FR Doc 03-1291
[Federal Register: January 22, 2003 (Volume 68, Number 14)]
[Proposed Rules]
[Page 2948-2953]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22ja03-24]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Parts 251, 261, and 295
RIN 0596-AB74
Land Uses; Special Uses Requiring Authorization
AGENCY: Forest Service, USDA.
ACTION: Proposed rule.
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SUMMARY: The Forest Service proposes to amend the regulations at part
251 that govern special uses of National Forest System lands to address
management issues related to the special uses program and to clarify
categories of activities for which a special use authorization is
required. The proposed rule would promote consistent treatment of
special uses requiring an authorization; improve the agency's ability
to resolve management issues by requiring permits; and reduce the
agency's administrative cost by eliminating the need for issuing an
order to require a special use permit and not requiring special use
authorizations where they serve no management purpose. The proposed
rule clarifies requirements regarding authorizations for special uses
involving National Forest System roads and trails. The proposed rule
also would add definitions to part 251, would revise definitions in
part 261, and would revise a term in the heading of part 295, to ensure
use of consistent terminology in these parts. Public comment is invited
and will be considered in development of the final rule.
DATES: Comments must be received in writing by March 24, 2003.
ADDRESSES: Send written comments to Forest Service, USDA, Attn:
Director, Recreation, Heritage and Wilderness Resources (RHWR) Staff,
(2720), Mail Stop 1125, Washington, DC 20250-1125 or to rhwr--
rule@fs.fed.us.
All comments, including names and addresses when provided, will be
placed in the record and will be available for public inspection and
copying. The public may inspect comments received on this proposed rule
in the Office of the Director, RHWR Staff, 4th Floor Central, Sidney R.
Yates Federal Building, 14th and Independence Avenue, SW., Washington,
DC, on business days between the hours of 8:30 a.m. and 4:30 p.m. Those
wishing to inspect comments are encouraged to call ahead at (202) 205-
1706 or (202) 205-1399 to facilitate entry into the building.
FOR FURTHER INFORMATION CONTACT: Carolyn Holbrook, Recreation,
Heritage, and Wilderness Resources Staff, (202) 205-1399, or Randy
Karstaedt, Lands Staff, (202) 205-1256.
SUPPLEMENTARY INFORMATION:
Background and Need for Rule
Forest Service regulations at 36 CFR part 251, subpart B, govern
authorizations for occupancy and use of National Forest System lands.
Section 251.50 of this subpart characterizes as ``special uses'' all
uses of National Forest System lands, improvements, and resources,
except those authorized by the regulations governing the disposal of
timber (part 223) and minerals (part 228) and the grazing of livestock
(part 222). The regulation requires an authorization for all ``special
uses,'' with certain exceptions.
Approximately 72,000 special use authorizations are in effect on
National Forest System lands. These uses cover a variety of activities
ranging from individual private uses to large-scale commercial
facilities and public services. Examples of authorized land uses
include road rights-of-way accessing private residences, apiaries,
domestic water supplies and water conveyance systems, telephone and
electric service rights-of-way, ski areas, resorts, marinas, outfitter
and guide services, and public parks and campgrounds. About 6,000
special use proposals are submitted annually by various entities
wanting to use and occupy National Forest System lands. This proposed
rule would clarify which activities require a special use
authorization. The rule also would revise the term ``National Forest
System road'' (formerly, ``forest development road'') to conform to
changes in the road management rule at part 212.
In addition, the proposed rule would make the following technical
amendments: (1) Revising the definitions for ``National Forest System
road'' and ``National Forest System trail'' in section 261.2 to make
them consistent with 23 U.S.C. 101; (2) in section 261.55, changing the
term ``forest development trail'' to ``National Forest System trail,''
in conformance with the terminology used in part 212 and this proposed
rule; and (3) changing the term ``Forest Service Roads'' to ``National
Forest System Roads'' in the title of the heading for part 295.
Clarification of Special Uses Requiring an Authorization
Revision of sections 251.50 and 251.51 is needed to address
management issues related to the special uses program and to special
use authorizations involving National Forest System roads and trails.
The current regulation at 36 CFR 251.50(d) provides that a special
use authorization is not required for use of National Forest System
roads and trails, unless required by an order issued pursuant to
section 261.50 or a regulation issued pursuant to section 261.70.
