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Amendments to 36 CFR 251 & 261

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Therefore, for the reasons set forth in the preamble, part 251, subpart B, and part 261, subpart A, of Chapter II of Title 36 of the Code of Federal Regulations are hereby amended as follows:

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

Authority: 16 U.S.C. 472, 551, 1134, 3210; 30 U.S.C. 185; 43 U.S.C. 1740, 1761-1771.

2. Amend Sec. 251.50 by revising the section heading, paragraph (a), the introductory text for paragraph (c), and paragraph (c)(3) to read as follows:

(a) All uses of National Forest System lands, improvements, and resources, except those provided for in the regulations governing the disposal of timber (part 223) and minerals (part 228) and the grazing of livestock (part 222), are designated ``special uses.'' Before engaging in a special use, persons or entities must submit an application to an authorized officer and must obtain a special use authorization from the authorized officer unless that requirement is waived by paragraph (c) of this section.

(c) A special use authorization is not required for noncommercial recreational activities such as camping, picnicking, hiking, fishing, hunting, horseback riding, and boating, as well as noncommercial activities involving the expression of views such as assemblies, meetings, demonstrations, and parades, except for:

(1) * * *
(2) *) Noncommercial group uses as defined in Sec. 251.51 of this subpart. * * * * *

3. Amend Sec. 251.51 by removing the terms and definitions for ``Group event,'' ``Distributing noncommercial printed material,'' and ``Noncommercial printed material,'' and adding the following new terms and definitions in alphabetical order to read as follows:

Sec. 251.51 Definitions.* * * * *

Commercial use or activity--any use or activity on National Forest System lands

(a) where an entry or participation fee is charged, or
(b) where the primary purpose is the sale of a good or service, and in either case, regardless of whether the use or activity is intended to produce a profit.

Group use--an activity conducted on National Forest System lands that involves a group of 75 or more people, either as participants or spectators.

Noncommercial use or activity--any use or activity that does not involve a commercial use or activity as defined in this section.* * * * *

4. Amend Sec. 251.54 by revising the introductory text for paragraph (a);

removing the introductory text for paragraph (e);
revising paragraph (e)(1);
redesignating paragraphs (e)(2) through (e)(5) as paragraphs (e)(3) through (e)(6);
adding a new paragraph (e)(2);
redesignating paragraphs (f)(1) and (f)(2) as (f)(2) and (f)(3) and designating the first sentence of paragraph (f) introductory text, as paragraph (f)(1);
adding new paragraphs (f)(4) and (f)(5);
and revising paragraph (h) to read as follows:

Sec. 251.54 Special use applications.

(a) Preapplication activity.

When occupancy or use of National Forest System lands is desired, a proponent is encouraged to contact the Forest Service office(s) responsible for management of the affected land as early as possible so that potential constraints may be identified, the proposal can be considered in forest land and resource management plans if necessary, and processing of an application can be tentatively scheduled. To the extent applicable to the proposed use and occupancy, the proponent will be given guidance and information about:* * * * *

(e) Application content--

(1) Applicant identification. Any applicant for a special use authorization shall provide the applicant's name and mailing address, and, if the applicant is not an individual, the name and address of the applicant's agent who is authorized to receive notice of actions pertaining to the application.

(2) Required Information--

(i) Noncommercial group uses. An applicant 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 applicant 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 applicant. Paragraphs (e)(3) through (e)(6) of this section shall not apply to applications for noncommercial group uses.

(ii) All other special uses. At a minimum, applications for special uses other than noncommercial group uses shall include the information contained in paragraphs (e)(3) through (e)(6) of this section. In addition, if requested by an authorized officer, an applicant in one of the following categories shall furnish the information specified for that category:

(A) A State and local government agency: a copy of the authorization under which the application is made;

(B) A public corporation: the statute or other authority under which it was organized;

(C) A federal government agency: the title of the agency official delegated the authority to file the application;

(D) A private corporation:

(1) Evidence of incorporation and its current good standing;

(2) if reasonably obtainable by the applicant, 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 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) 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.* * * * *

(f) Processing applications.

(1) * * *

(4) The authorized officer shall give due deference to the findings of another agency such as the Public Utility Commission, the Federal Energy Regulatory 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.

(5) 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. All applications for noncommercial group uses shall be deemed granted and an authorization shall be issued for those uses unless the 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).* * * * *

(h) Response to applications for noncommercial group uses.

(1) An authorized officer shall grant an application for a special use authorization for a noncommercial group use upon a determination that:

(i) Authorization of the proposed activity is not prohibited by the rules at 36 CFR part 261, subpart A, or by orders issued under 36 CFR part 261, subpart B, or by Federal, State, or local law unrelated to the content of expressive activity;

(ii) Authorization of the proposed activity is consistent or can be made consistent with standards and guidelines in the applicable forest land and resource management plan required under the National Forest Management Act and 36 CFR part 219;

(iii) 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.

