authorization terminated and issues a new authorization to the

new owner of the improvements upon a determination that the new owner

is eligible to hold a special use authorization.

Therefore, the agency has revised the title and the text of this

section to remove the current ambiguity and to reflect more accurately

its purpose and intent. In the final rule, the title reads ``Transfer

of authorized improvements.'' The text of the section has been

reorganized and edited for precision and clarity. It now states that a

special use authorization terminates when the holder of the

authorization ceases to be the owner of the authorized improvements. A

new owner of the improvements may be issued an authorization upon

applying for and receiving approval from the authorized officer.

The Department considers this change to be a technical correction

that reflects longstanding policy and practice and that it has no

substantial effect on administration of current special use

authorizations.

Section 251.60 Termination, revocation, and suspension. This

section of the regulation prescribes the conditions under which a

special use authorization may be suspended, terminated, or revoked.

Revisions to paragraphs (b), (e), (f), and (h) of this section were

proposed to be consistent with proposed definitions of these terms in

Sec. 251.51. Revision to paragraphs (g) and (i) of this section was

necessary to correct identification of regulations pertaining to

administrative appeals of decisions relating to special use

authorizations.

Comment. Five respondents commented on the proposed revisions to

this section. These respondents noted that the use of the word

``termination'' in paragraph (a) implies an action by the authorized

officer, which is inconsistent with the proposed definition in

Sec. 251.51. One respondent recommended that the proposed revision

require the authorized officer to follow agency policy and procedures

when decisions to terminate, revoke, or suspend a permit are under

consideration. Another respondent recommended that decisions to suspend

or revoke a permit not be delegated to agency officials below the

[[Page 65962]]

Regional Forester. Two respondents suggested that the on-site review

set forth in paragraph (f), proposed to be conducted within 10 days

following the request of the holder when a permit is suspended, is too

long a period for public utilities such as hydroelectric facilities or

electric or gas transmission lines. These respondents suggested that

the review be conducted within 24 hours of a suspension.

One respondent suggested that the proposed regulation be revised to

require that all authorizations issued to holders providing public

utilities must be renewed as long as the holder is in compliance with

all laws and regulations affecting the authorization. One respondent

suggested that the proposed definition for ``termination'' would

require review of all related laws, regulations, and policies and

revision of many individual permits to make them conform to the

proposed definition. As a result, the agency would face a major

increase in regulatory burden and costs.

Response. Readers are advised that the adoption of the

noncommercial group use amendments on August 30, 1995, resulted in

extensive revision to paragraphs (a) and (b) of Sec. 251.60. The

amendments, in specifying the grounds for termination, revocation, and

suspension of special use authorizations, distinguished between

noncommercial group uses (paragraph (a)(1)) and all other special uses

(paragraph (a)(2)). In responding to comments to this section of the

proposed rule, the agency was required to take special consideration of

the August 30, 1995, amendments. The revisions also caused paragraph

(b), as amended in 1995, to be reorganized to be consistent with

paragraph (a). The revision of paragraphs (a) and (b) of this section

resulted in the elimination in the final rule of paragraph (g),

concerning appeals of termination, revocation, and suspension decisions

by an authorized officer. This provision has been incorporated into

both paragraphs (a) and (b).

The Department agrees that the language of paragraph (a) of the

proposed regulations (previously paragraph (a)(2)) was inconsistent

with the new definition for ``termination'' in Sec. 251.51 and has

revised this paragraph to remove the inconsistency. The agency

disagrees that additional language should be added in the final rule to

ensure that authorized officers follow policy and procedures when

considering decisions to terminate, revoke, or suspend permits. The

delegation of authority to agency officials carries with it the

responsibility to follow agency policies and procedures; therefore, no

additional regulatory guidance is necessary. The suggestion that

decisions to suspend or revoke permits not be delegated below the

Regional Forester has not been adopted. Decisions by authorized

officers below the Regional Forester are reviewable by line officers

one level above the deciding officers under current administrative

appeal regulations. The Department believes that this procedure offers

sufficient protection for holders.

In response to the concern about the proposed 10-day period to

review conditions leading to suspension of a permit, readers should be

aware that paragraph (f) would be invoked only in an emergency to

protect the public health and safety or the environment. In a normal

situation where suspension of a permit is contemplated, written notice

would be given and a reasonable time to cure the condition leading to

the suspension would be provided. However, the Department agrees that

10 days is too long to respond in an emergency situation and has

revised the provision in the final rule to provide for a 48-hour

response period.

The Department disagrees with the respondent who suggested that all

authorizations for utility rights-of-way must be renewed, if the holder

is in compliance with applicable laws and regulations. This proposal

would inappropriately restrict the actions of the authorized officer

responsible for protecting and managing the NFS lands.

The Department also disagrees with the respondent who believed that

the definition of the word ``termination'' would increase regulatory

burden and agency costs. Upon adoption of this final rule, the agency

will make necessary revision to its internal directives to ensure

consistency and conformity with the regulations. Conformance of these

directives with the use of the terms adopted by this rule will be a

part of this effort. Thus, no change has been made to this provision in

the final rule.