Courts have construed this provision as not requiring an authorization
for special uses that occur on National Forest System roads and trails
and have invalidated orders issued pursuant to section 261.50 that
required a permit for special uses occurring on National Forest System
roads. These
[[Page 2949]]
rulings have created a gap in regulatory coverage in the special uses
program.
The requirement for a special use authorization should be triggered
whenever a special use is conducted on National Forest System lands,
including on a road or trail. Therefore, the Forest Service proposes to
clarify that activities requiring a special use authorization on
National Forest System lands are also subject to the requirement for a
special use authorization when they are conducted on National Forest
System roads and trails (formerly known as forest development roads and
trails). The Forest Service has identified four types of special uses
that occur on National Forest System roads and trails: noncommercial
group uses, outfitting and guiding, recreation events, and commercial
filming. The agency is proposing to narrow the exemption for the
authorization requirement in section 251.50(d) to exclude special uses
occurring on National Forest System roads, and to eliminate the
exemption for the authorization requirement for special uses occurring
on National Forest System trails. The Forest Service is proposing to
eliminate the exemption for special uses conducted on National Forest
System trails because there is great potential for resource damage on
trails that may not be designed or constructed for the level or type of
use that occurs. Furthermore, it is unlikely that there is commercial
use of National Forest System trails that should be exempted from the
special use authorization requirement.
Under these proposed revisions to the rule, the Forest Service
would require special use authorizations and the fees for those
authorizations under statutes governing use and occupancy of National
Forest System lands. Specifically, for occupancy and use of National
Forest System lands, the Forest Service would require commercial
filming and still photography permits and permit fees under Public Law
106-206; outfitting and guiding permits and recreation event permits,
and permit fees under the Land and Water Conservation Fund Act, 16
U.S.C. 460l-6a(c); and noncommercial group use permits (no fee is
charged for noncommercial group use permits) under the agency's Organic
Act, 16 U.S.C. 551. Further authority for these permit fees is found in
the Independent Offices Appropriations Act, 31 U.S.C. 9701, Office of
Management and Budget Circular No. A-25, and 36 CFR 251.57(a). These
fees would be charged annually for commercial special uses of National
Forest System lands, and would be based on the fair market value of the
authorized uses of those lands.
The agency has several reasons for proposing that these types of
activities set out at section 251.50 require a special use
authorization when conducted on National Forest System roads and
trails.
First, a growing number of parties engaged in commercial recreation
events and outfitting and guiding use this regulatory gap in the
current rule to conduct these activities without a special use
authorization. They do so by confining their use and occupancy of
National Forest System lands only to National Forest System roads and
trails. While the organizers or commercial operators of these types of
uses may assert that their activities are confined only to a road or
trail, sometimes their activities include the use and occupancy of
National Forest System lands adjacent to the road or trail. Determining
whether a use is confined to a road or trail requires intensive, case-
specific monitoring. The proposed rule would eliminate the need for
this monitoring by requiring an authorization for all types of special
uses that involve the use of National Forest System lands, regardless
of whether they occur on or off National Forest System roads and
trails.
Second, some commercial operators design their services to fit the
regulatory gap, potentially compromising the quality of the recreation
experience, public safety, and the interests of the United States. For
example, some operators may stop on a road to unload people and
equipment to avoid getting off the road. Requiring a special use
authorization would eliminate this practice when a safer alternative is
available and would require that necessary safety procedures be
followed when no such alternative is available. In addition, conducting
a special use without an authorization exposes the United States to
potential liability. Special use authorizations contain
indemnification, insurance, and other provisions that protect the
United States from liability arising in connection with the holder's
use and occupancy.
Third, the regulatory gap creates an uneven playing field among
businesses, some of which operate under a special use authorization and
pay a land use fee, while others do not. The Forest Service is required
to obtain fair market value for the commercial use of National Forest
System lands. The value of these uses of National Forest System roads
and trails is directly attributable to the presence of National Forest
System lands and resources located outside the confines of the roads
and trails. The public should realize a fair market value return for
these commercial uses of Federal lands and resources, which can be
achieved only by requiring a special use authorization for these uses
and charging a land use fee for the authorization.
Fourth, the agency needs to regulate these uses of National Forest
System roads and trails to accomplish management objectives and reduce
impacts to National Forest System lands and resources. The demand for
uses of National Forest System lands and resources has increased in
recent years. Along with the growth in demand, there are more conflicts
among users and increased pressure on limited land and resources. In
some cases, the demand is so great that it is necessary to limit use.
