Bureau of Land Management, Interior.
This proposed rule would update the regulations of the Bureau of Land Management (BLM) that tell how to obtain recreation permits for commercial recreational operations, competitive events and activities, organized group activities and events, and individual recreational use of special areas. It would establish a new system for determining costs for reimbursement to BLM, helping to ensure a fair return to the public for special uses of the public lands. It would add new regulations on how to obtain Recreation Use Permits for fee areas, such as campgrounds, certain day use areas, and recreation-related services.
The BLM also intends the rule to meet the policy goal of reorganizing the regulations in a more systematic way. The proposal would relocate the regulations to the subchapter dealing with other land use authorizations, reorganize them into an order that flows more logically, and simplify the language.
The proposed rule is needed for several reasons. First, it is needed to emphasize and highlight the cost recovery requirements for issuing recreation permits. Second, it is necessary to update BLM regulations to reflect changes over the last 15 years in recreational activities and large-scale events. Third, it is needed to provide guidance and standards for use of developed recreation sites.
You should submit your comments by July 17, 2000. BLM will not necessarily consider comments postmarked or received by messenger or electronic mail after the above date in the decisionmaking process on the proposed rule.
Mail: Director (630), Bureau of Land Management, Administrative Record, Room 401 LS, 1849 C Street, NW, Washington, DC 20240.
Personal or messenger delivery: Room 401, 1620 L Street, NW, Washington, DC 20036.
Internet e-mail: WOComment@blm.gov. (Include “Attn: AD25”.)Start Further Info
FOR FURTHER INFORMATION CONTACT:
Lee Larson at (202) 452-5168 as to the substance of the proposed rule, or Ted Hudson at (202) 452-5042 as to procedural matters. Persons who use a telecommunications device for the deaf (TDD) may contact either individual by calling the Federal Information Relay Service (FIRS) at (800) 877-8339, 24 hours a day, 7 days a week.End Further Info End Preamble Start Supplemental Information
I. Public Comment Procedures
III. Discussion of Proposed Rule
IV. Procedural Matters
I. Public Comment Procedures
A. How Do I Comment on the Proposed Rule?
If you wish to comment, you may submit your comments by any one of several methods.
- You may mail comments to Director (630), Bureau of Land Management, Administrative Record, Room 401 LS, 1849 C Street, NW, Washington, DC 20240.
- You may deliver comments to Room 401, 1620 L Street, NW, Washington, DC 20036.
- You may also comment via the Internet to WOComment@blm.gov. Please submit Internet comments as an ASCII file avoiding the use of special characters and any form of encryption. Please also include “Attn: AD25” and your name and return address in your Internet message. If you do not receive a confirmation that we have received your Internet message, contact us directly at (202) 452-5030.
Please make your comments on the proposed rule as specific as possible, confine them to issues pertinent to the proposed rule, and explain the reason for any changes you recommend. Where possible, your comments should reference the specific section or paragraph of the proposal that you are addressing.
BLM may not necessarily consider or include in the Administrative Record for the final rule comments that BLM receives after the close of the comment period (see DATES) or comments delivered to an address other than those listed above (see ADDRESSES).
B. May I Review Comments Submitted by Others?
Comments, including names and street addresses of respondents, will be available for public review at the address listed under ADDRESSES: Personal or messenger delivery during regular business hours (7:45 a.m. to 4:15 p.m.), Monday through Friday, except holidays.
Individual respondents may request confidentiality, which we will honor to the extent allowable by law. If you wish to withhold your name or address, except for the city or town, you must state this prominently at the beginning of your comment. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.
BLM published the regulations at 43 CFR part 8370 on September 12, 1978 (43 FR 40738). These regulations covered only Special Recreation Permits for use of lands other than developed recreation sites. BLM has reserved a separate subpart 8371 on use of fee areas and developed sites at least since 1978. BLM amended subpart 8372 on August 29, 1984 (49 FR 34337), by defining “actual expenses,” by revising the section on “Enforcement,” by adding a section on exceptions to the Special Recreation Permit requirements, and by revising the section on “Fees.” They were amended again on March 31, 1988 (53 FR 10394), by adding a section on “Appeals” that allows appeals but places decisions in full force and effect pending appeal unless the Secretary of the Interior decides otherwise.
The regulations are in need of updating to reflect changes over the last 15 years in recreational activities and large-scale events, and to strengthen and clarify the provisions on cost recovery. Finally, the public needs information in the CFR on use of developed recreation sites, for which BLM has reserved a subpart for many years.
III. Discussion of Proposed Rule
The regulations in this proposed rule are divided into three subparts. The first of these contains general information pertaining to all kinds of recreational authorizations. The second describes the Special Recreation Permit process: what activities require permits, how to get them, what privileges they allow, and how BLM administers them. It also contains definitions of terms used in the subpart. The third subpart covers the Recreation Use Permit, its use, and how it is obtained.
This table should help the reader locate provisions from the current regulations in the proposed rule. Start Printed Page 31235
|Old section||New section|
|Part 8370||Part 2930|
|Subpart 8371 [Reserved]||Subpart 2933|
|Subpart 8372||Subparts 2931 and 2932|
|§ 8372.0-1||§ 2931.1|
|§ 8372.0-2||§ 2931.2|
|§ 8372.0-3||§ 2931.3|
|§ 8372.0-5||§ 2932.5|
|§ 8372.0-7||§ § 2932.54(b) and 2933.32(b)|
|§ 8372.1||§ 2932.10|
|§ 8372.1-1||§ 2932.11|
|§ 8372.1-2||§ 2932.11(b)(1) and (b)(3)(iii), and 2932.13|
|§ 8372.1-3||§ 2932.12|
|§ 8372.2||§ 2932.20|
|§ 8372.2(a)||§ 2932.22(a), and (c) (1) and (2)|
|§ 8372.2(b)||§ 2932.24(c)|
|§ 8372.2(c)||§ 2932.22(b) and 2932.23|
|§ 8372.2(c)(2)||§ 2932.25|
|§ 8372.3||§ 2932.26|
|§ 8372.4||§ 2932.30|
|§ 8372.4(a)||§ 2932.31|
|§ 8372.4(b)||§ 2932.32|
|§ 8372.4(b)(3)||§ 2932.33|
|§ 8372.4(c)(1)||§ 2932.14|
|§ 8372.4(c)(2)-(3)||§ 2932.34|
|§ 8372.5(a)(1)||§ 2932.54(a), 2933.32|
|§ 8372.5(a)(2)||§ 2932.42|
|§ 8372.5(a)(3) (removed)||None|
|§ 8372.5(a)(4)||§ 2932.53|
|§ 8372.5(b)||§ 2932.41|
|§ 8372.5(c)||§ 2932.44|
|§ 8372.5(d)||§ 2932.43|
|§ 8372.5(e) (removed)||None|
|§ 8372.5(f)||§ 2932.54(b)(2)|
|§ 8372.6||§ 2931.8|
|None||§ 2932.50 through 2932.52 (new)|
The following discussion of the proposed rule concentrates on those portions of the regulations that this rule would amend other than by reorganization and renumbering.