The agency determined during its analysis of the proposed rule and

the public comments that the regulation does not clearly identify the

agency official who may initiate termination, revocation, or suspension

of authorizations. Thus, the final rule provides that for the purposes

of section 251.60 the authorized officer is the officer who issues the

authorization or that officer's successor.

In addition to the revisions and new language included in this

section, the final rule also reflects some minor editing to clarify and

simplify the text.

Section 251.61 Modifications. This section of the regulation

describes those actions which a holder is required to undertake when it

becomes necessary to modify an existing authorization and the

information which the holder must supply to the authorized officer when

modification becomes necessary. The proposed rule would have clarified

paragraph (c) of this section, to provide that modifications to an

authorization requiring the approval of the authorized officer include

all activities that would impact the environment, other users, or the

public, not just those involving ``maintenance or other activities.''

Three respondents were concerned that the wording of the proposed

revision would apply to all activities that would impact the

environment, other users, or the public, not just those activities for

which modification is proposed. They suggested that the language be

clarified to allow implementation of activities already approved in the

permit that are not subject to modification to proceed without further

approval.

Response. The Department agrees that the language of proposed

paragraph (c) was overly broad. In response to respondents' concerns,

the Department has revised paragraph (c) to require the holder to

obtain prior approval for all modifications to approved uses that will

impact the environment, other users, or the public.

Section 251.64 Renewals. This section of the regulation enumerates

the criteria for renewing an authorization when it provides for renewal

and when it does not. There were no changes proposed to this section,

nor did the adoption of the noncommercial group use regulations on

August 30, 1995, to this subpart, affect this section. However, the

agency has revised this section to incorporate a provision moved from

Sec. 251.54(k) into paragraph (a) of this section which respondents had

indicated was out of place in that section.

Section 251.65 Information collection requirements. This section of

the regulation describes the requirements imposed on the agency when

collecting information from applicants. The regulation sets forth in

paragraph (b) the agency's estimate of the time required for a

proponent/applicant to provide the information requested in an

application for a special use authorization, which is estimated to

range from 30 minutes for simple projects (or uses) to several months

for complex ones with an average of four hours for each project (or

use). There were no changes proposed to this section.

The Department notes it is no longer required to set forth the

information

[[Page 65963]]

contained in paragraph (b) of Sec. 251.65 concerning estimates of the

information collection requirement burden. Thus, this paragraph has

been removed in the final rule as a technical revision to the section.

The text of former paragraph ``(a)'' is retained but as an undesignated

paragraph.

Summary

This final rule responds to direction from the President to reduce

the regulatory burden imposed on those entities holding or seeking to

obtain authorizations to use and occupy National Forest System (NFS)

lands. The current special use regulations at 36 CFR Part 251, Subpart

B addresses the rights of all citizens regarding uses of National

Forest System lands are protected. The regulations provide the means to

protect the health and safety of the public when using the services of

commercial entities authorized to use the Federal lands; ensure that

the services or facilities authorized are operated in compliance with

Title VI of the Civil Rights Act of 1964; and ensure that environmental

safeguards are employed and that authorized uses do not have adverse

environmental effects on National Forest System lands.

This final rule will retain these basic safeguards. The rule will

enhance efficiency in the review of applications, the approval/denial

process, and the administration of authorizations, thereby providing

significant cost savings to applicants, holders, and the Federal

Government. The intent of the final rule is to make the issuance and

administration of special use authorizations a less cumbersome and

costly process, thereby reducing the burden on that segment of the

public making use of these Federal lands, improving productivity of

agency employees, and streamlining operations of the agency. Screening

a proposed use will permit review of the proposal before the proponent

invests time and expense in providing detailed information to accompany

the application or the Forest Service invests time and expense in

performing a detailed evaluation of the proposed use, including an

analysis of the impacts on the environment. By eliminating time-

consuming and costly processing of proposals that cannot meet minimum

requirements, a faster agency response on those applications that pass

the initial screening would result.

The final rule also incorporates into regulation statutory

authority that has been available to the Forest Service that expands

its authority to administer special use authorizations. The final rule

underscores that the agency may issue long-term easements instead of

annual or short-term permits and that those easements may allow for a

one-time fee payment rather than annual fee payments. Holders of

authorizations for high-risk uses such as electric transmission lines

will be subject to strict liability for damage or loss that will be

determined by a risk assessment rather than a fixed dollar amount

specified in regulations. Finally, the agency has made the regulations

more ''user-friendly'' by clarifying certain provisions and removing

unnecessary language, and carefully reorganizing the text to flow in a

logical sequence.

Regulatory Impact

This final rule has been reviewed under USDA procedures and

Executive Order 12866 on Regulatory Planning and Review. It has been

determined that this is not a significant rule. This rule will not have

an annual effect of $100 million or more on the economy nor adversely

affect productivity, competition, jobs, the environment, public health

or safety, nor State or local governments. This rule will not interfere

with an action taken or planned by another agency nor raise new legal

or policy issues. Finally, this action will not alter the budgetary

impact of entitlements, grants, user fees, or loan programs or the

rights and obligations of recipients of such programs. Accordingly,

this final rule is not subject to OMB review under Executive Order

12866. To the contrary, adoption of this final rule will have positive

effects on the economy by creating efficiencies for the Forest Service

and special use proponents and holders. The expected benefits of this

rule outweigh the expected costs to society, the rule is fashioned to

maximize net benefits to society, and the rule provides clarity to the

regulated community.