When an area becomes popular, uncontrolled use can result in land and
resource impacts, user conflicts, or increased vehicular and pedestrian
traffic with associated traffic safety concerns on National Forest
System roads and trails. The agency attempts to balance the needs of
individuals, private groups, and commercial operators when managing
uses. The agency proposes to address these concerns and conflicts
through special use authorizations for special uses that occur on
National Forest System roads and trails.
Additionally, this rule would replace the term ``forest development
roads'' with ``National Forest System roads'' to conform to recent
regulatory changes made to 36 CFR part 212.
The authority in the proposed rule to regulate special uses
occurring on National Forest System roads would not supplant Forest
Service authority to regulate road use within the National Forest
System under applicable law, including the National Forest Roads and
Trails Act. Rather, these authorities would be complementary. For
example, a separate road use permit could be issued under Forest
Service Manual 7731.16 and Forest Service Handbook 7709.59, section 24,
in conjunction with a special use authorization issued under the
proposed rule, or road use issues could be addressed within the context
of a special use authorization issued under the proposed rule.
Clarification of Special Uses Not Requiring an Authorization
The agency prefers not to regulate uses when it is unnecessary to
establish terms and conditions to protect National Forest System lands
and resources or to avoid conflict with agency programs or operations.
In April 1997, the Forest Service completed a reengineering study of
its special uses program that recommended managing special uses in a
more businesslike and customer service-oriented manner. The study
[[Page 2950]]
found that many special use authorizations are issued for (1) minor
uses of National Forest System lands that have nominal effects on
National Forest System lands, resources, and programs, (2) uses that
are regulated by other agencies in a manner that is adequate to protect
National Forest System lands and resources and to avoid conflict with
Forest Service programs and operations, and (3) routine operation or
maintenance within the scope of a valid reserved or outstanding
property right. The reengineering study recommended that the agency not
require a special use authorization in these cases, as it is
unnecessary for purposes of National Forest System land and resource
management.
Accordingly, under the proposed rule, for uses other than a
noncommercial group use, a special use authorization would not be
required if the authorized officer determines that the proposed use has
one or more of the following characteristics: (1) the proposed use will
have such nominal effects on National Forest System lands, resources,
or programs that it is not necessary to establish terms and conditions
in a special use authorization to protect National Forest System lands
and resources or to avoid conflict with National Forest System programs
or operations; (2) the proposed use is regulated by a State or another
Federal agency in a manner that is adequate to protect National Forest
System lands and resources and to avoid conflict with National Forest
System programs or operations; or (3) the proposed use is a routine
operation or maintenance activity within the scope of a valid reserved
or outstanding property right, such as a right-of-way, easement, or
reservation.
Proposed Rule Changes
Section 251.50
Current paragraph (a) of section 251.50 requires an authorization
for all special uses, unless that requirement is waived as provided in
paragraph (c). Proposed paragraph (a) would be revised to identify two
additional exceptions, which would be enumerated in proposed paragraphs
(d) and (e).
Furthermore, the reference in paragraph (a) concerning the disposal
of timber would be expanded to include special forest products, such as
greens, mushrooms, medicinal plants, and other plant material collected
or gathered for commercial or noncommercial use. Proposed paragraph (a)
would state that the disposal of these materials is regulated by part
223. Many forest managers have mistakenly administered these activities
as special uses. Adding a reference to special forest products would
distinguish the disposal of forest products as an activity authorized
by other than a special use authorization.
Current paragraph (b) of section 251.50 provides for the temporary
occupancy of National Forest System lands in an emergency for the
protection of life and property, as long as a special use authorization
is obtained at the earliest opportunity, unless the requirement for a
special use authorization is waived. Proposed paragraph (b) would be
expanded to clarify that those temporarily occupying National Forest
System lands without a special use authorization assume liability, and
must indemnify the United States, for all injury, loss, or damage
arising in connection with the temporary occupancy. This added
provision is necessary to protect the public interest should injury,
loss, or damage occur as a result of the temporary occupancy prompted
by an emergency.
With limited exceptions, current paragraph (c) states that
noncommercial recreational activities, other than noncommercial group
use, do not require a special use authorization, and gives examples of
these activities. The agency is proposing no change to this list.
