November 7, 1995

Scoping and Consultation

1. How can scoping as required under the NEPA Handbook be adequately performed in the 48-hour time frame)

Section 10.3(2)(a) of the NEPA Handbook directs the authorized officer to

(c)onduct the scoping actions set forth in this chapter commensurate with the nature and complexity of the proposed action.
FSH 1909.15 (57 Fed. Reg. 43194) (emphasis added).
Section 11 of the Handbook states:
Because the nature and complexity of a proposed action determine the scope and intensity of the required analysis, no single technique is required or prescribed. Except where required by statute or regulations, the responsible official may adjust or combine the various steps of the process outlined in this chapter to aid in the understanding of the proposed action and identified issues.
FSH 1909.15 (57 Fed. Reg. 43194) (emphasis added)

Thus, the authorized officer has the flexibility to tailor the scoping to the context at hand. In the case of noncommercial group use, where constitutional due process requires a short, specific time frame for processing applications, the context is a 48-hour response period. Ideally, groups will provide adequate lead time before submitting their applications to allow appropriate consideration of issues. Scoping can be done before applications come in, i.e., sites can be evaluated for up to certain numbers of people and certain types of activities. (Forests may wish to develop criteria for identifying appropriate sites and eliminating sensitive sites.

2. Can the time frame for analysis be extended?

First Amendment due process requires a short, specific time frame for processing applications; an unspecified or lengthy time frame leaves the authorized officer the discretion to chill speech by delaying the processing of the application. Therefore, the rule specifically requires a response within 48 hours.

The authorized officer must make every reasonable effort to complete the requisite analysis within the time frame set out in the regulations. As stated above, preconsideration of sites would greatly aid in evaluating applications within the time frame Specified in the rule. It should be noted that the standard in the rule for a categorical exclusion is not whether the environmentally sensitive resources or Lands identified in FSH 1909.15, chapter 30, exist, but whether the proposed activity materially impacts the characteristics or functions of those resources or lands. See 36 CFR 251.54(h)(1)(iii). If there is no material impact, the proposed use may be categorically excluded.

Once the analysis has been done, if extraordinary circumstances have been determined to exist and the applicant has rejected offered alternatives, the authorized officer may notify the applicant that additional time will be necessary to Perform the requisite analysis on the requested site and that the determination resulting from that analysis is subject to appeal.

Denial under any of the eight criteria, including the criterion on extraordinary circumstances, must be documented and supported by specific facts.

After an application has been granted or deemed granted and a permit has been issued, if the agency receives new information that would justify denial of an application under any of the evaluation criteria in the rule, the authorized officer may revoke the permit. See 36 CFR 251.60(a)(l)(i)(A) There must be a factual basis for revocation, and the revocation must be documented. Consider consulting with the Office of the General Counsel before revoking a permit for noncommercial group Use under these circumstances. Revocation is a serious measure that should not substitute for pre-permit evaluation.

3. Can consultation with the Fish And Wildlife Service or National Marine Fisheries Service be accomplished within the 48-hour timeframe?

Impacts to species and designated critical habitat listed Pursuant to the Endangered Species Act (ESA) are a regulatory criterion of whether or not permit issuance can be categorically excluded. ESA consultation comes into play only if permit issuance "may affect" a listed species or designated critical habitat. InformaL consultation with the regulatory agency is available for those situations where the Forest Service determines that the proposed activity "may affect, but is not likely to adversely affect" a listed species or designated critical habitat. A proposed use that the Forest Service classifies as "may affect, likely to adversely affect" would not qualify for categorical exclusion. Again, preconsideration of sites would greatly aid in complying with consultation requirements within the time frame specified in the rule.

4. Can the agency negotiate longer response times for applications?

No. However, an application may be submitted up to 72 hours before a proposed activity, and the 48-hour period does not start to run until an application is received. The rule encourages proponents to contact the agency as far in advance of a proposed activity as Possible to address any concerns that may be associated with an application.

5. Can the agency encourage applicants to select another location?

The agency can discuss possible locations with proponents before they submit an application. Once an application is submitted, the requested location should be evaluated under the eight criteria in the rule. The application must be granted If the application meets the evaluation criteria.

6. How do we reconcile the determination that permits issued under this regulation may be categorically excluded with statements in the rule that large group gatherings potentially have significant adverse impacts on forest resources and public health and safety?

While large group gatherings potentially have significant adverse impacts on forest resources and public health and safety, these gatherings are short-term, typically for only a few days or weeks, and minor in that they entail readily mitigable environmental disturbance. Thus, authorization of these activities qualifies for categorical exclusion under FSH 1909.15, sec. See 60 Fed. Reg. 45276 (citing United States v. Rainbow Family, 695 F. Supp. 294, 324 (E.D. Tex. 1988); Department of the Interior NEPA Procedures, 516 DM 6, Appendix 7, sec. 7.4(D)(5); 516 DM 2, Appendix 2, sec. 2.1 through 2.10) Categorically excluding noncommercial group uses allows the Forest Service to expedite processing of applications for these activities in compliance with both NEPA and the First Amendment. See 60 Fed. Reg. 45277.

Appeal Rights and Cost Recovery

7. Is issuance of a permit appealable under 30 CFR Part 215?

If a proposed group use is categorically excluded under the rule, there would be no appeal rights under 36 CFR Part 215. See 36 CFR 215.8(a)(4) However, if a proposed activity cannot be categorically excluded, if the applicant still wants to use the requested site, and if an EA is prepared, issuance of the permit would be subject to the notice and appeal procedures of 36 CFR Part 215.

8. If extraordinary circumstances exist and an EA is required, can the agency charge the applicant for the costs associated with conducting the analysis or require the applicant to provide reports necessary for the analysis?

