Rule2023-26666
Travel Management; Administration of the Forest Transportation System; Postdecisional Administrative Review Process for Occupancy or Use of National Forest System Lands and Resources; Land Uses; Special Uses
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 6, 2023
Effective
December 6, 2023
Issuing agencies
Agriculture DepartmentForest Service
Abstract
The United States Department of Agriculture, Forest Service (Forest Service or Agency) is making purely technical, clarifying revisions to its existing regulations governing administration of the forest transportation system, administrative appeal of certain written decisions pertaining to written authorizations for occupancy or use of National Forest System (NFS) lands and resources, and issuance and administration of special use authorizations for use and occupancy of NFS lands. The purely technical, clarifying revisions update citations and enhance consistency of the existing regulations with governing statutes.
Full Text
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<title>Federal Register, Volume 88 Issue 233 (Wednesday, December 6, 2023)</title>
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[Federal Register Volume 88, Number 233 (Wednesday, December 6, 2023)]
[Rules and Regulations]
[Pages 84704-84710]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-26666]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Parts 212, 214, and 251
RIN 0596-AD54
Travel Management; Administration of the Forest Transportation
System; Postdecisional Administrative Review Process for Occupancy or
Use of National Forest System Lands and Resources; Land Uses; Special
Uses
AGENCY: Forest Service, USDA.
ACTION: Final rule.
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SUMMARY: The United States Department of Agriculture, Forest Service
(Forest Service or Agency) is making purely technical, clarifying
revisions to its existing regulations governing administration of the
forest transportation system, administrative appeal of certain written
decisions pertaining to written authorizations for occupancy or use of
National Forest System (NFS) lands and resources, and issuance and
administration of special use authorizations for use and occupancy of
NFS lands. The purely technical, clarifying revisions update citations
and enhance consistency of the existing regulations with governing
statutes.
DATES: This rule is effective December 6, 2023.
ADDRESSES: Information on this final rule may be obtained via written
request addressed to the Director, Lands, Minerals, and Geology
Management, USDA Forest Service, 201 14th Street NW, Washington, DC
20250-1124 or by email to <a href="/cdn-cgi/l/email-protection#22716f0c64710c756d7d6e434c46715643444462575146430c454d54"><span class="__cf_email__" data-cfemail="6536284b23364b322a3a29040b01361104030325101601044b020a13">[email protected]</span></a>.
FOR FURTHER INFORMATION CONTACT: Mark Chandler, Realty Specialist,
(202) 205-1117 or <a href="/cdn-cgi/l/email-protection#98f5f9eaf3b6fbf0f9f6fcf4fdead8edebfcf9b6fff7ee"><span class="__cf_email__" data-cfemail="046965766f2a676c656a6068617644717760652a636b72">[email protected]</span></a>. Individuals who use
telecommunication devices for the hearing impaired may call the Federal
Relay Service at (800) 877-8339 between 8:00 a.m. and 5:00 p.m.,
Eastern Time, Monday through Friday.
SUPPLEMENTARY INFORMATION: This final rule makes purely technical,
clarifying revisions to the Agency's existing regulations at 36 CFR
212.8, 214.4, 251.50, 251.51, 251.53, 251.54, 251.55, 251.57, 251.58,
251.59, 251.60, 251.64, and 251.124 governing administration of the
forest transportation system, administrative appeal of certain written
decisions pertaining to written authorizations for occupancy or use of
NFS lands and resources, and issuance and administration of special use
authorizations for use and occupancy of NFS lands. The purely
technical, clarifying revisions update citations and enhance
consistency of the existing regulations with governing statutes. These
purely technical, clarifying revisions do not formulate standards,
criteria, or guidelines applicable to Forest Service programs and
therefore do not require public notice and opportunity to comment under
section 14(a) of the Forest and Rangeland Renewable Resources Planning
Act of 1974 (16 U.S.C. 1612(a)).
36 CFR Part 212, Subpart A
The Department is revising text in Sec. 212.8(d)(5)(i) to track
revisions being made to Sec. 251.60(a)(2)(i) and to provide that a
formal adjudicatory hearing is required for revocation for nonuse of an
easement issued under the National Forest Roads and Trails Act (FRTA).
36 CFR Part 214
The Department is revising Sec. 214.4(c)(1)(i) to provide that
suspension or revocation of permits as well as easements issued under
the Mineral Leasing Act (MLA) and revocation for nonuse of an easement
issued under FRTA are not subject to administrative appeal under 36 CFR
part 214. In contrast to the Federal Land Policy and Management Act
(FLPMA) addressed in 36 CFR 251.53(l), the MLA addressed in 36 CFR
251.53(e) requires a formal adjudicatory proceeding for suspension or
revocation of permits as well as easements (30 U.S.C. 185(o)(1)(C)).
