Regulations

chicken@astro.UMD.EDU
07 May 1993 21:31:45

Date="05/06/93"
Citation="58 FR 26940"
Group="interior"
Type="PROPOSED RULE"
Department="DEPARTMENT OF AGRICULTURE"
Agency="FOREST SERVICE, USDA"
Subject="Land Uses and Prohibitions; Noncommercial Group Uses"
DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Parts 251 and 261

Land Uses and Prohibitions; Noncommercial Group Uses

AGENCY: Forest Service, USDA.

ACTION: Proposed rule.
DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Parts 251 and 261

Land Uses and Prohibitions; Noncommercial Group Uses

AGENCY: Forest Service, USDA.

ACTION: Proposed rule.
..
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SUMMARY: This proposed rule would revise the existing rules
governing noncommercial group events and noncommercial distribution
of printed material within the National Forest System. These
revisions would ensure that the authorization procedures for
these activities comply with First Amendment requirements of
free speech and assembly.

DATES: Comments must be received in writing by August 4, 1993.

ADDRESSES: Send written comments to Recreation, Cultural Resources,
and Wilderness Management Staff (2340), Forest Service, USDA,
PO Box 96090, Washington, DC 20090-6090.

FOR FURTHER INFORMATION CONTACT:

William T. Svensen, Recreation, Cultural Resources, and Wilderness
Management Staff, (202) 205-1407, or Ellen R. Hornstein, Office
of the General Counsel, Natural Resources Division, (202) 720-
9616.

SUPPLEMENTARY INFORMATION:

Background

The First Amendment of the United States Constitution provides
in part that the government may not abridge the freedom of speech
or the right to assemble peaceably. U.S. Const., amend.
I. Freedom of speech means the right to disseminate ideas
freely, both orally or in writing.
It is well established that the government may enforce reasonable
time, place, and manner restrictions on First Amendment activities.
Such restrictions are appropriate where they are justified without
regard to the content of the regulated speech, where they are
narrowly tailored to further a significant governmental interest,
and where they leave open ample alternative channels for communication
of information. Clark v. Community for Creative Non-Violence,
468 U.S. 288, 293 (1984). Permits have been recognized as constitutional
restrictions of time, place, and manner when specific and objective
standards guide the licensing authority. Shuttlesworth v. City
of Birmingham, 394 U.S. 147, 150-51, 153 (1969).
The Forest Service regulates activity on National Forest
System lands through the issuance of special use authorizations.
Issuing special use authorizations allows the Forest Service
to protect resources and improvements on National Forest System
lands and to prevent conflicts among potential or existing uses
and activities. The rules at 36 CFR part 251, subpart B, govern
the issuance of special use authorizations for all uses of National
Forest System lands, improvements, and resources, except the
disposal of timber (part 223) and minerals (part 228) and the
grazing of livestock (part 222).
On June 21, 1984, the Secretary of Agriculture promulgated
a revision to 36 CFR part 251, subpart B. That rule required
a permit for two types of noncommercial group events, recreation
events and special events, both of which involved ten or more
participants or spectators. As defined, recreation events entailed
competition, entertainment, or training, and special events
included a meeting, assembly, demonstration, parade, or other
activity involving the expression of views. Noncommercial groups
that did not fall into either of these categories did not have
to have a permit. Moreover, the rule contained different standards
for denying a special use authorization for each type of group
event (49 FR 25449).
Subsequently, a federal district court held that it is unconstitutional
to require a group to obtain a special use authorization simply
because they gather to exercise their constitutional right of
free speech. The court explained that the Forest Service has
the right to regulate large group activities on government land,
but only if the regulation is content-neutral and applies to
all large groups. United States v. Israel, No. CR-86-027-TUC-
RMB (D. Ariz. May 10, 1986).
On May 10, 1988, the Forest Service published an interim
rule amending 36 CFR 251.50 through 251.54 to comport with First
Amendment rights of assembly and free speech within the National
Forest System (53 FR 16548). Upon challenge of this rule, a
federal district court held that the Forest Service had failed
to show good cause for adopting the interim rule without prior
notice as required by the Administrative Procedure Act, 5 U.S.C.
553. United States v. Rainbow Family, 695 F. Supp. 294, 302-
06 (E.D. Tex. 1988). In addition, the court invalidated the
classification established by the 1984 rule, which on its face
singled out expressive conduct and required that it be treated
differently from other activity. The court held that the 1984
rule lacked clear and objective standards for determining when
a group activity is a "recreation event" and when it is a "special
event" involving the exercise of free speech. Rainbow Family,
695 F. Supp. at 309, 312, The court further held that the standards
for evaluating an application for an authorization for expressive
conduct were unconstitutionally vague as they vested too much
discretion in the authorized officer. Id. at 309-12. The court
ruled that the 1984 regulations were invalid for failure to
impose a timeframe for filing and acting on an application,
and that the absence of any requirement in the 1984 regulations
that a reason be stated for denial of a special use authorization
made it impossible to discern the grounds for an authorized
officer's decision. Id. at 311-12. Finally, the court held that
the 1984 rule was invalid for failure to provide for judicial
review of the administrative determination. Id. at 311.
As a result of these court rulings, the Forest Service is
proposing revisions of the rules governing special uses at 36
CFR part 251. The purpose of this proposed rule is to regulate
noncommercial group events and noncommercial distribution of
printed material on National Forest System lands in compliance
with First Amendment rights of assembly and free speech. To
achieve this goal, the proposed rule contains specific, content-
neutral criteria for evaluating applications for noncommercial
group events and noncommercial distribution of printed material
and requires that the same criteria be applied to those activities,
regardless of whether they involve First Amendment rights. In
addition, the proposed rule requires an authorized officer to
notify an applicant in writing of the reasons for denial of
a special use authorization and provides for immediate judicial
review of a decision denying an authorization.

