PART 251_LAND USES--Table of Contents
Subpart A_Miscellaneous Land Uses
Natural Resources Control
Sec.
251.9 Management of municipal watersheds.
251.10 Prohibition of location of mining claims within certain areas in
the Norbeck Wildlife Preserve, South Dakota.
251.11 Governing mining locations under the mining laws of the United
States within that portion of the Black Hills National Forest,
State of South Dakota, designated as the Norbeck Wildlife
Preserve.
251.14 Conditions, rules, and regulations to govern exercise of timber
rights reserved in conveyance to the United States.
251.15 Conditions, rules, and regulations to govern exercise of mineral
rights reserved in conveyances to the United States.
Rights of Grantors
251.17 Grantor's right to occupy and use lands conveyed to the United
States.
251.18 Rights-of-way reserved by the grantor on lands conveyed to the
United States.
251.19 Exercise of water rights reserved by the grantor of lands
conveyed to the United States.
Designation of Areas
251.23 Experimental areas and research natural areas.
Petersburg Watershed
251.35 Petersburg watershed.
Subpart B_Special Uses
251.50 Scope.
251.51 Definitions.
251.52 Delegation of authority.
251.53 Authorities.
251.54 Proposal and application requirements and procedures.
251.55 Nature of interest.
251.56 Terms and conditions.
251.57 Rental fees.
251.58 Cost recovery.
251.59 Transfer of authorized improvements.
251.60 Termination, revocation, and suspension.
251.61 Applications for new, changed, or additional uses or area.
251.62 Acceptance.
251.63 Reciprocity.
251.64 Renewals.
251.65 Information collection requirements.
Subpart C [Reserved]
Subpart D_Access to Non-Federal Lands
251.110 Scope and application.
251.111 Definitions.
251.112 Application requirements.
251.113 Instrument of authorization.
251.114 Criteria, terms, and conditions.
Subpart E_Revenue-Producing Visitor Services in Alaska
251.120 Applicability and scope.
251.121 Definitions.
251.122 Historical operator special use authorizations.
251.123 Most directly affected Native Corporation determination.
251.124 Preferred operator competitive special use authorization
procedures.
251.125 Preferred operator privileges and limitations.
251.126 Appeals.
Authority: 16 U.S.C. 472, 479b, 551, 1134, 3210, 6201-13; 30 U.S.C.
1740, 1761-1771.
Subpart A_Miscellaneous Land Uses
Authority: 7 U.S.C. 1011; 16 U.S.C. 518, 551, 678a; Pub. L. 76-867,
54 Stat. 1197.
Natural Resources Control
Sec. 251.9 Management of Municipal Watersheds.
(a) The Forest Service shall manage National Forest watersheds that
supply municipal water under multiple use prescriptions in forest plans
(36 CFR part 219). When a municipality desires protective actions or
restrictions of use not specified in the forest plan, within agreements,
and/or special use authorizations, the municipality must apply to the
Forest Service for consideration of these needs.
(b) When deemed appropriate by the Regional Forester, requested
restrictions and/or requirements shall be incorporated in the forest
plan without written agreements. Written agreements with municipalities
to assure protection of water supplies are appropriate when requested by
the municipality and deemed necessary by the Regional Forester. A
special use authorization may be needed to effect these agreements.
(c) In preparing any municipal watershed agreement for approval by
the Regional Forester or issuing special use authorization to protect
municipal
[[Page 350]]
water supplies, the authorized forest officer shall specify the types of
uses, if any, to be restricted; the nature and extent of any
restrictions; any special land management protective measures and/or any
necessary standards and guidelines needed to protect water quality or
quantity; and any resources that are to be provided by the municipality.
(d) A special use authorization (36 CFR 251.54) is required if the
municipality is to use the subject lands, restrict public access, or
control resource uses within the watershed. Special use authorizations
issued pursuant to this section are subject to the same fee waivers,
conditions, and procedures applicable to all other special uses as set
forth in subpart B of this part.
(e) Any municipal watershed management agreements, special use
authorizations, requirements, and/or restrictions shall be consistent
with forest plans, or amendments and revisions thereto.
[53 FR 27685, July 22, 1988]
Sec. 251.10 Prohibition of location of mining claims within certain
areas in the Norbeck Wildlife Preserve, South Dakota.
The location of mining claims in such areas within 660 feet of any
Federal, State or county road and within such other areas where the
location of mining claims would not be in the public interest, as may be
designated by the Chief, Forest Service, or the Regional Forester, of
Forest Service Region 2, is hereby prohibited. The Director, Bureau of
Land Management, Department of the Interior, shall be advised of the
areas so designated and notices of the boundaries of such areas posted
at conspicuous places in the Preserve, as well as at the county
courthouses in Pennington in the cities of Custer and Rapid City, and
Custer Counties and the post offices State of South Dakota.
[13 FR 3676, July 1, 1948, as amended at 48 FR 31854, July 12, 1983]
Sec. 251.11 Governing mining locations under the mining laws of the
United States within that portion of the Black Hills National Forest,
State of South Dakota, designated as the Norbeck Wildlife Preserve.
(a) Whoever locates a mining claim within the Norbeck Wildlife
Preserve must, within 10 days after posting the location notice upon
such claim, file a true copy of such location notice with the Forest
Supervisor of the Black Hills National Forest at Custer, South Dakota,
and further, within 10 days after said location notice is filed for
record pursuant to the State laws of South Dakota, a true copy of the
recorded location certificate must be filed with said Forest Supervisor.
(b) All mining locators shall in all developments and operations
make all reasonable provisions for the disposal of tailings, dumpage,
and other deleterious materials or substances in such manner as to
prevent obstruction, pollution, or deterioration of the land, streams,
ponds, lakes, or springs, as may be directed by the Forest Supervisor.
(c) All slash resulting from cutting or destruction of forest growth
incident and necessary to mining operations must be disposed of as
directed by the Forest Supervisor.
(d) The cutting and removal of timber, except where clearing is
necessary in connection with mining operations or to provide space for
buildings or structures used in connection with mining operations, shall
be conducted in accordance with the marking rules and timber sale
practices applicable to the Black Hills National Forest, and such
cutting and removal of timber shall be as directed by the Forest
Supervisor.
(e) No use of the surface of a mining claim or the resources
therefrom not reasonably required for carrying on mining and prospecting
shall be allowed, except under the National Forest rules and
regulations, nor shall the locator prevent or obstruct other occupancy
of the surface or use of surface resources under authority of National
Forest Regulations, or permits issued thereunder, if such occupancy or
use is not in conflict with mineral developments.
[[Page 351]]
(f) When any road is to be built for mining purposes upon a mining
claim, the locator must apply to the Forest Supervisor for the
applicable rules and regulations governing the construction and
maintenance of roads within the Black Hills National Forest, and such
road will be built in accordance with such specifications and in such
locations as the Forest Supervisor may direct.
(g) In conducting mining operations the locator, his agents,
representatives, or employees, or other persons whose presence in the
area or in the vicinity thereof, is occasioned by such mining
operations, shall use due diligence in the prevention and suppression of
fires, and shall, when requested by the Forest Supervisor, or his
authorized representative, be available for service in the
extinguishment and suppression of all fires occurring within the
Preserve: Provided, That if such fire does not originate through any
negligence on the part of the locator, his agents, representatives, or
employees, or other persons whose presence in the area or in the
vicinity thereof, is occasioned by such mining operations and does not
threaten the structures, improvements or property incident to the mining
operation, such persons shall be paid for their services at the current
rate of pay of fire fighters employed by the United States.
(h) Nothing contained in this section shall be construed to relieve
the locator from complying with any requirements of the laws of the
State of South Dakota, nor from compliance with or conformity to any
requirements of any Federal law or regulation now existing or which
later may be enacted or promulgated, and applicable to the subject
involved in this section.
[13 FR 4792, Aug. 19, 1948, as amended at 48 FR 31854, July 12, 1983]
Sec. 251.14 Conditions, rules and regulations to govern exercise of
timber rights reserved in conveyance to the United States.
(a) Except as otherwise provided in paragraphs (b) and (c) of this
section, in conveyance of lands to the United States under authorized
programs of the Forest Service, where owners reserve the right to enter
upon the conveyed lands and to cut and remove timber and timber
products, said reservations shall be subject to the following
conditions, rules and regulations which shall be expressed in and made a
part of the deed of conveyance to the United States and such
reservations shall be exercised thereunder and in obedience thereto:
(1) Whoever undertakes to exercise the reserved rights, hereinafter
called operator, shall give prior written notice to Forest Service and
shall submit satisfactory evidence of authority to exercise such rights.
Operator shall repair, replace, or restore any improvements owned by the
United States or its permittees, damaged or destroyed by the timber
operations and he shall restore the land to a condition safe and
reasonably serviceable for authorized programs of Forest Service.
(2) In cutting and removing timber and timber products and in
locating, constructing and using mills, logging roads, railroads,
chutes, landings, camps, or other improvements, no unnecessary damage
shall be done to the air, water and soil resources, and to young growth
or to trees left standing. All survey monuments and witness trees shall
be preserved.
(3) All trees, timber or timber products of species or sizes not
specifically reserved which are unnecessarily cut, damaged, or destroyed
by operator shall be paid for at double the usual rates charged in the
locality for sales of similar National Forest timber and timber
products.
(4) Slash and debris resulting from the cutting, removal, or
processing of timber or timber products, or from construction
operations, shall be disposed of or otherwise treated by methods
acceptable to the Forest Service. Such treatment or disposal shall
comply with known air and water quality criteria and standards and
include necessary preparatory work such as fireline constructing and
snag falling. The timing of log removal and preparatory work shall not
unnecessarily delay slash disposal or treatment.
(5) Operator is authorized to construct and maintain buildings,
facilities, and other improvements, including roads needed to log the
reserved timber. Construction and maintenance
[[Page 352]]
plans, designs, and location shall be approved in writing by Forest
Service before construction is started.
(6) All buildings, camps, equipment, and other structures or
improvements shall be removed from the lands within 6 months from date
of completion or abandonment of the operation, unless relieved by Forest
Service by issuance of a special-use permit. Otherwise such buildings,
camps, equipment, and other structures or improvements shall become the
property of the United States, but this does not relieve operator of
liability for the cost of removal and restoration of the site.
(7) Nothing in this section shall be construed to exempt operator
from any requirements of the laws of the States in which situated; nor
from compliance with or conformity to any requirement of any law which
later may be enacted and which otherwise would be applicable.
(8) While operations are in progress, operator, his employees, any
subcontractors, and their employees, shall take all reasonable and
practicable action in the prevention and suppression of fire, and shall
be available for service in the suppression of all fires within the
reserved area. On any fire not caused by negligence on the part of the
operator, Forest Service shall pay operator at fire-fighting rates
common in the area or at prior agreed rates for equipment or manpower
furnished by operator.
(9) Only one cutting shall be made on any portion of the area on
which timber is reserved. Forest Service may permit the cutting of
special products, or products the cutting of which is seasonal, on any
portion of the area in advance of the cutting of the chief products of
the reserved timber. Each reservation of timber shall include a specific
period of time within which material may be removed.
(10) Forest Service shall have the right to use any road constructed
under the authority of this timber reservation for any and all purposes
in connection with the protection and administration of the National
Forest.
(11) Operator shall take all reasonable precautions to prevent
pollution of the air, soil, and water, in operation hereunder.
(12) All activities by operator in the reserved area shall be
conducted in a safe, orderly, and workmanlike manner.
(13) For the protection of streamcourses, the following measures
shall be observed by operator: Culverts or bridges will be required on
temporary roads at all points where it is necessary to cross
streamcourses. Such facilities shall be of sufficient size and design to
provide unobstructed flow of water. Equipment will not be operated in
streamcourses except at designated crossings and as essential to
construction or removal of culverts and bridges. Any stream that is
temporarily diverted must be restored to the natural course as soon as
practicable, and in any event prior to a major runoff season.
(14) Operator shall perform currently as weather and soil conditions
permit, the following erosion control work on portions of the reserved
area where logging is in progress or has been completed: Construct
cross-ditches and water-spreading ditches where staked or otherwise
marked on the ground by Forest Service; after a temporary road has
served operator's purpose, operator shall remove culverts and bridges,
eliminate ditches, out-slope and cross-drain roadbed and remove ruts and
berms to the extent necessary to stabilize fills and otherwise minimize
erosion; operator shall avoid felling into, yarding in, or crossing
natural meadows; and operations will not take place when soil and water
conditions are such that excessive damage will result.
(b) The conditions, rules and regulations set forth in paragraphs
(a)(1) through (14) of this section shall not apply to reservations
contained in conveyances of land to the United States under the Act of
March 3, 1925, as amended (43 Stat. 1133, 64 Stat. 82, 16 U.S.C. 555).
(c) In cases where a State, or an agency, or a political subdivision
thereof, reserves timber rights for the cutting and removal of timber
and timber products, in the conveyance of land to the United States
under authorized programs of the Forest Service and there are provisions
in the laws of such State or in conditions, rules and regulations
promulgated by such State,
[[Page 353]]
agency or political subdivision thereof, which the Chief, Forest
Service, determines are adequate to protect the interest of the United
States in the event of the exercise of such reservation, the Chief,
Forest Service, is hereby authorized, in his discretion, to subject the
exercise of the reservation to such statutory provisions or such
conditions, rules, and regulations in lieu of the conditions, rules and
regulations set forth in paragraphs (a) (1) through (14) of this
section. In that event, such statutory provisions or such conditions,
rules and regulations shall be expressed in and made a part of the deed
of conveyance to the United States and the reservation shall be
exercised thereunder and in obedience thereto.
All regulations heretofore issued by the Secretary of Agriculture to
govern the exercise of timber rights reserved in conveyance of lands to
the United States under authorized programs of Forest Service shall
continue to be effective in the cases to which they are applicable, but
are hereby superseded as to timber rights hereafter reserved in
conveyances under such programs.
[35 FR 5401, Apr. 1, 1970]
Sec. 251.15 Conditions, rules and regulations to govern exercise
of mineral rights reserved in conveyances to the United States.
(a) Except as otherwise provided in paragraphs (b) and (c) of this
section, in conveyances of lands to the United States under authorized
programs of the Forest Service, where owners reserve the right to enter
upon the conveyed lands and to prospect for, mine and remove minerals,
oil, gas, or other inorganic substances, said reservations shall be
subject to the following conditions, rules and regulations which shall
be expressed in and made a part of the deed of conveyance to the United
States and such reservations shall be exercised thereunder and in
obedience thereto:
(1) Whoever undertakes to exercise the reserved rights shall give
prior written notice to the Forest Service and shall submit satisfactory
evidence of authority to exercise such rights. Only so much of the
surface of the lands shall be occupied, used, or disturbed as is
necessary in bona fide prospecting for, drilling, mining (including the
milling or concentration of ores), and removal of the reserved minerals,
oil, gas, or other inorganic substances.
(2)(i) None of the lands in which minerals are reserved shall be so
used, occupied, or disturbed as to preclude their full use for
authorized programs of the Forest Service until the record owner of the
reserved rights, or the successors, assigns, or lessees thereof, shall
have applied for and received a permit authorizing such use, occupancy,
or disturbance of those specifically described parts of the lands as may
reasonably be necessary to exercise of the reserved rights.
(ii) Said permit shall be issued upon agreement as to conditions
necessary to protect the interest of the United States including such
conditions deemed necessary to provide for the safety of the public and
other users of the land, and upon initial payment of the annual fee,
which shall be at the rate of $2 per acre or fraction of acre included
in the permit.
(iii) The permit shall also provide that the record owner of the
reserved right or the successors, assigns, or lessees thereof, will
repair or replace any improvements damaged or destroyed by the mining
operations and restore the land to a condition safe and reasonably
serviceable for authorized programs of the Forest Service, and shall
provide for a bond in sufficient amount as determined necessary by the
Forest Service to guarantee such repair, replacement or restoration.