Therefore, suspension or revocation of permits as well as easements
issued under the MLA must be exempt from the informal administrative
appeal process under 36 CFR part 214. FRTA provides for a formal
hearing for revocation of an easement for nonuse (16 U.S.C. 534).
36 CFR Part 251, Subpart B
Sec. 251.50
The Department is removing paragraph (c)(3) of Sec. 251.50, which
requires a special use authorization for a noncommercial recreational
activity if required by an order issued under 36 CFR part 261, subpart
B, or by a regulation issued under 36 CFR part 261, subpart C. There is
no basis for issuance of such an order under 36 CFR part 261, subpart
B. Moreover, there is no need for issuance of such an order or
regulation because the Forest Service has the authority to require a
noncommercial special recreation permit under the Federal Lands
Recreation Enhancement Act and its implementing directives in Forest
Service Handbook (FSH) 2309.13, Chapter 30.
Sec. 251.51
The Department is revising the definitions for ``outfitting'' and
``guiding'' by replacing the phrase ``pecuniary remuneration'' with the
word ``monetary.'' The revised language is more contemporary and easier
to understand.
Sec. 251.53
The Department is revising Sec. 251.53(a) by changing the phrase
``group events'' to ``noncommercial group use'' and deleting the phrase
``and distribution of noncommercial printed materials'' for
authorizations issued under the Organic Administration Act (16 U.S.C.
551). The term of art per the definitions for special uses in 36 CFR
251.51 is ``noncommercial group use.'' The distribution of
noncommercial printed materials does not require a special use
authorization under 36 CFR 251.50(c).
The Department is adding paragraph (o) to Sec. 251.53 to include
the Forest Service's authority under section 111 of the National
Historic Preservation Act of 1966 (54 U.S.C. 306121) to issue leases
for Federally owned historic properties on NFS lands.
Sec. 251.54
The Department is revising Sec. 251.54(d) through (g) to use
appropriate terminology when referring to a proponent or a proposal and
to enhance clarity.
The Department is revising Sec. 251.54(e)(1)(iv), which precludes
consideration of proposals for a permanent use and occupancy of NFS
lands, to add an exception for permanent easements issued under FRTA
(16 U.S.C. 533).
The Department is revising Sec. 251.54(f)(1)(i) regarding who may
apply for an oil or gas pipeline right-of-way authorization for greater
consistency with the MLA (30 U.S.C. 181).
The Department is revising Sec. 251.54(g)(3)(iii) to replace the
citation to 36 CFR part 215 with a citation to 36 CFR part 218. The
postdecisional administrative appeal process in 36 CFR part 215 has
been replaced with the predecisional objection process in 36 CFR part
218.
[[Page 84705]]
Sec. 251.55
The Department is revising the second sentence of Sec. 251.55(a)
to replace the word ``sublet'' with the word ``lease.'' The word
``sublet'' is appropriate only when the issued authorization is a
lease. Many special use authorizations are not leases. The Department
is making other minor clarifications to the wording of Sec. 251.55(a).
Sec. 251.57
The Department is changing the heading of Sec. 251.57 from
``Rental fees'' to ``Land use fees.'' The term ``rent'' is associated
with leases, and many special use authorizations are not leases.
The Department is revising Sec. 251.57(a)(2), consistent with
section 504(g) of FLPMA (43 U.S.C. 1764(g)), to authorize the Forest
Service to require either annual land use fee payments or annual land
use fee payments covering more than one year, regardless of the amount
of the land use fee.
The Department is revising Sec. 251.57(a)(3) by replacing the
language from and citation to the Cabin User Fee Fairness Act with
language from and citation to the Cabin Fee Act. The Cabin Fee Act (16
U.S.C. 6214) has supplanted the Cabin User Fee Fairness Act (16 U.S.C.
6201-6213) as the authority for land use fees for recreation residence
permits.
The Department is revising Sec. 251.57(b) governing land use fee
waivers by adding text and removing the word ``or'' at the end of
paragraphs (1) through (5) to clarify, consistent with Forest Service
directives, that if a holder is ineligible for a land use fee waiver
under one criterion, the holder is ineligible for a land use fee waiver
under any of the other criteria.
The Department is removing Sec. 251.57(i). Paragraph (i) of Sec.