Section-by-Section Analysis

Amendments to Part 251

Section 251.50-Scope

Paragraph (a) would be revised for clarity and to make explicit
that an application is required for authorization of a special
use. Paragraph (c) would be revised to clarify that a special
use authorization is required for noncommercial group events
involving 25 or more people and noncommercial distribution of
printed material.
The agency has an interest in regulating group activities.
Group activities tend to have a greater impact on forest resources
and facilities than activities involving individuals or smaller
parties. The agency also has an interest in regulating when
noncommercial distribution of printed material occurs. Such
distribution can occur by posting, affixing or erecting the
material, which could damage natural resources if not regulated.
In addition, as distribution generally occurs in crowded areas,
it can obstruct traffic and create unsafe traffic conditions,
for example, where a single-lane road provides the only access
to a popular national forest attraction or where a national
forest is near an urban center.

Section 251.51-Definitions

Section 251.51 contains definitions used in part 251, subpart
B. The proposed rule would revise the definition for "group
event" and add new terms and definitions for "commercial use
or activity," "noncommercial use or activity," "printed material,"
and "distribution of printed material."
The term "group event" would cover any activity that involves
and/or attracts 25 or more people, regardless of the purpose
of the gathering. Thus, this term would embrace all groups that
were included in the "special event" and "recreation event"
categories of the 1984 rule, as well as those that were excluded.
The Forest Service is proposing a cutoff of 25 people based
on a review of the potential impact on resources and facilities.
The agency believes that activities involving 25 or more people
tend to have a greater impact on resources and facilities and
thus require evaluation by an authorized officer. If the agency
required an authorization for smaller group activities, the
agency would be inundated with applications, which would create
an unnecessary administrative burden and cost in light of the
generally low impact of these activities. Public comment is
especially invited on this group number threshold.
The terms and definitions for "commercial use of activity"
and "noncommercial use or activity" would be added to clarify
which activities would be subject to the authorization requirement
in . 251.50(c)(3). The terms and definitions for "printed material"
and "distribution of printed material" would be added to clarify
one of the types of activities subject to the authorization
requirement in . 251.50(c)(3).

