[Federal Register Volume 88, Number 233 (Wednesday, December 6, 2023)]
[Rules and Regulations]
[Pages 84704-84710]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-26666]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Parts 212, 214, and 251

RIN 0596-AD54


Travel Management; Administration of the Forest Transportation 
System; Postdecisional Administrative Review Process for Occupancy or 
Use of National Forest System Lands and Resources; Land Uses; Special 
Uses

AGENCY: Forest Service, USDA.

ACTION: Final rule.

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SUMMARY: The United States Department of Agriculture, Forest Service 
(Forest Service or Agency) is making purely technical, clarifying 
revisions to its existing regulations governing administration of the 
forest transportation system, administrative appeal of certain written 
decisions pertaining to written authorizations for occupancy or use of 
National Forest System (NFS) lands and resources, and issuance and 
administration of special use authorizations for use and occupancy of 
NFS lands. The purely technical, clarifying revisions update citations 
and enhance consistency of the existing regulations with governing 
statutes.

DATES: This rule is effective December 6, 2023.

ADDRESSES: Information on this final rule may be obtained via written 
request addressed to the Director, Lands, Minerals, and Geology 
Management, USDA Forest Service, 201 14th Street NW, Washington, DC 
20250-1124 or by email to <a href="/cdn-cgi/l/email-protection#a8fbe586eefb86ffe7f7e4c9c6ccfbdcc9cecee8dddbccc986cfc7de"><span class="__cf_email__" data-cfemail="1d4e50335b4e334a5242517c73794e697c7b7b5d686e797c337a726b">[email protected]</span></a>.

FOR FURTHER INFORMATION CONTACT: Mark Chandler, Realty Specialist, 
(202) 205-1117 or <a href="/cdn-cgi/l/email-protection#d4b9b5a6bffab7bcb5bab0b8b1a694a1a7b0b5fab3bba2"><span class="__cf_email__" data-cfemail="cda0acbfa6e3aea5aca3a9a1a8bf8db8bea9ace3aaa2bb">[email protected]</span></a>. Individuals who use 
telecommunication devices for the hearing impaired may call the Federal 
Relay Service at (800) 877-8339 between 8:00 a.m. and 5:00 p.m., 
Eastern Time, Monday through Friday.

SUPPLEMENTARY INFORMATION: This final rule makes purely technical, 
clarifying revisions to the Agency's existing regulations at 36 CFR 
212.8, 214.4, 251.50, 251.51, 251.53, 251.54, 251.55, 251.57, 251.58, 
251.59, 251.60, 251.64, and 251.124 governing administration of the 
forest transportation system, administrative appeal of certain written 
decisions pertaining to written authorizations for occupancy or use of 
NFS lands and resources, and issuance and administration of special use 
authorizations for use and occupancy of NFS lands. The purely 
technical, clarifying revisions update citations and enhance 
consistency of the existing regulations with governing statutes. These 
purely technical, clarifying revisions do not formulate standards, 
criteria, or guidelines applicable to Forest Service programs and 
therefore do not require public notice and opportunity to comment under 
section 14(a) of the Forest and Rangeland Renewable Resources Planning 
Act of 1974 (16 U.S.C. 1612(a)).

36 CFR Part 212, Subpart A

    The Department is revising text in Sec.  212.8(d)(5)(i) to track 
revisions being made to Sec.  251.60(a)(2)(i) and to provide that a 
formal adjudicatory hearing is required for revocation for nonuse of an 
easement issued under the National Forest Roads and Trails Act (FRTA).

36 CFR Part 214

    The Department is revising Sec.  214.4(c)(1)(i) to provide that 
suspension or revocation of permits as well as easements issued under 
the Mineral Leasing Act (MLA) and revocation for nonuse of an easement 
issued under FRTA are not subject to administrative appeal under 36 CFR 
part 214. In contrast to the Federal Land Policy and Management Act 
(FLPMA) addressed in 36 CFR 251.53(l), the MLA addressed in 36 CFR 
251.53(e) requires a formal adjudicatory proceeding for suspension or 
revocation of permits as well as easements (30 U.S.C. 185(o)(1)(C)). 
Therefore, suspension or revocation of permits as well as easements 
issued under the MLA must be exempt from the informal administrative 
appeal process under 36 CFR part 214. FRTA provides for a formal 
hearing for revocation of an easement for nonuse (16 U.S.C. 534).

36 CFR Part 251, Subpart B

Sec.  251.50

    The Department is removing paragraph (c)(3) of Sec.  251.50, which 
requires a special use authorization for a noncommercial recreational 
activity if required by an order issued under 36 CFR part 261, subpart 
B, or by a regulation issued under 36 CFR part 261, subpart C. There is 
no basis for issuance of such an order under 36 CFR part 261, subpart 
B. Moreover, there is no need for issuance of such an order or 
regulation because the Forest Service has the authority to require a 
noncommercial special recreation permit under the Federal Lands 
Recreation Enhancement Act and its implementing directives in Forest 
Service Handbook (FSH) 2309.13, Chapter 30.