Paragraphs (c)(1) and (c)(2) would be combined and redesignated as
proposed paragraph (c)(2). Paragraph (c)(3) would be redesignated as
proposed paragraph (c)(1).
Paragraph (d) would be revised. The existing paragraph provides
that, unless otherwise required by order issued pursuant to section
261.50 or by regulation issued pursuant to section 261.70, any use of
existing forest development roads or trails does not require a special
use authorization. The agency proposes to revise paragraph (d) by
changing ``forest development road'' to ``National Forest System road''
to conform to changes made to parts 212, 261, and 295 regarding roads,
and by removing the word ``trail.'' In addition the agency proposes to
change ``use of'' to ``travel on'' a road or trail.
Proposed paragraphs (d) and (d)(1) also would clarify that
noncommercial group uses, outfitting and guiding, recreation events,
and commercial filming conducted on National Forest System roads
require a special use authorization. For example, a special use
authorization would be required for an outfitter who charges a customer
for the delivery of livestock or recreation equipment on a National
Forest System road for the customers to use on adjacent National Forest
System lands. A second example is a guide who conducts commercial,
vehicular tours on National Forest System roads, regardless of whether
the guide's customers are confined to the vehicle. A third example is
the use of motion picture equipment on a National Forest System road
that involves the advertisement of a product or service. A final
example is an endurance ride involving hundreds of participants, for
which no entry fee is charged, conducted on a National Forest System
road.
The proposed paragraph (d)(2) would include the authority currently
in paragraph (d) for Regional Foresters and Forest Supervisors to issue
orders (section 261.50) and regulations (section 261.70) to prohibit or
regulate other uses of National Forest System roads, on a case-specific
basis.
Proposed paragraph (e) would be added to specify instances where
the requirement to obtain a special use authorization may be waived for
certain uses other than a noncommercial group use. Under this proposed
paragraph, the special use authorization requirement would be waived
only after a proposal for a special use is submitted and the authorized
officer determines that the proposed use meets the criteria for waiver.
Proposed paragraph (e)(1) would be added to allow the authorized
officer to waive the special use authorization requirement for minor,
incidental uses that will have such nominal effects on National Forest
System lands, resources, or programs that it is not necessary to
establish terms and conditions in a special use authorization to
protect National Forest System lands and resources or to avoid conflict
with National Forest System programs or operations. Examples of minor,
incidental uses could include mailboxes on approved mounts or small
identification signs for property. This proposed rule would not relieve
a party from requesting advance approval from an authorized officer for
such uses or occupancies. Rather, the proposed rule would provide the
authorized officer with the ability to waive the requirement for a
special use authorization when, based upon professional judgment and
experience with comparable uses, the authorized officer determines that
no forest management objectives would be achieved through issuance of
an authorization. Generally, experience has demonstrated that the cost
to the agency to issue and administer authorizations for these types of
minor, incidental uses far exceeds any public benefit in terms of land
and resource protection.
[[Page 2951]]
Paragraph (e)(2) would be added to exempt proposed uses that are
regulated by another agency in a manner that is adequate to protect
National Forest System lands and resources and to avoid conflict with
National Forest System programs or operations. An example would be the
taking of game or other animals, which is regulated by States. Another
example is the delegation of authority by the Forest Service to a
different agency to serve as lead agency for regulating certain uses,
such as in connection with administration of an oil or gas pipeline
special use authorization under the Mineral Leasing Act. This provision
would serve to reduce the dual regulation of uses by the Forest Service
and other agencies, where another agency's regulatory jurisdiction is
satisfactory to meet Forest Service management objectives.
Paragraph (e)(3) would be added to clarify that no special use
authorization is required for activities already authorized within the
scope of a valid reserved, granted, or outstanding property right, such
as a right-of-way, easement, or reservation. Paragraph (e)(3) also
would provide that no special use authorization is required for
conducting routine operation and maintenance activities within the
scope of an outstanding statutory right for certain highways, ditches,
or canals. Conversely, under this proposed provision, any activities
(including operation, maintenance, construction, or reconstruction)
that are outside the scope of an outstanding statutory right would
require a special use authorization. In addition, any activities other
than routine operation or maintenance, such as construction or
reconstruction, that are within the scope of an outstanding statutory
right would require a special use authorization. The proposed
regulation would require holders of any of these rights to propose on-
the-ground activities to the authorized officer before conducting them.