Section 251.54-Special Use Applications

Section 251.54 of the existing rule prescribes procedures
and requirements for processing applications for special use
authorizations. Section 251.54(a) encourages all proponents
to contact an authorized officer as early as possible so that
potential constraints may be identified, the proposal can be
considered in land management plans if necessary, and processing
of an application can be tentatively scheduled. The proposed
rule would amend . 251.54(a) to provide that the proponent will
be given guidance and information about the items listed in
paragraphs (a)(1) through (a)(8) only to the extent applicable
to the proposed use and occupancy. For example, fees and bonding
requirements listed in paragraph (a)(4) would not apply to applications
for noncommercial group uses and noncommercial distribution
of printed material and would not be discussed with proponents
of those activities.
Section 251.54(e) specifies the information that must be
contained in an application for a special use authorization.
The proposed rule would amend paragraph(e)(1) to specify applicant
identification requirements applicable to all special uses.
Specifically, paragraph (e)(1) would require any applicant to
provide his or her name and mailing address, or if the applicant
is not an individual, the name and address of the applicant's
agent who is authorized to receive notice of actions pertaining
to the application.
Additionally, the proposed rule would amend this paragraph
by adding a new paragraph (e)(2) to specify separate information
requirements for noncommercial group uses and noncommercial
distribution of printed material. Paragraph (e)(2) would require
applicants for noncommercial group uses and noncommercial distribution
of printed material to provide the following:
(1) A description of the proposed activity;
(2) A description of the National Forest System land and
any facilities the applicant would like to use;
(3) The estimated number of participants and spectators;
(4) The date and time of the proposed activity; and
(5) The name of the person or persons 21 years of age or
older who will sign a special use authorization on behalf of
the applicant.
This is the minimum information needed by the authorized
officer to apply the evaluation criteria in the proposed rule.
Application information requirements for all other special uses
would remain as provided in the existing rule, with one exception.
The provision currently in paragraph (e)(1) concerning the deference
to be given to findings of another agency would be moved to
a new paragraph (f)(4), since this provision relates to the
processing of applications rather than to their content.
The Rainbow court identified the need for a specific timeframe
for granting or denying an application for a noncommercial group
event or noncommercial distribution of printed material. 695
F. Supp. at 311. This decisionmaking process, however, may trigger
extensive statutory and regulatory requirements, including those
imposed by the National Environmental Policy Act of 1969 (NEPA),
42 USC 4331 et seq., the Endangered Species Act (ESA), 16 USC
531 et seq., the National Historic Preservation Act, 16 USC
470 et seq., and other laws. The time needed to comply with
these requirements varies greatly depending on the particular
circumstances of each application. Committing to a specific
timeframe could put the agency in the position of having to
choose between violating either its own regulations or one or
more of these statutory mandates.
Consequently, the agency has determined that it would be
infeasible and arbitrary to specify a time period in which final
agency decision would be made.
In recognition of these competing concerns, the proposed
rule would add a new paragraph (f)(5) providing that the agency
would grant or deny an application for noncommercial group events
or noncommercial distribution of printed material without unreasonable
delay. A determination of whether the agency acted with sufficient
speed would require an analysis of what is reasonable under
the circumstances, in view of the applicable statutory and regulatory
obligations. Applicants are encouraged to contact the agency
as early as possible to discuss the amount of time that could
be required to make a decision, and to apply sufficiently in
advance of their proposed activities to allow the agency to
comply with applicable statutory and regulatory requirements.
Section 251.54(h) of the 1984 rule enumerated grounds for
denying an application for a special use other than a special
event. Section 251.54(i) listed separate grounds for denying
an application for a special event, which involved the expression
of views. Thus, the 1984 rule applied different criteria for
activities with First Amendment implications than for all other
activities, including other types of group events. Moreover,
the criteria for First Amendment activities were not specific
enough to reduce the potential for application of disparate
standards in reviewing applications for an authorization.
The proposed rule would presume that any noncommercial group
event and noncommercial distribution of printed material would
be authorized, upon a determination that seven evaluation criteria
were met. These criteria would merely regulate time, place,
and manner with respect to a proposed activity. The proposed
rule would dictate that these same criteria be applied to all
types of noncommercial group events and noncommercial distribution
of printed material. Thus, these criteria are intended to be
content-neutral, are narrowly tailored to advance significant
governmental interests, and leave open ample alternative channels
for communication of the information.
Specifically, . 251.54(h)(1) of the proposed rule would provide
that an authorized officer shall grant an application for a
special use authorization for any noncommercial group event
or for noncommercial distribution of printed material, upon
a determination that:
(1) The proposed activity is not prohibited by the rules
at 36 CFR part 261, subpart A, or by an order issued pursuant
to 36 CFR part 261, subpart B, or by federal, state, or local
law unrelated to the content of expressive activity. This criterion
would allow the agency to deny an application for an activity
that would violate federal, state, or local law. This criterion
would also allow the Forest Service to regulate where a proposed
activity would be conducted. The Forest Service must comply
with applicable federal law and regulations in managing the
National Forest System. For example, the Wilderness Act requires
the Forest Service to protect and manage wilderness areas so
as to preserve their natural condition and to ensure that the
imprint of human activity remains substantially unnoticeable.
16 U.S.C. 1131(c). The ESA prohibits a taking of an endangered