Subpart 2931—Recreation Use Authorizations; General
This subpart would serve as a general introduction to the subject of authorizations for recreational use of the public lands, where they are needed. No permit is needed for most non-commercial recreational use of the public lands. The function of the subpart is to summarize the purposes of and authorities for the regulations. It would also reaffirm the provision in the existing regulations that all permit decisions that BLM makes would remain in full force and effect pending appeal, unless stayed in accordance with Department of the Interior hearings and appeals regulations.
Subpart 2932—Special Recreation Permits for Commercial Use, Competitive Events, Organized Group Events, and Recreation Use in Special Areas
This subpart includes the regulations covering BLM's issuance of permits for—
- Outfitters and guides (hunting, fishing, rafting, boating, vehicle touring, and other recreational companies),
- Persons engaged in commercial recreational use of the public lands,
- Persons providing services to recreational visitors to the public lands,
- Competitive events such as motorcycle races and time trials, • Organized group activities or events on the public lands, and
- Noncommercial recreational use of special areas where access may be limited for environmental protection and other reasons.
Subpart 2932 would do the following:
- Contain specific conditions for when you need a Special Recreation Permit and when BLM may waive this requirement;
- Require you to submit applications for Special Recreation Permits 180 days before your intended use begins;
- Provide for cost reimbursement based on administrative time required to issue the permit;
- Specifically require most Special Recreation Permit holders to have and submit liability insurance;
- Allow transfers of Special Recreation Permit privileges, but only as a part of business transactions involving sales of all or part of the business itself; and
- Allow renewal of Special Recreation Permits.
The provisions for transfers and renewals are new in this proposed rule, but we are merely codifying existing policy. Also, the cost reimbursement calculation provisions and the lead time for submitting applications represent changes from the current regulations.
Section 2932.5 Definitions
The only terms defined in this rule pertain to Special Recreation Permits, as opposed to Recreation Use Permits for fee areas. Therefore, we have placed the definition section in the subpart on Special Recreation Permits rather than in the general subpart. We eliminated definitions for terms whose common meaning is clear, and definitions of terms that appear but once in the regulations: “event,” “education,” “off-road vehicle, “operator,” and “user day.” Where there is need, we explained the term in the context in which it appears. We also added definitions for “vending” and “organized group.”
Section 2932.10 When Special Recreation Permits Are Needed
The first four sections would tell recreationists when they need a Special Recreation Permit to use public lands, when BLM may waive permit requirements, and what activities do not need a permit.
Section 2932.11 When Do I Need a Special Recreation Permit?
This section would explain that Special Recreation Permits are necessary for commercial recreational use and competitive events, and vending, and may be needed for recreational use of some special areas, organized group activities and events, and research under limited circumstances. The changes in this provision, adding permit requirements for vending and some research activities, recognize the growing use of the public lands for recreational and related purposes, and the need in some locations to monitor and control these uses.
Section 2932.12 When May BLM Waive the Requirement To Obtain a Permit?
This section, which is based on section 8372.1-3 of the current regulations, would explain that BLM has discretion to waive permit requirements if the event or activity affects less than a mile of public land or shoreline, and poses no threat of appreciable damage to public land or water resources. BLM may also waive the requirement if the activity or event is sponsored at least in part by BLM, or if it is a noncommercial competitive event that poses no appreciable risk of damage to natural resources, whose sponsor does not publicly advertise or offer cash prizes, and which requires no monitoring. These criteria are not substantively changed from the existing regulations. However, the rule does remove the 50 vehicle upper limit for events as to which BLM may waive permit and fee requirements. This number is unnecessarily arbitrary. We would eliminate this numerical limit because we believe that it is more useful to consider the effects of an activity or event on a particular parcel of land. Thus, we would determine whether an activity poses a threat of appreciable damage to the land or water resources present, a criterion carried over from the existing regulation. Start Printed Page 31236
Section 2932.14 Do I Need a Special Recreation Permit To Hunt, Trap, or Fish?
This section would make it clear that hunters, trappers, and fishermen do not need Special Recreation Permits to use public lands for these activities, unless they would require a permit under section 2932.11 because the activity is commercial or competitive or takes place in a special area. Likewise, the Special Recreation Permit does not in and of itself authorize you to hunt, trap, or fish. You must obtain the proper license from the State game and fish department with jurisdiction. The regulation would require outfitters and guides who serve hunters, fishermen, and trappers to have a Special Recreation Permit. Except for clarification, and being moved to a more visible location in the regulations with a separate heading, this provision is not substantively changed from the current regulations.
Section 2932.20 Special Recreation Permit Applications
This heading leads into a series of sections introducing you to the recreation permit process. These provisions are based on sections 8372.2 and 8372.3 of the existing regulations.
Section 2932.21 Why Should I Contact BLM Before Submitting an Application?
This section, which is new in the proposed rule, would urge you to contact BLM before you submit an application, especially in light of the requirement that applications be submitted 180 days in advance. Early consultation will familiarize you with the process, and the terms and conditions that may be required in a Special Recreation Permit.
Section 2932.22 When Do I Apply for a Special Recreation Permit?