Sec.  251.51

    The Department is revising the definitions for ``outfitting'' and 
``guiding'' by replacing the phrase ``pecuniary remuneration'' with the 
word ``monetary.'' The revised language is more contemporary and easier 
to understand.

Sec.  251.53

    The Department is revising Sec.  251.53(a) by changing the phrase 
``group events'' to ``noncommercial group use'' and deleting the phrase 
``and distribution of noncommercial printed materials'' for 
authorizations issued under the Organic Administration Act (16 U.S.C. 
551). The term of art per the definitions for special uses in 36 CFR 
251.51 is ``noncommercial group use.'' The distribution of 
noncommercial printed materials does not require a special use 
authorization under 36 CFR 251.50(c).
    The Department is adding paragraph (o) to Sec.  251.53 to include 
the Forest Service's authority under section 111 of the National 
Historic Preservation Act of 1966 (54 U.S.C. 306121) to issue leases 
for Federally owned historic properties on NFS lands.

Sec.  251.54

    The Department is revising Sec.  251.54(d) through (g) to use 
appropriate terminology when referring to a proponent or a proposal and 
to enhance clarity.
    The Department is revising Sec.  251.54(e)(1)(iv), which precludes 
consideration of proposals for a permanent use and occupancy of NFS 
lands, to add an exception for permanent easements issued under FRTA 
(16 U.S.C. 533).
    The Department is revising Sec.  251.54(f)(1)(i) regarding who may 
apply for an oil or gas pipeline right-of-way authorization for greater 
consistency with the MLA (30 U.S.C. 181).
    The Department is revising Sec.  251.54(g)(3)(iii) to replace the 
citation to 36 CFR part 215 with a citation to 36 CFR part 218. The 
postdecisional administrative appeal process in 36 CFR part 215 has 
been replaced with the predecisional objection process in 36 CFR part 
218.

[[Page 84705]]

Sec.  251.55

    The Department is revising the second sentence of Sec.  251.55(a) 
to replace the word ``sublet'' with the word ``lease.'' The word 
``sublet'' is appropriate only when the issued authorization is a 
lease. Many special use authorizations are not leases. The Department 
is making other minor clarifications to the wording of Sec.  251.55(a).

Sec.  251.57

    The Department is changing the heading of Sec.  251.57 from 
``Rental fees'' to ``Land use fees.'' The term ``rent'' is associated 
with leases, and many special use authorizations are not leases.
    The Department is revising Sec.  251.57(a)(2), consistent with 
section 504(g) of FLPMA (43 U.S.C. 1764(g)), to authorize the Forest 
Service to require either annual land use fee payments or annual land 
use fee payments covering more than one year, regardless of the amount 
of the land use fee.
    The Department is revising Sec.  251.57(a)(3) by replacing the 
language from and citation to the Cabin User Fee Fairness Act with 
language from and citation to the Cabin Fee Act. The Cabin Fee Act (16 
U.S.C. 6214) has supplanted the Cabin User Fee Fairness Act (16 U.S.C. 
6201-6213) as the authority for land use fees for recreation residence 
permits.
    The Department is revising Sec.  251.57(b) governing land use fee 
waivers by adding text and removing the word ``or'' at the end of 
paragraphs (1) through (5) to clarify, consistent with Forest Service 
directives, that if a holder is ineligible for a land use fee waiver 
under one criterion, the holder is ineligible for a land use fee waiver 
under any of the other criteria.
    The Department is removing Sec.  251.57(i). Paragraph (i) of Sec.  
251.57 addresses implementation of the Cabin User Fee Fairness Act, 
which has been superseded by the Cabin Fee Act of 2014.

Sec.  251.58

    The Department is revising Sec.  251.58(d)(1) by replacing the 
phrase ``scheduled inspections'' with the phrase ``routine on-site 
reviews'' to distinguish between inspections, which are the holder's 
responsibility, and monitoring, which is the Forest Service's 
responsibility.
    The Department is revising Sec.  251.58(i)(1) by changing the first 
sentence from, ``The Forest Service shall maintain schedules for 
processing and monitoring fees in its directive system (36 CFR 
200.4),'' to ``The Forest Service shall maintain schedules for 
processing and monitoring fees on its website.'' It is more efficient 
to update a website than a directive, and other Forest Service land use 
fee schedules such as the communications use rental fee schedule are 
maintained on the Forest Service's website.