The authorized officer would then have the opportunity to determine
whether all or some of the proposed activities qualify for the waiver
provided under proposed paragraph (e)(3) and can be conducted without a
special use authorization.
Waiving the requirement for a special use authorization under the
circumstances identified in proposed paragraphs (e)(1) through (e)(3)
would improve management efficiency and allow the agency to focus its
limited appropriations on management of special uses that have a
greater potential impact on National Forest System lands, resources, or
programs.
Section 251.51
Section 251.51 of the current regulations defines the more
significant and commonly used terms and phrases in part 251, subpart B.
The proposed section 251.51 would add definitions for the following
terms: ``Commercial filming,'' ``forest road or trail,'' ``guiding,''
``National Forest System road,'' ``outfitting,'' ``recreation event,''
and ``still photography.'' Providing a definition for these terms would
improve public and agency understanding and interpretation of the
proposed revisions to section 251.50 provided in this notice.
Section 261.2
The definitions of ``National Forest System road'' and ``National
Forest System trail'' in proposed section 261.2 would be revised and a
new definition for ``forest road or trail'' would be added for
consistency with 23 U.S.C. 101 and this part.
Section 261.55
The term ``forest development trails'' would be changed to
``National Forest System trails'' in the heading and introductory text
of proposed section 261.55.
Part 295
The term ``forest Service road'' in the current title of the part
295 heading would be changed to ``National Forest System road'' in the
proposed title of this part for consistency with the terminology in
parts 251 and 261.
Regulatory Certifications
Environmental Impact
The proposed changes to the rule at 36 CFR 251.50 and 251.51 would
provide more consistent procedures for processing special use proposals
and applications and administering special use authorizations for use
and occupancy of National Forest System lands. The proposed rule also
would make terminology consistent in parts 251, 261, and 295. The
changes are intended to improve administrative efficiencies and would
have no environmental effects. Section 31.1b of Forest Service Handbook
1909.15 (57 FR 43180, September 18, 1992) excludes from documentation
in an environmental assessment or environmental impact statement rules,
regulations, or policies to establish Service-wide administrative
procedures, program processes, or instructions. The agency's
preliminary assessment is that this proposed rule falls within this
category of actions and that no extraordinary circumstances exist as
currently defined that would require preparation of an environmental
assessment or environmental impact statement. A final determination
will be made for the final rule.
Regulatory Impact
This proposed 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 proposed rule
would not have an annual effect of $100 million or more on the economy,
nor would it adversely affect productivity, competition, jobs, the
environment, public health and safety, or State or local governments.
This proposed rule would not interfere with an action taken or planned
by another agency, nor would it raise new legal or policy issues.
Finally, this proposed rule would not alter the budgetary impact of
entitlement, grant, user fee, or loan programs or the rights and
obligations of beneficiaries of such programs. Accordingly, this
proposed rule is not subject to Office of Management and Budget review
under Executive Order 12866.
Moreover, this proposed rule has been considered in light of the
Regulatory Flexibility Act (5 U.S.C. 602 et seq.). It has been
determined that this proposed rule would not have a significant
economic impact on a substantial number of small entities as defined by
the act because the proposed rule would not impose record-keeping
requirements on them; it would not affect their competitive position in
relation to large entities; and it would not affect their cash flow,
liquidity, or ability to remain in the market. To the contrary, the
efficiencies and consistency to be achieved by this rule should benefit
small businesses that seek to use and occupy National Forest System
lands by ensuring consistency in procedures across forests and regions
and by eliminating costly, time-consuming, and unnecessary processing
of certain special use applications and administration of certain
special use authorizations. The benefits, most of which cannot be
quantified, are not likely substantially to alter costs to small
businesses.
No Takings Implications
This proposed rule has been analyzed in accordance with the
principles and criteria contained in Executive Order 12630, and it has
been determined that the proposed rule would not pose the risk of a
taking of private property.
[[Page 2952]]
Civil Justice Reform
This proposed rule has been reviewed under Executive Order 12988 on
civil justice reform. If this proposed rule were adopted, (1) all State
and local laws and regulations that are in conflict with this proposed
rule or that would impede its full implementation would be preempted;
(2) no retroactive effect would be given to this proposed rule; and (3)
it would not require administrative proceedings before parties may file
suit in court challenging its provisions.