Moreover, this final rule has been considered in light of the

Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and it has been

certified that this action will not have a significant economic impact

on a substantial number of small entities as defined by that Act.

Therefore, contrary to the views of the Small Business Administration,

a regulatory flexibility analysis is not required. The efficiencies and

cost savings to be achieved by the rule will benefit both small

entities who apply for or hold special use authorizations as well as

large-scale entities.

No Taking Implications

This rule has been analyzed in accordance with the principles and

criteria contained in Executive Order 12630, and it has been determined

that the rule does not pose the risk of a taking of constitutionally

protected private property rights. This rule applies to the

discretionary use of Federally owned land.

Unfunded Mandates Reform

Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2

U.S.C. 1531-1538), which the President signed into law on March 22,

1995, the Department has assessed the effects of this rule on State,

local, and tribal governments and the private sector. This rule does

not compel the expenditure of $100 million or more by any State, local,

or tribal governments or anyone in the private sector. Therefore, a

statement under section 202 of the Act is not required.

Civil Justice Reform Act

This final rule has been reviewed under Executive Order 12988,

Civil Justice Reform. With adoption of this final rule, (1) all State

and local laws and regulations that are in conflict with this final

rule or which would impede its full implementation would be preempted;

(2) no retroactive effect would be given to this final rule; and (3) it

would not require administrative proceedings before parties may file

suit in court challenging its provisions.

Environmental Impact

Section 31.1b of Forest Service Handbook 1909.15 (57 FR 43180;

September 18, 1992) excludes from documentation in an environmental

assessment or impact statement ``rules, regulations, or policies to

establish Service-wide administrative procedures, program processes or

instructions.'' Based on consideration of the comments received and the

nature and scope of this rulemaking, the Department has determined that

this rule falls within this category of actions and that no

extraordinary circumstances exist which would require preparation of an

environmental assessment or environmental impact statement.

Controlling Paperwork Burdens on the Public

This rule will not result in additional paperwork not already

required by law or not already approved for use. Therefore, the review

provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et

seq.) and implementing regulations at 5 CFR 1320 do not apply.

List of Subjects in 36 CFR Part 251

Electric power, Mineral resources, National forests, Rights-of-way,

and Water resources.

[[Page 65964]]

Therefore, for the reasons set forth in the preamble, subpart B of

part 251 of title 36 of the Code of Federal Regulations is amended as

follows:

PART 251--LAND USES

Subpart B--Special Uses

1. The authority citation for subpart B continues to read as

follows:

Authority: 16 U.S.C. 472, 497b, 551, 1134, 3210; 30 U.S.C. 185;

43 U.S.C. 1740, 1761-1771.

2. In Sec. 251.51, revise the definitions for ``Easement'' and

``Lease,'' and add definitions for ``NEPA procedures,'' ``Revocation,''

``Sound business management principles,'' ``Suspension,'' and

``Termination'' in the appropriate alphabetical order to read as

follows:

Sec. 251.51 Definitions.

* * * * *

Easement--a type of special use authorization (usually granted for

linear rights-of-way) that is utilized in those situations where a

conveyance of a limited and transferable interest in National Forest

System land is necessary or desirable to serve or facilitate authorized

long-term uses, and that may be compensable according to its terms.

* * * * *

Lease--a type of special use authorization (usually granted for

uses other than linear rights-of-way) that is used when substantial

capital investment is required and when conveyance of a conditional and

transferable interest in National Forest System lands is necessary or

desirable to serve or facilitate authorized long-term uses, and that

may be revocable and compensable according to its terms.

* * * * *

NEPA procedures--the rules, policies, and procedures governing

agency compliance with the National Environmental Policy Act set forth

in 50 CFR parts 1500-1508, 7 CFR part 1b, Forest Service Manual Chapter

1950, and Forest Service Handbook 1909.15.

* * * * *

Revocation--the cessation of a special use authorization by action

of an authorized officer before the end of the specified period of

occupancy or use for reasons set forth in Sec. 251.60(a)(1)(i),

(a)(2)(i), (g), and (h) of this subpart.

* * * * *

Sound business management principles--a phrase that refers to

accepted industry practices or methods of establishing fees and charges

that are used or applied by the Forest Service to help establish the

appropriate charge for a special use. Examples of such practices and

methods include, but are not limited to, appraisals, fee schedules,

competitive bidding, negotiation of fees, and application of other

economic factors, such as cost efficiency, supply and demand, and

administrative costs.

* * * * *

Suspension--a temporary revocation of a special use authorization.

* * * * *

Termination--the cessation of a special use authorization by

operation of law or by operation of a fixed or agreed-upon condition,

event, or time as specified in an authorization without the necessity

for any decision or action by the authorized officer; for example,

expiration of the authorized term or transfer of the authorized

improvement to another party.