species. A "taking" as defined by the ESA includes the loss
of a listed species habitat. Thus, an authorized officer might
deny an application if the activity would be conducted in a
wilderness area or would risk a taking of a threatened or endangered
species such as the spotted owl or grizzly bear. In addition,
an authorized officer would have to deny an application if the
activity would be conducted in an area that is closed or restricted
pursuant to an order issued under 36 CFR part 261. Under a 261
order, the Forest Service might close a trial in the event of
extreme fire danger or inclement weather.
(2) The proposed activity is consistent or can be made consistent
with the applicable approved land and resource management plan.
The National Forest Management Act requires that "(r)esource
plans and permits, contracts, and other instruments for the
use and occupancy of National Forest System lands shall be consistent
with the land management plans." 16 U.S.C. 1604(i). An activity
is consistent with a forest plan if it adheres to a plan's standards
and guidelines that are forest-wide or that are included in
management prescriptions for specific management areas. Standards
and guidelines describe any activities that are not permitted
to occur in a specified area or prescribe how activities must
be implemented for environmental protection or other purposes.
Forest plans are developed in accordance with the rules at 36
CFR part 219 and adopted with extensive public participation
and comment.
(3) The proposed activity would not delay, halt, or prevent
administrative use of an area by the Forest Service or other
scheduled or existing uses or activities on National Forest
System land, including but not limited to uses and activities
authorized pursuant to parts 222, 223, 228, and 251 of this
chapter. Under this criterion, an authorized officer might require
a large group to alter arrival and departure times or to use
an alternative access route to avoid congestion. An officer
might suggest an alternate site on the opening day of fishing
season for the same reason. This criterion would also allow
the Forest Service to ensure that a group of Boy Scouts is not
given a site that is already being used as pastureland under
a grazing permit or that is currently being logged under a timber
sale contract.
The 1984 rule provided that an application for a special
event could be denied if the event conflicted with a previously
approved use or if it would be of such nature or duration that
it could not reasonably be accommodated in the place and time
requested (49 FR 25449). The federal district court in Rainbow
Family held that denying a permit because it "conflicts" with
another use or because it "cannot reasonably be accommodated"
in the time and place requested allows for too much discretion
on the part of the authorized officer. 695 F. Supp. at 312.
This proposed rule would address the court's concern by providing
specific examples of how an activity covered by this paragraph
could delay, halt, or prevent existing or scheduled activities
and what those activities might include. Similarly, the proposed
rule would remove the unconstitutionally vague criterion which
allows an authorized officer to deny an application for an activity
covered by this proposed rule on the ground that it cannot reasonably
be accommodated in the time and place requested.
(4) The proposed activity would not pose a substantial danger
to public health. Considerations of public health shall be limited
to the following with respect to the proposed site:
(a) The sufficiency of sanitation facilities;
(b) The adequacy of waste disposal facilities;
(c) The availability of sufficient potable drinking water,
in view of the expected number of users and duration of use;
(d) The risk of disease from the physical characteristics
of the proposed site or natural conditions associated with the
proposed site;
(e) The risk of contamination of the water supply; and
(f) The sufficiency of a plan for safe handling of food.
(5) The proposed activity would not pose a substantial danger
to public safety. Considerations of public safety shall not
include concerns about possible reaction to the users' identity
or beliefs from non-members of the group seeking an authorization
and shall be limited to the following:
(a) The potential for physical injury to other forest users
from the proposed activity;
(b) The potential for physical injury to users from the physical
characteristics of the proposed site or natural conditions associated
with the proposed site;
(c) The potential for physical injury to users from scheduled
or existing uses or activities on National Forest System land;
and
(d) The adequacy of ingress and egress in case of an emergency.
The 1984 rule allowed an authorized officer to deny an application
for a special event if it presented a clear and present danger
to the public health or safety (49 FR 25449). The Rainbow court
struck down this language because it was too vague and allowed
for too much discretion on the part of the authorized officer.
695 F. Supp. at 311. The proposed rule would overcome this deficiency.
In regulating where the activity would occur, the criterion
in the proposed rule would restrict the authorized officer's
discretion by enumerating concrete, content-neutral considerations
of public health and safety.
(6) The proposed activity does not involve military or paramilitary
training or exercises by private organizations or individuals,
unless such training or exercises are federally funded. This
activity does not implicate the First Amendment and is currently
prohibited by Forest Service policy as inconsistent with National
Forest System purposes.
(7) A person or persons 21 years of age or older has been
designated to sign and does sign a special use authorization
on behalf of the applicant. The agency must have someone to
contact for purposes of special use administration. The authorized
officer may have questions about the application or may need
to notify the applicant in the event of an emergency. If the
application does not identify a contact person, the agency cannot
make the appropriate notifications. In addition, someone on
behalf of the applicant must accept the responsibilities associated
with use of National Forest System land.
Public comment is especially invited on the seven evaluation
criteria.
If, at the conclusion of the application process, the application
does not meet the seven criteria, an administrative officer
could deny the application. Under proposed . 251.54(h)(2), however,
an authorized officer would have to notify an applicant in writing
of the reasons for denial of an application for a special use
authorization. The proposed rule would make explicit that a
denial of an application under . 251.54(h)(1) would constitute
final agency action and would be immediately subject to judicial
review.