Sec.  251.59

    The Department is clarifying Sec.  251.59 by revising the first 
sentence, ``If the holder, through death, voluntary sale, transfer, or 
through enforcement of a valid legal proceeding or operation of law, 
ceases to be the owner of the authorized improvements, the 
authorization terminates upon change of ownership,'' to read, ``If the 
holder through death, voluntary sale, transfer, or enforcement of a 
valid legal proceeding or operation of law ceases to be the owner of 
the authorized improvements, the special use authorization terminates 
upon change of ownership and issuance of a new special use 
authorization to another party for the authorized use and occupancy.'' 
This revision clarifies that the existing holder is responsible for the 
authorized use and occupancy until a new authorization is issued. In 
addition, the Department is revising Sec.  251.59 to clarify that an 
application and new authorization are not necessary for leases and 
easements issued under the MLA, FRTA, or FLPMA and that assignments of 
leases and easements are subject to the terms of the applicable 
authorization.

Sec.  251.60

    In Sec.  251.60, the Department is revising paragraphs (a)(2)(i), 
(a)(2)(ii), and (c); removing paragraph (d); designating existing 
paragraphs (e) and (f) as paragraphs (d) and (e); revising existing 
paragraph (g) and redesignating it as paragraph (f); removing paragraph 
(h); and redesignating existing paragraph (i) as paragraph (g), as 
discussed below.
    The Department is revising paragraph (a)(2)(i) by removing the 
exception for permits and easements issued under the MLA and easements 
issued under FLPMA, adding an exception for authorizations issued under 
FRTA, and including separate bases for revocation and suspension for 
authorizations issued under FRTA. FLPMA and the MLA provide for 
revocation and suspension of land use authorizations issued under those 
statutes, but the current language in the regulations does not include 
any bases for revocation or suspension of authorizations issued under 
FLPMA or the MLA. FRTA provides for revocation only with the grantee's 
consent, by condemnation, or after a 5-year period of nonuse (16 U.S.C. 
534).
    The Department is revising paragraph (a)(2)(ii) to provide that 
suspension or revocation of permits as well as easements issued under 
the MLA and revocation for nonuse of easements issued under FRTA are 
not subject to appeal under 36 CFR part 214. In contrast to FLPMA, the 
MLA requires a formal adjudicatory proceeding for suspension or 
revocation of permits as well as easements. Therefore, suspension or 
revocation of permits as well as easements issued under the MLA must be 
exempt from the informal administrative appeal process under 36 CFR 
part 214. FRTA provides for a formal hearing for revocation of an 
easement for nonuse (16 U.S.C. 534).
    The Department is revising Sec.  251.60(c) by removing references 
to limiting and terminating a right-of-way authorization issued to a 
Federal entity. The reference to limiting a right-of-way is redundant, 
and the reference to terminating a right-of-way is incorrect. 
Termination of an authorization occurs by operation of law or by 
operation of a fixed or agreed-upon condition, event, or time as 
specified in an authorization, without any action of the authorized 
officer (36 CFR 251.51). The correct term is revocation, which occurs 
by action of the authorized officer (36 CFR 251.51). The Department is 
also revising Sec.  251.60(c) to state that a special use authorization 
issued to a Federal agency under 36 CFR 251.53(l) may be suspended or 
revoked only with the concurrence of the head of that Federal agency. 
Only authorizations issued to a Federal agency under FLPMA are subject 
to this restriction (43 U.S.C. 1767(b)). By statute, the consent must 
be from the agency head. The Department is also removing the word 
``termination'' because it is defined in the special use regulations to 
mean an action that occurs by operation of law or by operation of a 
fixed or agreed-upon condition, event, or time as specified an 
authorization, without any action of the authorized officer.
    The Department is removing Sec.  251.60(d), which provides for 
notice to and consultation with a Federal agency before suspending or 
revoking a special use authorization issued to that agency, as this 
provision is unnecessary. Preceding Sec.  251.60(c) provides that an 
authorization issued to a Federal entity under FLPMA may be suspended 
or revoked only with the Federal holder's consent. A Federal holder 
would not consent to suspension or revocation of an authorization 
issued under FLPMA without notice and consultation.

[[Page 84706]]

    The Department is revising and redesignating existing Sec.  
251.60(g) as Sec.  251.60(f) to clarify the requirements for a formal 
adjudicatory proceeding for revocation or suspension of an 
authorization consistent with FLPMA (43 U.S.C. 1766) and the MLA (30 
U.S.C. 185(o)(1)) and to require a formal adjudicatory proceeding for 
revocation for nonuse of an easement issued under FRTA (16 U.S.C. 534). 
The language in existing Sec.  251.60(g) is not entirely consistent 
with FLPMA and the MLA. FRTA provides for a formal hearing for 
revocation for nonuse of an easement upon request within 60 days of 
receipt of notice (16 U.S.C. 534).
    The Department is removing existing Sec.  251.60(h) in its entirety 
and including its contents in Sec.  251.60(a)(2)(i). The Department is 
redesignating existing Sec.  251.60(i) as Sec.  251.60(g).