(iv) Failure to comply with the terms and conditions of the permit
shall be cause for revocation of all rights to use, occupy, or disturb
the surface of the lands covered by the permit, but in the event of
revocation, a new permit shall be issued upon application when the
causes for revocation of the preceding permit have been satisfactorily
remedied and the United States has been reimbursed for any damages it
has incurred from the noncompliance.
(3) All structures, other improvements, and materials shall be
removed from the lands within one year after the date of revocation of
the permit.
[[Page 354]]
(4) Timber and/or young growth cut or destroyed in connection with
exercise of the reserved right shall be paid for at rates determined by
the Forest Service to be fair and equitable for comparable timber and/or
young growth in the locality. All slash resulting from cutting or
destruction of timber or young growth shall be disposed of as required
by the Forest Service.
(5) In the prospecting for, mining, and removal of reserved
minerals, oil, gas, or other inorganic substances all reasonable
provisions shall be made for the disposal of tailings, dumpage, and
other deleterious materials or substances in such manner as to prevent
obstruction, pollution, or deterioration of water resources.
(6) Nothing herein contained shall be construed to exempt operators
or the mining operations from any requirements of applicable State laws
nor from compliance with or conformity to any requirement of any law
which later may be enacted and which otherwise would be applicable.
(7) While any activities and/or operations incident to the exercise
of the reserved rights are in progress, the operators, contractors,
subcontractors, and any employees thereof shall use due diligence in the
prevention and suppression of fires, and shall comply with all rules and
regulations applicable to the land.
(b) The conditions, rules and regulations set forth in paragraphs
(a) (1) through (7) of this section shall not apply to reservations
contained in conveyances of lands to the United States under the Act of
March 3, 1925, as amended (43 Stat. 1133, 64 Stat. 82; 16 U.S.C. 555).
(c) In cases where a State, or an agency, or a political subdivision
thereof, reserves minerals, oil, gas, or other inorganic substances, in
the conveyance of land to the United States under authorized programs of
the Forest Service and there are provisions in the laws of such State or
in conditions, rules and regulations promulgated by such State, agency
or political subdivision thereof, which the Chief, Forest Service,
determines are adequate to protect the interest of the United States in
the event of the exercise of such reservation, the Chief, Forest
Service, is hereby authorized, in his discretion, to subject the
exercise of the reservation to such statutory provisions or such
conditions, rules and regulations in lieu of the conditions, rules and
regulations set forth in paragraphs (a) (1) through (7) of this section.
In that event, such statutory provisions or such conditions, rules and
regulations shall be expressed in and made a part of the deed of
conveyance to the United States and the reservation shall be exercised
thereunder and in obedience thereto.
All regulations heretofore issued by the Secretary of Agriculture to
govern the exercise of mineral rights reserved in conveyances of lands
to the United States under authorized programs of the Forest Service
shall continue to be effective in the cases to which they are
applicable, but are hereby superseded as to mineral rights hereafter
reserved in conveyances under such programs.
[28 FR 4440, May 3, 1963, as amended at 78 FR 33724, June 5, 2013]
Rights of Grantors
Sec. 251.17 Grantor's right to occupy and use lands
conveyed to the United States.
Except as otherwise provided in paragraph (h) of this section, in
conveyances of lands to the United States under authorized programs of
the Forest Service, where owners reserve the right to occupy and use the
land for the purposes of residence, agriculture, industry, or commerce,
said reservations shall be subject to the following conditions, rules
and regulations which shall be expressed in and made a part of the deed
of conveyance to the United States and such reservations shall be
exercised thereunder and in obedience thereto:
(a) Except when provided otherwise by statute, the reservation so
created shall not be assigned, used, or occupied by anyone other than
the grantor without the consent of the United States.
(b) All reasonable precautions shall be taken by the grantor and all
persons acting for or claiming under him to prevent and suppress forest
fires upon or threatening the premises or other adjacent lands of the
United States, and any person failing to comply with
[[Page 355]]
this requirement shall be responsible for any damages sustained by the
United States by reason thereof.
(c) The premises shall not be used or permitted to be used, without
the written consent of the United States, for any purpose or purposes
other than those specified in the instrument creating the reservation.
(d) The grantor and all persons acting for or claiming under him
shall maintain the premises and all buildings and structures thereon in
proper repair and sanitation and shall comply with the National Forest
laws and regulations and the laws and lawful orders of the State in
which the premises are located.
(e) Except when provided otherwise by statute, the reservation shall
terminate: (1) Upon the expiration of the period named in the deed; (2)
upon failure for a period of more than one calendar year to use and
occupy the premises for the purposes named in the deed; (3) by use and
occupancy for unlawful purposes or for purposes other than those
specified in the deed; and (4) by voluntary written relinquishment by
the owner.
(f) Upon the termination of the reservation the owners of personal
property remaining on the premises shall remove same within a period of
three months, and all such property not so removed shall become the
property of the United States except that when such removal is prevented
by conditions beyond the control of the owners the period shall be
extended in writing by the Forest Service to allow a reasonable time for
said removal, but in no event longer than one year.
(g) The said reservation shall be subject to rights-of-way for the
use of the United States or its permittees, upon, across, or through the
said land, as may hereafter be required for the erection, construction,
maintenance and operation of public utility systems over all or parts
thereof, or for the construction and maintenance of any improvements
necessary for the good administration and protection of the National
Forests, and shall be subject to the right of officials or employees of
the Forest Service to inspect the premises, or any part thereof, at all
reasonable times and as often as deemed necessary in the performance of
official duties in respect to the premises.
(h) The conditions, rules, and regulations set forth in paragraphs
(a) through (g) of this section shall not apply to reservations
contained in conveyances of lands to the United States under the Act of
March 3, 1925, as amended (43 Stat. 1133, 64 Stat. 82; 16 U.S.C. 555).
[33 FR 11452, Aug. 13, 1968, as amended at 36 FR 156, Jan. 6, 1971]
Sec. 251.18 Rights-of-way reserved by the grantor on lands
conveyed to the United States.
This section governs the use, occupancy, and operation of rights-of-
way reserved by a grantor of lands to the United States.
(a) Brush and refuse resulting from the exercise of the right-of-way
reservation shall be disposed of to the satisfaction of the Forest
Officer in charge.
(b) Timber cut and destroyed in the exercise of the right-of-way
reservation shall be paid for at rates to be prescribed by the Forest
Officer in charge, which rates shall be the usual stumpage prices
charged in the locality in sales of national forest timber of the same
kind or species; for injury to timber, second growth, and reproduction,
the amount of actual damage shall be ascertained by the Forest
Supervisor according to the rules applicable in such cases.
(c) All improvements built or maintained upon the right-of-way shall
be kept in an orderly, safe and sanitary condition. Failure to maintain
such conditions shall be cause for the termination of the reservation
after 30 days' notice in writing to the occupant or user that
unsatisfactory conditions exist and that the Department intends to
terminate all rights under the reservation unless such conditions are
forthwith corrected to the satisfaction of the Regional Forester.
(d) Upon the abandonment of a reserved right-of-way, either by
formal release, by termination, or by non-use for a period of one
calendar year, all improvements thereon not the property of the United
States shall be removed therefrom within three months
[[Page 356]]
from the date of the abandonment, otherwise such improvements shall vest
in and become the property of the United States.
(e) All reasonable precautions to prevent and suppress forest fires
shall be taken by the grantor and all persons acting for or claiming
under him; suitable crossings shall be constructed by grantor and/or
said persons where the reserved right-of-way intersects existing roads
and trails; borrow pits shall not be opened outside of the immediate
graded section except under a special use permit from the Forest
Supervisor.
(f) Officers of the Forest Service shall have free ingress and
egress on and over the reserved rights-of-way for all purposes necessary
and incidental to the protection and administration of the national
forest.
[3 FR 1953, Aug. 9, 1938]
Sec. 251.19 Exercise of water rights reserved by the
grantor of lands conveyed to the United States.
This section governs the exercise of water and related rights
reserved by the grantor of lands conveyed to the United States under the
provisions of the act of March 1, 1911 (36 Stat. 961).
(a) All reasonable precautions shall be taken by the grantor and all
persons acting for or claiming under him to prevent and suppress forest
fires upon or threatening the premises or other adjacent lands of the
United States, and any person failing to comply with this requirement
shall be responsible for any damages sustained by the United States by
reason thereof.
(b) All slash and debris resulting from the cutting and removal of
timber shall be disposed of as directed by the Forest Officer in charge.
(c) Flowage and reservoir areas shall be cleared of timber and
debris, in a manner satisfactory to the Forest Supervisor, or in
accordance with a special agreement approved by him. Timber cut and
destroyed in the exercise of the reserved rights shall be paid for at
rates to be prescribed by the Forest Officer in charge, which rates
shall be the usual stumpage price charged in the locality.
(d) The water surface created shall be open to the Forest Service
and its permittees when such use does not interfere with the original
purpose of the development.
(e) The water surface shall be open to fishing by the public in
accordance with State laws when such use does not interfere with the
original purpose of the development.
(f) Plans for dams and supplemental structures, impounding or
controlling more than 10 acre-feet of water or with a head in excess of
6 feet, shall be approved by the Regional Engineer of the Forest Service
before construction shall begin.
[3 FR 1953, Aug. 9, 1938]
Designation of Areas
Sec. 251.23 Experimental areas and research natural areas.
The Chief of the Forest Service shall establish and permanently
record a series of areas on National Forest land to be known as
experimental forests or experimental ranges, sufficient in number and
size to provide adequately for the research necessary to serve as a
basis for the management of forest and range land in each forest region.
Also, when appropriate, the Chief shall establish a series of research
natural areas, sufficient in number and size to illustrate adequately or
typify for research or educational purposes, the important forest and
range types in each forest region, as well as other plant communities
that have special or unique characteristics of scientific interest and
importance. Research Natural Areas will be retained in a virgin or
unmodified condition except where measures are required to maintain a
plant community which the area is intended to represent. Within areas
designated by this regulation, occupancy under a special-use permit
shall not be allowed, nor the construction of permanent improvements
permitted except improvements required in connection with their
experimental use, unless authorized by the Chief of the Forest Service.
[31 FR 5072, Mar. 29, 1966]
[[Page 357]]
Petersburg Watershed
Sec. 251.35 Petersburg watershed.
(a) Except as authorized in paragraphs (b) and (c), access to lands
within the Petersburg watershed, Tongass National Forest, as described
in the Act of October 17, 1940 (54 Stat. 1197), is prohibited.
(b) Access to lands within the Petersburg watershed is hereby
authorized, without further written approval, for the following routine
purposes:
(1) The discharge of official duties related to management of the
Tongass National Forest by Federal employees, holders of Forest Service
contracts, or Forest Service agents;
(2) The operation, maintenance, and improvement of the municipal
water system by Federal and State officials and employees of the city of
Petersburg; and
(3) Public recreational use of the Raven's Roost Trail for access to
and from the Raven's Roost public recreation cabin and the Alpine
Recreation Area.
(c) Any person who wishes to enter upon the lands within the
watershed for purposes other than those listed in paragraph (b) must
obtain a permit that has been signed by the appropriate city official
and countersigned by the District Ranger.
(d) Unauthorized entrance upon lands within the watershed is subject
to punishment as provided in 36 CFR 261.1b.
(e) The Forest Supervisor of the Stikine Area of the Tongass
National Forest may authorize the removal of timber from the watershed
under the regulations governing disposal of National Forest timber (36
CFR part 223). In any removal of timber from the watershed, the Forest
Supervisor shall provide adequate safeguards for the protection of the
Petersburg municipal water supply.
[53 FR 26595, July 14, 1988]
Subpart B_Special Uses
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, 1761-1771.
Source: 45 FR 38327, June 6, 1980, unless otherwise noted.
Sec. 251.50 Scope.
(a) All uses of National Forest System lands, improvements, and
resources, except those authorized by the regulations governing sharing
use of roads (Sec. 212.9); grazing and livestock use (part 222); the
sale and disposal of timber and special forest products, such as greens,
mushrooms, and medicinal plants (part 223); and minerals (part 228) 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)(3) of
this section.
(b) Nothing in this section prohibits the temporary occupancy of
National Forest System lands without a special use authorization when
necessary for the protection of life and property in emergencies, if a
special use authorization is applied for and obtained at the earliest
opportunity, unless waived pursuant to paragraphs (c) through (e)(3) of
this section. The authorized officer may, pursuant to Sec. 251.56 of
this subpart, impose in that authorization such terms and conditions as
are deemed necessary or appropriate and may require changes to the
temporary occupancy to conform to those terms and conditions. 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 of this subpart;
(2) The proposed use is still photography as defined in Sec. 251.51
of this subpart; or
(3) Authorization of that use is required by an order issued under
Sec. 261.50
[[Page 358]]
or by a regulation issued under Sec. 261.70 of this chapter.
(d) Travel on any National Forest System road shall comply with all
Federal and State laws governing the road to be used and 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 of this
subpart, or for a landowner's ingress or egress across National Forest
System lands that requires travel on a National Forest System road that
is not authorized for general public use under Sec. 251.110(d) of this
part; or
(2) Authorization of that use is required by an order issued under
Sec. 261.50 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, based upon review of a
proposal, 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 National Forest
System lands and resources and to avoid conflict with National Forest
System programs or operations; or
(3) The proposed use is not situated in a congressionally designated
wilderness area, and is a routine operation or maintenance activity
within the scope of a statutory right-of-way for a highway pursuant to
R.S. 2477 (43 U.S.C. 932, repealed Oct. 21, 1976) or for a ditch or
canal pursuant to R.S. 2339 (43 U.S.C. 661, as amended), or the proposed
use is a routine operation or maintenance activity within the express
scope of a documented linear right-of-way.
[69 FR 41964, July 13, 2004]
Sec. 251.51 Definitions.
Applicant--any individual or entity that applies for a special use
authorization.
Authorized officer--any employee of the Forest Service to whom has
been delegated the authority to perform the duties described in this
part.
Chief--the Chief of the Forest Service.
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, as defined in FSH 2709.11, chapter 40.
Commercial use or activity--any use or activity on National Forest
System lands (a) where an entry or participation fee is charged, or (b)
where the primary purpose is the sale of a good or service, and in
either case, regardless of whether the use or activity is intended to
produce a profit.
Easement--a type of special use authorization (usually granted for
linear rights-of-way) that is utilized in those situations where a
conveyance of a limited and transferable interest in National Forest
System land is necessary or desirable to serve or facilitate authorized
long-term uses, and that may be compensable according to its terms.
Forest road or trail. A road or trail wholly or partly within or
adjacent to and serving the National Forest System that the Forest
Service determines is necessary for the protection, administration, and
utilization of the National Forest System and the use and development of
its resources.
Group use--an activity conducted on National Forest System lands
that involves a group of 75 or more people, either as participants or
spectators.
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 on National Forest System lands.
[[Page 359]]
Holder--an individual or entity that holds a valid special use
authorization.
Lease--a type of special use authorization (usually granted for uses
other than linear rights-of-way) that is used when substantial capital
investment is required and when conveyance of a conditional and
transferable interest in National Forest System lands is necessary or
desirable to serve or facilitate authorized long-term uses, and that may
be revocable and compensable according to its terms.
Linear right-of-way--a right-of-way for a linear facility, such as a
road, trail, pipeline, electronic transmission line, fence, water
transmission facility, or fiber optic cable.
Major category--A processing or monitoring category requiring more
than 50 hours of agency time to process an application for a special use
authorization (processing category 6 and, in certain situations,
processing category 5) or more than 50 hours of agency time to monitor
compliance with the terms and conditions of an authorization (monitoring
category 6 and, in certain situations, monitoring category 5). Major
categories usually require documentation of environmental and associated
impacts in an environmental assessment and may require an environmental
impact statement.