This section would require persons seeking Special Recreation Permits for commercial and competitive recreational uses, organized group activities or events, or for vending on public lands, to apply 180 days before they expect the use to begin. This would be an increase of 60 days over the provision in the current regulations, reflecting increased demand for such use and more intensive review of applications required by law. The section would also allow local BLM management to provide for shorter review periods for certain applications, and for applications for individual use of special areas. BLM would then notify you (see section 2932.25) if we cannot reach a decision on issuing the Special Recreation Permit before your desired use date. This might happen, for example, if BLM cannot complete the environmental assessments or consultations with other agencies within 180 days. The proposed rule does not impose a time limit for BLM to notify applicants of such delays. This kind of requirement on BLM itself is more appropriate for internal guidance. However, we recognize our obligation to keep our customers informed, especially as to such time-sensitive matters as scheduling recreation events.
The next three sections—2932.23, 2932.24, and 2932.25—are self-explanatory in setting forth the application process in detail.
Section 2932.26 How Will BLM Decide Whether To Issue a Special Recreation Permit?
This section repeats the statement in the current regulations that permit issuance is discretionary with BLM. It expands on the current regulations, however, by stating the criteria that BLM would apply. We would base our decision on the public interest served, public safety, conflicts with other uses, resource protection, and conformance with laws and land use plans. We would also weigh the applicant's past performance with BLM and other agencies. You can use these criteria as indicators of whether your application is likely to be approved.
Section 2932.30 Fees for Special Recreation Permits
The next several sections would deal with the establishment and administration of a fee system for cost recovery in the administration of Special Recreation Permits.
Section 2932.31 How Does BLM Establish Fees for Special Recreation Permits?
This section would explain how BLM sets fees for Special Recreation Permits. The Director establishes fees for these permits for commercial, organized group activities or events, and competitive events. The Director may adjust the fees when necessary to reflect changes in costs and the market, considering the direct and indirect cost to the government; the types of services or facilities provided; and comparable recreation fees charged by other Federal agencies, non-Federal public agencies, and private industry. The fee schedule for competitive and organized group activities or events was published in the Federal Register on July 29, 1999 (64 FR 41133), effective October 1, 1999. BLM would adjust these fees periodically based on the Implicit Price Deflator Index. The fee schedule for commercial outfitters, guides, and vendors was published on October 19, 1989 (54 FR 42998). We expect to publish the next regular update of this schedule in March 2002. Local fees for other uses would be posted or published in local newspapers by BLM.
The State Director with jurisdiction establishes fees for other Special Recreation Permits. This information will generally be available in field offices, but may be made available in newspapers, Internet websites, or other appropriate public notice.
The proposed rule would change the threshold for charging actual costs (which may replace or be in addition to the scheduled fees discussed in the previous paragraph) from a fixed cost in dollars ($5,000)—which may become obsolete due to changes in currency values—to an amount of administrative work that would be required. The section would provide that if a permit requires more than 50 hours of BLM administrative or staff time to process and monitor, BLM may require the applicant to pay actual administrative costs, in addition to the fees set by the fee schedule. If the time to process your application exceeds the 50-hour threshold, BLM would require you to pay costs from the first hour of administrative work. This provision will most often apply to short-term, high intensity uses, such as a large one-day motorcycle race. The proposed rule would require BLM to notify you in the event you need to pay actual costs.
Section 2932.32 When Must I Pay the Fees?
This section would require payment of fees in advance of the authorized use by the deadline BLM establishes. It would allow payment in installments for commercial use. BLM will not process your application until you have paid cost recovery fees, if any, as they are required. This approach is somewhat different from that in the current section 8372.4(b), which merely provides for payment at the time of permit issuance. The proposed rule allows the applicant more flexibility in making payments, but provides BLM with more assurance that our costs will be covered as we incur them.
Section 2932.33 When Are Fees Refundable?
This section would describe what happens if your advance payment against BLM costs turns out to exceed those actual costs. For commercial multi-year permits, such as outfitter permits, when your actual fees due are Start Printed Page 31237less than the estimated fees you paid in advance, the rule would direct BLM to credit overpayments to the following year or season. For other permits, BLM would issue refunds or credit overpayments to future permits, whichever you prefer. However, if you have applied for recreational access to a limited use area and your trip is undersubscribed, and you do not give BLM sufficient opportunity to authorize use by others to make up for the use you forgo, BLM will not issue refunds or credits. BLM will determine whether you have given us sufficient opportunity. We will base our determination on the type of permit, the location, and the frequency of use.
We have tried in this section to simplify the explanation of how we handle refunds in cases of undersubscribed events or trips, and to provide more flexibility in how permittees may have their refunds paid.
Section 2932.34 When May BLM Waive Special Recreation Permit Fees?
This section would allow BLM to waive permit fees for Special Recreation Permits on a case-by-case basis. Waiver would be a possibility for scientific, research, therapeutic, or administrative use. However, the proposed rule would remove the waiver for educational/recreational trips found in section 8372.4(c)(2) of the existing regulations. This waiver has been prone to abuse by groups seeking to avoid fees by characterizing purely recreational outings as educational. However, the language in the rule would allow BLM sufficient discretion to waive fees for truly educational outings. The rule also would remove the disclaimer that the regulations do not pertain to commercial or other non-recreational activities. Such activities may be permitted under 43 CFR part 2920 or other regulations, but it is not necessary to state this in the text of the recreation regulations.
Section 2932.40 Permit Stipulations and Terms
The next several sections deal with permit terms, insurance requirements, and bonding requirements. These sections are all based on paragraphs in existing section 8372.5, and do not contain substantive changes. However, there are no equivalents of paragraphs 8372.5(a)(3) and (e) in the proposed rule. The first, limiting the size of the area for which a permit can be issued, is a matter for internal BLM guidance. The second, requiring indemnification of the United States by the permittee against liability for damage to persons or property occurring during or as a result of the authorized use, is unnecessary in light of the insurance requirements contained in section 2932.43.