Sec.  251.64

    The Department is revising the title and text of Sec.  251.64 to 
track statutes governing issuance of special use authorizations and 
special use authorization forms approved by the Office of Management 
and Budget, which provide for reauthorization of the use and occupancy, 
not renewal of the authorization, and which require reauthorization of 
the use and occupancy, subject to conditions, only for authorizations 
issued under the MLA (43 U.S.C. 185(n)) and priority use outfitting and 
guiding permits (FSH 2709.14, Ch. 50, sec. 53.1m, para. 4). Only 
permits and easements issued under these authorities require 
reauthorization of the use and occupancy, subject to specified 
conditions. Reauthorization of any other type of use and occupancy is 
at the sole discretion of the authorized officer.

36 CFR Part 251, Subpart E

Sec.  251.124

    The Department is updating the citation in the second sentence of 
Sec.  251.124(b) by replacing ``Forest Service Handbook 2709.11, 
chapter 40,'' with ``Forest Service Handbook 2709.14, Chapter 50.''

Regulatory Certifications

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Consistent with Executive Order (E.O.) 12866, the Office of 
Information and Regulatory Affairs (OIRA) in the Office of Management 
and Budget will determine whether proposed, interim, and final rules 
that impose, eliminate, or modify requirements on non-Forest Service 
parties are significant and will review any proposed, interim, or final 
rules that OIRA has designated as significant. This final rule does not 
impose, eliminate, or modify requirements on non-Forest Service parties 
and therefore does not require a significance determination by OIRA. 
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for 
improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The Department has developed this final rule consistent with E.O. 
13563.

Congressional Review Act

    Since this final rule does not impose, eliminate, or modify 
requirements on non-Forest Service parties, it is not a major rule as 
defined by the Small Business Regulatory Enforcement Fairness Act of 
1996 (known as the Congressional Review Act, 5 U.S.C. 804(2)).

National Environmental Policy Act

    This final rule will make only technical, clarifying revisions to 
existing Forest Service regulations at 36 CFR part 212, subpart A, part 
214, and part 251, subparts B and E. Forest Service regulations at 36 
CFR 220.6(d)(2) (73 FR 43093) exclude from documentation in an 
environmental assessment or environmental impact statement ``rules, 
regulations, or policies to establish service-wide administrative 
procedures, program processes, or instructions.'' The Department has 
concluded that this final rule falls within this category of actions 
and that no extraordinary circumstances exist which would require 
preparation of an environmental assessment or environmental impact 
statement.

Regulatory Flexibility Act Analysis

    The Department has considered this final rule under the 
requirements of the Regulatory Flexibility Act (5 U.S.C. 602 et seq.). 
This final rule will not have any direct effect on small entities as 
defined by the Regulatory Flexibility Act. The final rule will not 
impose recordkeeping requirements on small entities; will not affect 
their competitive position in relation to large entities; and will not 
affect their cash flow, liquidity, or ability to remain in the market. 
Therefore, the Department has determined that this final rule will not 
have a significant economic impact on a substantial number of small 
entities pursuant to the Regulatory Flexibility Act.

Federalism

    The Department has considered this final rule under the 
requirements of E.O. 13132, Federalism. The Department has determined 
that the final rule conforms with the federalism principles set out in 
this E.O.; will not impose any compliance costs on the states; and will 
not have substantial direct effects on the states, on the relationship 
between the Federal Government and the states, or on the distribution 
of power and responsibilities among the various levels of government. 
Therefore, the Department has concluded that the final rule does not 
have federalism implications.

Consultation With Tribal Governments

    The Department has reviewed this final rule in accordance with the 
requirements of E.O. 13175, Consultation and Coordination with Indian 
Tribal Governments. The Department has determined that national Tribal 
consultation is not necessary for the final rule. The final rule, which 
will make only technical, clarifying revisions to existing Forest 
Service regulations in 36 CFR part 212, subpart A, part 214, and part 
251, subparts B and E, does not impose, eliminate, or modify 
requirements on non-Forest Service parties and therefore does not have 
any direct effects on Tribes.

Environmental Justice

    The Department has considered the final rule under the requirements 
of E.O. 12898, Federal Actions to Address Environmental Justice in 
Minority Populations and Low-Income Populations. The final rule, which 
will make only technical, clarifying revisions to existing Forest 
Service regulations in 36 CFR part 212, subpart A, part 214, and part 
251, subparts B and E, does not impose, eliminate, or modify 
requirements on non-Forest Service parties and therefore will not 
result in disproportionately high and adverse impacts on minority or 
low-income populations or the exclusion of minority and low-income 
populations from meaningful involvement in decision making.