3. Revise Sec. 251.54 to read as follows:

Sec. 251.54 Proposal and application requirements and procedures.

(a) Early notice. When an individual or entity proposes to occupy

and use National Forest System lands, the proponent is required to

contact the Forest Service office(s) responsible for the management of

the affected land as early as possible in advance of the proposed use.

(b) Filing proposals. Proposals for special uses must be filed in

writing with or presented orally to the District Ranger or Forest

Supervisor having jurisdiction over the affected land (Sec. 200.2 of

this chapter), except as follows:

(1) Proposals for projects on lands under the jurisdiction of two

or more administrative units of the Forest Service may be filed at the

most convenient Forest Service office having jurisdiction over part of

the project, and the proponent will be notified where to direct

subsequent communications;

(2) Proposals for cost-share and other road easements to be issued

under Sec. 251.53(j) must be filed in accordance with regulations in

Sec. 212.10(c) and (d) of this chapter; and

(3) Proposals for oil and gas pipeline rights-of-way crossing

Federal lands under the jurisdiction of two or more Federal agencies

must be filed with the State Office, Bureau of Land Management,

pursuant to regulations at 43 CFR part 2882.

(c) Rights of proponents. A proposal to obtain a special use

authorization does not grant any right or privilege to use National

Forest System lands. Rights or privileges to occupy and use National

Forest System lands under this subpart are conveyed only through

issuance of a special use authorization.

(d) Proposal content--(1) Proponent identification. Any proponent

for a special use authorization must provide the proponent's name and

mailing address, and, if the proponent is not an individual, the name

and address of the proponent's agent who is authorized to receive

notice of actions pertaining to the proposal.

(2) Required information--(i) Noncommercial group uses. Paragraphs

(d)(3) through (d)(5) of this section do not apply to proposals for

noncommercial group uses. A proponent for noncommercial group uses

shall provide the following:

(A) A description of the proposed activity;

(B) The location and a description of the National Forest System

lands and facilities the proponent would like to use;

(C) The estimated number of participants and spectators;

(D) The starting and ending time and date of the proposed activity;

and

(E) The name of the person or persons 21 years of age or older who

will sign a special use authorization on behalf of the proponent.

(ii) All other special uses. At a minimum, proposals for special

uses other than noncommercial group uses must include the information

contained in paragraphs (d)(3) through (d)(5) of this section. In

addition, if requested by an authorized officer, a proponent in one of

the following categories must furnish the information specified for

that category:

(A) If the proponent is a State or local government agency: a copy

of the authorization under which the proposal is made;

(B) If the proponent is a public corporation: the statute or other

authority under which it was organized;

(C) If the proponent is a Federal Government agency: the title of

the agency official delegated the authority to file the proposal;

(D) If the proponent is a private corporation:

(1) Evidence of incorporation and its current good standing;

(2) If reasonably obtainable by the proponent, the name and address

of each shareholder owning three percent or more of the shares,

together with the number and percentage of any class of voting shares

of the entity which such shareholder is authorized to vote;

(3) The name and address of each affiliate of the entity;

(4) In the case of an affiliate which is controlled by the entity,

the number of shares and the percentage of any class of voting stock of

the affiliate that the

[[Page 65965]]

entity owns either directly or indirectly; or

(5) In the case of an affiliate which controls that entity, the

number of shares and the percentage of any class of voting stock of

that entity owned, either directly or indirectly by the affiliate; or

(E) If the proponent is a partnership, association, or other

unincorporated entity: a certified copy of the partnership agreement or

other similar document, if any, creating the entity, or a certificate

of good standing under the laws of the State.

(3) Technical and financial capability. The proponent is required

to provide sufficient evidence to satisfy the authorized officer that

the proponent has, or prior to commencement of construction will have,

the technical and financial capability to construct, operate, maintain,

and terminate the project for which an authorization is requested, and

the proponent is otherwise acceptable.

(4) Project description. Except for requests for planning permits

for a major development, a proponent must provide a project

description, including maps and appropriate resource information, in

sufficient detail to enable the authorized officer to determine the

feasibility of a proposed project or activity, any benefits to be

provided to the public, the safety of the proposal, the lands to be

occupied or used, the terms and conditions to be included, and the

proposal's compliance with applicable laws, regulations, and orders.

(5) Additional information. The authorized officer may require any

other information and data necessary to determine feasibility of a

project or activity proposed; compliance with applicable laws,

regulations, and orders; compliance with requirements for associated

clearances, certificates, permits, or licenses; and suitable terms and

conditions to be included in the authorization. The authorized officer

shall make requests for any additional information in writing.

(e) Pre-application actions. (1) Initial screening. Upon receipt of

a request for any proposed use other than for noncommercial group use,

the authorized officer shall screen the proposal to ensure that the use

meets the following minimum requirements applicable to all special

uses:

(i) The proposed use is consistent with the laws, regulations,

orders, and policies establishing or governing National Forest System

lands, with other applicable Federal law, and with applicable State and

local health and sanitation laws.

(ii) The proposed use is consistent or can be made consistent with

standards and guidelines in the applicable forest land and resource

management plan prepared under the National Forest Management Act and

36 CFR part 219.

(iii) The proposed use will not pose a serious or substantial risk

to public health or safety.