251.57 addresses implementation of the Cabin User Fee Fairness Act,
which has been superseded by the Cabin Fee Act of 2014.
Sec. 251.58
The Department is revising Sec. 251.58(d)(1) by replacing the
phrase ``scheduled inspections'' with the phrase ``routine on-site
reviews'' to distinguish between inspections, which are the holder's
responsibility, and monitoring, which is the Forest Service's
responsibility.
The Department is revising Sec. 251.58(i)(1) by changing the first
sentence from, ``The Forest Service shall maintain schedules for
processing and monitoring fees in its directive system (36 CFR
200.4),'' to ``The Forest Service shall maintain schedules for
processing and monitoring fees on its website.'' It is more efficient
to update a website than a directive, and other Forest Service land use
fee schedules such as the communications use rental fee schedule are
maintained on the Forest Service's website.
Sec. 251.59
The Department is clarifying Sec. 251.59 by revising the first
sentence, ``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,'' to read, ``If the
holder through death, voluntary sale, transfer, or enforcement of a
valid legal proceeding or operation of law ceases to be the owner of
the authorized improvements, the special use authorization terminates
upon change of ownership and issuance of a new special use
authorization to another party for the authorized use and occupancy.''
This revision clarifies that the existing holder is responsible for the
authorized use and occupancy until a new authorization is issued. In
addition, the Department is revising Sec. 251.59 to clarify that an
application and new authorization are not necessary for leases and
easements issued under the MLA, FRTA, or FLPMA and that assignments of
leases and easements are subject to the terms of the applicable
authorization.
Sec. 251.60
In Sec. 251.60, the Department is revising paragraphs (a)(2)(i),
(a)(2)(ii), and (c); removing paragraph (d); designating existing
paragraphs (e) and (f) as paragraphs (d) and (e); revising existing
paragraph (g) and redesignating it as paragraph (f); removing paragraph
(h); and redesignating existing paragraph (i) as paragraph (g), as
discussed below.
The Department is revising paragraph (a)(2)(i) by removing the
exception for permits and easements issued under the MLA and easements
issued under FLPMA, adding an exception for authorizations issued under
FRTA, and including separate bases for revocation and suspension for
authorizations issued under FRTA. FLPMA and the MLA provide for
revocation and suspension of land use authorizations issued under those
statutes, but the current language in the regulations does not include
any bases for revocation or suspension of authorizations issued under
FLPMA or the MLA. FRTA provides for revocation only with the grantee's
consent, by condemnation, or after a 5-year period of nonuse (16 U.S.C.
534).
The Department is revising paragraph (a)(2)(ii) to provide that
suspension or revocation of permits as well as easements issued under
the MLA and revocation for nonuse of easements issued under FRTA are
not subject to appeal under 36 CFR part 214. In contrast to FLPMA, the
MLA requires a formal adjudicatory proceeding for suspension or
revocation of permits as well as easements. Therefore, suspension or
revocation of permits as well as easements issued under the MLA must be
exempt from the informal administrative appeal process under 36 CFR
part 214. FRTA provides for a formal hearing for revocation of an
easement for nonuse (16 U.S.C. 534).
The Department is revising Sec. 251.60(c) by removing references
to limiting and terminating a right-of-way authorization issued to a
Federal entity. The reference to limiting a right-of-way is redundant,
and the reference to terminating a right-of-way is incorrect.
Termination of an authorization occurs by operation of law or by
operation of a fixed or agreed-upon condition, event, or time as
specified in an authorization, without any action of the authorized
officer (36 CFR 251.51). The correct term is revocation, which occurs
by action of the authorized officer (36 CFR 251.51). The Department is
also revising Sec. 251.60(c) to state that a special use authorization
issued to a Federal agency under 36 CFR 251.53(l) may be suspended or
revoked only with the concurrence of the head of that Federal agency.
Only authorizations issued to a Federal agency under FLPMA are subject
to this restriction (43 U.S.C. 1767(b)). By statute, the consent must
be from the agency head. The Department is also removing the word
``termination'' because it is defined in the special use regulations to
mean an action that occurs by operation of law or by operation of a
fixed or agreed-upon condition, event, or time as specified an
authorization, without any action of the authorized officer.
The Department is removing Sec. 251.60(d), which provides for
notice to and consultation with a Federal agency before suspending or
revoking a special use authorization issued to that agency, as this
provision is unnecessary. Preceding Sec. 251.60(c) provides that an
authorization issued to a Federal entity under FLPMA may be suspended
or revoked only with the Federal holder's consent. A Federal holder
would not consent to suspension or revocation of an authorization
issued under FLPMA without notice and consultation.