No Takings Implications

    The Department has analyzed the final rule in accordance with the 
principles and criteria in E.O. 12630, Governmental Actions and 
Interference with Constitutionally Protected Property Rights. The 
Department has determined that the final rule will not pose the risk of 
a taking of private property.

[[Page 84707]]

Energy Effects

    The Department has reviewed the final rule under E.O. 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. The Department has determined that the final rule 
will not constitute a significant energy action as defined in E.O. 
13211, and OIRA has not otherwise designated the final rule as a 
significant energy action.

Civil Justice Reform

    The Department has analyzed the final rule in accordance with the 
principles and criteria in E.O. 12988, Civil Justice Reform. Upon 
issuance of the final rule, (1) all state and local laws and 
regulations that conflict with the final rule or that impede its full 
implementation will be preempted, (2) no retroactive effect will be 
given to this final rule, and (3) it will not require administrative 
proceedings before parties may file suit in court challenging its 
provisions.

Unfunded Mandates

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), signed into law on March 22, 1995, the Department 
has assessed the effects of the final rule on state, local, and Tribal 
governments, and the private sector. The final rule will not compel the 
expenditure of $100 million or more by any state, local, or Tribal 
government or anyone in the private sector. Therefore, a statement 
under section 202 of the Act is not required.

Controlling Paperwork Burdens on the Public

    The final rule does not contain information collection requirements 
as defined in 5 CFR part 1320 that are not already required by law or 
not already approved for use. Accordingly, the review provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its 
implementing regulations at 5 CFR part 1320 do not apply.

List of Subjects

36 CFR Part 212

    Highways and roads, National forests, Public lands-rights-of-way, 
Transportation.

36 CFR Part 214

    Administrative practice and procedure, National forests.

36 CFR Part 251

    Administrative practice and procedure, Alaska, Electric power, 
Mineral resources, National forests, Public lands-rights-of-way, 
Reporting and recordkeeping requirements, Water resources.

    Therefore, for the reasons set forth in the preamble, the 
Department is amending chapter II of title 36 of the Code of Federal 
Regulations as follows:

PART 212--TRAVEL MANAGEMENT

Subpart A--Administration of the Forest Transportation System

0
1. The authority citation for part 212, subpart A, continues to read as 
follows:

    Authority:  16 U.S.C. 551, 23 U.S.C. 205.


0
2. Amend Sec.  212.8 by revising paragraph (d)(5) to read as follows:


Sec.  212.8   Permission to cross lands and easements owned by the 
United States and administered by the Forest Service.

* * * * *
    (d) * * *
    (5)(i) The Chief may revoke an easement granted under 36 CFR 
251.53(j):
    (A) With the grantee's consent;
    (B) By condemnation; or
    (C) After a 5-year period of nonuse by the grantee.
    (ii) Before revocation of an easement granted under 36 CFR 
251.53(j) for nonuse, a formal adjudicatory proceeding must be 
conducted pursuant to 7 CFR part 1, subpart H, provided the grantee 
requests the hearing within 60 days of receipt of the notice of 
revocation.

PART 214--POSTDECISIONAL ADMINISTRATIVE REVIEW PROCESS FOR 
OCCUPANCY OR USE OF NATIONAL FOREST SYSTEM LANDS AND RESOURCES

0
3. The authority citation for part 214 continues to read as follows:

    Authority:  7 U.S.C. 1011(f); 16 U.S.C. 472, 551.


0
4. Amend Sec.  214.4 by revising paragraph (c)(1)(i) to read as 
follows:


Sec.  214.4   Decisions that are appealable.

* * * * *
    (c) * * *
    (1) * * *
    (i) A special use authorization issued under 36 CFR part 251, 
subpart B or D, other than modification, suspension, or revocation of a 
noncommercial group use permit; suspension or revocation of a permit or 
easement issued under 36 CFR 251.53(e); suspension or revocation of an 
easement issued under 36 CFR 251.53(l); revocation for nonuse of an 
easement issued under 36 CFR 251.53(j); or revocation of a special use 
authorization with the consent of the holder.
* * * * *

PART 251--LAND USES

Subpart B--Special Uses

0
5. The authority citation for part 251, subpart B, continues to read as 
follows:

    Authority:  16 U.S.C. 460l-6a, 460l-6d, 472, 497b, 497c, 551, 
580d, 1134, 3210; 30 U.S.C. 185; 43 U.S.C. 1740, 1761-1772.


Sec.  251.50   [Amended]

0
6. Amend Sec.  251.50 by removing paragraph (c)(3).

0
7. Amend Sec.  251.51 by revising the definitions for ``Guiding'' and 
``Outfitting'' to read as follows:


Sec.  251.51   Definitions.