Section 2932.50 Administration of Special Recreation Permits
This heading leads into a series of sections describing how BLM administers recreation permits, and the requirements that BLM imposes on permittees. These provisions are new in this proposed rule. We add them to codify existing policy or, in some cases, to simplify current procedures. For example, the proposed rule will allow Special Recreation Permits, such as those held by outfitters and guides, to be renewed. BLM currently renews outfitter and guide permits, although there is no regulatory provision that specifically addresses permit renewal. This rule fills this gap.
Section 2932.54 When May I Transfer My Special Recreation Permit to Other Individuals, Companies, or Entities?
The proposed rule also allows permit assignments and transfers, but only in very limited circumstances. The rule in general does not allow sale of permit privileges. However, we will allow a transfer in cases where the permittee is selling his business or a portion of it to the transferee, so long as both parties meet certain requirements. Thus, multi-year commercial Special Recreation Permits—generally held by outfitters, guides, and river-running concerns—would only be transferable in cases of actual sales of businesses or a substantial part of the business. You would be required to apply to BLM to transfer a permit to a prospective buyer of your business, and the buyer would have to pay the standard application fees and cost reimbursement, if any. BLM would evaluate the proposed business sale and transfer permit privileges to a qualified buyer, if—
(1) The transfer is consistent with planning decisions, and
(2) The proposed sale includes tangible property necessary to conduct the activities authorized.
BLM would not allow transfer of the permit privilege alone, without transfer of at least a substantial portion of the equipment or stock necessary to continue the activity. Again, in this case, the proposed rule would codify current policy. In the absence of BLM approval of your proposed transfer, the transferee would have to compete with other applicants for a Special Recreation Permit.
Section 2932.56 When Will BLM Amend, Suspend, or Cancel My Permit?
Paragraph (a) of this section would allow BLM to amend, suspend, or cancel a Special Recreation Permit if we find it necessary to protect public health, public safety, or the environment. In the case of a suspension, the terms of the permit would continue during the suspension. This paragraph is derived from paragraph 8372.5(a)(1) of the existing regulations, and is not substantively changed.
Paragraph (b) of this section would serve the same purpose as sections 8372.0-7 and 8372.5(f) of the existing regulations. It would allow BLM to suspend or cancel a Special Recreation Permit if the permittee violates permit stipulations, or is convicted of violating any Federal or State law or regulation on natural resources and environmental conservation and protection, endangered species or antiquities preservation while acting under a Special Recreation Permit.
Paragraph (c) would make it clear that, while a Special Recreation Permit is suspended, its holder's responsibilities and the permit's prohibitions continue in force.
Section 2932.57 Prohibited Acts and Penalties
The proposed rule makes no substantive changes in this section on prohibited acts and penalties. The penalties the rule provides for are taken from Section 303(a) and (b) of the Federal Land Policy and Management Act (FLPMA) (43 U.S.C. 1733).
Subpart 2933—Recreation Use Permits for Fee Areas
This subpart codifies a permit system pertaining to “fee areas” on public lands managed by BLM. Fee areas are sites that provide specialized facilities, equipment, or services related to outdoor recreation. These include areas that are developed by BLM, receive regular maintenance, may have on-site staffing, and are supported by Federal funding. Not all fee areas necessarily have all of these attributes. Examples of fee areas are campgrounds that include improvements such as picnic tables, toilet facilities, tent or trailer sites, and drinking water; and specialized sites such as swimming pools, boat launch facilities, guided tours, hunting blinds, and so forth. The provisions in these regulations are codifications of existing procedures and policies. They are designed to allow the most efficient administration possible of the permit system, and the easiest access by the public. Start Printed Page 31238
We believe that the regulations in this subpart are sufficiently self-explanatory and straightforward that we do not need to discuss them piecemeal or offer their rationale. If there are questions raised during the public comment period as to these provisions, we will discuss them in detail in the preamble of the final rule.
Finally, the proposed rule would change cross-references in other parts of Title 43 from subpart 8372 to part 2930.
IV. Procedural Matters
The principal author of this proposed rule is Lee Larson of the Recreation Group, Washington Office, BLM, assisted by Ted Hudson of the Regulatory Affairs Group, Washington Office, BLM.
Regulatory Planning and Review (E.O. 12866)
This document is not a significant rule and is not subject to review by the Office of Management and Budget under Executive Order 12866.
(1) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.
(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency.
(3) This rule does not alter the budgetary effects or entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients.
(4) This rule does not raise novel legal or policy issues.
During fiscal year 1996, BLM issued over 116,000 Recreation Use Permits for use of fee sites, with revenues totaling about $600,000. During fiscal year 1997, BLM issued about 184,000 Recreation Use Permits for use of fee sites, with revenues totaling about $705,000. During fiscal year 1998, BLM issued about 280,000 Recreation Use Permits for use of fee sites, with revenues totaling about $1.3 million. The cost of such a permit averaged just over $5.00 for 1996, just under $5.50 for 1997, and a little over $4.60 for 1998. The proposed rule would allow BLM to charge fees based on the types of services or facilities provided at the fee site, the cost of providing them, and fees charged by public and private entities at similar sites nearby. Changes caused by this rule are not quantifiable in this document, but will not result in charges greater than fair market value. Any increase in prices for these users would have to have economic consequences of hundreds of dollars per permit for the effect on the economy to total $100 million, the threshold for a major rule in the Executive Order.