[[Page 84706]]
The Department is revising and redesignating existing Sec.
251.60(g) as Sec. 251.60(f) to clarify the requirements for a formal
adjudicatory proceeding for revocation or suspension of an
authorization consistent with FLPMA (43 U.S.C. 1766) and the MLA (30
U.S.C. 185(o)(1)) and to require a formal adjudicatory proceeding for
revocation for nonuse of an easement issued under FRTA (16 U.S.C. 534).
The language in existing Sec. 251.60(g) is not entirely consistent
with FLPMA and the MLA. FRTA provides for a formal hearing for
revocation for nonuse of an easement upon request within 60 days of
receipt of notice (16 U.S.C. 534).
The Department is removing existing Sec. 251.60(h) in its entirety
and including its contents in Sec. 251.60(a)(2)(i). The Department is
redesignating existing Sec. 251.60(i) as Sec. 251.60(g).
Sec. 251.64
The Department is revising the title and text of Sec. 251.64 to
track statutes governing issuance of special use authorizations and
special use authorization forms approved by the Office of Management
and Budget, which provide for reauthorization of the use and occupancy,
not renewal of the authorization, and which require reauthorization of
the use and occupancy, subject to conditions, only for authorizations
issued under the MLA (43 U.S.C. 185(n)) and priority use outfitting and
guiding permits (FSH 2709.14, Ch. 50, sec. 53.1m, para. 4). Only
permits and easements issued under these authorities require
reauthorization of the use and occupancy, subject to specified
conditions. Reauthorization of any other type of use and occupancy is
at the sole discretion of the authorized officer.
36 CFR Part 251, Subpart E
Sec. 251.124
The Department is updating the citation in the second sentence of
Sec. 251.124(b) by replacing ``Forest Service Handbook 2709.11,
chapter 40,'' with ``Forest Service Handbook 2709.14, Chapter 50.''
Regulatory Certifications
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Consistent with Executive Order (E.O.) 12866, the Office of
Information and Regulatory Affairs (OIRA) in the Office of Management
and Budget will determine whether proposed, interim, and final rules
that impose, eliminate, or modify requirements on non-Forest Service
parties are significant and will review any proposed, interim, or final
rules that OIRA has designated as significant. This final rule does not
impose, eliminate, or modify requirements on non-Forest Service parties
and therefore does not require a significance determination by OIRA.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for
improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The Department has developed this final rule consistent with E.O.
13563.
Congressional Review Act
Since this final rule does not impose, eliminate, or modify
requirements on non-Forest Service parties, it is not a major rule as
defined by the Small Business Regulatory Enforcement Fairness Act of
1996 (known as the Congressional Review Act, 5 U.S.C. 804(2)).
National Environmental Policy Act
This final rule will make only technical, clarifying revisions to
existing Forest Service regulations at 36 CFR part 212, subpart A, part
214, and part 251, subparts B and E. Forest Service regulations at 36
CFR 220.6(d)(2) (73 FR 43093) exclude from documentation in an
environmental assessment or environmental impact statement ``rules,
regulations, or policies to establish service-wide administrative
procedures, program processes, or instructions.'' The Department has
concluded that this final 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.
Regulatory Flexibility Act Analysis
The Department has considered this final rule under the
requirements of the Regulatory Flexibility Act (5 U.S.C. 602 et seq.).
This final rule will not have any direct effect on small entities as
defined by the Regulatory Flexibility Act. The final rule will not
impose recordkeeping requirements on small entities; will not affect
their competitive position in relation to large entities; and will not
affect their cash flow, liquidity, or ability to remain in the market.
Therefore, the Department has determined that this final rule will not
have a significant economic impact on a substantial number of small
entities pursuant to the Regulatory Flexibility Act.
Federalism
The Department has considered this final rule under the
requirements of E.O. 13132, Federalism. The Department has determined
that the final rule conforms with the federalism principles set out in
this E.O.; will not impose any compliance costs on the states; and will
not have substantial direct effects on the states, on the relationship
between the Federal Government and the states, or on the distribution
of power and responsibilities among the various levels of government.
Therefore, the Department has concluded that the final rule does not
have federalism implications.
Consultation With Tribal Governments
The Department has reviewed this final rule in accordance with the
requirements of E.O. 13175, Consultation and Coordination with Indian
Tribal Governments. The Department has determined that national Tribal
consultation is not necessary for the final rule. The final rule, which
will make only technical, clarifying revisions to existing Forest
Service regulations in 36 CFR part 212, subpart A, part 214, and part
251, subparts B and E, does not impose, eliminate, or modify
requirements on non-Forest Service parties and therefore does not have
any direct effects on Tribes.