* * * * *
    Guiding--providing services or assistance (such as supervision, 
protection, education, training, packing, touring, subsistence, 
transporting people, or interpretation) for monetary or other gain to 
individuals or groups on National Forest System lands.
* * * * *
    Outfitting--renting on or delivering to National Forest System 
lands for monetary or other gain any saddle or pack animal, vehicle, 
boat, camping gear, or similar supplies or equipment.
* * * * *

0
8. Amend Sec.  251.53 by revising paragraph (a) and adding paragraph 
(o) to read as follows:


Sec.  251.53   Authorities.

* * * * *
    (a) Permits governing occupancy and use, including noncommercial 
group use, under the act of June 4, 1897 (16 U.S.C. 551);
* * * * *
    (o) Leases governing occupancy and use of Federally owned historic 
properties under section 111 of the National Historic Preservation Act 
of 1966 (54 U.S.C. 306121).

0
9. Amend Sec.  251.54 by revising paragraphs (d)(2)(i) introductory 
text, (e)(1)(iv), (f)(1) introductory text, (f)(1)(i), (g)(1), and 
(g)(3)(iii) to read as follows:


Sec.  251.54   Proposal and application requirements and procedures.

* * * * *
    (d) * * *
    (2) Required information--(i) Noncommercial group uses. Paragraphs 
(d)(3) through (5) of this section do not apply to proposed 
noncommercial group uses. A proponent for a

[[Page 84708]]

noncommercial group use shall provide the following:
* * * * *
    (e) * * *
    (1) * * *
    (iv) Except for permanent easements issued under Sec.  251.53(j), 
the proposed use will not create an exclusive or perpetual right of use 
or occupancy.
* * * * *
    (f) * * *
    (1) Oil and gas pipeline rights-of-way. An individual proposing an 
oil or gas pipeline right-of-way must be a United States citizen and 
must provide proof of United States citizenship. An entity proposing an 
oil or gas pipeline right-of-way must be established, and must provide 
documentation that the entity was established, under the laws of the 
United States, a state or territory of the United States, or in the 
case of coal, oil, shale, or gas, a municipality of the United States.
    (i) Citizens of another country, the laws, customs, or regulations 
of which deny similar or like privileges to citizens or corporations of 
the United States, shall not by stock ownership, stock holding, or 
stock control own an appreciable interest in any oil or gas pipeline 
right-of-way or associated special use authorization; and
* * * * *
    (g) * * *
    (1) Acceptance of applications. Except for proposed noncommercial 
group uses, if a proposed use does not meet both the initial and 
second-level screening criteria in paragraph (e) of this section, the 
authorized officer shall reject the proposal. The authorized officer 
shall notify the proponent in writing of the rejection and the reasons 
for the rejection. If a proposed use meets both the initial and second-
level screening criteria in paragraph (e) of this section, the 
authorized officer shall notify the proponent that the proponent may 
submit a written application for evaluation under this paragraph. The 
authorized officer shall, as appropriate or necessary, provide the 
proponent guidance and information of the type described in paragraphs 
(e)(3)(i) through (viii) of this section.
* * * * *
    (3) * * *
    (iii) If an authorized officer denies an application because it 
does not meet the criteria in paragraphs (g)(3)(ii)(A) through (H) of 
this section, the authorized officer shall notify the applicant in 
writing of the reasons for the denial. If an alternative time, place, 
or manner will allow the applicant to meet the eight evaluation 
criteria, an authorized officer shall offer that alternative. If an 
application is denied solely under paragraph (g)(3)(ii)(C) of this 
section and all alternatives suggested are unacceptable to the 
applicant, the authorized officer shall offer to have completed the 
requisite environmental and other analyses for the requested site. An 
environmental assessment or an environmental impact statement prepared 
for the requested site is subject to the predecisional objection 
procedures at 36 CFR part 218. Notwithstanding the timing provisions 
set forth in 36 CFR 218.12, a decision to grant or deny an application 
for which an environmental assessment or an environmental impact 
statement is prepared for the requested site shall be made within 48 
hours after the time for filing an objection expires or, if an 
objection is filed, the objection process is completed. A denial of an 
application in paragraphs (g)(3)(ii)(A) through (H) of this section 
constitutes final agency action, is not subject to administrative 
appeal, and is immediately subject to judicial review.
* * * * *

0
10. Amend Sec.  251.55 by revising paragraph (a) to read as follows:


Sec.  251.55   Nature of interest.

    (a) A holder is authorized to use and occupy only the land and 
structures and conduct only the activities specified in the holder's 
special use authorization. The holder may lease the authorized 
facilities and improvements to other parties only with the prior 
written approval of the authorized officer. The holder shall remain 
responsible for compliance of facilities and improvements leased to 
other parties with all the terms of the holder's special use 
authorization.
* * * * *

0
11. Amend Sec.  251.57 by revising the section heading and paragraphs 
(a)(2) and (3), (b), and (h) and removing paragraph (i).
    The revisions read as follows:


Sec.  251.57   Land use fees.