During fiscal year 1996, BLM issued just over 21,000 Special Recreation Permits, with revenues totaling a little over $1.5 million deposited into the Land and Water Conservation Fund (LWCF). During fiscal year 1997, BLM issued just over 32,000 Special Recreation Permits, with revenues totaling about $2.9 million, of which nearly $1.9 million was deposited into the LWCF with the balance attributed to the Fee Demonstration Project and other miscellaneous accounts. During fiscal year 1998, BLM issued just over 37,500 such permits, and collected just over $4.8 million in fees, of which nearly $1.6 million was deposited into the LWCF, with the balance attributed to the Fee Demonstration Project and other miscellaneous accounts. (These numbers are derived from the Public Land Statistics; the variety of laws directing the revenues to numerous funds accounts for different average fees from year to year. We give these numbers to illustrate that the revenues charged under BLM's recreation program are minuscule compared with those realized by the overall national recreation industry.) Special Recreation Permits are generally obtained by commercial outfitters and guides (about 2,500), river running companies (about 800), sponsors of competitive events (about 1,000), “snow bird” seasonal mobile home campers who use BLM's long term visitor areas (about 14,000), and private individuals and groups using certain special areas. Under current regulations, use fees are to be collected according to a schedule established by the Director, BLM, and published periodically in the Federal Register. BLM may charge actual costs if they exceed the fee on the schedule. The schedule is based on 3 percent of the gross annual receipts of the permittee or an $80 flat annual fee, whichever is greater. Snow birds pay a flat seasonal fee of $100. The flat annual fee for commercial outfitters and guides is adjusted periodically in line with the Implicit Price Deflator. The proposed rule would provide for use fees to equal fair market value, which can be determined through comparative market analysis, competitive bidding, or other means. The State of Colorado charges river outfitters 5 percent of gross receipts to run trips on the Arkansas River, which features the Royal Gorge. This might be an indication of the type of fee increase that might be phased in under the proposed rule. BLM will determine fair market values for outfitter permits on a local or regional level, based on comparative market analyses and considering public input.
Regulatory Flexibility Act
The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). According to the president of the American Recreation Coalition, outdoor recreation is a $350 billion industry made up of small businesses. As stated in the previous section, BLM fees collected for Special Recreation Permits in fiscal year 1997 were about $2.9 million. BLM revenues collected thus amounted in that year to less than 1/1,000 of 1 percent of the gross industrial revenues, and not all of the BLM revenues were collected from commercial recreationists. The results in other years are similar. BLM considers that increases in these fees to fair market value could not create a significant impact on the outdoor recreation industry. However, BLM recognizes that most commercial recreation enterprises—outfitters, guides, river-running companies, local retail outlets—are small businesses, and that about 3,500 of them annually hold BLM commercial or competitive permits. For these reasons, any changes in fees to fair market value will be phased in, and fees will be set locally and only after opportunity for public participation leading to decisions on fair market value.
Small Business Regulatory Enforcement Fairness Act (SBREFA)
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act.
Does not have an annual effect on the economy of $100 million or more. See the discussion under Regulatory Planning and Review, above.
Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. The rule will have no effect on the 3 percent basic use fee required of outfitters (set by policy, not regulations). The rule imposes cost recovery requirements provided for in section 304 of FLPMA (43 U.S.C. 1734), and in the Land and Water Conservation Fund Act (16 U.S.C. 460 l et seq., 460 l-5), and Office of Management and Budget Circular No. A-25. The cost increases under this rule would be de Start Printed Page 31239minimus in the context of the entire outdoor recreation industry, and even in the context of the small proportion of it that uses public lands managed by BLM. See the discussion above under Regulatory Flexibility Act.
Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. The adjustment of user fees to fair market value and the implementation of cost recovery should not affect the ability of mostly small businesses evenly treated to compete with one another. Recreationists are not likely to be driven to foreign recreation markets by finding an increase in user fees in the western part of this country, due to the insignificance of such increases compared to the costs of travel to comparable foreign recreation destinations. Much recreation equipment is manufactured in foreign countries, but it is sold by small business retailers in this country. The adjustment of user fees to fair market value should not affect buyers' choice of foreign versus domestic made equipment.
Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. The rule has no effect on governmental or tribal entities. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.
Takings (E.O. 12630)
In accordance with Executive Order 12630, the rule does not have significant takings implications. While the proposed rule would provide for permits to be canceled under certain circumstances, including violations of law or regulations, or failure to comply with permit stipulations, and while for some commercial permittees a Special Recreation Permit may be essential to the exercise of property rights in a business, the rule would not allow such a forfeiture without due process of law. A takings implications assessment is not required.
Federalism (E.O. 13132)
In accordance with Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. The rule does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. The rule does not preempt State law.
Civil Justice Reform (E.O. 12988)
In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.
Paperwork Reduction Act
This regulation requires information collection from 10 or more parties and a submission under the Paperwork Reduction Act is required by 44 U.S.C. 3501 et seq. An OMB form 83-I has been reviewed by the Department and sent to OMB for approval. The collection of this information will not be required until it has been approved by the Office of Management and Budget.
National Environmental Policy Act
This proposed rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 is not required.
Clarity of This Regulation
Executive Order 12866 requires each agency to write regulations that are easy to understand. We invite your comments on how to make this proposed rule easier to understand, including answers to questions such as the following:
(1) Are the requirements in the proposed rule clearly stated?
(2) Does the proposed rule contain technical language or jargon that interferes with its clarity?
(3) Does the format of the proposed rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity?
(4) Would the rule be easier to understand if it were divided into more (but shorter) sections? (A “section” appears in bold type and is preceded by the symbol “§ ” and a numbered heading; for example, § 2932.22 When do I apply for a Special Recreation Permit?)
(5) Is the description of the proposed rule in the “supplementary information” section of this preamble helpful in understanding the proposed rule? What else could we do to make the proposed rule easier to understand?
If you have any comments that concern how we could make this proposed rule easier to understand, in addition to sending the original to the address shown in ADDRESSES, above, please send a copy to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street NW, Washington, DC 20240. You may also e-mail the comments to this address: Execsec@ios.doi.gov.Start List of Subjects
List of Subjects
- Penalties; Public lands; Recreation and recreation areas; Reporting and recordkeeping requirements; Surety bonds
- Administrative practice and procedure
- Environmental protection
- Intergovernmental relations
- Public lands-mineral resources
- Reporting and recordkeeping requirements
- Surety bonds
- Wilderness areas
- Penalties; Public lands; Recreation and recreation areas; Reporting and recordkeeping requirements; Surety bonds
- Continental shelf
- Forests and forest products
- Law enforcement
- Public lands
- Range management
- Recreation and recreation areas
For the reasons explained in the preamble, and under the authority of 43 U.S.C. 1740, chapter II, subtitle B of title 43 of the Code of Federal Regulations is proposed to be amended as follows:
1. Part 2930 is added to read as follows:Start Part
PART 2930—PERMITS FOR RECREATION ON PUBLIC LANDS
- What are the purposes of these regulations?
- What kinds of permits does BLM issue for recreation-related uses of public lands? Start Printed Page 31240
- What are the authorities for these regulations?