Environmental Justice
The Department has considered the final rule under the requirements
of E.O. 12898, Federal Actions to Address Environmental Justice in
Minority Populations and Low-Income Populations. The final rule, which
will make only technical, clarifying revisions to existing Forest
Service regulations in 36 CFR part 212, subpart A, part 214, and part
251, subparts B and E, does not impose, eliminate, or modify
requirements on non-Forest Service parties and therefore will not
result in disproportionately high and adverse impacts on minority or
low-income populations or the exclusion of minority and low-income
populations from meaningful involvement in decision making.
No Takings Implications
The Department has analyzed the final rule in accordance with the
principles and criteria in E.O. 12630, Governmental Actions and
Interference with Constitutionally Protected Property Rights. The
Department has determined that the final rule will not pose the risk of
a taking of private property.
[[Page 84707]]
Energy Effects
The Department has reviewed the final rule under E.O. 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. The Department has determined that the final rule
will not constitute a significant energy action as defined in E.O.
13211, and OIRA has not otherwise designated the final rule as a
significant energy action.
Civil Justice Reform
The Department has analyzed the final rule in accordance with the
principles and criteria in E.O. 12988, Civil Justice Reform. Upon
issuance of the final rule, (1) all state and local laws and
regulations that conflict with the final rule or that impede its full
implementation will be preempted, (2) no retroactive effect will be
given to this final rule, and (3) it will not require administrative
proceedings before parties may file suit in court challenging its
provisions.
Unfunded Mandates
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), signed into law on March 22, 1995, the Department
has assessed the effects of the final rule on state, local, and Tribal
governments, and the private sector. The final rule will not compel the
expenditure of $100 million or more by any state, local, or Tribal
government or anyone in the private sector. Therefore, a statement
under section 202 of the Act is not required.
Controlling Paperwork Burdens on the Public
The final rule does not contain information collection requirements
as defined in 5 CFR part 1320 that are not already required by law or
not already approved for use. Accordingly, the review provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its
implementing regulations at 5 CFR part 1320 do not apply.
List of Subjects
36 CFR Part 212
Highways and roads, National forests, Public lands-rights-of-way,
Transportation.
36 CFR Part 214
Administrative practice and procedure, National forests.
36 CFR Part 251
Administrative practice and procedure, Alaska, Electric power,
Mineral resources, National forests, Public lands-rights-of-way,
Reporting and recordkeeping requirements, Water resources.
Therefore, for the reasons set forth in the preamble, the
Department is amending chapter II of title 36 of the Code of Federal
Regulations as follows:
PART 212--TRAVEL MANAGEMENT
Subpart A--Administration of the Forest Transportation System
0
1. The authority citation for part 212, subpart A, continues to read as
follows:
Authority: 16 U.S.C. 551, 23 U.S.C. 205.
0
2. Amend Sec. 212.8 by revising paragraph (d)(5) to read as follows:
Sec. 212.8 Permission to cross lands and easements owned by the
United States and administered by the Forest Service.
* * * * *
(d) * * *
(5)(i) The Chief may revoke an easement granted under 36 CFR
251.53(j):
(A) With the grantee's consent;
(B) By condemnation; or
(C) After a 5-year period of nonuse by the grantee.
(ii) Before revocation of an easement granted under 36 CFR
251.53(j) for nonuse, a formal adjudicatory proceeding must be
conducted pursuant to 7 CFR part 1, subpart H, provided the grantee
requests the hearing within 60 days of receipt of the notice of
revocation.
PART 214--POSTDECISIONAL ADMINISTRATIVE REVIEW PROCESS FOR
OCCUPANCY OR USE OF NATIONAL FOREST SYSTEM LANDS AND RESOURCES
0
3. The authority citation for part 214 continues to read as follows:
Authority: 7 U.S.C. 1011(f); 16 U.S.C. 472, 551.
0
4. Amend Sec. 214.4 by revising paragraph (c)(1)(i) to read as
follows:
Sec. 214.4 Decisions that are appealable.
* * * * *
(c) * * *
(1) * * *
(i) A special use authorization issued under 36 CFR part 251,
subpart B or D, other than modification, suspension, or revocation of a
noncommercial group use permit; suspension or revocation of a permit or
easement issued under 36 CFR 251.53(e); suspension or revocation of an
easement issued under 36 CFR 251.53(l); revocation for nonuse of an
easement issued under 36 CFR 251.53(j); or revocation of a special use
authorization with the consent of the holder.