(iv) The proposed use will not create an exclusive or perpetual

right of use or occupancy.

(v) The proposed use will not unreasonably conflict or interfere

with administrative use by the Forest Service, other scheduled or

authorized existing uses of the National Forest System, or use of

adjacent non-National Forest System lands.

(vi) The proponent does not have any delinquent debt owed to the

Forest Service under terms and conditions of a prior or existing

authorization, unless such debt results from a decision on an

administrative appeal or from a fee review and the proponent is current

with the payment schedule.

(vii) The proposed use does not involve gambling or providing of

sexually oriented commercial services, even if permitted under State

law.

(viii) The proposed use does not involve military or paramilitary

training or exercises by private organizations or individuals, unless

such training or exercises are federally funded.

(ix) The proposed use does not involve disposal of solid waste or

disposal of radioactive or other hazardous substances.

(2) Results of initial screening. Any proposed use other than a

noncommercial group use that does not meet all of the minimum

requirements of paragraphs (e)(1)(i)-(ix) of this section shall not

receive further evaluation and processing. In such event, the

authorized officer shall advise the proponent that the use does not

meet the minimum requirements. If the proposal was submitted orally,

the authorized officer may respond orally. If the proposal was made in

writing, the authorized officer shall notify the proponent in writing

that the proposed use does not meet the minimum requirements and shall

simultaneously return the request.

(3) Guidance and information to proponents. For proposals for

noncommercial group use as well as for those proposals that meet the

minimum requirements of paragraphs (e)(1)(i)-(ix), the authorized

officer, to the extent practicable, shall provide the proponent

guidance and information on the following:

(i) Possible land use conflicts as identified by review of forest

land and resource management plans, landownership records, and other

readily available sources;

(ii) Proposal and application procedures and probable time

requirements;

(iii) Proponent qualifications;

(iv) Applicable fees, charges, bonding, and/or security

requirements;

(v) Necessary associated clearances, permits, and licenses;

(vi) Environmental and management considerations;

(vii) Special conditions; and

(viii) identification of on-the-ground investigations which will

require temporary use permits.

(4) Confidentiality. If requested by the proponent, the authorized

officer, or other Forest Service official, to the extent reasonable and

authorized by law, shall hold confidential any project and program

information revealed during pre-application contacts.

(5) Second-level screening of proposed uses. A proposal which

passes the initial screening set forth in paragraph (e)(1) and for

which the proponent has submitted information as required in paragraph

(d)(2)(ii) of this section, proceeds to second-level screening and

consideration. In order to complete this screening and consideration,

the authorized officer may request such additional information as

necessary to obtain a full description of the proposed use and its

effects. An authorized officer shall reject any proposal, including a

proposal for commercial group uses, if, upon further consideration, the

officer determines that:

(i) The proposed use would be inconsistent or incompatible with the

purposes for which the lands are managed, or with other uses; or

(ii) The proposed use would not be in the public interest; or

(iii) The proponent is not qualified; or

(iv) The proponent does not or cannot demonstrate technical or

economic feasibility of the proposed use or the financial or technical

capability to undertake the use and to fully comply with the terms and

conditions of the authorization; or

(v) There is no person or entity authorized to sign a special use

authorization and/or there is no person or entity willing to accept

responsibility for adherence to the terms and conditions of the

authorization.

(6) NEPA compliance for second-level screening process. A request

for a special use authorization that does not meet the criteria

established in paragraphs (e)(5)(i) through (e)(5)(v) of this section

does not constitute an agency proposal as defined in 40 CFR

[[Page 65966]]

1508.23 and, therefore, does not require environmental analysis and

documentation.

(f) Special requirements for certain proposals. (1) Oil and gas

pipeline rights-of-way. These proposals must include the citizenship of

the proponent(s) and disclose the identity of its participants as

follows:

(i) Citizens of another country, the laws, customs, or regulations

of which deny similar or like privileges to citizens or corporations of

the United States, shall not own an appreciable interest in any oil and

gas pipeline right-of-way or associated permit; and

(ii) The authorized officer shall notify the House Committee on

Resources and the Senate Committee on Energy and Natural Resources

promptly upon receipt of a proposal for a right-of-way for a pipeline

twenty-four (24) inches or more in diameter, and no right-of-way for

such a pipeline shall be granted until sixty (60) days (not counting

days on which the House of Representatives or the Senate has adjourned

for more than three (3) days) after a notice of intention to grant the

right-of-way, together with the authorized officer's detailed findings

as to terms and conditions the officer proposes to impose, has been

submitted to such committees, unless each committee by resolution

waives the waiting period.

(2) Electric power transmission lines 66 KV or over. Any proposal

for authority to construct and maintain a facility for the generation

of electric power and energy or for the transmission or distribution of

electric power and energy of 66 kilovolts or higher under this section

must be referred to the Secretary of Energy for consultation.