Section 251.56-Terms and Conditions

The proposed rule would amend . 251.56(e) on bonding to provide
that an authorized officer could not require bonding for holders
of authorizations for noncommercial group events or noncommercial
distribution of printed material. This amendment would clarify
the agency's intent to ensure that no undue burdens are imposed
on the exercise of First Amendment rights.

Section 251.57-Fees

The proposed rule revises . 251.57 on fees for special use
authorizations to provide that no fee will be charged when the
authorization is for a noncommercial group event or for the
noncommercial distribution of printed material. This revision
would clarify the agency's intent to ensure that no undue burdens
are imposed on the exercise of First Amendment rights.

Section 251.60-Termination, Revocation, and Suspension

Section 251.60 provides several grounds for terminating,
revoking, or suspending a special use authorization, one of
which is for reasons in the public interest. The proposed rule
would amend this broad basis for termination, revocation, or
suspension to exclude authorizations for noncommercial group
events or noncommercial distribution of printed material. This
amendment would clarify the agency's intent to ensure that the
authorized officer does not have unbridled discretion with respect
to administration of noncommercial First Amendment activities
in the National Forest System. Under . 251.60(a), an authorized
officer could still terminate, revoke, or suspend an authorization
for these activities for noncompliance with applicable statutes,
regulations, or terms and conditions of the authorization; for
failure of the holder to exercise the rights and privileges
granted; with the consent of the holder; or when, by its terms,
a fixed or agreed upon condition, event, or time occurs.

Amendment to Part 261

In addition to the changes at 36 CFR part 251, subpart B,
the proposed rule would make corollary amendments to the rules
at 36 CFR part 261, subpart A, which contain general prohibitions
in effect for the National Forest System.
The proposed rule would amend the authority citation for
part 261 to consolidate the references. The proposed rule would
also amend the definitions and prohibitions governing occupancy
and use to make them consistent with the requirement in part
251 that a special use authorization is required for noncommercial
distribution of printed material.

Section 261.2-Definitions

In the definitions section, the term "placing" would be replaced
by the word "affixing." "Placing" could be construed to prohibit
leaving printed material under windshield wipers or on dashboards
of vehicles, neither of which would result in injury to public
or private property. Use of the word "affixing" would narrow
the prohibition to address damage to forest resources and facilities.

Section 261.10-Occupancy and Use

With respect to distribution of printed material, the proposed
rule would prohibit delaying, halting, or preventing administrative
use of an area by the Forest Service or other scheduled or existing
uses or activities on National Forest System land; misrepresenting
the purposes or affiliations of those distributing the material;
or misrepresenting the availability of the material without
cost or donation. Consistent with the third evaluation criterion
proposed for part 251, this language would regulate time, place,
and manner for the distribution of printed material. This prohibition
would also protect the public from fraud by prohibiting specific
types of misrepresentation in the context of such distribution.

Section 261.14-Developed Recreation Sites

The proposed rule would remove from this section the prohibition
on distribution of printed material without a special use authorization.
This prohibition is subsumed in the prohibition contained in
. 261.10(g), which applies throughout the National Forest System.

Summary

With the changes in definitions and establishment of very
limited circumstances under which an authorized officer could
deny a special use authorization for noncommercial group events
and noncommercial distribution of printed material, the proposed
rule would preserve the fundamental constitutional rights of
free speech and assembly, while providing reasonable administrative
mechanisms to control or prevent adverse impacts on resources
and public health and safety.
Public comment is invited and will be considered in adoption
of the final rule. It will aid analysis of comments if reviewers
key them to specific sections of the proposed rule. Respondents
should also note that in conducting this analysis, the agency
will give more weight to substantive comments than to simple
"yes," "no," or "check-off" responses to form letters or questionnaires.
A separate proposed rule revising the existing regulations
at 36 CFR part 251 governing application procedures for all
other special uses was published in the Federal Register at
57 FR 36618 on August 14, 1992. Upon adoption, that final rule
will be integrated with this rulemaking to ensure consistency
in substance and format.