* * * * *
PART 251--LAND USES
Subpart B--Special Uses
0
5. The authority citation for part 251, subpart B, continues to read as
follows:
Authority: 16 U.S.C. 460l-6a, 460l-6d, 472, 497b, 497c, 551,
580d, 1134, 3210; 30 U.S.C. 185; 43 U.S.C. 1740, 1761-1772.
Sec. 251.50 [Amended]
0
6. Amend Sec. 251.50 by removing paragraph (c)(3).
0
7. Amend Sec. 251.51 by revising the definitions for ``Guiding'' and
``Outfitting'' to read as follows:
Sec. 251.51 Definitions.
* * * * *
Guiding--providing services or assistance (such as supervision,
protection, education, training, packing, touring, subsistence,
transporting people, or interpretation) for monetary or other gain to
individuals or groups on National Forest System lands.
* * * * *
Outfitting--renting on or delivering to National Forest System
lands for monetary or other gain any saddle or pack animal, vehicle,
boat, camping gear, or similar supplies or equipment.
* * * * *
0
8. Amend Sec. 251.53 by revising paragraph (a) and adding paragraph
(o) to read as follows:
Sec. 251.53 Authorities.
* * * * *
(a) Permits governing occupancy and use, including noncommercial
group use, under the act of June 4, 1897 (16 U.S.C. 551);
* * * * *
(o) Leases governing occupancy and use of Federally owned historic
properties under section 111 of the National Historic Preservation Act
of 1966 (54 U.S.C. 306121).
0
9. Amend Sec. 251.54 by revising paragraphs (d)(2)(i) introductory
text, (e)(1)(iv), (f)(1) introductory text, (f)(1)(i), (g)(1), and
(g)(3)(iii) to read as follows:
Sec. 251.54 Proposal and application requirements and procedures.
* * * * *
(d) * * *
(2) Required information--(i) Noncommercial group uses. Paragraphs
(d)(3) through (5) of this section do not apply to proposed
noncommercial group uses. A proponent for a
[[Page 84708]]
noncommercial group use shall provide the following:
* * * * *
(e) * * *
(1) * * *
(iv) Except for permanent easements issued under Sec. 251.53(j),
the proposed use will not create an exclusive or perpetual right of use
or occupancy.
* * * * *
(f) * * *
(1) Oil and gas pipeline rights-of-way. An individual proposing an
oil or gas pipeline right-of-way must be a United States citizen and
must provide proof of United States citizenship. An entity proposing an
oil or gas pipeline right-of-way must be established, and must provide
documentation that the entity was established, under the laws of the
United States, a state or territory of the United States, or in the
case of coal, oil, shale, or gas, a municipality of the United States.
(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 by stock ownership, stock holding, or
stock control own an appreciable interest in any oil or gas pipeline
right-of-way or associated special use authorization; and
* * * * *
(g) * * *
(1) Acceptance of applications. Except for proposed noncommercial
group uses, if a proposed use does not meet both the initial and
second-level screening criteria in paragraph (e) of this section, the
authorized officer shall reject the proposal. The authorized officer
shall notify the proponent in writing of the rejection and the reasons
for the rejection. If a proposed use meets both the initial and second-
level screening criteria in paragraph (e) of this section, the
authorized officer shall notify the proponent that the proponent may
submit a written application for evaluation under this paragraph. The
authorized officer shall, as appropriate or necessary, provide the
proponent guidance and information of the type described in paragraphs
(e)(3)(i) through (viii) of this section.
* * * * *
(3) * * *
(iii) If an authorized officer denies an application because it
does not meet the criteria in paragraphs (g)(3)(ii)(A) through (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. An
environmental assessment or an environmental impact statement prepared
for the requested site is subject to the predecisional objection
procedures at 36 CFR part 218. Notwithstanding the timing provisions
set forth in 36 CFR 218.12, a decision to grant or deny an application
for which an environmental assessment or an environmental impact
statement is prepared for the requested site shall be made within 48
hours after the time for filing an objection expires or, if an
objection is filed, the objection process is completed. A denial of an
application in paragraphs (g)(3)(ii)(A) through (H) of this section
constitutes final agency action, is not subject to administrative
appeal, and is immediately subject to judicial review.
* * * * *
0
10. Amend Sec. 251.55 by revising paragraph (a) to read as follows:
Sec. 251.55 Nature of interest.