Minor category--A processing or monitoring category requiring 50
hours or less of agency time to process an application for a special use
authorization (processing categories 1 through 4 and, in certain
situations, processing category 5) or 50 hours or less of agency time to
monitor compliance with the terms and conditions of an authorization
(monitoring categories 1 through 4 and, in certain situations,
monitoring category 5). Minor categories may require documentation of
environmental and associated impacts in an environmental assessment.
Monitoring--Actions needed to ensure compliance with the terms and
conditions in a special use authorization.
National Forest System land--all lands, waters, or interests therein
administered by the Forest Service.
National Forest System road. A forest road other than a road which
has been authorized by a legally documented right-of-way held by a
State, county, or other local public road authority.
NEPA procedures--the rules, policies, and procedures governing
agency compliance with the National Environmental Policy Act set forth
in 50 CFR parts 1500-1508, 7 CFR part 1b, Forest Service Manual Chapter
1950, and Forest Service Handbook 1909.15.
Noncommercial use or activity--any use or activity that does not
involve a commercial use or activity as defined in this section.
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.
Permit--a special use authorization which provides permission,
without conveying an interest in land, to occupy and use National Forest
System land or facilities for specified purposes, and which is both
revocable and terminable.
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.
Recreation Residence Lot--a parcel of National Forest System land on
which a holder is authorized to build, use, occupy, and maintain a
recreation residence and related improvements. A recreation residence
lot is considered to be in its natural, native state at the time when
the Forest Service first permitted its use for a recreation residence. A
recreation residence lot is not necessarily confined to the platted
boundaries shown on a tract map or permit area map. A recreation
residence lot includes the physical area of all National Forest System
land being used or occupied by a recreation residence permit holder,
including, but not limited to, land being occupied by ancillary
facilities and uses owned, operated, or maintained by the holder, such
as septic systems, water systems, boat houses and docks, major
vegetative modifications, and so forth.
Revocation--the cessation, in whole or in part, of a special use
authorization by action of an authorized officer
[[Page 360]]
before the end of the specified period of use or occupancy for reasons
set forth in Sec. 251.60(a)(1)(i), (a)(2)(i), (g), and (h) of this
subpart.
Right-of-way--land authorized to be used or occupied for the
construction, operation, maintenance and termination of a project or
facility passing over, upon, under or through such land.
Secretary--the Secretary of Agriculture.
Ski area--a site and associated facilities that has been primarily
developed for alpine or Nordic skiing and other snow sports, but may
also include, in appropriate circumstances, facilities necessary for
other seasonal or year-round natural resource-based recreation
activities, provided that a preponderance of revenue generated by the
ski area derives from the sale of alpine and Nordic ski area passes and
lift tickets, revenue from alpine, Nordic, and other snow sport
instruction, and gross revenue from ancillary facilities that support
alpine or Nordic skiing and other snow sports.
Sound business management principles--a phrase that refers to
accepted industry practices or methods of establishing fees and charges
that are used or applied by the Forest Service to help establish the
appropriate charge for a special use. Examples of such practices and
methods include, but are not limited to, appraisals, fee schedules,
competitive bidding, negotiation of fees, and application of other
economic factors, such as cost efficiency, supply and demand, and
administrative costs.
Special use authorization--a written permit, term permit, lease, or
easement that authorizes use or occupancy of National Forest System
lands and specifies the terms and conditions under which the use or
occupancy may occur.
Still photography--use of still photographic equipment on National
Forest System lands that takes place at a location where members of the
public generally are not allowed or where additional administrative
costs are likely, or uses models, sets, or props that are not a part of
the site's natural or cultural resources or administrative facilities.
Suspension--a temporary revocation of a special use authorization.
Termination--the cessation of a special use authorization by
operation of law or by operation of a fixed or agreed-upon condition,
event, or time as specified in the authorization, which does not require
a decision by an authorized officer to take effect, such as expiration
of the authorized term; change in ownership or control of the authorized
improvements; or change in ownership or control of the holder of the
authorization.
Term permit--a special use authorization to occupy and use National
Forest System land, other than rights-of-way under Sec. 251.53(l) of
this part, for a specified period which is both revocable and
compensable according to its terms.
[45 FR 38327, June 6, 1980, as amended at 49 FR 25449, June 21, 1984; 53
FR 16550, May 10, 1988; 54 FR 22593, May 25, 1989; 60 FR 45293, Aug. 30,
1995; 60 FR 54409, Oct. 23, 1995; 63 FR 65964, Nov. 30, 1998; 69 FR
41965, July 13, 2004; 70 FR 68290, Nov. 9, 2005; 71 FR 8913, Feb. 21,
2006; 71 FR 16621, Apr. 3, 2006; 74 FR 68381, Dec. 24, 2009; 78 FR
33725, June 5, 2013; 78 FR 38843, June 28, 2013]
Sec. 251.52 Delegation of authority.
Special use authorizations shall be issued, granted, amended,
renewed, suspended, terminated, or revoked by the Chief, or through
delegation, by the Regional Forester, Forest Supervisor, District Ranger
or other forest officer, and shall be in such form and contain such
terms, stipulations, conditions, and agreements as may be required by
the regulations of the Secretary and the instructions of the Chief (7
CFR 2.60; 36 CFR part 200, subpart B).
Sec. 251.53 Authorities.
Subject to any limitations contained in applicable statutes, the
Chief of the Forest Service, or other Agency official to whom such
authority is delegated, may issue special use authorizations for
National Forest System land under the authorities cited and for the
types of use specified in this section as follows:
(a) Permits governing occupancy and use, including group events and
distribution of noncommercial printed materials, under the act of June
4, 1897, 30 Stat. 35 (16 U.S.C. 551);
(b) Leases under the Act of February 28, 1899, 30 Stat. 908 (16
U.S.C. 495) for
[[Page 361]]
public sanitariums or hotels near or adjacent to mineral springs;
(c) Permits under the Act of June 8, 1906, 34 Stat. 225 (16 U.S.C.
431, et seq.), for the examination of ruins, the excavation of
archaeological sites, and the gathering of objects of antiquity in
conformity with the rules and regulations prescribed by the Secretaries
of the Interior, Agriculture, and War, December 28, 1906 (43 CFR part
3);
(d) Term permits under the Act of March 4, 1915, 38 Stat. 1101, as
amended, 70 Stat. 708 (16 U.S.C. 497) for periods not over 30 years and
(1) for not over 80 acres for (i) hotels, resorts, and other structures
and facilities for recreation, public convenience, or safety; (ii)
industrial or commercial purposes, and (iii) education or public
activities; and (2) for not over 5 acres for summer homes and stores;
(e) Permits or easements for a right-of-way for a pipeline for the
transportation of oil, gas, or oil or gas products, where no Federal
land besides National Forest System lands is required, and permits for
the temporary use of additional National Forest System lands necessary
for construction, operation, maintenance, or termination of a pipeline
or to protect the natural environment or public safety under section 28
of the Mineral Leasing Act, 41 Stat. 449, as amended (30 U.S.C 185);
(f) Permits, term permits, and easements in the National Grasslands
and other lands acquired or administered under title III, Act of July
22, 1937, 50 Stat. 525, as amended, (7 U.S.C. 1011(d));
(g) Permits under section 7 of the Act of April 24, 1950, 64 Stat.
84 (16 U.S.C. 580d) for periods not over 30 years for the use of
structures or improvements under the administrative control of the
Forest Service and land used in connection therewith;
(h) Permits, term permits, leases, or easements as authorized by the
Act of September 3, 1954, 68 Stat. 1146 (43 U.S.C. 931c, 931d), to
States, counties, cities, towns, townships, municipal corporations, or
other public agencies for periods not over 30 years, at prices
representing the fair market value, fixed by the Chief, through
appraisal for the purpose of constructing and maintaining on such lands
public buildings or other public works;
(i) Permits under the Wilderness Act of September 3, 1964, 78 Stat.
890 (16 U.S.C. 1131-1136) for temporary structures and commercial
services and for access to valid mining claims or other valid
occupancies and to surrounded State or private land within designated
wilderness (see part 293 of this chapter);
(j) Temporary or permanent easements under the Act of October 13,
1964, 78 Stat. 1089 (16 U.S.C. 532-538) for road rights-of-way over
lands and interests in land administered by the Forest Service (see
Sec. 212.10 of this chapter);
(k) Special recreation permits issued under section 803(h) of the
Federal Lands Recreation Enhancement Act (16 U.S.C. 6802(h)), for
specialized recreation uses of National Forest System lands, such as
group activities, recreation events, and motorized recreational vehicle
use.
(l) Permits, leases and easements under the Federal Land Policy and
Management Act of 1976, 90 Stat. 2776 (43 U.S.C. 1761-1771) for rights-
of-way for:
(1) Reservoirs, canals, ditches, flumes, laterals, pipes, pipelines,
tunnels, and other facilities and systems for the impoundment, storage,
transportation, or distribution of water;
(2) Pipelines and other systems for the transportation or
distribution of liquids and gases, other than water and other than oil,
natural gas, synthetic liquid or gaseous fuels, or any refined product
produced therefrom, and for storage and terminal facilities in
connection therewith;
(3) Pipelines, slurry and emulsion systems, and conveyor belts for
transportation and distribution of solid materials, and facilities for
the storage of such materials in connection therewith;
(4) Systems and related facilities for generation, transmission, and
distribution of electric energy, except that the applicant, in addition
to obtaining a Forest Service special use authorization, shall also
comply with all applicable requirements of the Federal Energy Regulatory
Commission under the Federal Power Act of 1935, as amended, 49 Stat. 838
(16 U.S.C. 791a, et seq.);
(5) Systems for transmission or reception of radio, television,
telephone,
[[Page 362]]
telegraph, and other electronic signals and other means of
communication;
(6) Roads, trails, highways, railroads, canals, tunnels, tramways,
airways, livestock driveways, or other means of transportation except
where such facilities are constructed and maintained in connection with
commercial recreation facilities;
(7) Such other necessary transportation or other systems or
facilities which are in the public interest and which require rights-of-
way over, upon, under, or through National Forest System lands; and
(8) Any Federal department or agency for pipeline purposes for the
transportation of oil, natural gas, synthetic liquid or gaseous fuels,
or any product produced therefrom;
(m) Permits under the Archaeological Resources Protection Act of
1979, 93 Stat. 721 (16 U.S.C. 470aa).
(n) Operation of nordic and alpine ski areas and facilities for up
to 40 years and encompassing such acreage as the Forest Officer
determines sufficient and appropriate as authorized by the National
Forest Ski Area Permit Act of 1986 (16 U.S.C. 497b).
[45 FR 38327, June 6, 1980; 45 FR 43167, June 26, 1980, as amended at 49
FR 25449, June 21, 1984; 53 FR 16550, May 10, 1988; 54 FR 22594, May 25,
1989; 70 FR 70498, Nov. 22, 2005; 74 FR 68381, Dec. 24, 2009]
Sec. 251.54 Proposal and application requirements and procedures.
(a) Early notice. When an individual or entity proposes to occupy
and use National Forest System lands, the proponent is required to
contact the Forest Service office(s) responsible for the management of
the affected land as early as possible in advance of the proposed use.
(b) Filing proposals. Proposals for special uses must be filed in
writing with or presented orally to the District Ranger or Forest
Supervisor having jurisdiction over the affected land (Sec. 200.2 of
this chapter), except as follows:
(1) Proposals for projects on lands under the jurisdiction of two or
more administrative units of the Forest Service may be filed at the most
convenient Forest Service office having jurisdiction over part of the
project, and the proponent will be notified where to direct subsequent
communications;
(2) Proposals for cost-share and other road easements to be issued
under Sec. 251.53(j) must be filed in accordance with regulations in
Sec. 212.10(c) and (d) of this chapter; and
(3) Proposals for oil and gas pipeline rights-of-way crossing
Federal lands under the jurisdiction of two or more Federal agencies
must be filed with the State Office, Bureau of Land Management, pursuant
to regulations at 43 CFR part 2882.
(c) Rights of proponents. A proposal to obtain a special use
authorization does not grant any right or privilege to use National
Forest System lands. Rights or privileges to occupy and use National
Forest System lands under this subpart are conveyed only through
issuance of a special use authorization.
(d) Proposal content--(1) Proponent identification. Any proponent
for a special use authorization must provide the proponent's name and
mailing address, and, if the proponent is not an individual, the name
and address of the proponent's agent who is authorized to receive notice
of actions pertaining to the proposal.
(2) Required information--(i) Noncommercial group uses. Paragraphs
(d)(3) through (d)(5) of this section do not apply to proposals for
noncommercial group uses. A proponent for noncommercial group uses shall
provide the following:
(A) A description of the proposed activity;
(B) The location and a description of the National Forest System
lands and facilities the proponent would like to use;
(C) The estimated number of participants and spectators;
(D) The starting and ending time and date of the proposed activity;
and
(E) The name of the person or persons 21 years of age or older who
will sign a special use authorization on behalf of the proponent.
(ii) All other special uses. At a minimum, proposals for special
uses other than noncommercial group uses must include the information
contained in paragraphs (d)(3) through (d)(5) of this section. In
addition, if requested by an authorized officer, a proponent in one
[[Page 363]]
of the following categories must furnish the information specified for
that category:
(A) If the proponent is a State or local government agency: a copy
of the authorization under which the proposal is made;
(B) If the proponent is a public corporation: the statute or other
authority under which it was organized;
(C) If the proponent is a Federal Government agency: the title of
the agency official delegated the authority to file the proposal;
(D) If the proponent is a private corporation:
(1) Evidence of incorporation and its current good standing;
(2) If reasonably obtainable by the proponent, the name and address
of each shareholder owning three percent or more of the shares, together
with the number and percentage of any class of voting shares of the
entity which such shareholder is authorized to vote;
(3) The name and address of each affiliate of the entity;
(4) In the case of an affiliate which is controlled by the entity,
the number of shares and the percentage of any class of voting stock of
the affiliate that the entity owns either directly or indirectly; or
(5) In the case of an affiliate which controls that entity, the
number of shares and the percentage of any class of voting stock of that
entity owned, either directly or indirectly by the affiliate; or
(E) If the proponent is 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.
(3) Technical and financial capability. The proponent is required to
provide sufficient evidence to satisfy the authorized officer that the
proponent has, or prior to commencement of construction will have, the
technical and financial capability to construct, operate, maintain, and
terminate the project for which an authorization is requested, and the
proponent is otherwise acceptable.
(4) Project description. Except for requests for planning permits
for a major development, a proponent must provide a project description,
including maps and appropriate resource information, in sufficient
detail to enable the authorized officer to determine the feasibility of
a proposed project or activity, any benefits to be provided to the
public, the safety of the proposal, the lands to be occupied or used,
the terms and conditions to be included, and the proposal's compliance
with applicable laws, regulations, and orders.
(5) Additional information. The authorized officer may require any
other information and data necessary to determine feasibility of a
project or activity proposed; compliance with applicable laws,
regulations, and orders; compliance with requirements for associated
clearances, certificates, permits, or licenses; and suitable terms and
conditions to be included in the authorization. The authorized officer
shall make requests for any additional information in writing.
(e) Pre-application actions--(1) Initial screening. Upon receipt of
a request for any proposed use other than for noncommercial group use,
the authorized officer shall screen the proposal to ensure that the use
meets the following minimum requirements applicable to all special uses:
(i) The proposed use is consistent with the laws, regulations,
orders, and policies establishing or governing National Forest System
lands, with other applicable Federal law, and with applicable State and
local health and sanitation laws.