(3) Major development. Proponents of a major development may submit

a request for a planning permit of up to 10 years in duration. Requests

for a planning permit must include the information contained in

paragraphs (d)(1) through (d)(3) of this section. Upon completion of a

master development plan developed under a planning permit, proponents

may then submit a request for a long-term authorization to construct

and operate the development. At a minimum, a request for a long-term

permit for a major development must include the information contained

in paragraphs (d)(1) and (d)(2)(ii) through (d)(5) of this section.

Issuance of a planning permit does not prejudice approval or denial of

a subsequent request for a special use permit for the development.

(g) Application processing and response. (1) Acceptance of

applications. Except for proposals for noncommercial group uses, if a

request does not meet the criteria of both screening processes or is

subsequently denied, the proponent must be notified with a written

explanation of the rejection or denial and any written proposal

returned to the proponent. If a request for a proposed use meets the

criteria of both the initial and second-level screening processes as

described in paragraph (e) of this section, the authorized officer

shall notify the proponent that the agency is prepared to accept a

written formal application for a special use authorization and shall,

as appropriate or necessary, provide the proponent guidance and

information of the type described in paragraphs (e)(3)(i) through

(e)(3)(viii) of this section.

(2) Processing applications. (i) Upon acceptance of an application

for a special use authorization other than a planning permit, the

authorized officer shall evaluate the proposed use for the requested

site, including effects on the environment. The authorized officer may

request such additional information as necessary to obtain a full

description of the proposed use and its effects.

(ii) Federal, State, and local government agencies and the public

shall receive adequate notice and an opportunity to comment upon a

special use proposal accepted as a formal application in accordance

with Forest Service NEPA procedures.

(iii) The authorized officer shall give due deference to the

findings of another agency such as a Public Utility Commission, the

Federal Regulatory Energy Commission, or the Interstate Commerce

Commission in lieu of another detailed finding. If this information is

already on file with the Forest Service, it need not be refiled, if

reference is made to the previous filing date, place, and case number.

(iv) Applications for noncommercial group uses must be received at

least 72 hours in advance of the proposed activity. Applications for

noncommercial group uses shall be processed in order of receipt, and

the use of a particular area shall be allocated in order of receipt of

fully executed applications, subject to any relevant limitations set

forth in this section.

(v) For applications for planning permits, including those issued

for a major development as described in paragraph (f)(3) of this

section, the authorized officer shall assess only the applicant's

financial and technical qualifications and determine compliance with

other applicable laws, regulations, and orders. Planning permits may be

categorically excluded from documentation in an environmental

assessment or environmental impact statement pursuant to Forest Service

Handbook 1909.15 (36 CFR 200.4).

(3) Response to applications for noncommercial group uses. (i) All

applications for noncommercial group uses shall be deemed granted and

an authorization shall be issued for those uses pursuant to the

determination as set forth below, unless applications are denied within

48 hours of receipt. Where an application for a noncommercial group use

has been granted or is deemed to have been granted and an authorization

has been issued under this paragraph, an authorized officer may revoke

that authorization only as provided under Sec. 251.60(a)(1)(i).

(ii) An authorized officer shall grant an application for a special

use authorization for a noncommercial group use upon a determination

that:

(A) Authorization of the proposed activity is not prohibited by the

rules at 36 CFR part 261, subpart B, or by Federal, State, or local law

unrelated to the content of expressive activity;

(B) Authorization of the proposed activity is consistent or can be

made consistent with the standards and guidelines in the applicable

forest land and resource management plan required under the National

Forest Management Act and 36 CFR part 219;

(C) The proposed activity does not materially impact the

characteristics or functions of the environmentally sensitive resources

or lands identified in Forest Service Handbook 1909.15, chapter 30;

(D) The proposed activity will not delay, halt, or prevent

administrative use of an area by the Forest Service or other scheduled

or existing uses or activities on National Forest System lands,

including but not limited to uses and activities authorized under parts

222, 223, 228, and 251 of this chapter;

(E) The proposed activity does not violate State and local public

health laws and regulations as applied to the proposed site. Issues

addressed by State and local public health laws and regulations as

applied to the proposed site include but are not limited to:

(1) The sufficiency of sanitation facilities;

(2) The sufficiency of waste-disposal facilities;

(3) The availability of sufficient potable drinking water;

(4) The risk of disease from the physical characteristics of the

proposed site or natural conditions associated with the proposed site;

and

[[Page 65967]]

(5) The risk of contamination of the water supply;

(F) The proposed activity will not pose a substantial danger to

public safety. Considerations of public safety must not include

concerns about possible reaction to the users' identity or beliefs from

non-members of the group that is seeking an authorization and shall be

limited to the following:

(1) The potential for physical injury to other forest users from

the proposed activity;

(2) The potential for physical injury to users from the physical

characteristics of the proposed site or natural conditions associated

with the proposed site;

(3) The potential for physical injury to users from scheduled or

existing uses or activities on National Forest System lands; and

(4) The adequacy of ingress and egress in case of an emergency;

(G) The proposed activity does not involve military or paramilitary

training or exercises by private organizations or individuals, unless

such training or exercises are federally funded; and

(H) A person or persons 21 years of age or older have been

designated to sign and do sign a special use authorization on behalf of

the applicant.