No. Either of these measures could be viewed as establishing an unconstitutional prior restraint on speech. See question 23 on conditions in the operating plan and question 37 on fees, bonding, and insurance.

Calculating the Time Frames

9. Are the 72- and 48-hour time frames business hours or clock hours?

Clock hours. For example, if an application is submitted at 4:00 p.m. on Friday afternoon, the 48-hour period will expire at 4:00 p.m. on Sunday afternoon. If the agency does not respond within that period, the application is deemed granted.

Granting the Application Versus Issuing the Permit

10. If an application is received several months before the proposed use is to take place, does the agency still have to respond within 48 hours?

Yes. Again, First Amendment due process requires a short, specific time frame for processing this type of permit application. Providing that an application does not have to be granted within that time frame if received far enough in advance of the proposed activity is too vague and leaves the authorized officer discretion to favor some applications over others.

However, granting the application is separate from issuing the permit. While the application must be granted or denied or else deemed granted within 48 hours, the permit does not necessarily have to be issued within that time frame. Once an application has been granted or deemed granted, a permit must be issued, but if the application has been submitted sufficiently in advance of the proposed activity, the agency will have the opportunity to negotiate the terms and conditions of the operating plan with the applicant before the permit is issued.

Processing and Evaluating Applications

11. When will the new application form be available?

The application form for the rule, FS-2700-3b, has cleared the Office of Management and Budget and is now available electronically.

12. Will the new application form and permit be the only paperwork involved?

Not necessarily. An operating plan may also be required. No documentation for a categorical exclusion is necessary under the rule, since the basis for the CE is under section 31 of the NEPA Handbook. However, documentation of a categorical exclusion is recommended to make the determination more legally defensible. An EA would be required if the application is denied because extraordinary circumstances exist and offered alternatives are rejected. In addition, denial of an application must be documented.

13. What is the use code for noncommercial group use, and will it be 8 Lands or Recreation use?

The code for noncommercial group use is 311. The code is currently designated as "group event." That designation will be changed to "noncommercial group use." Although the Lands Staff designates the codes, no staff group has ownership of the codes.

14. How can the authorized officer determine from an application whether the proposed use is commercial or noncommercial?

The description of the proposed activity should provide some indication of whether it is commercial or noncommercial. A follow-up call to the applicant may be necessary. Questions should be keyed to the definition for "commercial use or activity" in the rule at 36 CFR 251.51.

15. Does this regulation preempt state or local permit systems for large group gatherings that have conflicting or different requirements?

Yes. All state and local laws and regulations that conflict with this rule or that impede its full implementation will be preempted. See 60 Fed. Reg. 45292. For example, a state or local permit system that does not require a response to applications within 48 hours would be preempted by the new federal rule.

16. Bow can the agency determine whether the proposed activity violates state and local public health laws and regulations under 36 CFR 251.54(h)(l)(v) when the applicant is not required to provide any information about compliance in this area?

The burden is on the agency to determine whether the proposed activity violates state and local public health laws and regulations as applied to the proposed site. See 60 Fed. Reg. 45283. The description of the proposed activity and the requested location should give some indication of whether this criterion is met. Familiarity with basic state and local public health laws and regulations that could apply to large group gatherings may be helpful in evaluating applications. Consultation with state and local public health officials may be necessary, as they are charged with enforcing these laws and regulations.

17. What if the agency determines that the proposed activity complies with state and local public health laws as applied to the proposed site, but after issuance of the permit the state or local health agency refuses to issue a permit based on its own analysis?

The Forest Service's determination of compliance with state and local public health laws generally should be consistent with the determination of the state and local agencies charged with administering those laws. Therefore, it may be advisable to consult with state and local public health officials before issuing a permit. The federal rule will preempt any state or local permit system that conflicts with the rule or impedes its full implementation.

18. How should the agency handle requests for the use of lands or facilities that are not open to the public, such as roads or areas that are closed?

Applications may be denied if any of the eight evaluation criteria in the rule are not met. Specifically, an application may be denied under 36 CFR 251.54(h)(l)(i) if the requested site is covered by a closure order issued under 36 CFR Part 261, Subpart B. If an alternative site would allow the applicant to meet the criteria, that alternative must be offered.

19. How do we handle a natural reserve area where we want to keep group size below 75?

A closure order could be issued under 36 CFR Part 261, Subpart B. The order must specify the area to which it applies, and while not required by the regulations, for First Amendment purposes the rationale for the order and any limitations in the order should be documented and keyed to characteristics or functions of the area. If a group limit is desired, it must be specified in the order, and the order must be issued before applications for group use are received. Otherwise, the limit established in the order could appear arbitrary and unfair.

20. Should an application be denied if the proposed activity can be conducted on private land?

No. Applications subject to the rule may be denied only if one or more of the eight evaluation criteria are not met. The fact that a proposed activity can be conducted on Private land is not one of the eight criteria of non-compliance under a prior permit?

21. Can an application be denied because of non-compliance under a prior permit

No. Denying an application because of non-compliance under a prior permit could be viewed as placing a Prior restraint on expressive activities.

Conditions in the Permit and Operating Plan

22. If the agency has not responded to an application within 48 hours and the application is deemed granted, does the applicant conduct the activity without a permit? If not, what are the conditions of the permit, and under what authority is it issued? Should a permit be issued after an activity has taken place?

If an application has been deemed granted, the agency should still issue a permit before the activity occurs. The terms and conditions of the permit are contained in FS-2700-25, Temporary Special Use Permit Form. The permit is issued under the Organic Act of 1897, 16 U.S.C. 551. A Permit should not be issued after an activity has taken place.

Followup Continued

Rainbow Case Intro