(ii) The proposed use is consistent or can be made consistent with
standards and guidelines in the applicable forest land and resource
management plan prepared under the National Forest Management Act and 36
CFR part 219.
(iii) The proposed use will not pose a serious or substantial risk
to public health or safety.
(iv) The proposed use will not create an exclusive or perpetual
right of use or occupancy.
(v) The proposed use will not unreasonably conflict or interfere
with administrative use by the Forest Service, other scheduled or
authorized existing uses of the National Forest System, or use of
adjacent non-National Forest System lands.
[[Page 364]]
(vi) The proponent does not have any delinquent debt owed to the
Forest Service under terms and conditions of a prior or existing
authorization, unless such debt results from a decision on an
administrative appeal or from a fee review and the proponent is current
with the payment schedule.
(vii) The proposed use does not involve gambling or providing of
sexually oriented commercial services, even if permitted under State
law.
(viii) The proposed use does not involve military or paramilitary
training or exercises by private organizations or individuals, unless
such training or exercises are federally funded.
(ix) The proposed use does not involve disposal of solid waste or
disposal of radioactive or other hazardous substances.
(2) Results of initial screening. Any proposed use other than a
noncommercial group use that does not meet all of the minimum
requirements of paragraphs (e)(1)(i)-(ix) of this section shall not
receive further evaluation and processing. In such event, the authorized
officer shall advise the proponent that the use does not meet the
minimum requirements. If the proposal was submitted orally, the
authorized officer may respond orally. If the proposal was made in
writing, the authorized officer shall notify the proponent in writing
that the proposed use does not meet the minimum requirements and shall
simultaneously return the request.
(3) Guidance and information to proponents. For proposals for
noncommercial group use as well as for those proposals that meet the
minimum requirements of paragraphs (e)(1)(i)-(ix), the authorized
officer, to the extent practicable, shall provide the proponent guidance
and information on the following:
(i) Possible land use conflicts as identified by review of forest
land and resource management plans, landownership records, and other
readily available sources;
(ii) Proposal and application procedures and probable time
requirements;
(iii) Proponent qualifications;
(iv) Applicable fees, charges, bonding, and/or security
requirements;
(v) Necessary associated clearances, permits, and licenses;
(vi) Environmental and management considerations;
(vii) Special conditions; and
(viii) identification of on-the-ground investigations which will
require temporary use permits.
(4) Confidentiality. If requested by the proponent, the authorized
officer, or other Forest Service official, to the extent reasonable and
authorized by law, shall hold confidential any project and program
information revealed during pre-application contacts.
(5) Second-level screening of proposed uses. A proposal which passes
the initial screening set forth in paragraph (e)(1) and for which the
proponent has submitted information as required in paragraph (d)(2)(ii)
of this section, proceeds to second-level screening and consideration.
In order to complete this screening and consideration, the authorized
officer may request such additional information as necessary to obtain a
full description of the proposed use and its effects. An authorized
officer shall reject any proposal, including a proposal for commercial
group uses, if, upon further consideration, the officer determines that:
(i) The proposed use would be inconsistent or incompatible with the
purposes for which the lands are managed, or with other uses; or
(ii) The proposed use would not be in the public interest; or
(iii) The proponent is not qualified; or
(iv) The proponent does not or cannot demonstrate technical or
economic feasibility of the proposed use or the financial or technical
capability to undertake the use and to fully comply with the terms and
conditions of the authorization; or
(v) There is no person or entity authorized to sign a special use
authorization and/or there is no person or entity willing to accept
responsibility for adherence to the terms and conditions of the
authorization.
(6) NEPA compliance for second-level screening process. A request
for a special use authorization that does not meet the criteria
established in paragraphs (e)(5)(i) through (e)(5)(v) of this section
does not constitute an agency proposal
[[Page 365]]
as defined in 40 CFR 1508.23 and, therefore, does not require
environmental analysis and documentation.
(f) Special requirements for certain proposals--(1) Oil and gas
pipeline rights-of-way. These proposals must include the citizenship of
the proponent(s) and disclose the identity of its participants as
follows:
(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 own an appreciable interest in any oil and
gas pipeline right-of-way or associated permit; and
(ii) The authorized officer shall promptly notify the House
Committee on Resources and the Senate Committee on Energy and Natural
Resources upon receipt of a proposal for a right-of-way for a pipeline
24 inches or more in diameter, and no right-of-way for that pipeline
shall be granted until notice of intention to grant the right-of-way,
together with the authorized officer's detailed findings as to the term
and conditions the authorized officer proposes to impose, have been
submitted to the committees.
(2) Major development. Proponents of a major development may submit
a request for a planning permit of up to 10 years in duration. Requests
for a planning permit must include the information contained in
paragraphs (d)(1) through (d)(3) of this section. Upon completion of a
master development plan developed under a planning permit, proponents
may then submit a request for a long-term authorization to construct and
operate the development. At a minimum, a request for a long-term permit
for a major development must include the information contained in
paragraphs (d)(1) and (d)(2)(ii) through (d)(5) of this section.
Issuance of a planning permit does not prejudice approval or denial of a
subsequent request for a special use permit for the development.
(g) Application processing and response--(1) Acceptance of
applications. Except for proposals for noncommercial group uses, if a
request does not meet the criteria of both screening processes or is
subsequently denied, the proponent must be notified with a written
explanation of the rejection or denial and any written proposal returned
to the proponent. If a request for a proposed use meets the criteria of
both the initial and second-level screening processes as described in
paragraph (e) of this section, the authorized officer shall notify the
proponent that the agency is prepared to accept a written formal
application for a special use authorization and shall, as appropriate or
necessary, provide the proponent guidance and information of the type
described in paragraphs (e)(3)(i) through (e)(3)(viii) of this section.
(2) Processing applications. (i) Upon acceptance of an application
for a special use authorization other than a planning permit, the
authorized officer shall evaluate the proposed use for the requested
site, including effects on the environment. The authorized officer may
request such additional information as necessary to obtain a full
description of the proposed use and its effects.
(ii) Federal, State, and local government agencies and the public
shall receive adequate notice and an opportunity to comment upon a
special use proposal accepted as a formal application in accordance with
Forest Service NEPA procedures.
(iii) The authorized officer shall give due deference to the
findings of another agency such as a Public Utility Commission, the
Federal Regulatory Energy 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.
(iv) Applications for noncommercial group uses must be received at
least 72 hours in advance of the proposed activity. Applications for
noncommercial group uses shall be processed in order of receipt, and the
use of a particular area shall be allocated in order of receipt of fully
executed applications, subject to any relevant limitations set forth in
this section.
(v) For applications for planning permits, including those issued
for a major development as described in paragraph (f)(3) of this
section, the authorized officer shall assess only the applicant's
financial and technical
[[Page 366]]
qualifications and determine compliance with other applicable laws,
regulations, and orders. Planning permits may be categorically excluded
from documentation in an environmental assessment or environmental
impact statement pursuant to Forest Service Handbook 1909.15 (36 CFR
200.4).
(3) Response to applications for noncommercial group uses. (i) All
applications for noncommercial group uses shall be deemed granted and an
authorization shall be issued for those uses pursuant to the
determination as set forth below, unless applications are denied within
48 hours of receipt. Where an application for a noncommercial group use
has been granted or is deemed to have been granted and an authorization
has been issued under this paragraph, an authorized officer may revoke
that authorization only as provided under Sec. 251.60(a)(1)(i).
(ii) An authorized officer shall grant an application for a special
use authorization for a noncommercial group use upon a determination
that:
(A) Authorization of the proposed activity is not prohibited by the
rules at 36 CFR part 261, subpart B, or by Federal, State, or local law
unrelated to the content of expressive activity;
(B) Authorization of the proposed activity is consistent or can be
made consistent with the standards and guidelines in the applicable
forest land and resource management plan required under the National
Forest Management Act and 36 CFR part 219;
(C) The proposed activity does not materially impact the
characteristics or functions of the environmentally sensitive resources
or lands identified in Forest Service Handbook 1909.15, chapter 30;
(D) The proposed activity will not delay, halt, or prevent
administrative use of an area by the Forest Service or other scheduled
or existing uses or activities on National Forest System lands,
including but not limited to uses and activities authorized under parts
222, 223, 228, and 251 of this chapter;
(E) The proposed activity does not violate State and local public
health laws and regulations as applied to the proposed site. Issues
addressed by State and local public health laws and regulations as
applied to the proposed site include but are not limited to:
(1) The sufficiency of sanitation facilities;
(2) The sufficiency of waste-disposal facilities;
(3) The availability of sufficient potable drinking water;
(4) The risk of disease from the physical characteristics of the
proposed site or natural conditions associated with the proposed site;
and
(5) The risk of contamination of the water supply;
(F) The proposed activity will not pose a substantial danger to
public safety. Considerations of public safety must not include concerns
about possible reaction to the users' identity or beliefs from non-
members of the group that is seeking an authorization and shall be
limited to the following:
(1) The potential for physical injury to other forest users from the
proposed activity;
(2) The potential for physical injury to users from the physical
characteristics of the proposed site or natural conditions associated
with the proposed site;
(3) The potential for physical injury to users from scheduled or
existing uses or activities on National Forest System lands; and
(4) The adequacy of ingress and egress in case of an emergency;
(G) 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
(H) A person or persons 21 years of age or older have been
designated to sign and do sign a special use authorization on behalf of
the applicant.
(iii) If an authorized officer denies an application because it does
not meet the criteria in paragraphs (g)(3)(ii)(A) through (g)(3)(ii)(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
[[Page 367]]
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. A
decision to grant or deny the application for which an environmental
assessment or an environmental impact statement is prepared is subject
to the notice and appeal procedures at 36 CFR part 215 and shall be made
within 48 hours after the decision becomes final under that appeal
process. A denial of an application in paragraphs (g)(3)(ii)(A) through
(g)(3)(ii)(H) of this section constitutes final agency action, is not
subject to administrative appeal, and is immediately subject to judicial
review.
(4) Response to all other applications. Based on evaluation of the
information provided by the applicant and other relevant information
such as environmental findings, the authorized officer shall decide
whether to approve the proposed use, approve the proposed use with
modifications, or deny the proposed use. A group of applications for
similar uses having minor environmental impacts may be evaluated with
one analysis and approved in one decision.
(5) Authorization of a special use. Upon a decision to approve a
special use or a group of similar special uses, the authorized officer
may issue one or more special use authorizations as defined in
Sec. 251.51 of this subpart.
[63 FR 65964, Nov. 30, 1998, as amended at 74 FR 68381, Dec. 24, 2009;
78 FR 33725, June 5, 2013]
Sec. 251.55 Nature of interest.
(a) A holder is authorized only to occupy such land and structures
and conduct such activities as is specified in the special use
authorization. The holder may sublet the use and occupancy of the
premises and improvements authorized only with the prior written
approval of the authorized officer, but the holder shall continue to be
responsible for compliance with all conditions of the special use
authorization.
(b) All rights not expressly granted are retained by the United
States, including but not limited to (1) continuing rights of access to
all National Forest System land (including the subsurface and air
space); (2) a continuing right of physical entry to any part of the
authorized facilities for inspection, monitoring, or for any other
purposes or reason consistent with any right or obligation of the United
States under any law or regulation; and (3) the right to require common
use of the land or to authorize the use by others in any way not
inconsistent with a holder's existing rights and privileges after
consultation with all parties and agencies involved. When costs can be
feasibly allocated and have not been amortized, a new holder may be
required to compensate existing holders for an equitable proportion of
the original costs or other expense associated with the common use.
(c) Special use authorizations are subject to all outstanding valid
rights.
(d) Each special use authorization will specify the lands to be used
or occupied which shall be limited to that which the authorized officer
determines: (1) Will be occupied by the facilities authorized; (2) to be
necessary for the construction, operation, maintenance, and full
utilization of the authorized facilities or the conduct of authorized
activities; and, (3) to be necessary to protect the public health and
safety and the environment.
(e) The holder will secure permission under applicable law, and pay
in advance, the value as determined by the authorized officer for any
mineral and vegetative materials (including timber) to be cut, removed,
used, or destroyed by the holder from the authorized use area or other
National Forest System land. The authorized officer may, in lieu of
requiring an advance payment, require the holder to stockpile or stack
the material at designated locations for later disposal by the United
States.
Sec. 251.56 Terms and conditions.
(a) General. (1) Each special use authorization must contain:
(i) Terms and conditions which will:
(A) Carry out the purposes of applicable statutes and rules and
regulations issued thereunder;
(B) Minimize damage to scenic and esthetic values and fish and
wildlife habitat and otherwise protect the environment;
[[Page 368]]
(C) Require compliance with applicable air and water quality
standards established by or pursuant to applicable Federal or State law;
and
(D) Require compliance with State standards for public health and
safety, environmental protection, and siting, construction, operation,
and maintenance if those standards are more stringent than applicable
Federal standards.
(ii) Such terms and conditions as the authorized officer deems
necessary to:
(A) Protect Federal property and economic interests;
(B) Manage efficiently the lands subject to the use and adjacent
thereto;
(C) Protect other lawful users of the lands adjacent to or occupied
by such use;
(D) Protect lives and property;
(E) Protect the interests of individuals living in the general area
of the use who rely on the fish, wildlife, and other biotic resources of
the area for subsistence purposes;
(F) Require siting to cause the least damage to the environment,
taking into consideration feasibility and other relevant factors; and
(G) Otherwise protect the public interest.
Note to paragraph (a)(1)(ii)(G): The Department is making explicit
its preexisting understanding of Sec. 251.56(a)(1)(ii)(G) of this
subpart in the context of authorizing noncommercial group uses of
National Forest System lands. Section 251.56(a)(1)(ii)(G) provides that
each special use authorization shall contain such terms and conditions
as the authorized officer deems necessary to otherwise protect the
public interest. In the context of noncommercial group uses, the Forest
Service interprets the term ``public interest'' found in
Sec. 251.56(a)(1)(ii)(G) to refer to the three public interests
identified by the Forest Service on August 30, 1995. These public
interests include the protection of resources and improvements on
National Forest System lands, the allocation of space among potential or
existing uses and activities, and public health and safety concerns.
Under this construction, Sec. 251.56(a)(1)(ii)(G) allows the Forest
Service to impose terms and conditions that are not specifically
addressed in Sec. 251.56(a)(1)(ii)(A)-(F) but only those that further
these public interests. The Forest Service shall implement and enforce
Sec. 251.56(a)(1)(ii)(G) in accordance with this interpretation.
(2) Authorizations for use of National Forest System lands may be
conditioned to require State, county, or other Federal agency licenses,
permits, certificates, or other approval documents, such as a Federal
Communication Commission license, a Federal Energy Regulatory Commission
license, a State water right, or a county building permit.
(b) Duration and renewability--(1) Requirements. If appropriate,
each special use authorization will specify its duration and
renewability. The duration shall be no longer than the authorized
officer determines to be necessary to accomplish the purpose of the
authorization and to be reasonable in light of all circumstances
concerning the use, including
(i) Resource management direction contained in land management and
other plans;
(ii) Public benefits provided;
(iii) Cost and life expectancy of the authorized facilities;
(iv) Financial arrangements for the project; and
(v) The life expectancy of associated facilities, licenses, etc.
Except for special use authorizations issued under the National Forest
Ski Area Permit Act of 1986, authorizations exceeding 30 years shall
provide for revision of terms and conditions at specified intervals to
reflect changing times and conditions.