(iii) If an authorized officer denies an application because it

does not meet the criteria in paragraphs (g)(3)(ii)(A) through

(g)(3)(ii)(H) of this section, the authorized officer shall notify the

applicant in writing of the reasons for the denial. If an alternative

time, place, or manner will allow the applicant to meet the eight

evaluation criteria, an authorized officer shall offer that

alternative. If an application is denied solely under paragraph

(g)(3)(ii)(C) of this section and all alternatives suggested are

unacceptable to the applicant, the authorized officer shall offer to

have completed the requisite environmental and other analyses for the

requested site. A decision to grant or deny the application for which

an environmental assessment or an environmental impact statement is

prepared is subject to the notice and appeal procedures at 36 CFR part

215 and shall be made within 48 hours after the decision becomes final

under that appeal process. A denial of an application under paragraphs

(g)(3)(ii)(A) through (g)(3)(ii)(H) of this section constitutes final

agency action and is immediately subject to judicial review.

(4) Response to all other applications. Based on evaluation of the

information provided by the applicant and other relevant information

such as environmental findings, the authorized officer shall decide

whether to approve the proposed use, approve the proposed use with

modifications, or deny the proposed use. A group of applications for

similar uses having minor environmental impacts may be evaluated with

one analysis and approved in one decision.

(5) Authorization of a special use. Upon a decision to approve a

special use or a group of similar special uses, the authorized officer

may issue one or more special use authorizations as defined in

Sec. 251.51 of this subpart.

4. In Sec. 251.56, revise paragraphs (a) and (d)(2), to read as

follows:

Sec. 251.56 Terms and conditions.

(a) General. (1) Each special use authorization must contain:

(i) Terms and conditions which will:

(A) Carry out the purposes of applicable statutes and rules and

regulations issued thereunder;

(B) Minimize damage to scenic and esthetic values and fish and

wildlife habitat and otherwise protect the environment;

(C) Require compliance with applicable air and water quality

standards established by or pursuant to applicable Federal or State

law; and

(D) Require compliance with State standards for public health and

safety, environmental protection, and siting, construction, operation,

and maintenance if those standards are more stringent than applicable

Federal standards.

(ii) Such terms and conditions as the authorized officer deems

necessary to:

(A) Protect Federal property and economic interests;

(B) Manage efficiently the lands subject to the use and adjacent

thereto;

(C) Protect other lawful users of the lands adjacent to or occupied

by such use;

(D) Protect lives and property;

(E) Protect the interests of individuals living in the general area

of the use who rely on the fish, wildlife, and other biotic resources

of the area for subsistence purposes;

(F) Require siting to cause the least damage to the environment,

taking into consideration feasibility and other relevant factors; and

(G) Otherwise protect the public interest.

(2) Authorizations for use of National Forest System lands may be

conditioned to require State, county, or other Federal agency licenses,

permits, certificates, or other approval documents, such as a Federal

Communication Commission license, a Federal Energy Regulatory

Commission license, a State water right, or a county building permit.

* * * * *

(d) * * *

(2) Holders of special use authorizations for high risk use and

occupancy, such as, but not limited to, powerlines and oil and gas

pipelines, shall be held liable for all injury, loss, or damage,

including fire suppression costs, caused by the holder's use or

occupancy, without regard to the holder's negligence, provided that

maximum liability shall be specified in the special use authorization

as determined by a risk assessment, prepared in accordance with

established agency procedures, but shall not exceed $1,000,000 for any

one occurrence. Liability for injury, loss, or damage, including fire

suppression costs, in excess of the specified maximum shall be

determined by the laws governing ordinary negligence of the

jurisdiction in which the damage or injury occurred.

* * * * *

5. In Sec. 251.57, remove paragraph (h), redesignate paragraph (i)

as (h), and revise paragraph (a) to read as follows:

Sec. 251.57 Rental fees.

(a) Except as otherwise provided in this part or when specifically

authorized by the Secretary of Agriculture, special use authorizations

shall require the payment in advance of an annual rental fee as

determined by the authorized officer.

(1) The fee shall be based on the fair market value of the rights

and privileges authorized, as determined by appraisal or other sound

business management principles.

(2) Where annual fees of one hundred dollars ($100) or less are

assessed, the authorized officer may require either annual payment or a

payment covering more than one year at a time. If the annual fee is

greater than one hundred dollars ($100), holders who are private

individuals (that is, acting in an individual capacity), as opposed to

those who are commercial, other corporate, or business or government

entities, may, at their option, elect to make either annual payments or

payments covering more than one year.

* * * * *

6. Revise Sec. 251.59 to read as follows:

Sec. 251.59 Transfer of authorized improvements.

If the holder, through death, voluntary sale, transfer, or through

enforcement of a valid legal proceeding or operation of law, ceases to

be the owner of the authorized improvements, the authorization

terminates upon change of ownership. Except for easements issued under

authorities other than Sec. 251.53(e) and leases and easements under

Sec. 251.53(l) of this subpart, the new

[[Page 65968]]

owner of the authorized improvements must apply for and receive a new

special use authorization. The new owner must meet requirements under

applicable regulations of this subpart and agree to comply with the

terms and conditions of the authorization and any new terms and

conditions warranted by existing or prospective circumstances.