- Information collection.
- When Special Recreation Permits are needed.
- When do I need a Special Recreation Permit?
- When may BLM waive the requirement to obtain a permit?
- How will I know if individual use of a special area requires a Special Recreation Permit?
- Do I need a Special Recreation Permit to hunt, trap, or fish?
- Special Recreation Permit applications.
- Why should I contact BLM before submitting an application?
- When do I apply for a Special Recreation Permit?
- Where do I apply for a Special Recreation Permit?
- What information must I submit with my application?
- What will BLM do when I apply for a Special Recreation Permit?
- How will BLM decide whether to issue a Special Recreation Permit?
- Fees for Special Recreation Permits.
- How does BLM establish fees for Special Recreation Permits?
- When must I pay the fees?
- When are fees refundable?
- When may BLM waive Special Recreation Permit fees?
- Permit stipulations and terms.
- What stipulations must I follow?
- How long is my Special Recreation Permit valid?
- What insurance requirements pertain to Special Recreation Permits?
- What bonds does BLM require for a Special Recreation Permit?
- Administration of Special Recreation Permits.
- When can I renew my Special Recreation Permit?
- How do I apply for a renewal?
- What will be the term of my renewal?
- When may I transfer my Special Recreation Permit to other individuals, companies, or entities?
- When must I allow BLM to examine my permit records?
- When will BLM amend, suspend, or cancel my permit?
- Prohibited acts and penalties.
- Obtaining Recreation Use Permits.
- When must I obtain a Recreation Use Permit?
- Where can I obtain a Recreation Use Permit?
- When do I need a reservation to use a fee site?
- For what time may BLM issue a Recreation Use Permit?
- Fees for Recreation Use Permits.
- When are fees charged for Recreation Use Permits?
- How does BLM establish Recreation Use Permit fees?
- When must I pay the fees?
- When can I get a refund of Recreation Use Permit fees?
- Rules of conduct.
- What rules must I follow at fee areas?
- When will BLM suspend or revoke my permit?
PART 2930—PERMITS FOR RECREATION ON PUBLIC LANDS
Subpart 2931—Permits for Recreation; General
The regulations in this part—
(a) State when you need a permit to use public lands and waters for recreation, including recreation-related business;
(b) Tell you how to obtain the permit; and
(c) State the fees you must pay to obtain the permit.
The regulations in this part establish permit and fee systems for:
(a) Special Recreation Permits for commercial use, organized group activities or events, competitive use, and for use of special areas; and (b) Recreation use permits for use of fee areas such as campgrounds and day use areas.
(a) The statutory authorities underlying the regulations in this part are the Federal Land Policy and Management Act, 43 U.S.C. 1701 et seq., and the Land and Water Conservation Fund Act, as amended, 16 U.S.C. 460 1-6a.
(1) The Federal Land Policy and Management Act contains BLM's general land use management authority over the public lands, and establishes outdoor recreation as one of the principal uses of those lands (43 U.S.C. 1701(a)(8)).
(2) The Land and Water Conservation Fund (LWCF) Act, as amended, authorizes BLM to collect fees for recreational use (16 U.S.C. 460 l-6a(a), (c)), and to issue special recreation permits for group activities and recreation events, and limits the services for which we may collect fees (16 U.S.C. 460 l-6a(a), (b), (g)).
(b) The regulations at 36 CFR part 71 require all Department of the Interior agencies to use the criteria in that part in setting recreation fees. These criteria are based on the LWCF Act and stated in §§ 71.9 and 71.10 of that part.
(a) If you are adversely affected by a decision under this part, you may appeal the decision under parts 4 and 1840 of this title.
(b) All decisions BLM makes under this part will go into effect immediately and will remain in effect while appeals are pending unless a stay is granted under § 4.21(b) of this title.
The information collection requirements in this part have been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq. and assigned clearance number 1004-0119. The information will be used to determine whether applicants for Special Recreation Permits on public lands should be granted such permits. A response to requests for information is required to obtain a benefit.
Subpart 2932—Special Recreation Permits for Commercial Use, Competitive Events, Organized Groups, and Recreation Use in Special Areas
Actual expenses means money spent directly on the permitted activity. These may include costs of such items as food, rentals of group equipment, transportation, and permit or use fees. Actual expenses do not include the rental or purchase of personal equipment, amortization of equipment, salaries or other payments to participants, insurance premiums, or profit.
Commercial use means recreational use of the public lands and related waters for business or financial gain.
(1) The activity, service, or use is commercial if—
(i) Any person, group, or organization makes or attempts to make a profit, receive money, amortize equipment, or obtain goods or services, as compensation from participants in recreational activities occurring on public lands;
(ii) Anyone collects a fee or receives other compensation that is not strictly a sharing of actual expenses, or exceeds actual expenses, incurred for the purposes of the activity, service, or use; Start Printed Page 31241
(iii) There is public advertising to seek participants; or
(iv) Participants pay for a duty of care or an expectation of safety.
(2) Profit-making organizations and organizations seeking to make a profit are automatically classified as commercial, even if that part of their activity covered by the permit is not profit-making or the business as a whole is not profitable.
(3) Use of the public lands by scientific, educational, and therapeutic institutions or non-profit organizations is commercial and subject to a permit requirement when it meets any of the threshold criteria in paragraphs (1) and (2) of this definition. The non-profit status of any group or organization does not alone determine that an event or activity arranged by such a group or organization is noncommercial.
Competitive use means—
(1) Any organized, sanctioned, or structured use, event, or activity on public land in which 2 or more contestants compete and either or both of the following elements apply:
(i) Participants register, enter, or complete an application for the event; or
(ii) A predetermined course or area is designated; or
(2) One or more individuals contesting an established record such as for speed or endurance.
Organized group activity means a structured, ordered, consolidated, or scheduled meeting on or occupation of the public lands for the purpose of recreational or other use that is not commercial or competitive.
Special area means:
(1) An area officially designated by statute or Secretarial order;
(2) An area for which BLM determines that the resources require special management and control measures for their protection; or
(3) An area covered by joint agreement between BLM and a State under Title II of the Sikes Act (16 U.S.C. 670a et seq.)