(2) Ski area permits. (i) For authorizations issued under the
National Forest Ski Area Permit Act of 1986, the authorized officer
normally shall issue a ski area authorization for 40 years, if, upon
consideration of information submitted by the applicant, the authorized
officer finds that the ski area development meets the following
standards:
(A) In the case of an existing permit holder, existing on-site
investment is of sufficient magnitude to justify authorization for 40
years;
(B) In the case of an existing permit holder, existing investment of
capital is in ski-related facilities;
(C) Planned investment capital is directly related to development of
ski area facilities and is not for financing regular, ongoing operation
and maintenance costs;
[[Page 369]]
(D) Ski facilities requiring long-term investment are, or will be,
located predominately on land authorized under a permit;
(E) The number and magnitude of planned facilities, as detailed in a
Master Development Plan, clearly require long-term financing and/or
operation;
(F) The United States is not the owner of the principal facilities
within the authorized ski area.
(ii) A term of less than 40 years shall be authorized for a ski area
when the applicant requests a shorter term or when, in the authorized
officer's discretion:
(A) Analysis of the information submitted by the applicant indicates
that a shorter term is sufficient for financing of the ski area;
(B) The ski area development, whether existing or proposed, does not
meet the standards of paragraph (2)(i)(A) through (F) of this section;
or
(C) A 40-year authorization would be inconsistent with the approved
forest land and resource management plan governing the area (36 CFR part
219).
(c) Preconstruction approvals. Forest Service approval of location,
design and plans (or standards, if appropriate) of all developments
within the authorized area will be required prior to construction.
(d) Liability. Holders shall pay the United States for all injury,
loss, or damage, including fire suppression costs, in accordance with
existing Federal and State laws.
(1) Holders shall also indemnify the United States for any and all
injury, loss, or damage, including fire suppression costs, the United
States may suffer as a result of claims, demands, losses, or judgments
caused by the holder's use or occupancy.
(2) Holders of special use authorizations for high risk use and
occupancy, such as, but not limited to, powerlines and oil and gas
pipelines, shall be held liable for all injury, loss, or damage,
including fire suppression costs, caused by the holder's use or
occupancy, without regard to the holder's negligence, provided that
maximum liability shall be specified in the special use authorization as
determined by a risk assessment, prepared in accordance with established
agency procedures, but shall not exceed $1,000,000 for any one
occurrence. Liability for injury, loss, or damage, including fire
suppression costs, in excess of the specified maximum shall be
determined by the laws governing ordinary negligence of the jurisdiction
in which the damage or injury occurred.
(e) Bonding. An authorized officer may require the holder of a
special use authorization for other than a noncommercial group use to
furnish a bond or other security to secure all or any of the obligations
imposed by the terms of the authorization or by any applicable law,
regulation or order.
(f) Special terms and conditions--(1) Public service enterprises.
Special use permits authorizing the operation of public service
enterprises shall require that the permittee charge reasonable rates and
furnish such services as may be necessary in the public interest, except
where such rates and services are regulated by Federal, State or
municipal agencies having jurisdiction.
(2) Common carriers. Oil and gas pipelines and related facilities
authorized under section 28 of the Mineral Leasing Act of 1920, 41 Stat.
449, as amended (30 U.S.C. 185), shall be constructed, operated and
maintained as common carriers. The owners or operators of pipelines
shall accept, convey, transport, or purchase without discrimination all
oil or gas delivered to the pipeline without regard to whether such oil
or gas was produced on Federal or nonfederal lands. In the case of oil
or gas produced from Federal lands or from the resources on the Federal
lands in the vicinity of the pipeline, the Secretary may, after a full
hearing with due notice thereof to interested parties and a proper
finding of facts, determine the proportionate amounts to be accepted,
conveyed, transported, or purchased. The common carrier provisions of
this section shall not apply to any natural gas pipeline operated (i) by
any person subject to regulation under the Natural Gas Act, 52 Stat.
821, as amended, (15 U.S.C. 717) or (ii) by any public utility subject
to regulation by a State or municipal regulatory agency having
jurisdiction to regulate the rates and charges for the sale of natural
gas to consumers within the State or municipality. Where natural gas not
subject
[[Page 370]]
to State regulatory or conservation laws governing its purchase by
pipeline companies is offered for sale, each pipeline company shall
purchase, without discrimination, any such natural gas produced in the
vicinity of the pipeline.
(g) Conversion of Ski Area Authorizations. (1) The Forest Service
shall request that all existing permit holders convert existing
authorizations for ski areas to a new authorization issued pursuant to
the National Forest Ski Area Permit Act.
(2) Any current holder of a ski area permit who wishes to convert an
existing permit to one issued pursuant to the National Forest Ski Area
Permit Act must submit a written request for the new authorization to
the authorized officer.
(3) With the consent of the holder, the authorized officer shall
convert the authorization if:
(i) The holder is in compliance with the existing authorization;
(ii) All fees currently due under the existing authorization are
paid in full; and
(iii) Any proposed modifications of terms and conditions of the
existing authorization included in a request for conversion meet the
standards of paragraphs (2)(i) (A) through (F) of this section and the
relevant requirements of this subpart.
(4) A holder retains the right to decline a new authorization
offered pursuant to this paragraph and to continue to operate under the
terms of the existing permit. However, pursuant to the rules at
Sec. 251.61 of this subpart, major modifications of existing permits
shall require conversion to a permit issued under the authority of the
National Forest Ski Area Permit Act, unless the holder provides
compelling justification for retaining the existing permit.
[45 FR 38327, June 6, 1980, as amended at 49 FR 46895, Nov. 29, 1984; 54
FR 22594, May 25, 1989; 60 FR 45294, Aug. 30, 1995; 63 FR 65967, Nov.
30, 1998; 64 FR 48960, Sept. 9, 1999]
Sec. 251.57 Rental fees.
(a) Except as otherwise provided in this part or when specifically
authorized by the Secretary of Agriculture, special use authorizations
shall require the payment in advance of an annual rental fee as
determined by the authorized officer.
(1) The fee shall be based on the fair market value of the rights
and privileges authorized, as determined by appraisal or other sound
business management principles.
(2) Where annual fees of one hundred dollars ($100) or less are
assessed, the authorized officer may require either annual payment or a
payment covering more than one year at a time. If the annual fee is
greater than one hundred dollars ($100), holders who are private
individuals (that is, acting in an individual capacity), as opposed to
those who are commercial, other corporate, or business or government
entities, may, at their option, elect to make either annual payments or
payments covering more than one year.
(3) A base cabin user fee for a recreation residence use shall be 5
percent of the market value of the recreation residence lot, established
by an appraisal conducted in accordance with the Act of October 11, 2000
(16 U.S.C. 6201-13).
(b) All or part of the fee may be waived by the authorized officer,
when equitable and in the public interest, for the use and occupancy of
National Forest System land in the following circumstances:
(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; or
(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; or
(3) The holder provides without charge, or at reduced charge, a
valuable benefit to the public or to the programs of the Secretary; or
[[Page 371]]
(4) When the rental fee is included in the fees for an authorized
use or occupancy for which the United States is already receiving
compensation; or
(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.
(c) No rental fee will be charged when the holder is the Federal
government.
(d) No fee shall be charged when the authorization is for a
noncommercial group use as defined in Sec. 251.51 of this subpart.
(e) Special use authorizations issued under Sec. 251.53(g) of this
part may require as all or a part of the consideration the
reconditioning and maintenance of the government-owned or controlled
structures, improvements, and land to a satisfactory standard. The total
consideration will be based upon the fair market value of the rights and
privileges authorized.
(f) Special use authorizations involving government-owned or
controlled buildings, structures, or other improvements which require
caretakers' services, or the furnishing of special services such as
water, electric lights, and clean-up, may require the payment of an
additional fee or charge to cover the cost of such services.
(g) Except where specified otherwise by terms of a special use
authorization, rental fees may be initiated or adjusted whenever
necessary: (1) As a result of fee review, reappraisal; or (2) upon a
change in the holder's qualifications under paragraph (b) of this
section; and (3) notice is given prior to initiating or adjusting rental
fees.
(h) Each ski area authorization issued under the authority of the
National Forest Ski Area Permit Act shall include a clause that provides
that the Forest Service may adjust and calculate future rental fees to
reflect Agency revisions to the existing system for determining fees
based on fair market value or to comply with any new fee system for
determining fees based on fair market value that may be adopted after
issuance of the authorization.
(i) Each permit or term permit for a recreation residence use shall
include a clause stating that the Forest Service shall recalculate the
base cabin user fee at least every 10 years and shall use an appraisal
to recalculate that fee as provided in paragraph (a)(3) of this section.
[45 FR 38327, June 6, 1980, as amended at 51 FR 16683, May 6, 1986; 54
FR 22594, May 25, 1989; 60 FR 45294, Aug. 30, 1995; 63 FR 65967, Nov.
30, 1998; 71 FR 16621, Apr. 3, 2006]
Sec. 251.58 Cost recovery.
(a) Assessment of fees to recover agency processing and monitoring
costs. The Forest Service shall assess fees to recover the agency's
processing costs for special use applications and monitoring costs for
special use authorizations. Applicants and holders shall submit
sufficient information for the authorized officer to estimate the number
of hours required to process their applications or monitor their
authorizations. Cost recovery fees are separate from any fees charged
for the use and occupancy of National Forest System lands.
(b) Special use applications and authorizations subject to cost
recovery requirements. Except as exempted in paragraphs (g)(1) through
(g)(4) of this section, the cost recovery requirements of this section
apply in the following situations to the processing of special use
applications and monitoring of special use authorizations issued
pursuant to this subpart:
(1) Applications for use and occupancy that require a new special
use authorization. Fees for processing an application for a new special
use authorization shall apply to any application formally accepted by
the agency on or after March 23, 2006 and to any application formally
accepted by the agency before March 23, 2006, which the agency has not
commenced processing. Proposals accepted as applications which the
agency has commenced processing prior to March 23, 2006 shall not be
subject to processing fees. The cost recovery provisions of this section
shall not apply to or supersede written agreements providing for
recovery of processing costs executed by the agency and applicants prior
to March 23, 2006.
(2) Changes to existing authorizations. Processing fees apply to
proposals that
[[Page 372]]
require an application to amend or formally approve specific activities
or facilities as identified in an existing authorization, operating
plan, or master development plan. Processing fees also apply to agency
actions to amend a special use authorization.
(3) Agency actions to issue a special use authorization and
applications for issuance of a new special use authorization due to
termination of an existing authorization, including termination caused
by expiration, a change in ownership or control of the authorized
facilities, or a change in ownership or control of the holder of the
authorization. Upon termination of an existing authorization, a holder
shall be subject to a processing fee for issuance of a new
authorization, even if the holder's existing authorization does not
require submission of an application for a new authorization.
(4) Monitoring of authorizations issued or amended on or after March
23, 2006.
(c) Processing fee requirements. A processing fee is required for
each application for or agency action to issue a special use
authorization as identified in paragraphs (b)(1) through (b)(3) of this
section. Processing fees do not include costs incurred by the applicant
in providing information, data, and documentation necessary for the
authorized officer to make a decision on the proposed use or occupancy
pursuant to the provisions at Sec. 251.54.
(1) Basis for processing fees. The processing fee categories 1
through 6 set out in paragraphs (c)(2)(i) through (c)(2)(vi) of this
section are based upon the costs that the Forest Service incurs in
reviewing the application, conducting environmental analyses of the
effects of the proposed use, reviewing any applicant-generated
environmental documents and studies, conducting site visits, evaluating
an applicant's technical and financial qualifications, making a decision
on whether to issue the authorization, and preparing documentation of
analyses, decisions, and authorizations for each application. The
processing fee for an application shall be based only on costs necessary
for processing that application. ``Necessary for'' means that but for
the application, the costs would not have been incurred and that the
costs cover only those activities without which the application cannot
be processed. The processing fee shall not include costs for studies for
programmatic planning or analysis or other agency management objectives,
unless they are necessary for the application being processed. For
example, the processing fee shall not include costs for capacity
studies, use allocation decisions, corridor or communications site
planning, and biological studies that address species diversity, unless
they are necessary for the application. Proportional costs for analyses,
such as capacity studies, that are necessary for an application may be
included in the processing fee for that application. The costs incurred
for processing an application, and thus the processing fee, depend on
the complexity of the project; the amount of information that is
necessary for the authorized officer's decision in response to the
proposed use and occupancy; and the degree to which the applicant can
provide this information to the agency. Processing work conducted by the
applicant or a third party contracted by the applicant minimizes the
costs the Forest Service will incur to process the application, and thus
reduces the processing fee. The total processing time is the total time
estimated for all Forest Service personnel involved in processing an
application and is estimated case by case to determine the fee category.
(i) Processing fee determinations. The applicable fee rate for
processing applications in minor categories 1 through 4 (paragraphs
(c)(2)(i) through (c)(2)(iv) of this section) shall be assessed from a
schedule. The processing fee for applications in category 5, which may
be either minor or major, shall be established in the master agreement
(paragraph (c)(2)(v) of this section). For major category 5 (paragraph
(c)(2)(v) of this section) and category 6 (paragraph (c)(2)(vi) of this
section) cases, the authorized officer shall estimate the agency's full
actual processing costs. The estimated processing costs for category 5
and category 6 cases shall be reconciled as provided in paragraphs
(c)(5)(ii) and (iii) and (c)(6)(ii) and (iii) of this section.
[[Page 373]]
(ii) Reduction in processing fees for certain category 6
applications. For category 6 applications submitted under authorities
other than the Mineral Leasing Act, the applicant:
(A) May request a reduction of the processing fee based upon the
applicant's written analysis of actual costs, the monetary value of the
rights and privileges sought, that portion of the costs incurred for the
benefit of the general public interest, the public service provided, the
efficiency of the agency processing involved, and other factors relevant
to determining the reasonableness of the costs. The agency will
determine whether the estimate of full actual costs should be reduced
based upon this analysis and will notify the applicant in writing of
this determination; or
(B) May agree in writing to waive payment of reasonable costs and
pay the actual costs incurred in processing the application.
(2) Processing fee categories. No fee is charged for applications
taking 1 hour or less for the Forest Service to process. Applications
requiring more than 1 hour for the agency to process are covered by the
fee categories 1 through 6 set out in the following paragraphs i through
vi.
(i) Category 1: Minimal Impact: More than 1 hour and up to and
including 8 hours. The total estimated time in this minor category is
more than 1 hour and up to and including 8 hours for Forest Service
personnel to process an application.
(ii) Category 2: More than 8 and up to and including 24 hours. The
total estimated time in this minor category is more than 8 and up to and
including 24 hours for Forest Service personnel to process an
application.
(iii) Category 3: More than 24 and up to and including 36 hours. The
total estimated time in this minor category is more than 24 and up to
and including 36 hours for Forest Service personnel to process an
application.
(iv) Category 4: More than 36 and up to and including 50 hours. The
total estimated time in this minor category is more than 36 and up to
and including 50 hours for Forest Service personnel to process an
application.
(v) Category 5: Master agreements. The Forest Service and the
applicant may enter into master agreements for the agency to recover
processing costs associated with a particular application, a group of
applications, or similar applications for a specified geographic area.
This category is minor if 50 hours or less are needed for Forest Service
personnel to process an application and major if more than 50 hours are
needed. In signing a master agreement for a major category application
submitted under authorities other than the Mineral Leasing Act, an
applicant waives the right to request a reduction of the processing fee
based upon the reasonableness factors enumerated in paragraph
(c)(1)(ii)(A) of this section. A master agreement shall at a minimum
include:
(A) The fee category or estimated processing costs;
(B) A description of the method for periodic billing, payment, and
auditing;
(C) A description of the geographic area covered by the agreement;
(D) A work plan and provisions for updating the work plan;
(E) Provisions for reconciling differences between estimated and
final processing costs; and
(F) Provisions for terminating the agreement.
(vi) Category 6: More than 50 hours. In this major category more
than 50 hours are needed for Forest Service personnel to process an
application. The authorized officer shall determine the issues to be
addressed and shall develop preliminary work and financial plans for
estimating recoverable costs.