    (a) * * *
    (2) The authorized officer may require either an annual land use 
fee payment or a land use fee payment covering more than one year, 
provided a holder that is a private individual (rather than a 
commercial or other entity) and that has an annual land use fee of more 
than $100 may elect to make either an annual land use fee payment or a 
land use fee payment covering more than one year.
    (3) The annual land use fee for a recreation residence permit shall 
be assessed in accordance with the tiered land use fee structure and 
inflation adjustment specified in the Cabin Fee Act (16 U.S.C. 6214).
    (b) All or part of the land use fee may be waived by the authorized 
officer, when equitable and in the public interest, for the use and 
occupancy of National Forest System lands when one of the following 
criteria is met. If an applicant or a holder is ineligible for a land 
use fee waiver under one criterion in this paragraph, the applicant or 
holder is ineligible for a land use fee waiver under any other criteria 
in this paragraph:
    (1) The holder is a State or local government or any agency or 
instrumentality thereof, excluding municipal utilities and cooperatives 
whose principal source of revenue from the authorized use is customer 
charges;
    (2) The holder is a nonprofit association or nonprofit corporation, 
which is not controlled or owned by profit-making corporations or 
business enterprises, and which is engaged in public or semi-public 
activity to further public health, safety, or welfare, except that free 
use will not be authorized when funds derived by the holder through the 
authorization are used to increase the value of the authorized 
improvements owned by the holder or are used to support other 
activities of the holder;
    (3) The holder provides without charge, or at reduced charge, a 
valuable benefit to the public or to the programs of the Secretary;
    (4) When the land use fee is included in the land use fee for an 
authorized use or occupancy for which the United States is already 
receiving compensation;
    (5) When a right-of-way is authorized in reciprocation for a right-
of-way conveyed to the United States; or
    (6) For rights-of-way involving cost-share roads or reciprocal 
right-of-way agreements.
* * * * *
    (h) Each ski area permit issued under the National Forest Ski Area 
Permit Act shall include a clause that provides that the Forest Service 
may adjust and calculate future land use fees to reflect Forest Service 
revisions to the existing system for determining land use fees based on 
fair market value or to comply with any new system for determining land 
use fees based on fair market value that may be adopted after issuance 
of the permit.

0
12. Amend Sec.  251.58 by revising paragraphs (d)(1) and (i)(1) to read 
as follows:


Sec.  251.58   Cost recovery.

* * * * *

[[Page 84709]]

    (d) * * *
    (1) Basis for monitoring fees. Monitoring is defined at Sec.  
251.51. For monitoring fees in minor categories 1 through 4, 
authorization holders are assessed fees based upon the estimated time 
needed for Forest Service monitoring to ensure compliance with the 
authorization during the construction or reconstruction of temporary or 
permanent facilities and rehabilitation of the construction or 
reconstruction site. Major category 5 and category 6 monitoring fees 
shall be based upon the agency's estimated costs to ensure compliance 
with the authorization during all phases of its term, including but not 
limited to monitoring to ensure compliance with the authorization 
during the construction or reconstruction of temporary or permanent 
facilities and rehabilitation of the construction or reconstruction 
site. Monitoring for all categories does not include billings, 
maintenance of case files, annual performance evaluations, or routine 
on-site reviews to determine compliance generally with the terms of an 
authorization.
* * * * *
    (i) * * *
    (1) The Forest Service shall maintain schedules for processing and 
monitoring fees on its website. The rates in the schedules shall be 
updated annually by using the annual rate of change, second quarter to 
second quarter, in the Implicit Price Deflator-Gross Domestic Product 
(IPD-GDP) index. The Forest Service shall round the changes in the 
rates either up or down to the nearest dollar.
* * * * *

0
13. Revise Sec.  251.59 to read as follows:


Sec.  251.59   Transfer of authorized improvements.

    If the holder through death, voluntary sale, transfer, or 
enforcement of a valid legal proceeding or operation of law ceases to 
be the owner of the authorized improvements, the special use 
authorization terminates upon change of ownership and issuance of a new 
special use authorization to another party for the authorized use and 
occupancy. Except for leases and easements issued under Sec.  
251.53(e), (j), and (l) that are assignable in accordance with their 
terms, the new owner of the authorized improvements must apply for and 
receive a new special use authorization. The new owner must meet 
requirements under applicable regulations of this subpart and agree to 
comply with the terms of the authorization and any new terms warranted 
by existing or prospective circumstances. Assignment of leases and 
easements must comply with all terms governing their assignment.
* * * * *

0
14. Amend Sec.  251.60 by:
0
a. Revising paragraphs (a)(2)(i) and (ii) and (c);
0
b. Removing paragraph (d);
0
c. Redesignating paragraphs (e) and (f) as paragraphs (d) and (e);
0
d. Redesignating paragraph (g) as paragraph (f) and revising it;
0
e. Removing paragraph (h); and
0
f. Redesignating paragraph (i) as paragraph (g).
    The revisions read as follows:


Sec.  251.60   Termination, revocation, and suspension.