(iv) 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;

(v) 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:

(A) The sufficiency of sanitation facilities;

(B) The sufficiency of waste-disposal facilities;

(C) The availability of sufficient potable drinking water;

(D) The risk of disease from the physical characteristics of the proposed site or natural conditions associated with the proposed site; and

(E) The risk of contamination of the water supply;

(vi) The proposed activity will not pose a substantial danger to public safety. Considerations of public safety shall 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;

(A) The potential for physical injury to other forest users from the proposed activity;

(B) The potential for physical injury to users from the physical characteristics of the proposed site or natural conditions associated with the proposed site;

(C) The potential for physical injury to users from scheduled or existing uses or activities on National Forest System lands; and

(D) The adequacy of ingress and egress in case of an emergency;

(vii) 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

(viii) 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.

(2) If an authorized officer denies an application because it does not meet the criteria in paragraphs (h)(1)(i) through (h)(1)(viii) 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 (h)(1)(iii) 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 analysis for the requested site. A decision to grant or deny the application for which an environmental assessment or an environmental impact statement is prepared shall be 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 (h)(1)(i) through (h)(1)(viii) of this section constitutes final agency action and is immediately subject to judicial review.

5. Amend Sec. 251.56 by revising paragraph (e) to read as follows:

Sec. 251.56 Terms and conditions. * * * * *

(e) Bonding. An authorized officer may require the holder of a special use authorization for other than a noncommercial group use to furnish a bond or other security to secure all or any of the obligations imposed by the terms of the authorization or by any applicable law, regulation or order.

6. Amend Sec. 251.57 by redesignating paragraphs (d) through (h) as (e) through (i) and adding a new paragraph (d) to read as follows:

Sec. 251.57 Rental fees.

(d) No fee shall be charged when the authorization is for a noncommercial group use as defined in Sec. 251.51 of this subpart.

7. Amend Sec. 251.60 by revising paragraphs (a) and (b) to read as follows: Sec. 251.60 Termination, revocation, and suspension.

(a) Grounds for termination, revocation, and suspension.

(1) Noncommercial group uses.

(i) Revocation or suspension. An authorized officer may revoke or suspend a special use authorization for a noncommercial group use only under one of the following circumstances:

(A) Under the criteria for which an application for a special use authorization may be denied under Sec. 251.54(h)(1);

(B) for noncompliance with applicable statutes or regulations or the terms and conditions of the authorization;

(C) for failure of the holder to exercise the rights or privileges granted; or

(D) with the consent of the holder.

(ii) Administrative or judicial review. Revocation or suspension of a special use authorization under this paragraph constitutes final agency action and is immediately subject to judicial review.

(iii) Termination. A special use authorization for a noncommercial group use terminates when it expires by its own terms. Termination of a special use authorization under this paragraph does not involve agency action and is not subject to administrative or judicial review.

(2) All other special uses. An authorized officer may terminate, suspend, or revoke a special use authorization for all other special uses except an easement issued pursuant to Sec. 251.53(e) and (l):

(i) For noncompliance with applicable statutes, regulations, or the terms and conditions of the authorization;

(ii) for failure of the holder to exercise the rights or privileges granted;

(iii) with the consent of the holder; or

(iv) when, by its terms, a fixed or agreed upon condition, event, or time occurs. Termination, revocation, or suspension of a special use authorization under this paragraph is subject to administrative and judicial review in accordance with 36 CFR part 251, subpart C.

(b) A special use authorization may be suspended, revoked, or terminated at the discretion of the authorized officer for reasons in the public interest, except that this provision shall not apply to a special use authorization for a noncommercial group use.

PART 261--PROHIBITIONS

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

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

Subpart A--General Prohibitions 9. Amend Sec. 261.2 by adding the following new terms and definitions in alphabetical order to read as follows:

Sec. 261.2 Definitions.

Commercial use or activity-- any use or activity on National Forest System lands

(a) where an entry or participation fee is charged, or

(b) where the primary purpose is the sale of a good or service, and in either case, regardless of whether the use or activity is intended to produce a profit.

Distribution of printed material-- disseminating, posting, affixing, or erecting printed material as defined in this section.

Printed material-- any written and/or graphic material including but not limited to pamphlets, brochures, photographs, graphics, signs, and posters.

10. Amend Sec. 261.10 by redesignating paragraphs (h) through (n) as paragraphs (i) through (o), revising paragraph (g), and adding a new paragraph (h) to read as follows:

Sec. 261.10 Occupancy and use.

(g) Commercial distribution of printed material without a special use authorization.

(h) When commercially distributing printed material, delaying, halting, or preventing administrative use of an area by the Forest Service or other scheduled or existing uses or activities on National Forest System lands; misrepresenting the purposes or affiliations of those selling or distributing the material; or misrepresenting the availability of the material without cost.

Sec. 261.14 Developed recreation sites.

11. Amend Sec. 261.14 by removing paragraph (p) and redesignating paragraph (q) as paragraph (p).

Dated: August 14, 1995. Mark Gaede, Acting Deputy Under Secretary, Natural Resources and Environment.

[FR Doc. 95-21225 Filed 8-29-95; 8:45 am]

BILLING CODE 3410-11-M

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