(3) Multiple applications other than those covered by master
agreements (category 5). (i) Unsolicited applications where there is no
competitive interest. Processing costs that are incurred in processing
more than one of these applications (such as the cost of environmental
analysis or printing an environmental impact statement that relates to
all of the applications) must be paid in equal shares or on a prorated
basis, as deemed appropriate by the authorized officer, by each
applicant, including applicants for recreation special uses that are
otherwise exempt under paragraph (g)(3) of this section when
[[Page 374]]
the Forest Service requires more than 50 hours in the aggregate to
process the applications submitted in response to the prospectus.
(ii) Unsolicited proposals where competitive interest exists. When
there is one or more unsolicited proposals and the authorized officer
determines that competitive interest exists, the agency shall issue a
prospectus. All proposals accepted pursuant to that solicitation shall
be processed as applications. The applicants are responsible for the
costs of environmental analyses that are necessary for their
applications and that are conducted prior to issuance of the prospectus.
Processing fees for these cases shall be determined pursuant to the
procedures for establishing a category 6 processing fee and shall
include costs such as those incurred in printing and mailing the
prospectus; having parties other than the Forest Service review and
evaluate applications; establishing a case file; recording data;
conducting financial reviews; and, for selected applicants, any
additional environmental analysis required in connection with their
applications. Processing fees shall be paid in equal shares or on a
prorated basis, as deemed appropriate by the authorized officer, by all
parties who submitted proposals that were processed as applications
pursuant to the solicitation, including applicants for recreation
special uses that are otherwise exempt under paragraph (g)(3) of this
section when the Forest Service requires more than 50 hours in the
aggregate to process the applications submitted in response to the
prospectus.
(iii) Solicited applications. When the Forest Service solicits
applications through the issuance of a prospectus on its own initiative,
rather than in response to an unsolicited proposal or proposals, the
agency is responsible for the cost of environmental analyses conducted
prior to issuance of the prospectus. All proposals accepted pursuant to
that solicitation shall be processed as applications. Processing fees
for these cases shall be determined pursuant to the procedures for
establishing a category 6 processing fee and shall include costs such as
those incurred in printing and mailing the prospectus; having parties
other than the Forest Service review and evaluate applications;
establishing a case file; recording data; conducting financial reviews;
and, for selected applicants, any additional environmental analysis
required in connection with their applications. Processing fees shall be
paid in equal shares or on a prorated basis, as deemed appropriate by
the authorized officer, by all parties who submitted proposals that were
processed as applications pursuant to the solicitation, including
applicants for recreation special uses that are otherwise exempt under
paragraph (g)(3) of this section when the Forest Service requires more
than 50 hours in the aggregate to process the applications submitted in
response to the prospectus.
(4) Billing and revision of processing fees. (i) Billing. When the
Forest Service accepts a special use application, the authorized officer
shall provide written notice to the applicant that the application has
been formally accepted. The authorized officer shall not bill the
applicant a processing fee until the agency is prepared to process the
application.
(ii) Revision of processing fees. Minor category processing fees
shall not be reclassified into a higher minor category once the
processing fee category has been determined. However, if the authorized
officer discovers previously undisclosed information that necessitates
changing a minor category processing fee to a major category processing
fee, the authorized officer shall notify the applicant or holder of the
conditions prompting a change in the processing fee category in writing
before continuing with processing the application. The applicant or
holder may accept the revised processing fee category and pay the
difference between the previous and revised processing categories;
withdraw the application; revise the project to lower the processing
costs; or request review of the disputed fee as provided in paragraphs
(e)(1) through (e)(4) of this section.
(5) Payment of processing fees. (i) Payment of a processing fee
shall be due within 30 days of issuance of a bill for the fee, pursuant
to paragraph (c)(4) of this section. The processing fee must be paid
before the Forest Service can
[[Page 375]]
initiate or, in the case of a revised fee, continue with processing an
application. Payment of the processing fee by the applicant does not
obligate the Forest Service to authorize the applicant's proposed use
and occupancy.
(ii) For category 5 cases, when the estimated processing costs are
lower than the final processing costs for applications covered by a
master agreement, the applicant shall pay the difference between the
estimated and final processing costs.
(iii) For category 6 cases, when the estimated processing fee is
lower than the full actual costs of processing an application submitted
under the Mineral Leasing Act, or lower than the full reasonable costs
(when the applicant has not waived payment of reasonable costs) of
processing an application submitted under other authorities, the
applicant shall pay the difference between the estimated and full actual
or reasonable processing costs.
(6) Refunds of processing fees. (i) Processing fees in minor
categories 1 through 4 are nonrefundable and shall not be reconciled.
(ii) For category 5 cases, if payment of the processing fee exceeds
the agency's final processing costs for the applications covered by a
master agreement, the authorized officer either shall refund the excess
payment to the applicant or, at the applicant's request, shall credit it
towards monitoring fees due.
(iii) For category 6 cases, if payment of the processing fee exceeds
the full actual costs of processing an application submitted under the
Mineral Leasing Act, or the full reasonable costs (when the applicant
has not waived payment of reasonable costs) of processing an application
submitted under other authorities, the authorized officer either shall
refund the excess payment to the applicant or, at the applicant's
request, shall credit it towards monitoring fees due.
(iv) For major category 5 and category 6 applications, an applicant
whose application is denied or withdrawn in writing is responsible for
costs incurred by the Forest Service in processing the application up to
and including the date the agency denies the application or receives
written notice of the applicant's withdrawal. When an applicant
withdraws a major category 5 or category 6 application, the applicant
also is responsible for any costs subsequently incurred by the Forest
Service in terminating consideration of the application.
(7) Customer service standards. The Forest Service shall endeavor to
make a decision on an application that falls into minor processing
category 1, 2, 3, or 4, and that is subject to a categorical exclusion
pursuant to the National Environmental Policy Act, within 60 calendar
days from the date of receipt of the processing fee. If the application
cannot be processed within the 60-day period, then prior to the 30th
calendar day of the 60-day period, the authorized officer shall notify
the applicant in writing of the reason why the application cannot be
processed within the 60-day period and shall provide the applicant with
a projected date when the agency plans to complete processing the
application. For all other applications, including all applications that
require an environmental assessment or an environmental impact
statement, the authorized officer shall, within 60 calendar days of
acceptance of the application, notify the applicant in writing of the
anticipated steps that will be needed to process the application. These
customer service standards do not apply to applications that are subject
to a waiver of or exempt from cost recovery fees under Secs. 251.58(f)
or (g).
(d) Monitoring fee requirements. The monitoring fee for an
authorization shall be assessed independently of any fee charged for
processing the application for that authorization pursuant to paragraph
(c) of this section. Payment of the monitoring fee is due upon issuance
of the authorization.
(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
[[Page 376]]
agency's estimated costs to ensure compliance with the terms and
conditions of 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
scheduled inspections to determine compliance generally with the terms
and conditions of an authorization.
(i) Monitoring fee determinations. The applicable fee rate for
monitoring compliance with authorizations in minor categories 1 through
4 (paragraphs (d)(2)(i) through (d)(2)(iv) of this section) shall be
assessed from a schedule. The monitoring fee for authorizations in
category 5, which may be minor or major, shall be established in the
master agreement (paragraph (d)(2)(v) of this section). For major
category 5 (paragraph (d)(2)(v) of this section) and category 6
(paragraph (d)(2)(vi) of this section) cases, the authorized officer
shall estimate the agency's full actual monitoring costs. The estimated
monitoring costs for category 5 and category 6 cases shall be reconciled
as provided in paragraphs (d)(3)(ii) and (iii) and (d)(4)(ii) and (iii)
of this section.
(ii) Reductions in monitoring fees for certain category 6
authorizations. For category 6 authorizations issued under authorities
other than the Mineral Leasing Act, the holder:
(A) May request a reduction of the monitoring fee based upon the
holder's written analysis of actual costs, the monetary value of the
rights or privileges granted, that portion of the costs incurred for the
benefit of the general public interest, the public service provided, the
efficiency of the agency monitoring involved, and other factors relevant
to determining the reasonableness of the costs. The agency will
determine whether the estimate of full actual costs should be reduced
based upon this analysis and will notify the holder in writing of this
determination; or
(B) May agree in writing to waive payment of reasonable costs and
pay the actual costs incurred in monitoring the authorization.
(2) Monitoring fee categories. No monitoring fee is charged for
authorizations requiring 1 hour or less for the Forest Service to
monitor. Authorizations requiring more than1 hour for the agency to
monitor are covered by fee categories 1 through 6 set out in the
following paragraphs (d)(2)(i) through (vi) of this section.
(i) Category 1: Minimal Impact: More than 1 hour and up to and
including 8 hours. This minor category requires more than1 hour and up
to and including 8 hours for Forest Service personnel to monitor
compliance with a special use authorization during construction or
reconstruction of temporary or permanent facilities and rehabilitation
of the construction or reconstruction site.
(ii) Category 2: More than 8 and up to and including 24 hours. This
minor category requires more than 8 and up to and including 24 hours for
Forest Service personnel to monitor compliance with a special use
authorization during construction or reconstruction of temporary or
permanent facilities and rehabilitation of the construction or
reconstruction site.
(iii) Category 3: More than 24 and up to and including 36 hours.
This minor category requires more than 24 and up to and including 36
hours for Forest Service personnel to monitor compliance with a special
use authorization during construction or reconstruction of temporary or
permanent facilities and rehabilitation of the construction or
reconstruction site.
(iv) Category 4: More than 36 and up to and including 50 hours. This
minor category requires more than 36 and up to and including 50 hours
for Forest Service personnel to monitor compliance with a special use
authorization during construction or reconstruction of temporary or
permanent facilities and rehabilitation of the construction or
reconstruction site.
(v) Category 5: Master agreements. The Forest Service and the holder
of an authorization may enter into a master agreement for the agency to
recover monitoring costs associated with a particular authorization or
by a group of
[[Page 377]]
authorizations for a specified geographic area. This category is minor
if 50 hours or less are needed for Forest Service personnel to monitor
compliance with an authorization and major if more than 50 hours are
needed. In signing a master agreement for a major category authorization
issued under authorities other than the Mineral Leasing Act, a holder
waives the right to request a reduction of the monitoring fee based upon
the reasonableness factors enumerated in paragraph (d)(1)(ii)(A) of this
section. A master agreement shall at a minimum include:
(A) The fee category or estimated monitoring costs;
(B) A description of the method for periodic billing, payment, and
auditing of monitoring fees;
(C) A description of the geographic area covered by the agreement;
(D) A monitoring work plan and provisions for updating the work
plan;
(E) Provisions for reconciling differences between estimated and
final monitoring costs; and
(F) Provisions for terminating the agreement.
(vi) Category 6: More than 50 hours. This major category requires
more than 50 hours for Forest Service personnel to monitor compliance
with the terms and conditions of the authorization during all phases of
its term, including, but not limited, to monitoring compliance with the
authorization during the construction or reconstruction of temporary or
permanent facilities and rehabilitation of the construction or
reconstruction site.
(3) Billing and payment of monitoring fees. (i) The authorized
officer shall estimate the monitoring costs and shall notify the holder
of the required fee. Monitoring fees in minor categories 1 through 4
must be paid in full before or at the same time the authorization is
issued. For authorizations in major category 5 and category 6, the
estimated monitoring fees must be paid in full before or at the same
time the authorization is issued, unless the authorized officer and the
applicant or holder agree in writing to periodic payments.
(ii) For category 5 cases, when the estimated monitoring costs are
lower than the final monitoring costs for authorizations covered by a
master agreement, the holder shall pay the difference between the
estimated and final monitoring costs.
(iii) For category 6 cases, when the estimated monitoring fee is
lower than the full actual costs of monitoring an authorization issued
under the Mineral Leasing Act, or lower than the full reasonable costs
(when the holder has not waived payment of reasonable costs) of
monitoring an authorization issued under other authorities, the holder
shall pay the difference in the next periodic payment or the authorized
officer shall bill the holder for the difference between the estimated
and full actual or reasonable monitoring costs. Payment shall be due
within 30 days of receipt of the bill.
(4) Refunds of monitoring fees. (i) Monitoring fees in minor
categories 1 through 4 are nonrefundable and shall not be reconciled.
(ii) For category 5 cases, if payment of the monitoring fee exceeds
the agency's final monitoring costs for the authorizations covered by a
master agreement, the authorized officer shall either adjust the next
periodic payment to reflect the overpayment or refund the excess payment
to the holder.
(iii) For category 6 cases, if payment of the monitoring fee exceeds
the full actual costs of monitoring an authorization issued under the
Mineral Leasing Act, or the full reasonable costs (when the holder has
not waived payment of reasonable costs) of monitoring an authorization
issued under other authorities, the authorized officer shall either
adjust the next periodic payment to reflect the overpayment or refund
the excess payment to the holder.
(e) Applicant and holder disputes concerning processing or
monitoring fee assessments; requests for changes in fee categories or
estimated costs. (1) If an applicant or holder disagrees with the
processing or monitoring fee category assigned by the authorized officer
for a minor category or, in the case of a major processing or monitoring
category, with the estimated dollar amount of the processing or
monitoring costs, the applicant or holder may submit a written request
before the disputed fee is due for substitution
[[Page 378]]
of an alternative fee category or alternative estimated costs to the
immediate supervisor of the authorized officer who determined the fee
category or estimated costs. The applicant or holder must provide
documentation that supports the alternative fee category or estimated
costs.
(2) In the case of a disputed processing fee:
(i) If the applicant pays the full disputed processing fee, the
authorized officer shall continue to process the application during the
supervisory officer's review of the disputed fee, unless the applicant
requests that the processing cease.
(ii) If the applicant fails to pay the full disputed processing fee,
the authorized officer shall suspend further processing of the
application pending the supervisory officer's determination of an
appropriate processing fee and the applicant's payment of that fee.
(3) In the case of a disputed monitoring fee:
(i) If the applicant or holder pays the full disputed monitoring
fee, the authorized officer shall issue the authorization or allow the
use and occupancy to continue during the supervisory officer's review of
the disputed fee, unless the applicant or holder elects not to exercise
the authorized use and occupancy of National Forest System lands during
the review period.
(ii) If the applicant or holder fails to pay the full disputed
monitoring fee, the authorized officer shall not issue the applicant a
new authorization or shall suspend the holder's existing authorization
in whole or in part pending the supervisory officer's determination of
an appropriate monitoring fee and the applicant's or holder's payment of
that fee.
(4) The authorized officer's immediate supervisor shall render a
decision on a disputed processing or monitoring fee within 30 calendar
days of receipt of the written request from the applicant or holder. The
supervisory officer's decision is the final level of administrative
review. The dispute shall be decided in favor of the applicant or holder
if the supervisory officer does not respond to the written request
within 30 days of receipt.
(f) Waivers of processing and monitoring fees. (1) All or part of a
processing or monitoring fee may be waived, at the sole discretion of
the authorized officer, when one or more of the following criteria are
met:
(i) The applicant or holder is a local, State, or Federal
governmental entity that does not or would not charge processing or
monitoring fees for comparable services the applicant or holder provides
or would provide to the Forest Service;
(ii) A major portion of the processing costs results from issues not
related to the project being proposed;
(iii) The application is for a project intended to prevent or
mitigate damage to real property, or to mitigate hazards or dangers to
public health and safety resulting from an act of God, an act of war, or
negligence of the United States;
(iv) The application is for a new authorization to relocate
facilities or activities to comply with public health and safety or
environmental laws and regulations that were not in effect at the time
the authorization was issued;
(v) The application is for a new authorization to relocate
facilities or activities because the land is needed by a Federal agency
or for a Federally funded project for an alternative public purpose; or
(vi) The proposed facility, project, or use will provide, without
user or customer charges, a valuable benefit to the general public or to
the programs of the Secretary of Agriculture.