    (a) * * *
    (2) * * *
    (i) Revocation or suspension. An authorized officer may revoke or 
suspend a special use authorization for all other special uses, except 
aneasement issued underSec.  251.53(j):
    (A) For noncompliance with applicable statutes, regulations, or the 
terms and conditions of the authorization;
    (B) For failure of the holder to exercise the rights or privileges 
granted;
    (C) With the consent of the holder; or
    (D) At the discretion of the authorized officer for specific and 
compelling reasons in the public interest. The Chief may revoke an 
easement issued under Sec.  251.53(j) with the consent of the holder; 
by condemnation; or upon abandonment after a 5-year period of nonuse by 
the holder.
    (ii) Administrative review. Except for revocation or suspension of 
a permit or easement issued under Sec.  251.53(e), revocation or 
suspension of an easement issued under Sec.  251.53(l), and revocation 
for nonuse of an easement issued under Sec.  251.53(j), revocation or 
suspension of a special use authorization under this paragraph is 
subject to appeal pursuant to 36 CFR part 214.
* * * * *
    (c) A special use authorization issued to a Federal agency under 
Sec.  251.53(l) may be suspended or revoked only with the consent of 
the head of that Federal agency.
* * * * *
    (f) Before suspension or revocation of permits and easements issued 
under Sec.  251.53(e) and suspension or revocation of easements issued 
under Sec.  251.53(l), a formal adjudicatory proceeding must be 
conducted pursuant to 7 CFR part 1, subpart H, as amended, and the 
authorized officer must determine, based on the proceeding, that 
grounds for revocation or suspension exist and that revocation or 
suspension is justified. Before revocation of easements issued under 
Sec.  251.53(j) for nonuse, a formal adjudicatory proceeding must be 
conducted pursuant to 7 CFR part 1, subpart H, provided the holder 
requests the hearing within 60 days of receipt of the notice of 
revocation.
* * * * *

0
15. Revise Sec.  251.64 to read as follows:


Sec.  251.64   Reauthorization of existing uses.

    (a) Upon expiration of a permit or easement issued under Sec.  
251.53(e), a powerline facility permit issued to a federal entity or a 
powerline facility easement issued under Sec.  251.53(l)(4), or a 
private road easement or a forest road easement issued under Sec.  
251.53(l)(6), the authorized officer shall issue a new special use 
authorization for the authorized use and occupancy, provided the use 
and occupancy authorized by the existing authorization are consistent 
with the applicable land management plan and applicable laws and 
regulations; the authorized activities and improvements are still being 
conducted or used for the purposes previously authorized; and the 
holder is in compliance with all the terms of the existing 
authorization.
    (b) A priority use outfitting and guiding permit is subject to 
renewal without competition as provided in accordance with applicable 
Forest Service directives.
    (c) Issuance of a new special use authorization upon expiration of 
any other type of special use authorization is at the sole discretion 
of the authorized officer, subject to the same conditions in paragraph 
(a) of this section.
    (d) In reauthorizing existing uses under paragraph (a), (b), or (c) 
of this section, the authorized officer may modify the terms of the 
authorization to reflect any new requirements imposed by current 
Federal and State land use plans, laws, regulations, or other 
management decisions. Appropriate environmental analysis must accompany 
the decision to reauthorize the special use.

Subpart E--Revenue-Producing Visitor Services in Alaska

0
16. The authority citation for part 251, subpart E, continues to read 
as follows:

    Authority:  16 U.S.C. 3197.


0
17. Amend Sec.  251.124 by revising paragraph (b) to read as follows:


Sec.  251.124   Preferred operator competitive special use 
authorization procedures.

* * * * *

[[Page 84710]]

    (b) In such circumstances, the authorized officer shall solicit 
applications competitively by issuing a prospectus for persons to apply 
for a visitor services authorization. Notwithstanding Forest Service 
outfitting and guiding policy in Forest Service Handbook 2709.14, 
Chapter 50, when authorizations, including priority use permits for 
activities other than sport hunting and fishing, expire in accordance 
with their terms, they shall not be reissued if there is a need to 
limit use and when there is competitive interest by preferred 
operators.
* * * * *

Homer Wilkes,
Under Secretary, Natural Resources and Environment.
[FR Doc. 2023-26666 Filed 12-5-23; 8:45 am]
BILLING CODE 3411-15-P


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