Vending means the sale of goods or services, not from a permanent structure, associated with recreation on the public lands or related waters, such as food, beverages, clothing, firewood, souvenirs, photographs or film (video or still), or equipment repairs.
(a) Except as provided in § 2932.1, you must obtain a Special Recreation Permit for:
(1) Commercial use, including vending associated with recreational use; or
(2) Competitive use.
(b) BLM may require you to obtain a Special Recreation Permit for:
(1) Recreational use of special areas;
(2) Noncommercial, noncompetitive, organized group activities or events; or
(3) Academic, educational, scientific, or research uses that involve:
(i) Means of access or activities normally associated with recreation;
(ii) Use of areas where recreation use is allocated; or
(iii) Use of special areas.
We may waive the requirement to obtain a permit if:
(a) The use or event begins and ends on non-public lands or related waters, traverses less than 1 mile of public lands or 1 shoreline mile, and poses no threat of appreciable damage to public land or water resource values;
(b) The use is sponsored or co-sponsored by the Bureau of Land Management, that is, an activity or event that BLM is involved in organizing and hosting, or sharing responsibility for, arranged through authorizing letters or written agreements; or
(c) The use is a competitive event that—
(1) Is not commercial;
(2) Does not award cash prizes;
(3) Is not publicly advertised;
(4) Poses no appreciable risk for damage to public land or related water resource values; and
(5) Requires no monitoring.
BLM will publish notification of the requirement to obtain a Special Recreation Permit to enter a special area in the Federal Register and local and regional news media. We will post permit requirements at major access points for the special area and provide information at the local BLM office.
(a) You do not need a Special Recreation Permit to hunt, trap, or fish, unless you are using a special area. You must comply with State license requirements for these activities. BLM Special Recreation Permits do not alone authorize you to hunt, trap, or fish.
(b) Outfitters and guides providing services to hunters, trappers, or anglers must obtain Special Recreation Permits from BLM.
If you wish to apply for a Special Recreation Permit, we strongly urge you to contact the appropriate BLM office before submitting your application. You may need early consultation to become familiar with BLM practices and responsibilities, and the terms and conditions that may be required in a Special Recreation Permit. Because of the lead time involved in processing Special Recreation Permit applications (see § 2932.22(a)), you should contact BLM in sufficient time to complete a permit application ahead of the 180 day requirement.
(a) For all uses that require a Special Recreation Permit (see § 2932.11) except individual use of special areas, you must apply to the local BLM office at least 180 days before you intend your use to begin. This enables BLM to conduct environmental analyses and meet other legal requirements. We may process and issue your permit in less time.
(b) BLM field offices will establish application procedures for individual use of special areas, including when to apply. You should call the field office with jurisdiction as you begin to plan your use.
You must apply to the local BLM office with jurisdiction over the land you wish to use.
(a) Your application for a Special Recreation Permit for all uses, except individual and noncommercial group use of special areas, must include:
(1) A completed BLM Special Recreation Application and Permit form;
(2) A map or maps of sufficient scale and detail to allow identification of the proposed use area, unless waived by BLM; and
(3) Other information requested by BLM in sufficient detail to allow us to evaluate the nature and impact of the proposed activity, including measures you would take to mitigate adverse impacts.
(b) If you are an individual or noncommercial group wishing to use a special area, contact the local office with jurisdiction to find out the requirements, if any.
It is BLM's intent to notify you at least 30 days before your desired use date if a decision on issuing the Special Recreation Permit cannot be made in a timely manner. An example of when this could happen is if we cannot complete the environmental assessments or consultations with other agencies within 180 days.
BLM has discretion whether or not to issue a Special Recreation Permit. We will base our decision on the public interest served, public safety, conflicts with other uses, resource protection, conformance with laws and land use plans, and your past performance with BLM and other agencies.
(a) The Director establishes fees, including minimum annual fees, for commercial, organized group activity or event, and competitive Special Recreation Permits.
(b) The Director may adjust the fees as necessary, using a Federal Register notice, to reflect changes in costs and the market, using the following types of data:
(1) The direct and indirect cost to the government;
(2) The types of services or facilities provided; and
(3) The comparable recreation fees charged by other Federal agencies, non-Federal public agencies, and the private sector located within the service area.
(c) The State Director with jurisdiction—
(1) Will set fees for other Special Recreation Permits (such as for private use of special areas),
(2) May adjust the fees when he or she finds it necessary,
(3) May provide information in field offices, and
(4) May provide newspaper or other appropriate public notice.
(d) In addition to the fees listed in the schedule or set by the State Director, if BLM needs more than 50 hours of staff time to process a Special Recreation Permit, we may charge a fee for recovery of our administrative costs. Processing charges may include, but are not limited to, the cost of environmental analysis, consultation with other agencies, and conducting public participation. Processing costs may also include, but are not limited to, the costs of monitoring, use supervision, permit compliance, and post-use reports and close-out.
(e) We will notify you in writing if you need to pay actual costs.
You must pay the required fees in advance of your authorized use and by the deadline or deadlines that BLM will establish in each case. We may allow you to make periodic payments for commercial use. We will not process or continue processing your application until you have paid the required fees or installments.
For multi-year commercial permits, if your actual fees due are less than the estimated fees you paid in advance, BLM will credit overpayments to the following year or season. For other permits, we will issue refunds or credit overpayments to future permits, less processing costs. We will generally not make refunds for use of the areas allocated to you in your permit if your actual use is less than your intended use. We may consider a refund if there is sufficient time to authorize use by others and we are able to award such use. Application fees and minimum annual commercial use fees (those on BLM's published fee schedule) are not refundable.
BLM may waive Special Recreation Permit fees on a case-by-case basis for approved academic, scientific, research, therapeutic, or administrative uses.
You must follow all stipulations contained in your Special Recreation Permit. BLM may impose stipulations and conditions to meet management goals and objectives and protect lands and resources and the public interest.
You may request a permit for a day, season of use, or other time period, up to a maximum of 5 years. BLM will determine the appropriate term in each case.