(2) An applicant's or holder's request for a full or partial waiver
of a processing or monitoring fee must be in writing and must include an
analysis that demonstrates how one or more of the criteria in paragraphs
(f)(1)(i) through (f)(1)(vi) of this section apply.
(g) Exemptions from processing or monitoring fees. No processing or
monitoring fees shall be charged when the application or authorization
is for a:
(1) Noncommercial group use as defined in Sec. 251.51, or when the
application or authorization is to exempt a noncommercial activity from
a closure order, except for an application or authorization for access
to non-Federal lands within the boundaries of the National Forest System
granted pursuant
[[Page 379]]
to section 1323(a) of the Alaska National Interest Lands Conservation
Act (16 U.S.C. 3210(a)).
(2) Water systems authorized by section 501(c) of the Federal Land
Policy and Management Act of 1976 (43 U.S.C. 1761(c)).
(3) A use or activity conducted by a Federal agency that is not
authorized under Title V of the Federal Land Policy and Management Act
of 1976 (43 U.S.C. 1761-1771); the Mineral Leasing Act of 1920 (30
U.S.C. 185); the National Historic Preservation Act of 1966 (16 U.S.C.
470h-2); or the Act of May 26, 2000 (16 U.S.C. 460l-6d).
(4) Recreation special use as defined in the Forest Service's
directive system and requires 50 hours or less for Forest Service
personnel to process, except for situations involving multiple
recreation special use applications provided for in paragraph (c)(3) of
this section. No monitoring fees shall be charged for a recreation
special use authorization that requires 50 hours or less for Forest
Service personnel to monitor.
(h) Appeal of decisions. (1) A decision by the authorized officer to
assess a processing or monitoring fee or to determine the fee category
or estimated costs is not subject to administrative appeal.
(2) A decision by an authorized officer's immediate supervisor in
response to a request for substitution of an alternative fee category or
alternative estimated costs likewise is not subject to administrative
appeal.
(i) Processing and monitoring fee schedules. (1) The Forest Service
shall maintain schedules for processing and monitoring fees in its
directive system (36 CFR 200.4). 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.
(2) Within 5 years of the effective date of this rule, March 23,
2006, the Forest Service shall review these rates:
(i) To determine whether they are commensurate with the actual costs
incurred by the agency in conducting the processing and monitoring
activities covered by this rule and
(ii) To assess consistency with processing and monitoring fee
schedules established by the United States Department of the Interior,
Bureau of Land Management.
[71 FR 8913, Feb. 21, 2006]
Sec. 251.59 Transfer of authorized improvements.
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. Except for easements issued under
authorities other than Sec. 251.53(e) and leases and easements under
Sec. 251.53(l) of this subpart, 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 and conditions of the
authorization and any new terms and conditions warranted by existing or
prospective circumstances.
[63 FR 65967, Nov. 30, 1998]
Sec. 251.60 Termination, revocation, and suspension.
(a) Grounds for termination, revocation, and suspension--(1)
Noncommercial group uses--(i) Revocation or suspension. An authorized
officer may revoke or suspend a special use authorization for a
noncommercial group use only under one of the following circumstances:
(A) Under the criteria for which an application for a special use
authorization may be denied under Sec. 251.54(g)(3)(ii);
(B) For noncompliance with applicable statutes or regulations or the
terms and conditions of the authorization;
(C) For failure of the holder to exercise the rights or privileges
granted; or
(D) With the consent of the holder.
(ii) Judicial review. Revocation or suspension of a special use
authorization under this paragraph constitutes final agency action, is
not subject to administrative appeal, and is immediately subject to
judicial review.
[[Page 380]]
(iii) Termination. A special use authorization for a noncommercial
group use terminates when it expires by its own terms. Termination of a
special use authorization under this paragraph does not involve agency
action and is not subject to administrative or judicial review.
(2) All other special uses--(i) Revocation or suspension. An
authorized officer may revoke or suspend a special use authorization for
all other special uses, except a permit or an easement issued pursuant
to Sec. 251.53(e) or an easement issued under Sec. 251.53(l) of this
subpart:
(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.
(ii) Administrative review. Except for revocation or suspension of
an easement issued pursuant to Sec. 251.53(e) or Sec. 251.53(l) of this
subpart, revocation or suspension of a special use authorization under
this paragraph is subject to appeal pursuant to 36 CFR part 214.
(iii) Termination. For all special uses except noncommercial group
uses, a special use authorization terminates when, by its terms, a fixed
or agreed-upon condition, event, or time occurs. Termination of a
special use authorization under this paragraph does not involve agency
action and is not subject to administrative or judicial review.
(b) For purposes of this section, the authorized officer is that
person who issues the authorization or that officer's successor.
(c) A right-of-way authorization granted to another Federal agency
will be limited, suspended, revoked, or terminated only with that
agency's concurrence.
(d) A right-of-way authorization serving another Federal agency will
be limited, suspended, revoked, or terminated only after advance notice
to, and consultation with, that agency.
(e) Except when immediate suspension pursuant to paragraph (f) of
this section is indicated, the authorized officer shall give the holder
written notice of the grounds for suspension or revocation under
paragraph (a) of this section and reasonable time to cure any
noncompliance, prior to suspension or revocation pursuant to paragraph
(a) of this section.
(f) Immediate suspension of a special use authorization, in whole or
in part, may be required when the authorized officer deems it necessary
to protect the public health or safety or the environment. In any such
case, within 48 hours of a request of the holder, the superior of the
authorized officer shall arrange for an on-site review of the adverse
conditions with the holder. Following this review, the superior officer
shall take prompt action to affirm, modify, or cancel the suspension.
(g) The authorized officer may suspend or revoke permits or
easements issued under Sec. 251.53(e) or easements issued under
Sec. 251.53(l) of this subpart under the Rules of Practice Governing
Formal Adjudicatory Administrative Proceedings instituted by the
Secretary under 7 CFR 1.130 through 1.151.
(h)(1) The Chief may revoke any easement granted under the
provisions of the Act of October 13, 1964, 78 Stat. 1089, 16 U.S.C. 534:
(i) By consent of the owner of the easement;
(ii) By condemnation; or
(iii) Upon abandonment after a 5-year period of nonuse by the owner
of the easement.
(2) Before any such easement is revoked upon abandonment, the owner
of the easement shall be given notice and, upon the owner's request made
within 60 days after receipt of the notice, shall be given an appeal in
accordance with the provisions of 36 CFR part 214.
(i) Upon revocation or termination of a special use authorization,
the holder must remove within a reasonable time the structures and
improvements and shall restore the site to a condition satisfactory to
the authorized officer, unless the requirement to remove structures or
improvements is otherwise waived in writing or in the authorization. If
the holder fails to remove the structures or improvements within a
reasonable period, as determined by the authorized officer, they shall
become the property of the United States, but holder shall remain
[[Page 381]]
liable for the costs of removal and site restoration.
[45 FR 38327, June 6, 1980; 45 FR 43167, June 26, 1980, as amended at 48
FR 28639, June 23, 1983; 60 FR 45295, Aug. 30, 1995; 63 FR 65968, Nov.
30, 1998; 74 FR 68381, Dec. 24, 2009; 75 FR 14995, Mar. 26, 2010; 75 FR
24802, May 6, 2010; 78 FR 33725, June 5, 2013]
Sec. 251.61 Applications for new, changed, or additional uses or area.
(a) Holders shall file a new or amended application for
authorization of any new, changed, or additional uses or area, including
any changes that involve any activity that has an impact on the
environment, other uses, or the public. In approving or denying new,
changed, or additional uses or area, the authorized officer shall
consider, at a minimum, the findings or recommendations of other
affected agencies and whether to revise the terms and conditions of the
existing authorization or issue a new authorization. Once approved, any
new, changed, or additional uses or area must be reflected in the
existing or a new authorization.
(b) A holder may be required to furnish as-built plans, maps, or
surveys upon completion of construction.
[78 FR 33725, June 5, 2013]
Sec. 251.62 Acceptance.
Except for an easement, a special use authorization shall become
effective when signed by both the applicant and the authorized officer.
The authorization must be signed by the applicant and returned to the
authorized officer within 60 days of its receipt by the applicant,
unless extended by the authorized officer. Refusal of an applicant to
sign and accept a special use authorization within the time allowed, and
before its final approval and signature by an authorized officer, shall
terminate an application and constitute denial of the requested use and
occupancy.
[53 FR 16550, May 10, 1988]
Sec. 251.63 Reciprocity.
If it is determined that a right-of-way shall be needed by the
United States across nonfederal lands directly or indirectly owned or
controlled by an applicant for a right-of-way across Federal lands, the
authorized officer may condition a special use authorization to require
the holder to grant the United States the needed right-of-way.
Sec. 251.64 Renewals.
(a) When a special use authorization provides for renewal, the
authorized officer shall renew it where such renewal is authorized by
law, if the project or facility is still being used for the purpose(s)
previously authorized and is being operated and maintained in accordance
with all the provisions of the authorization. In making such renewal,
the authorized officer may modify the terms, conditions, and special
stipulations to reflect any new requirements imposed by current Federal
and State land use plans, laws, regulations or other management
decisions. Special uses may be reauthorized upon expiration so long as
such use remains consistent with the decision that approved the expiring
special use or group of uses. If significant new information or
circumstances have developed, appropriate environmental analysis must
accompany the decision to reauthorize the special use.
(b) When a special use authorization does not provide for renewal,
it is discretionary with the authorized officer, upon request from the
holder and prior to its expiration, whether or not the authorization
shall be renewed. A renewal pursuant to this section shall comply with
the same provisions contained in paragraph (a) of this section.
[45 FR 38327, June 6, 1980, as amended at 63 FR 65968, Nov. 30, 1998]
Sec. 251.65 Information collection requirements.
The rules of this subpart governing special use proposals and
applications (Sec. 251.54), terms and conditions (Sec. 251.56), rental
fees (Sec. 251.57), and modifications (Sec. 251.61) specify the
information that proponents or applicants for special use authorizations
or holders of existing authorizations must provide to allow an
authorized officer to act on a request or administer the authorization.
Therefore, these rules contain information collection requirements as
defined in 5 CFR part 1320. These information
[[Page 382]]
collection requirements are assigned OMB Control Number 0596-0082.
[74 FR 68382, Dec. 24, 2009]
Subpart C [Reserved]
Subpart D_Access to Non-Federal Lands
Source: 56 FR 27417, June 14, 1991, unless otherwise noted.
Sec. 251.110 Scope and application.
(a) The regulations in this subpart set forth the procedures by
which landowners may apply for access across National Forest System
lands and the terms and conditions that govern any special use or other
authorization that is issued by the Forest Service to permit such
access.
(b) These regulations apply to access across all National Forest
System lands, including Congressionally designated areas, and supplement
the regulations in subpart B of this part, and in parts 212 and 293 of
this chapter. The regulations of this subpart do not affect rights-of-
way established under authority of R.S. 2477 (43 U.S.C. 932); rights-of-
way transferred to States under 23 U.S.C. 317; access rights outstanding
in third parties at the time the United States acquired the land; or the
rights reserved in conveyances to the United States and in other
easements granted by an authorized officer of the Forest Service. Except
for the aforementioned rights-of-way, currently valid special-use
authorizations will become subject to the rules of this subpart upon
expiration, termination, reversion, modification, or reauthorization.
(c) Subject to the terms and conditions contained in this part and
in parts 212 and 293 of this chapter, as appropriate, landowners shall
be authorized such access as the authorized officer deems to be adequate
to secure them the reasonable use and enjoyment of their land.
(d) ln those cases where a landowner's ingress or egress across
National Forest System lands would require surface disturbance or would
require the use of Government-owned roads, trails, or transportation
facilities not authorized for general public use, the landowner must
apply for and receive a special-use or road-use authorization
documenting the occupancy and use authorized on National Forest System
lands or facilities and identifying the landowner's rights, privileges,
responsibilities, and obligations.
(e) Where ingress and egress will require the use of existing
Government-owned roads, trails, or other transportation facilities which
are open and available for general public use, use by the landowner
shall be in accordance with the provisions of part 212 of this chapter.
(f) The rules of this subpart do not apply to access within
conservation system units in Alaska which are subject to title XI of the
Alaska National Interest Lands Conservation Act (16 U.S.C. 3101), except
for access to inholdings authorized by section 1110(b) of that Act.
(g) Where there is existing access or a right of access to a
property over non-National Forest land or over public roads that is
adequate or that can be made adequate, there is no obligation to grant
additional access through National Forest System lands.
Sec. 251.111 Definitions.
In addition to the definitions in subpart B of this part, the
following terms apply to this subpart:
Access means the ability of landowners to have ingress and egress to
their lands. It does not include rights-of-way for power lines or other
utilities.
Adequate access means a route and method of access to non-Federal
land that provides for reasonable use and enjoyment of the non-Federal
land consistent with similarly situated non-Federal land and that
minimizes damage or disturbance to National Forest System lands and
resources.
Congressionally designated area means lands which are within the
boundaries of a component of the National Wilderness Preservation
System, National Wild and Scenic River System, National Trails System,
and also National Monuments, Recreation, and Scenic
[[Page 383]]
Areas within the National Forest System, and similar areas designated by
Federal statute.
Landowner(s) means the owner(s) of non-Federal land or interests in
land within the boundaries of the National Forest System.
Sec. 251.112 Application requirements.
(a) A landowner shall apply for access across National Forest System
lands in accordance with the application requirements of Sec. 251.54 of
this part. Such application shall specifically include a statement of
the intended mode of access to, and uses of, the non-Federal land for
which the special-use authorization is requested.
(b) The application shall disclose the historic access to the
landowner's property and any rights of access which may exist over non-
federally owned land and shall provide reasons why these means of access
do not provide adequate access to the landowners property.
(c) The information required to apply for access across National
Forest lands under this subpart is approved for use under subpart B of
this part and assigned OMB control number 0596-0082.
Sec. 251.113 Instrument of authorization.
To grant authority to construct and/or use facilities and structures
on National Forest System lands for access to non-Federal lands, the
authorized officer shall issue a special-use authorization in
conformance with the provisions of subpart B of this part or a road-use
permit. In cases where Road Rights-of-way Construction And Use
Agreements are in effect, the authorized officer may grant an easement
in accordance with the provisions of part 212 of this chapter.
Sec. 251.114 Criteria, terms and conditions.
(a) In issuing a special-use authorization for access to non-Federal
lands, the authorized officer shall authorize only those access
facilities or modes of access that are needed for the reasonable use and
enjoyment of the land and that minimize the impacts on the Federal
resources. The authorizing officer shall determine what constitutes
reasonable use and enjoyment of the lands based on contemporaneous uses
made of similarly situated lands in the area and any other relevant
criteria.
(b) Landowners must pay an appropriate fee for the authorized use of
National Forest System lands in accordance with Sec. 251.57 of this
part.
(c) A landowner may be required to provide a reciprocal grant of
access to the United States across the landowner's property where such
reciprocal right is deemed by the authorized officer to be necessary for
the management of adjacent Federal land. In such case, the landowner
shall receive the fair market value of the rights-of-way granted to the
United States. If the value of the rights-of-way obtained by the
Government exceeds the value of the rights-of-way granted, the
difference in value will be paid to the landowner. If the value of the
rights-of-way across Government land exceeds the value of the rights-of-
way across the private land, an appropriate adjustment will be made in
the fee charged for the special-use authorization as provided in
Sec. 251.57(b)(5) of this part.
(d) For access across National Forest System lands that will have
significant non-Forest user traffic, a landowner may be required to
construct new roads or reconstruct existing roads to bring the roads to
a safe and adequate standard. A landowner also may be required to
provide for the operation and maintenance of the road. This may be done
by arranging for such road to be made part of the local public road
system, or formation of a local improvement district to assume the
responsibilities for the operation and maintenance of the road as either
a private road or as a public road, as determined to be appropriate by
the authorizing officer.