Federalism and Consultation and Coordination With Indian Tribal
Governments
The agency has considered this proposed rule under the requirements
of Executive Order 13132 on federalism, and has made an assessment that
the proposed rule conforms with the federalism principles set out in
this Executive order; would not impose any compliance costs on the
States; and would not have substantial direct effects on the States,
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 agency has determined that no further
assessment of federalism implications is necessary at this time.
Moreover, this proposed rule does not have tribal implications as
defined by Executive Order 13175, Consultation and Coordination With
Indian Tribal Governments, and therefore advance consultation with
tribes is not required.
Energy Effects
This proposed rule has been reviewed under Executive Order 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. It has been determined that this proposed rule
does not constitute a significant energy action as defined in the
Executive order.
Unfunded Mandates
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), which the President signed into law on March 22,
1995, the agency has assessed the effects of this proposed rule on
State, local, and tribal governments and the private sector. This
proposed rule would not compel the expenditure of $100 million or more
by any State, local, or tribal government or anyone in the private
sector. Therefore, a statement under section 202 of the act is not
required.
Controlling Paperwork Burdens on the Public
The forms for special use applications and authorizations have been
approved for use by the Office of Management and Budget (OMB) and
assigned OMB control number 0596-0082. Therefore, this proposed rule
does not contain any record-keeping or reporting requirements or other
information collection requirements as defined in 5 CFR part 1320 that
are not already required by law or not already approved for use.
Moreover, the proposed rule will reduce the number of applicants for
special use authorizations by clarifying those circumstances when
special use authorizations are not required. Accordingly, the review
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.) and its implementing regulations at 5 CFR part 1320 do not apply.
List of Subjects
36 CFR Part 251
Administrative practice and procedure, Electric power, National
forests, Public lands-rights-of-way, Reporting and recordkeeping
requirements, Water resources.
36 CFR Part 261
Law Enforcement, National forests.
36 CFR Part 295
National forests, Traffic regulations.
Therefore, for the reasons set out in the preamble, the Forest
Service proposes to amend subpart B of part 251, subpart A of part 261,
and part 295 of Title 36 of the Code of Federal Regulations 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. Revise Sec. 251.50 to read as follows:
Sec. 251.50 Scope.
(a) All uses of National Forest System lands, improvements, and
resources, except those authorized by the regulations governing
disposal of timber and special forest products, such as greens,
mushrooms, and medicinal plants (part 223), minerals (part 228), and
grazing of livestock (part 222), are designated ``special uses.''
Before conducting a special use, individuals or entities must submit a
proposal to the authorized officer and must obtain a special use
authorization from the authorized officer, unless that requirement is
waived by paragraphs (c) through (e) of this section.
(b) Nothing in this section prohibits the temporary occupancy of
National Forest System lands without a special use authorization for
the protection of life and property in emergencies, if a special use
authorization for that occupancy is obtained at the earliest
opportunity, unless waived pursuant to paragraphs (c) through (e) of
this section. Those temporarily occupying National Forest System lands
without a special use authorization assume liability and must indemnify
the United States for all injury, loss, or damage arising in connection
with the temporary occupancy.
(c) A special use authorization is not required for noncommercial
recreational activities, such as camping, picnicking, hiking, fishing,
boating, hunting, and horseback riding, or for noncommercial activities
involving the expression of views, such as assemblies, meetings,
demonstrations, and parades, unless:
(1) The proposed use is a noncommercial group use as defined in
Sec. 251.51; or
(2) Authorization of that use is required by an order issued
pursuant to Sec. 261.50 or by a regulation issued pursuant to Sec.
261.70 of this chapter.
(d) Travel on any National Forest System road must comply with all
Federal and State law governing the road to be used. Travel on any
National Forest System road does not require a special use
authorization, unless:
(1) The travel is for the purpose of engaging in a noncommercial
group use, outfitting or guiding, a recreation event, commercial
filming, or still photography, as defined in Sec. 251.51; or
(2) Authorization of that use is required by an order issued under
Sec. 261.50 of this chapter or by a regulation issued under Sec.
261.70 of this chapter.