(a) A holder is authorized to use and occupy only the land and
structures and conduct only the activities specified in the holder's
special use authorization. The holder may lease the authorized
facilities and improvements to other parties only with the prior
written approval of the authorized officer. The holder shall remain
responsible for compliance of facilities and improvements leased to
other parties with all the terms of the holder's special use
authorization.
* * * * *
0
11. Amend Sec. 251.57 by revising the section heading and paragraphs
(a)(2) and (3), (b), and (h) and removing paragraph (i).
The revisions read as follows:
Sec. 251.57 Land use fees.
(a) * * *
(2) The authorized officer may require either an annual land use
fee payment or a land use fee payment covering more than one year,
provided a holder that is a private individual (rather than a
commercial or other entity) and that has an annual land use fee of more
than $100 may elect to make either an annual land use fee payment or a
land use fee payment covering more than one year.
(3) The annual land use fee for a recreation residence permit shall
be assessed in accordance with the tiered land use fee structure and
inflation adjustment specified in the Cabin Fee Act (16 U.S.C. 6214).
(b) All or part of the land use fee may be waived by the authorized
officer, when equitable and in the public interest, for the use and
occupancy of National Forest System lands when one of the following
criteria is met. If an applicant or a holder is ineligible for a land
use fee waiver under one criterion in this paragraph, the applicant or
holder is ineligible for a land use fee waiver under any other criteria
in this paragraph:
(1) The holder is a State or local government or any agency or
instrumentality thereof, excluding municipal utilities and cooperatives
whose principal source of revenue from the authorized use is customer
charges;
(2) The holder is a nonprofit association or nonprofit corporation,
which is not controlled or owned by profit-making corporations or
business enterprises, and which is engaged in public or semi-public
activity to further public health, safety, or welfare, except that free
use will not be authorized when funds derived by the holder through the
authorization are used to increase the value of the authorized
improvements owned by the holder or are used to support other
activities of the holder;
(3) The holder provides without charge, or at reduced charge, a
valuable benefit to the public or to the programs of the Secretary;
(4) When the land use fee is included in the land use fee for an
authorized use or occupancy for which the United States is already
receiving compensation;
(5) When a right-of-way is authorized in reciprocation for a right-
of-way conveyed to the United States; or
(6) For rights-of-way involving cost-share roads or reciprocal
right-of-way agreements.
* * * * *
(h) Each ski area permit issued under the National Forest Ski Area
Permit Act shall include a clause that provides that the Forest Service
may adjust and calculate future land use fees to reflect Forest Service
revisions to the existing system for determining land use fees based on
fair market value or to comply with any new system for determining land
use fees based on fair market value that may be adopted after issuance
of the permit.
0
12. Amend Sec. 251.58 by revising paragraphs (d)(1) and (i)(1) to read
as follows:
Sec. 251.58 Cost recovery.
* * * * *
[[Page 84709]]
(d) * * *
(1) Basis for monitoring fees. Monitoring is defined at Sec.
251.51. For monitoring fees in minor categories 1 through 4,
authorization holders are assessed fees based upon the estimated time
needed for Forest Service monitoring to ensure compliance with the
authorization during the construction or reconstruction of temporary or
permanent facilities and rehabilitation of the construction or
reconstruction site. Major category 5 and category 6 monitoring fees
shall be based upon the agency's estimated costs to ensure compliance
with the authorization during all phases of its term, including but not
limited to monitoring to ensure compliance with the authorization
during the construction or reconstruction of temporary or permanent
facilities and rehabilitation of the construction or reconstruction
site. Monitoring for all categories does not include billings,
maintenance of case files, annual performance evaluations, or routine
on-site reviews to determine compliance generally with the terms of an
authorization.
* * * * *
(i) * * *
(1) The Forest Service shall maintain schedules for processing and
monitoring fees on its website. The rates in the schedules shall be
updated annually by using the annual rate of change, second quarter to
second quarter, in the Implicit Price Deflator-Gross Domestic Product
(IPD-GDP) index. The Forest Service shall round the changes in the
rates either up or down to the nearest dollar.
* * * * *
0
13. Revise Sec. 251.59 to read as follows:
Sec. 251.59 Transfer of authorized improvements.
If the holder through death, voluntary sale, transfer, or
enforcement of a valid legal proceeding or operation of law ceases to
be the owner of the authorized improvements, the special use
authorization terminates upon change of ownership and issuance of a new
special use authorization to another party for the authorized use and
occupancy. Except for leases and easements issued under Sec.
251.53(e), (j), and (l) that are assignable in accordance with their
terms, the new 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 of the authorization and any new terms warranted
by existing or prospective circumstances. Assignment of leases and
easements must comply with all terms governing their assignment.