Regulatory Impact

This proposed rule has been revised under USDA procedures
and Executive Order 12291 on Federal Regulations. It has been
determined that this would not be a major rule. The proposed
rule would not have an effect of $100 million or more on the
economy, substantially increase prices or costs for consumers,
industry, or state or local governments, or adversely affect
competition, employment, investment, productivity, innovation,
or the ability of domestic companies to compete in foreign markets.
In short, this proposed rule would have little or no impact
on the national economy. The proposed rule would consist primarily
of technical and administrative changes for authorization of
occupancy and use of National Forest System lands.
Moreover, this proposed rule has been considered in light
of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. This
action would not have a significant economic impact on a substantial
number of small entities because it would not impose recordkeeping
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.
This proposed rule has been reviewed for its impact on private
property rights under Executive Order 12630 of March 15, 1988,
as implemented by the United States Attorney General's Guidelines
for the Evaluation of Risk and Avoidance of Unanticipated Takings.
Executive Order 12630 would not apply to this proposed rule
because it would consist primarily of technical and administrative
changes governing application procedures for authorization of
occupancy and use of National Forest System lands. Application
for a special use authorization does not grant any right, title,
or interest in or to lands or resources held by the United States.
This proposed rule has been reviewed under Executive Order
12778, 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 which 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.

Paperwork Reduction Act

The information an applicant must provide the Forest Service
to obtain an authorization for a noncommercial group event or
noncommercial distribution of printed material (proposed . 251.54(e)(2)(i)
(A)-(E)) constitutes an information requirement as defined by
the Paperwork Reduction Act and the Office of Management and
Budget implementing rules at 5 CFR part 1320 and thus would
require OMB approval before adoption of the final rule. The
Forest Service is requesting OMB approval of the information
required for these applications. The agency estimates that each
applicant would spend an average of one to four hours preparing
an application, depending on the scope and complexity of the
proposed activity. Comments on this information requirement
should be submitted to the office listed in this proposed rule
under ADDRESSES, as well as to the: Forest Service Desk Officer,
Office of Information and Regulatory Affairs, Office of Management
and Budget, Washington, DC 20503.

Environmental Impact

This proposed rule consists primarily of technical and administrative
changes related to authorization of occupancy and use of National
Forest System lands. No extraordinary circumstances have been
identified that might cause this proposed action to have a significant
effect on the human environment. Therefore, the agency's preliminary
determination is that this proposed rule is categorically excluded
from documentation in an Environmental Impact Statement or an
Environmental Assessment (40 CFR 1508.4; Forest Service Handbook
1909.15, Environmental Policy and Procedures, section 31.1b(2),
57 FR 43208, September 18, 1992). A final determination will
be made at the time of publication of the final rule.

List of Subjects

36 CFR Part 251

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

36 CFR Part 261

Law enforcement, National forests.
Therefore, for the reasons set forth in the preamble, it
is proposed to amend part 251, subpart B, and part 261, subpart
A, of chapter II 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:

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

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

. 251.50 Scope.

(a) All uses of National Forest System lands, improvements,
and resources, except those provided for in the regulations
governing the disposal of timber (part 223) and minerals (part
228) and the grazing of livestock (part 222), are designated
"special uses." Before engaging in a special use, persons or
entities must submit an application to an authorized officer
and must obtain a special use authorization from the authorized
officer, unless that requirement is waived by paragraph (c)
of this section.
* * * * *
(c) A special use authorization is not required for noncommercial
recreational activities such as camping, picnicking, hiking,
fishing, hunting, horseback riding, and boating, as well as
noncommercial activities involving the expression of views such
as assemblies, meetings, demonstrations, and parades, except
for:
* * * * *
(3) Noncommercial group events or noncommercial distribution
of printed material as defined in . 251.51 of this subpart.
* * * * *
3. Amend . 251.51 by removing the terms and definitions for
Distributing noncommercial printed material and Noncommercial
printed material, revising the definition for "Group event,"
and adding the following new terms and definitions in alphabetical
order to read as follows:

. 251.51 Definitions.
* * * * *
Commercial use or activity-any use or activity on National
Forest System lands involving the charge of an entry or participation
fee, or the purchase, sale, or exchange of a product or service,
regardless of whether the use or activity is intended to produce
a profit.
Distribution of printed material-disseminating, posting,
affixing, or erecting printed material as defined in this section
or soliciting information, views, or signatures in conjunction
with the distribution of printed material.
Group event-an activity conducted on National Forest System
lands that involves and/or attracts 25 or more people.
Noncommercial use or activity-any use or activity that does
not involve a commercial use or activity as defined in this
section.
Printed material-any written and/or graphic material including
but not limited to pamphlets, periodicals, leaflets, brochures,
photographs or graphics, handbills, signs, petitions, posters,
bumper stickers, and booklets.
* * * * *
4. Amend . 251.54 by revising paragraphs (a), introductory
text, (e)(1), (e)(2)(i) and the introductory text of (e)(2)(ii),
redesignating paragraphs (f)(1) and (f)(2) as (f)(2) and (f)(3)
and redesignating the first sentence of paragraph (f) as paragraph
(f)(1), and adding new paragraphs (f)(4) and (f)(5) and revising
paragraph (h) to read as follows:

. 251.54 Special use applications.

(a) Preapplication activity. When occupancy or use of National
Forest System land is desired, a proponent is encouraged to
contact the Forest Service office(s) responsible for management
of the affected land as early as possible so that potential
constraints may be identified, the proposal can be considered
in land management plans if necessary, and processing of an
application can be tentatively scheduled. To the extent applicable
to the proposed use and occupancy, the proponent will be given
guidance and information about:
* * * * *
(e) Application content-(1) Applicant identification. Any
applicant for a special use authorization shall provide the
applicant's name and mailing address, or if the applicant is
not an individual, the name and address of the applicant's agent
who is authorized to receive notice of actions pertaining to
the application.
(2) Minimum information.-(i) Noncommercial group events and
noncommercial distribution of printed material. An applicant
for noncommercial group events and noncommercial distribution
of printed material shall provide the following:
(A) A description of the proposed activity;
(B) A description of the National Forest System land and
any facilities the applicant would like to use;
(C) The estimated number of participants and spectators;
(D) The date and time of the proposed activity; and
(E) The name of the person or persons 21 years of age or
older who will sign a special use authorization on behalf of
the applicant.
(ii) All other special uses. If requested by an authorized
officer, an applicant in one of the following categories shall
furnish the information specified for that catetory:
(A) A State and local government agency: a copy of the authorization
under which the application is made;
(B) A public corporation: the statute or other authority
under which it was organized;
(C) A Federal government agency: the title of the agency
official delegated the authority to file the application:
(D) A private corporation: (1) Evidence of incorporation
and its current good standing; (2) if reasonably obtainable
by the applicant, the name and address of each shareholder owning
3 percent or more of the shares, together with the number and
percentage of any class of voting shares of the entity which
such shareholder is authorized to vote; (3) the name and address
of each affiliate of the entity; (4) in the case of an affiliate
which is controlled by the entity, the number of shares and
the percentage of any class of voting stock of the affiliate
that the entity owns either directly or indirectly; or (5) in
the case of an affiliate which controls that entity, the number
of shares and the percentage of any class of voting stock of
that entity owned, either directly or indirectly by the affiliate;
or
(E) A partnership, association or other unincorporated entity:
a certified copy of the partnership agreement or other similar
document, if any, creating the entity, or a certificate of good
standing under the laws of the State.
* * * * *
(f) Processing applications. (1) * * *
(4) The authorized officer shall give due deference to the
findings of another agency such as the Public Utility Commission,
the Federal Energy Regulatory Commission, or the Interstate
Commerce Commission in lieu of another detailed finding. If
this information is already on file with the Forest Service,
it need not be refiled if reference is made to the previous
filing date, place, and case number.
(5) A decision to grant or deny an application for a noncommercial
group event or noncommercial distribution of printed material
shall be made without unreasonable delay.
* * * * *
(h) Response to applications for noncommercial group events
or for the noncommercial distribution of printed material. (1)
An authorized officer shall grant an application for a special
use authorization for a noncommercial group event or for noncommercial
distribution of printed material, upon a determination that:
(i) The proposed activity is not prohibited by the rules
at 36 CFR part 261, subpart A, or by orders issued pursuant
to 36 CFR part 261, subpart B, or by Federal, State, or local
law;
(ii) The proposed activity is consistent or can be made consistent
with the applicable approved land and resource management plan
required pursuant to 36 CFR part 219;
(iii) The proposed activity will not delay, halt, or prevent
administrative use of an area by the Forest Service or other
scheduled or existing uses or activities on National Forest
System land, including but not limited to uses and activities
authorized pursuant to parts 222, 223, 228, and 251 of this
chapter;
(iv) The proposed activity will not pose a substantial danger
to public health. Considerations of public health shall be limited
to the following with respect to the proposed site:
(A) The sufficiency of sanitation facilities;
(B) The adequacy of waste disposal facilities;
(C) The availability of sufficient potable drinking water,
in view of the expected number of users and duration of use;
(D) The risk of disease from the physical characteristics
of the proposed site or natural conditions associated with the
proposed site;
(E) The risk of contamination of the water supply;
(F) The sufficiency of a plan for safe handling of food.
(v) The proposed activity will not pose a substantial danger
to public safety. Considerations of public safety shall not
include concerns about possible reaction to the users' identity
or beliefs from non-members of the group seeking an authorization
and shall be limited to the following:
(A) The potential for physical injury to other forest users
from the proposed activity;
(B) The potential for physical injury to users from the physical
characteristics of the proposed site or natural conditions associated
with the proposed site;
(C) The potential for physical injury to users from scheduled
or existing uses or activities on National Forest System land;
and
(D) The adequacy of ingress and egress in case of an emergency;
(vi) The proposed activity does not involve military or paramilitary
training or exercises by private organizations or individuals,
unless such training or exercises are federally funded; and
(vii) A person or persons 21 years of age or older has been
designated to sign and does sign a special use authorization
on behalf of the applicant.
(2) If an authorized officer denies an application because
it does not meet the criteria in paragraphs (h)(1)(i) through
(vii) of this section, the authorized officer shall notify the
applicant in writing of the reasons for the denial. A denial
of an application under paragraph (h)(1)(i) through (vii) of
this section constitutes final agency action and is immediately
subject to judicial review.
5. Amend . 251.56 by revising paragraph (e) to read as follows:

. 251.56 Terms and conditions.
* * * * *
(e) Bonding. An authorized officer may require the holder
of a special use authorization for other than noncommercial
group events and noncommercial distribution of printed material
to furnish a bond or other security to secure all or any of
the obligations imposed by the terms of the authorization or
by any applicable law, regulation or order.
* * * * *
6. Amend . 251.57 by redesignating paragraphs (d) through
(g) as (e) through (h) and adding a new paragraph (d) to read
as follows:

. 251.57 Rental fees.
* * * * *
(d) No fee shall be charged when the authorization is for
a noncommercial group event or for the noncommercial distribution
of printed material as defined in . 251.51 of this subpart.
* * * * *
7. Revise . 251.60(b) to read as follows:

. 251.60 Termination, revocation, and suspension.
* * * * *
(b) A special use authorization may be suspended, revoked
or terminated, in the discretion of the authorized officer,
for reasons in the public interest, except that this provision
shall not apply to special use authorizations for noncommercial
group events or noncommercial distribution of printed material.
* * * * *

PART 261-PROHIBITIONS

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

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

Subpart A-General Prohibitions

9. Amend . 261.2 by adding the following new terms and definitions
in alphabetical order to read as follows:

. 261.2 Definitions.
* * * * *
Distribution of printed material. Disseminating, posting,
affixing, or erecting printed material as defined in this section
or soliciting information, views, or signatures in conjunction
with the distribution of printed material.
Printed material. Any written and/or graphic material including
but not limited to pamphlets, leaflets, brochures, photographs
or graphics, handbills, signs, petitions, posters, bumper stickers,
and booklets.
* * * * *
10. Amend . 261.10 by redesignating paragraphs (h) through
(m) as paragraphs (i) through (n), revising paragraph (g), and
adding a new paragraph (h) to read as follows:

. 261.10 Occupancy and use.
* * * * *
(g) Distributing any printed material without a special use
authorization.
(h) When distributing printed material, delaying, halting,
or preventing administrative use of an area by the Forest Service
or other scheduled or existing uses or activities on National
Forest System land; misrepresenting the purposes or affiliations
of those selling or distributing the material; or misrepresenting
the availability of the material without cost or donation.
* * * * *

. 261.14 [Amended]

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

Dated: March 25, 1993.

George M. Leonard,
Associate Chief.

[FR Doc. 93-10625 Filed 5-5-93; 8:45 am]
BILLING CODE 3410-11-M

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