(e) For proposed uses other than a noncommercial group use, a
special use authorization is not required if the authorized officer
determines that the proposed use has one or more of the following
characteristics:
(1) The proposed use will have such nominal effects on National
Forest System lands, resources, or programs that it is not necessary to
establish terms and conditions in a special use authorization to
protect National Forest System lands and resources or to avoid conflict
with National Forest System programs or operations;
(2) The proposed use is regulated by a State agency or another
Federal agency in a manner that is adequate to protect
[[Page 2953]]
National Forest System lands and resources and to avoid conflict with
National Forest System programs or operations; or
(3) The proposed use is an activity within the scope of a valid
reserved, granted, or outstanding property right, such as a right-of-
way, easement, or reservation, or is a routine operation or maintenance
activity within the scope of an outstanding statutory right for a
highway pursuant to R.S. 2477 (43 U.S.C. 932, repealed Oct. 21, 1976)
or for ditches and canals pursuant to R.S. 2339 (43 U.S.C. 661, as
amended).
3. Add the following definitions in alphabetical order to Sec.
251.51:
Sec. 251.51 Definitions.
* * * * *
Commercial filming--use of motion picture, videotaping, sound
recording, or any other moving image or audio recording equipment on
National Forest System lands that involves the advertisement of a
product or service, the creation of a product for sale, or the use of
models, actors, sets, or props, but not including activities associated
with broadcasting breaking news.
* * * * *
Forest road or trail--a road or trail wholly or partly within or
adjacent to and serving the National Forest System, and which is
necessary for the protection, administration, and utilization of the
National Forest System and the use and development of its resources.
* * * * *
Guiding--providing services or assistance (such as supervision,
protection, education, training, packing, touring, subsistence,
transporting people, or interpretation) for pecuniary remuneration or
other gain to individuals or groups in pursuit of a natural resource-
based outdoor activity on National Forest System lands.
* * * * *
National Forest System road--a forest road under the jurisdiction
of the Forest Service.
* * * * *
Outfitting--renting on or delivering to National Forest System
lands for pecuniary remuneration or other gain any saddle or pack
animal, vehicle, boat, camping gear, or similar supplies or equipment
for the pursuit of a natural resource-based outdoor activity.
* * * * *
Recreation event--a recreational activity conducted on National
Forest System lands for which an entry or participation fee is charged,
such as animal, vehicle, or boat races; dog trials; fishing contests;
rodeos; adventure games; and fairs.
* * * * *
Still photography--use of still photographic equipment on National
Forest System lands that (1) takes place at a location where members of
the public are generally not allowed or where additional administrative
costs are likely, or (2) uses models or props that are not a part of
the site's natural or cultural resources or administrative facilities.
* * * * *
PART 261--PROHIBITIONS
Subpart A--General Prohibitions
4. The authority citation for subpart A continues to read as
follows:
Authority: 16 U.S.C. 551; 16 U.S.C. 472; 7 U.S.C. 1011(f); 16
U.S.C. 1246(i); 16 U.S.C.1133(C)-(d)(1); 16 U.S.C. 620(f).
5. Revise Sec. 261.2 to add a definition for ``Forest road or
trail'' in alphabetical order and to revise the definitions for
``National Forest System road'' and ``National Forest System trail'' to
read as follows:
Sec. 261.2 Definitions.
* * * * *
Forest road or trail--a road or trail wholly or partly within or
adjacent to and serving the National Forest System, and which is
necessary for the protection, administration, and utilization of the
National Forest System and the use and development of its resources.
* * * * *
National Forest System road--a forest road under the jurisdiction
of the Forest Service.
National Forest System trail--a forest trail under the jurisdiction
of the Forest Service.
* * * * *
6. Revise the heading and introductory text of Sec. 261.55, to
read as follows:
Sec. 261.55 National Forest System trails.
When pursuant to an order issued in accordance with Sec. 261.50 of
this subpart, the following are prohibited on a National Forest System
trail: * * *
* * * * *
7. Revise the heading for part 295 to read as follows:
PART 295--USE OF MOTOR VEHICLES OFF NATIONAL FOREST SYSTEM ROADS
8. The authority citation for part 295 continues to read as
follows:
Authority: 30 Stat. 35, as amended (16 U.S.C. 551): 50 Stat.
525, as amended (7 U.S.C. 1011): E.O. 11644, 11989 (42 FR 26959).
Dated: January 8, 2003.
Dale N. Bosworth,
Chief.
[FR Doc. 03-1291 Filed 1-21-03; 8:45 am]
BILLING CODE 3410-11-P
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