* * * * *
0
14. Amend Sec. 251.60 by:
0
a. Revising paragraphs (a)(2)(i) and (ii) and (c);
0
b. Removing paragraph (d);
0
c. Redesignating paragraphs (e) and (f) as paragraphs (d) and (e);
0
d. Redesignating paragraph (g) as paragraph (f) and revising it;
0
e. Removing paragraph (h); and
0
f. Redesignating paragraph (i) as paragraph (g).
The revisions read as follows:
Sec. 251.60 Termination, revocation, and suspension.
(a) * * *
(2) * * *
(i) Revocation or suspension. An authorized officer may revoke or
suspend a special use authorization for all other special uses, except
aneasement issued underSec. 251.53(j):
(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. The Chief may revoke an
easement issued under Sec. 251.53(j) with the consent of the holder;
by condemnation; or upon abandonment after a 5-year period of nonuse by
the holder.
(ii) Administrative review. Except for revocation or suspension of
a permit or easement issued under Sec. 251.53(e), revocation or
suspension of an easement issued under Sec. 251.53(l), and revocation
for nonuse of an easement issued under Sec. 251.53(j), revocation or
suspension of a special use authorization under this paragraph is
subject to appeal pursuant to 36 CFR part 214.
* * * * *
(c) A special use authorization issued to a Federal agency under
Sec. 251.53(l) may be suspended or revoked only with the consent of
the head of that Federal agency.
* * * * *
(f) Before suspension or revocation of permits and easements issued
under Sec. 251.53(e) and suspension or revocation of easements issued
under Sec. 251.53(l), a formal adjudicatory proceeding must be
conducted pursuant to 7 CFR part 1, subpart H, as amended, and the
authorized officer must determine, based on the proceeding, that
grounds for revocation or suspension exist and that revocation or
suspension is justified. Before revocation of easements issued under
Sec. 251.53(j) for nonuse, a formal adjudicatory proceeding must be
conducted pursuant to 7 CFR part 1, subpart H, provided the holder
requests the hearing within 60 days of receipt of the notice of
revocation.
* * * * *
0
15. Revise Sec. 251.64 to read as follows:
Sec. 251.64 Reauthorization of existing uses.
(a) Upon expiration of a permit or easement issued under Sec.
251.53(e), a powerline facility permit issued to a federal entity or a
powerline facility easement issued under Sec. 251.53(l)(4), or a
private road easement or a forest road easement issued under Sec.
251.53(l)(6), the authorized officer shall issue a new special use
authorization for the authorized use and occupancy, provided the use
and occupancy authorized by the existing authorization are consistent
with the applicable land management plan and applicable laws and
regulations; the authorized activities and improvements are still being
conducted or used for the purposes previously authorized; and the
holder is in compliance with all the terms of the existing
authorization.
(b) A priority use outfitting and guiding permit is subject to
renewal without competition as provided in accordance with applicable
Forest Service directives.
(c) Issuance of a new special use authorization upon expiration of
any other type of special use authorization is at the sole discretion
of the authorized officer, subject to the same conditions in paragraph
(a) of this section.
(d) In reauthorizing existing uses under paragraph (a), (b), or (c)
of this section, the authorized officer may modify the terms of the
authorization to reflect any new requirements imposed by current
Federal and State land use plans, laws, regulations, or other
management decisions. Appropriate environmental analysis must accompany
the decision to reauthorize the special use.
Subpart E--Revenue-Producing Visitor Services in Alaska
0
16. The authority citation for part 251, subpart E, continues to read
as follows:
Authority: 16 U.S.C. 3197.
0
17. Amend Sec. 251.124 by revising paragraph (b) to read as follows:
Sec. 251.124 Preferred operator competitive special use
authorization procedures.
* * * * *
[[Page 84710]]
(b) In such circumstances, the authorized officer shall solicit
applications competitively by issuing a prospectus for persons to apply
for a visitor services authorization. Notwithstanding Forest Service
outfitting and guiding policy in Forest Service Handbook 2709.14,
Chapter 50, when authorizations, including priority use permits for
activities other than sport hunting and fishing, expire in accordance
with their terms, they shall not be reissued if there is a need to
limit use and when there is competitive interest by preferred
operators.
* * * * *
Homer Wilkes,
Under Secretary, Natural Resources and Environment.
[FR Doc. 2023-26666 Filed 12-5-23; 8:45 am]
BILLING CODE 3411-15-P
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</html>Indexed from Federal Register on December 6, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.