(e) When access is tributary to or dependent on forest development
roads, and traffic over these roads arising from the use of landowner's
lands exceeds their safe capacity or will cause damage to the roadway,
the landowner(s) may be required to obtain a road-use permit and to
perform such reconstruction as necessary to bring the road to a safe and
adequate standard to accommodate such traffic in addition to the
Government's traffic. In such case, the landowner(s) also shall enter
into a cooperative maintenance
[[Page 384]]
arrangement with the Forest Service to ensure that the landowner's
commensurate maintenance responsibilities are met or shall make
arrangements to have the jurisdiction and maintenance responsibility for
the road assumed by the appropriate public road authority.
(f) In addition to ensuring that applicable terms and conditions of
paragraphs (a) through (e) of this section are met, the authorizing
officer, prior to issuing any access authorization, must also ensure
that:
(1) The landowner has demonstrated a lack of any existing rights or
routes of access available by deed or under State or common law;
(2) The route is so located and constructed as to minimize adverse
impacts on soils, fish and wildlife, scenic, cultural, threatened and
endangered species, and other values of the Federal land;
(3) The location and method of access is as consistent as reasonably
possible with the management of any congressionally designated area and
is consistent with Forest Land and Resource Management Plans or the
plans are amended to accommodate the access grant, and;
(4) When access routes exist across the adjacent non-Federal lands
or the best route as determined by the authorizing officer is across
non-Federal lands, the applicant landowner has demonstrated that all
legal recourse to obtain reasonable access across adjacent non-Federal
lands has been exhausted or has little chance of success.
(g) In addition to the other requirements of this section, the
following factors shall be considered in authorizing access to non-
federally owned lands over National Forest System lands which are
components of the National Wilderness Preservation System:
(1) The use of means of ingress and egress which have been or are
being customarily used with respect to similarly situated non-Federal
land used for similar purposes;
(2) The combination of routes and modes of travel, including
nonmotorized modes, which will cause the least lasting impact on the
wilderness but, at the same time, will permit the reasonable use of the
non-federally owned land;
(3) The examination of a voluntary acquisition of land or interests
in land by exchange, purchase, or donation to modify or eliminate the
need to use wilderness areas for access purposes.
Subpart E_Revenue-Producing Visitor Services in Alaska
Authority: 16 U.S.C. 3197.
Source: 68 FR 35121, June 11, 2003, unless otherwise noted.
Sec. 251.120 Applicability and scope.
(a) These regulations implement section 1307 of the Alaska National
Interest Lands Conservation Act (ANILCA) (16 U.S.C. 3197) with regard to
the continuation of visitor services offered as of January 1, 1979, and
the granting of a preference to local residents and certain Native
Corporations to obtain special use authorizations for visitor services
provided on National Forest System lands within Conservation System
Units of the Tongass and Chugach National Forests in Alaska.
(b) Except as may be specifically provided in this subpart, the
regulations at subpart B shall apply to special use authorizations
issued under this subpart. However, if subpart B conflicts with subpart
E, subpart E controls.
(c) This subpart does not apply to the guiding of sport hunting and
fishing.
Sec. 251.121 Definitions.
In addition to the definitions in subpart B of this part, the
following terms apply to this subpart:
Best application--the application, as determined by the authorized
officer, that best meets the evaluation criteria contained in a
prospectus to solicit visitor services.
Conservation System Unit (CSU) as it relates to the Tongass and
Chugach National Forests in Alaska--a National Forest Monument or any
unit of the National Wild and Scenic Rivers System, National Trails
System, or National Wilderness Preservation System, including existing
units and any such unit established, designated, or expanded hereafter.
[[Page 385]]
Controlling interest--in the case of a corporation, an interest,
beneficial or otherwise, of sufficient outstanding voting securities or
capital of the business so as to permit the exercise of managerial
authority over the actions and operations of the corporation or election
of a majority of the board of directors of the corporation. In the case
of a partnership, limited partnership, joint venture, or individual
entrepreneurship, a beneficial ownership of or interest in the entity or
its capital so as to permit the exercise of managerial authority over
the actions and operations of the entity. In other circumstances, any
arrangement under which a third party has the ability to exercise
management authority over the actions or operations of the business.
Historical operator--a holder of a valid special use authorization
to provide visitor services in a CSU under Forest Service jurisdiction
who:
(1) On or before January 1, 1979, was lawfully and adequately
providing visitor services in that CSU;
(2) Has continued lawfully and adequately to provide the same or
similar types of visitor services within that CSU; and
(3) Is otherwise determined by the authorized officer to have a
right to continue to provide the same or similar visitor services.
Local area--any site within 100 miles of the location within a CSU
where any visitor services covered by a single solicitation by the
Forest Service are to be authorized.
Local resident:
(1) For individuals--Alaska residents who have lived within the
local area for 12 consecutive months prior to issuance of a solicitation
of applications for a visitor services authorization for a CSU; who
maintain their primary, permanent residence and business within the
local area; and who, whenever absent from this primary, permanent
residence, have the intention of returning to it.
(2) For corporations, partnerships, limited partnerships, joint
ventures, individual entrepreneurships, and other circumstances--where
the controlling interest is held by an individual or individuals who
qualify as local residents within the meaning of this section.
(3) For nonprofit entities--where a majority of the board members
and a majority of the officers qualify as local residents within the
meaning of this section.
Native Corporation has the same meaning as under section 102(6) of
ANILCA (16 U.S.C. 3197).
Preferred operator--a Native Corporation that is determined,
pursuant to Sec. 251.123, to be most directly affected by establishment
or expansion of a CSU; or a local resident, as defined in this section,
who competes for a visitor service special use authorization under
Sec. 251.124 of this subpart.
Responsive application--an application that is received in a timely
manner and that meets the requirements stated in the prospectus.
Visitor service--any service or activity for which persons who visit
a CSU pay a fee, commission, brokerage, or other compensation, including
such services as providing food, accommodations, transportation, tours,
and outfitting and guiding, except the guiding of sport hunting and
fishing.
Sec. 251.122 Historical operator special use authorizations.
(a) A historical operator has the right to continue to provide
visitor services under appropriate terms and conditions contained in a
special use authorization, as long as such services are determined by
the authorized officer to be consistent with the purposes for which the
CSU was established or expanded. A historical operator may not operate
without such an authorization.
(b) Any person who qualifies as a historical operator under this
subpart and who wishes to exercise the rights granted to historical
operators under section 1307(a) of ANILCA (16 U.S.C. 1397(a)) must
notify the authorized officer responsible for the CSU.
(c) A historical operator may apply for a special use authorization
to provide visitor services similar to but in lieu of those provided by
that historical operator before January 1, 1979. The authorized officer
shall grant the application if those visitor services are
[[Page 386]]
determined by the authorized officer to be:
(1) Consistent with the purposes for which the applicable CSU was
established or expanded;
(2) Similar in kind and scope to the visitor services provided by
the historical operator before January 1, 1979; and
(3) Consistent with the legal rights of any other person.
(d) Upon the authorized officer's determination that the person
qualifies as a historical operator, under either paragraph (a) or
paragraph (c) of this section, the authorized officer shall amend the
current special use authorization or issue a new special use
authorization to identify that portion of the authorized services that
is deemed to be historical operations. The special use authorization
shall identify the location, type, and frequency or volume of visitor
services to be provided.
(e) When a historical operator's special use authorization expires,
the authorized officer shall offer to reissue the special use
authorization for the same or similar visitor services, as long as the
visitor services remain consistent with the purposes for which the CSU
was established or expanded, the historical operator was lawfully and
adequately providing visitor services under the previous special use
authorization, and the historical operator continues to possess the
capability to provide the visitor services adequately.
(1) If the operator accepts the offer to reissue, the authorized
officer shall issue a new special use authorization that clearly
identifies the historical operations as required by paragraph (d) of
this section.
(2) If the authorized officer determines that it is necessary to
reduce the visitor services to be provided by a historical operator, the
authorized officer shall modify the historical operator's special use
authorization to reflect the reduced services as follows:
(i) If more than one historical operator provides services in the
area where visitor service capacity is to be reduced, the authorized
officer shall apportion the reduction among the historical operators,
taking into account historical operating levels and such other factors
as are relevant to achieve a proportionate reduction among the
operators.
(ii) If the reductions in visitor service capacity make it necessary
to reduce operators in an area, the authorized officer shall select,
through a competitive process that is limited to historical operators
only, the operator or operators to receive a special use authorization
from among the historical operators. Historical operators participating
in this competitive process may not claim a preference as a preferred
operator under Sec. 251.124.
(f) Any of the following shall result in the loss of historical
operator status:
(1) Revocation of a special use authorization for historical types
and levels of visitor services for failure to comply with the terms and
conditions of the special use authorization;
(2) A historical operator's refusal of an offer to reissue a special
use authorization made pursuant to paragraph (e) of this section;
(3) A change in the controlling interest of a historical operator
through sale, assignment, devise, transfer, or otherwise, except as
provided in paragraph (g) of this section; or
(4) An operator's failure to provide the authorized services for a
period of more than 24 consecutive months.
(g) A change in the controlling interest of a historical operator
that results only in the acquisition of the controlling interest by an
individual or individuals, who were personally engaged in the visitor
service activities of the historical operator before January 1, 1979,
shall not be deemed a change in the historical operator's controlling
interest for the purposes of this subpart.
(h) Nothing in this section shall prohibit the authorized officer
from authorizing persons other than historical operators to provide
visitor services in the same area, as long as historical operators
receive authorization to provide visitor services that are the same as
or similar to those they provided on or before January 1, 1979.
(i) If an authorized officer grants to a historical operator an
increase in the scope or level of visitor services from what was
provided on or before January 1, 1979, beyond what was authorized under
paragraph (d) of this section, for
[[Page 387]]
either the same or similar visitor services, the historical operator has
no right of preference for the increased amount of authorized services.
If additional operations are authorized, the special use authorization
shall explicitly state that they are not subject to the historical
operator preference.
Sec. 251.123 Most directly affected Native Corporation determination.
(a) Before issuance of the first special use authorization for a
specific CSU pursuant to Sec. 251.124 on or after the effective date of
this subpart, the authorized officer shall give notice to Native
Corporations interested in providing visitor services within the CSU and
give them an opportunity to submit an application to be considered the
Native Corporation most directly affected by the establishment or
expansion of the CSU under section 1307(b) of ANILCA (16 U.S.C.
1397(b)). In giving notice of the application procedure, the authorized
officer shall make clear that this is the only opportunity to apply for
most directly affected status for that particular CSU.
(1) At a minimum, an application from an interested Native
Corporation shall include the following:
(i) Name, address, and telephone number of the Native Corporation;
date of its incorporation; its articles of incorporation and structure;
and the name of the applicable CSU and the solicitation to which the
Native Corporation is responding;
(ii) Location of the Native Corporation's population centers; and
(iii) An assessment of the socioeconomic impacts (including changes
in historical and traditional use and landownership patterns) on the
Native Corporation resulting from establishment or expansion of the
applicable CSU.
(2) In addition to the minimum information required by paragraph
(a)(1) of this section, Native Corporations may submit such additional
information as they consider relevant.
(b) Upon receipt of all applications from interested Native
Corporations, the authorized officer shall determine the most directly
affected Native Corporation considering the following factors:
(1) Distance and accessibility from the Native Corporation's
population centers and/or business address to the applicable CSU;
(2) Socioeconomic impacts (including changes in historical and
traditional use and landownership patterns) on Native Corporations
resulting from establishment or expansion of the applicable CSU; and
(3) Information provided by Native Corporations and other
information considered relevant by the authorized officer to assessment
of the effects of establishment or expansion of the applicable CSU.
(c) In the event that two or more Native Corporations are determined
to be equally affected for purposes of the most directly affected Native
Corporation determination pursuant to this section, each such Native
Corporation shall be considered a preferred operator under this subpart.
(d) A Native Corporation determined to be most directly affected for
a CSU shall maintain that status for all future visitor service
solicitations for that CSU.
Sec. 251.124 Preferred operator competitive special use
authorization procedures.
(a) In selecting persons to provide visitor services for a CSU, the
authorized officer shall, if the number of visitor service
authorizations is to be limited, give a preference (subject to any
rights of historical operators under this subpart) to preferred
operators as defined in this subpart who are determined to be qualified
to provide such visitor services.
(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 2709.11,
chapter 40, 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.
[[Page 388]]
(c) To qualify as a preferred operator under this subpart, an
applicant responding to a solicitation made under this section must be
determined by the authorized officer to be a local resident as defined
in Sec. 251.121 of this subpart, or the Native Corporation most directly
affected by establishment or expansion of the CSU covered by the
solicitation pursuant to Sec. 251.123 of this subpart.
(d) Applicants seeking preferred operator status based on local
residency must provide documentation verifying their claim. Factors
demonstrating the location of an individual's primary, permanent
residence and business include, but are not limited to, the permanent
address indicated on licenses issued by the State of Alaska, tax
returns, and voter registration.
(e) An application from a preferred operator in the form of a
corporation, partnership, limited partnership, joint venture, individual
entrepreneurship, nonprofit entity, or other form of organization shall
be considered valid only when the application documents to the
satisfaction of the authorized officer that the preferred operator holds
the controlling interest in the corporation, partnership, limited
partnership, joint venture, individual entrepreneurship, nonprofit
entity, or other form of organization.
(f) A qualified preferred operator shall be given preference,
pursuant to paragraph (g) of this section, over all other applicants,
except with respect to use allocated to historical operators pursuant to
Sec. 251.122 of this subpart.
(g) If the best application from a preferred operator is at least
substantially equal to the best application from a non-preferred
operator, the preferred operator shall be issued the visitor service
authorization. If an application from an applicant other than a
preferred operator is determined to be the best application (and no
preferred operator submits a responsive application that is
substantially equal to it), the preferred operator who submitted the
best application from among the applications submitted by preferred
operators shall be given the opportunity, by amending its application,
to meet the terms and conditions of the best application received. If
the amended application of that preferred operator is considered by the
authorized officer to be at least substantially equal to the best
application, the preferred operator shall be issued the visitor service
authorization. If a preferred operator does not amend its application to
meet the terms and conditions of the best application, the authorized
officer shall issue the visitor service authorization to the applicant
who submitted the best application in response to the prospectus.
Sec. 251.125 Preferred operator privileges and limitations.
(a) A preferred operator has no preference within a National Forest
in Alaska beyond that authorized by section 1307 of ANILCA (16 U.S.C.
1397) and by Sec. 251.124 of this subpart.
(b) Local residents and most directly affected Native Corporations
have equal priority for consideration in providing visitor services
pursuant to Sec. 251.124 of this subpart.
(c) Nothing in this subpart shall prohibit the authorized officer
from issuing special use authorizations to other applicants within the
CSU, as long as the requirements of Sec. 251.124 are met.
(d) If an operator qualifies as a local resident for any part of an
area designated in the solicitation for a specific visitor service, in
matters related solely to that solicitation, the operator shall be
treated as a local resident for the entire area covered by that
solicitation.
(e) The preferences described in this section may not be sold,
assigned, transferred, or devised, either directly or indirectly, in
whole or in part.
Sec. 251.126 Appeals.
Decisions related to the issuance of special use authorizations in
response to written solicitations by the Forest Service under this
subpart or related to the modification of special use authorizations to
reflect historical use are subject to administrative appeal under 36 CFR
part 214.
[78 FR 33725, June 5, 2013]
[[Page 389]]
| File Type | application/vnd.openxmlformats-officedocument.wordprocessingml.document |
| Author | Sonneman, Jean E |
| File Modified | 0000-00-00 |
| File Created | 2021-01-21 |