7. Amend Sec. 251.60 as follows:

a. Remove paragraph (g);

b. Redesignate paragraphs (h), (i), and (j) as (g), (h), and (i),

respectively; and

c. Revise paragraphs (a)(2), (b), (e), (f), and newly redesignated

(g), (h), and (i) to read as follows:

Sec. 251.60 Termination, revocation, and suspension.

(a) * * *

(2) All other special uses. (i) Revocation or suspension. An

authorized officer may revoke or suspend a special use authorization

for all other special uses, except an easement issued pursuant to

Sec. 251.53 (e) and (l):

(A) For noncompliance with applicable statutes, regulations, or the

terms and conditions of the authorization;

(B) For failure of the holder to exercise the rights or privileges

granted;

(C) With the consent of the holder; or

(D) At the discretion of the authorized officer for specific and

compelling reasons in the public interest.

(ii) Administrative review. Except for revocation or suspension of

an easement issued pursuant to Sec. 251.53 (e) and (l) of this subpart,

a suspension or revocation of a special use authorization under this

paragraph is subject to administrative appeal and review in accordance

with 36 CFR part 251, subpart C, of this chapter.

(iii) Termination. For all special uses except noncommercial group

uses, a special use authorization terminates when, by its terms, a

fixed or agreed-upon condition, event, or time occurs. Termination of a

special use authorization under this paragraph does not involve agency

action and is not subject to administrative or judicial review.

(b) For purposes of this section, the authorized officer is that

person who issues the authorization or that officer's successor.

* * * * *

(e) Except when immediate suspension pursuant to paragraph (f) of

this section is indicated, the authorized officer shall give the holder

written notice of the grounds for suspension or revocation under

paragraph (a) of this section and reasonable time to cure any

noncompliance, prior to suspension or revocation pursuant to paragraph

(a) of this section,

(f) Immediate suspension of a special use authorization, in whole

or in part, may be required when the authorized officer deems it

necessary to protect the public health or safety or the environment. In

any such case, within 48 hours of a request of the holder, the superior

of the authorized officer shall arrange for an on-site review of the

adverse conditions with the holder. Following this review, the superior

officer shall take prompt action to affirm, modify, or cancel the

suspension.

(g) The authorized officer may suspend or revoke easements issued

pursuant to Sec. 251.53 (e) and (l) of this subpart under the Rules of

Practice Governing Formal Adjudicatory Administrative Proceedings

instituted by the Secretary under 7 CFR 1.130 through 1.151. No

administrative proceeding shall be required if the easement, by its

terms, provides that it terminates on the occurrence of a fixed or

agreed-upon condition, event, or time.

(h)(1) The Chief may revoke any easement granted under the

provisions of the Act of October 13, 1964, 78 Stat. 1089, 16 U.S.C.

534:

(i) By consent of the owner of the easement;

(ii) By condemnation; or

(iii) Upon abandonment after a 5-year period of nonuse by the owner

of the easement.

(2) Before any such easement is revoked for nonuse or abandonment,

the owner of the easement shall be given notice and, upon the owner's

request made within 60 days after receipt of the notice, an opportunity

to present relevant information in accordance with the provisions of 36

CFR part 251, subpart C, of this chapter.

(i) Upon revocation or termination of a special use authorization,

the holder must remove within a reasonable time the structures and

improvements and shall restore the site to a condition satisfactory to

the authorized officer, unless the requirement to remove structures or

improvements is otherwise waived in writing or in the authorization. If

the holder fails to remove the structures or improvements within a

reasonable period, as determined by the authorized officer, they shall

become the property of the United States, but holder shall remain

liable for the costs of removal and site restoration.

8. In Sec. 251.61, revise paragraph (c) to read as follows:

Sec. 251.61 Modifications.

* * * * *

(c) A holder shall obtain prior approval from the authorized

officer for modifications to approved uses that involve any activity

impacting the environment, other users, or the public.

9. In Sec. 251.64, add two sentences at the end of paragraph (a) to

read as follows:

Sec. 251.64 Renewals.

(a) * * * Special uses may be reauthorized upon expiration so long

as such use remains consistent with the decision that approved the

expiring special use or group of uses. If significant new information

or circumstances have developed, appropriate environmental analysis

must accompany the decision to reauthorize the special use.

* * * * *

10. Revise Sec. 251.65 to read as follows:

Sec. 251.65 Information collection requirements.

The rules of this subpart governing special use applications

(Sec. 251.54 and Sec. 251.59), terms and conditions (Sec. 251.54),

rental fees (Sec. 251.57), and modifications (Sec. 251.61) specify the

information that proponents or applicants for special use

authorizations or holders of existing authorizations must provide in

order for an authorized officer to act on a request or administer the

authorization. As such, these rules contain information requirements as

defined in 5 CFR part 1320. These information requirements are assigned

OMB Control Number 0596-0082.

Dated: October 31, 1998.

Anne Kennedy,

Deputy Under Secretary, Natural Resources and Environment.

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

Federal Regulations.

BILLING CODE 3410-11-P

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

BILLING CODE 3410-11-C