November 7, 1995
FSH 1909.15 (57 Fed. Reg. 43194) (emphasis added). Section 11 of the Handbook states:
FSH 1909.15 (57 Fed. Reg. 43194) (emphasis added)
The authorized officer must make every reasonable effort to complete the requisite analysis within the time frame set out in the regulations. As stated above, preconsideration of sites would greatly aid in evaluating applications within the time frame Specified in the rule. It should be noted that the standard in the rule for a categorical exclusion is not whether the environmentally sensitive resources or Lands identified in FSH 1909.15, chapter 30, exist, but whether the proposed activity materially impacts the characteristics or functions of those resources or lands. See 36 CFR. If there is no material impact, the proposed use may be categorically excluded.
Once the analysis has been done, if extraordinary circumstances have been determined to exist and the applicant has rejected offered alternatives, the authorized officer may notify the applicant that additional time will be necessary to Perform the requisite analysis on the requested site and that the determination resulting from that analysis is subject to appeal.
Denial under any of the eight criteria, including the criterion on extraordinary circumstances, must be documented and supported by specific facts.
After an application has been granted or deemed granted and a permit has been issued, if the agency receives new information that would justify denial of an application under any of the evaluation criteria in the rule, the authorized officer may revoke the permit. See 36 CFR 251.60(a)(l)(i)(A) There must be a factual basis for revocation, and the revocation must be documented. Consider consulting with the Office of the General Counsel before revoking a permit for noncommercial group Use under these circumstances Revocation is a serious measure that should not substitute for pre-permit evaluation.
Clock hours. For example, if an application is submitted at 4:00 p.m. on Friday afternoon, the 48-hour period will expire at 4:00 p.m. on Sunday afternoon. If the agency does not respond within that period, the application is deemed granted.
However, granting the application is separate from issuing the permit. While the application must be granted or denied or else deemed granted within 48 hours, the permit does not necessarily have to be issued within that time frame. Once an application has been granted or deemed granted, a permit must be issued, but if the application has been submitted sufficiently in advance of the proposed activity, the agency will have the opportunity to negotiate the terms and conditions of the operating plan with the applicant before the permit is issued.
The application form for the rule, FS-2700-3b, has cleared the Office of Management and Budget and is now available electronically.
Some groups may not be able to afford certain equipment such as portable toilets. Requiring them when other measures could accomplish agency objectives could be viewed as establishing unconstitutional conditions on approval of the use. Courts could view this approach as placing a price tag on expression and hold that the permit system as applied is an unconstitutional prior restraint. See question 8 on recovery of costs associated with NEPA compliance and question 37 on fees, bonding, and insurance.
In addition, it should be noted that on the videotape for the rule it was stated that the agency will provide sanitation facilities for noncommercial group uses. what was intended was that the agency may require sanitation facilities for group uses, consistent with the above.
However, groups should not be held accountable for unrelated and uninvited outsiders who are attracted to an activity. See 60 Fed. Reg. 45270 (discussing why the phrase "and/or attracts" was deleted from the definition for group use). Therefore, if a group under 75 grows to 75 or more because people stop to watch the activity, a permit is not required.
For example, if a business rents equipment on private land and provides maps of recommended routes on National Forest System lands, the business would not require a commercial use permit because the activity is not conducted on National Forest System lands. A permit would be required if the business rented equipment on private land and provided guiding services on National Forest System lands or delivery or pickup of equipment at sites on National Forest System lands. See FSH 2709.11, sec. 41.53d, para. 2, for when outfitting and guiding permits are required.
If a commercial promoter organizes an event to be held on National Forest System lands and sells an event package as a prerequisite to participation in the event that includes a route guide and other logistical information, a commercial use permit would be required, even if the event package is sold off the National Forest System. The activity will be conducted on National Forest System lands, and selling the event package in this scenario is equivalent to charging an entry or participation fee. If purchasing the package is not a prerequisite to participation and no entry or participation fee is charged, a commercial use permit would not be required.
Conforming amendments to the FSM and Forest Service Handbook (FSH) will be made as soon as practicable. Changes that will probably be made include:
Other changes may be made after we have a better sense of what aspects of the rule need additional direction. In the meantime, rely on The rule, questions and answers, and other material provided in the communication plan.
The Department's response indicated that the rule is intended to apply to noncommercial groups of 75 or more that camp in the same area, even if they camp far apart from each other. The burden is on the government to establish that a group of 75 or more has gathered at a site. Document the count and the rationale used in performing it Attempt to identify group leader(e) and other signs that the people at the site have gathered as a group. For example, if there is a common kitchen or campfire or if people are observed going from one campsite to another, it is more likely that the people have gathered at the site as a group.
The videotape explains in detail the recommended procedure for enforcing the rule in this situation. It is recommended that a violation notice be issued for a mandatory appearance before the local U.S. Magistrate Judge with jurisdiction. The citing officer should explain to the leader(s) that unless they and their group leave the area within 72 hours after the violation notice is issued, they will be subject to arrest. The leader(s)' failure to disperse after a violation notice has been issued and 72 hours have elapsed constitutes a continuing criminal offense that would support a custodial arrest. If arrests are made, consult with the local Office of the General Counsel (OGC) to determine the best way to proceed with the criminal case. If the group still has not dispersed after the leader(s) have been arrested, again consult with the local OGC, which will work with the Department of Justice (DOJ) to devise an appropriate strategy.