All commercial and competitive applicants for Special Recreation Permits, except vendors, must obtain a property damage, personal injury, and public liability insurance policy that BLM judges sufficient to protect the public and the United States. Your policy must name the U.S. Government as additionally insured or co-insured and stipulate that you or your insurer notify BLM 30 days in advance of termination or modification of the policy. We may also require vendors and other applicants, such as organized groups, to obtain and submit such a policy.
BLM may require you to submit a payment bond, a cash or surety deposit, or other financial guarantee in an amount sufficient to cover your fees or defray the costs of restoration and rehabilitation of the lands affected by the permitted use. We will return the bonds and financial guarantees when you have complied with all permit stipulations.
We will renew your Special Recreation Permit at the end of its term only if it is in good standing and consistent with BLM management plans and policies, and if you and all of your affiliates have a satisfactory record of performance.
(a) You must submit an application for renewal in the same form as for a new permit.
(b) BLM will establish and publish deadlines for submitting renewal applications.
Renewals will generally be for the same term as the previous permit.
(a) BLM may transfer a commercial Special Recreation Permit in the case of an actual sale of a business or a substantial part of the business. Only BLM can approve the transfer or assignment of permit privileges to another person or entity.
(b) The approved transferee must complete the standard permit application as provided in §§ 2932.20 through 2932.26. Once the transferee pays the required fees, BLM will issue a Special Recreation Permit.
(a) BLM may examine any books, documents, papers, or records pertaining to your Special Recreation Permit or transactions relating to it, Start Printed Page 31243whether in your possession, or that of your employees, business affiliates, or agents.
(b) You must make these materials available upon request by BLM. BLM will not ask to inspect any of this material later than 3 years after your permit expires.
(a) BLM may amend, suspend, or cancel your Special Recreation Permit if necessary to protect public health, public safety, or the environment.
(b) BLM may suspend or cancel your Special Recreation Permit if you—
(1) Violate permit stipulations, or
(2) Are convicted of violating any Federal or State law or regulation concerning the conservation or protection of natural resources, the environment, endangered species, or antiquities while exercising your privileges under your Special Recreation Permit.
(c) If we suspend your permit, your responsibilities under the permit will continue during the suspension.
(a) Prohibited acts. You must not—
(1) Fail to obtain a Special Recreation Permit and pay the fees required by this subpart;
(2) Violate the stipulations or conditions of a permit issued under this subpart;
(3) Knowingly participate in an event or activity subject to the permit requirements of this subpart where BLM has not issued a permit;
(4) Fail to post a copy of any commercial or competitive permit where all participants may read it;
(5) Fail to show a copy of your Special Recreation Permit upon request by a BLM employee or a participant in your activity.
(b) Penalties. (1) Any person convicted of committing any prohibited act in paragraph (a) of this section, or of violating any regulation in this subpart or any condition or stipulation of a Special Recreation Permit, may be subject to a fine not to exceed $1,000 and/or imprisonment not to exceed 12 months.
(2) You may also be subject to civil action for unauthorized use of the public lands or related waters and their resources, for violations of permit terms, conditions, or stipulations, or for uses beyond those allowed by the permit.
Subpart 2933—Recreation Use Permits for Fee Areas
You must obtain a Recreation Use Permit for individual or group use of fee areas. These are sites where we provide or administer specialized facilities, equipment, or services related to outdoor recreation. You may visit these areas for uses and time periods BLM specifies. We will post these uses and limits at the entrance to the area or site, and provide this information in the local BLM office with jurisdiction over the area or site. You may contact this office for permit information when planning your visit.
You may obtain a permit at self-service pay stations, from personnel at the site, or at other specified locations. Because these locations may vary from site to site, you should contact the local BLM office with jurisdiction over the area or site in advance for permit information.
Most sites are available on a first come/first serve basis. However, you may need a reservation to use some sites. You should contact the local BLM office with jurisdiction over the site or area to learn whether a reservation is required.
You may obtain a permit for a day, season of use, year, or any other time period that we deem appropriate for the particular use. We will post this information on site or make it available at the local BLM office with jurisdiction over the area or site.
You must pay a fee for individual or group recreational use if the area is posted to that effect. You may also find fee information at BLM field offices or BLM Internet websites.
BLM sets recreation use fees and adjusts them from time to time to reflect changes in costs and the market, using the following types of data:
(a) The direct and indirect cost to the government;
(b) The types of services or facilities provided; and
(c) The comparable recreation fees charged by other Federal agencies, non-Federal public agencies, and the private sector located within the service area.
You must pay the required fees upon occupying a designated recreation use facility, when you receive services, or as the BLM's reservation system may require. These practices vary from site to site. You may contact the local BLM office with jurisdiction over the area or site for fee information.
If we close the fee site for administrative or emergency reasons, on your request, we will refund the unused portion of your permit fee.
You must comply with all rules that BLM posts in the area. Any such site-specific rules supplement the general rules of conduct contained in subpart 8365 of this chapter relating to public safety, resource protection, and visitor comfort.
(a) We may suspend your permit to protect public health, public safety, the environment, or you.
(b) We may revoke your permit if you commit any of the acts prohibited in subpart 8365 of this chapter, or violate any of the stipulations attached to your permit, or any site-specific rules posted in the area.
2. The authority citation for part 3800 continues to read as follows:
3. Section 3802.1-1(d) is amended by removing the phrase “subpart 8372 of this title” and adding in its place the phrase “part 2930 of this chapter.”
4. The authority citation for part 8340 is corrected to read as follows:
5. Section 8344.1 is amended by revising the cross-reference “subpart 8372” to read “part 2930.”
6. Part 8370 is removed.
7. The authority citation for part 8560 continues to read as follows:
8. Section 8560.1-1(e) is amended by removing the phrase “43 CFR part 8372” and adding in its place the phrase “part 2930 of this chapter.”
9. The authority citation for part 9260 continues to read as follows:
10. Section 9268.3 is amended by removing from the first sentence of paragraph (e)(1) the phrase “subpart 8372 of this title” and adding in its place the phrase “part 2930 of this chapter.”
Dated: April 28, 2000.
Sylvia V. Baca,
Assistant Secretary of the Interior.
[FR Doc. 00-12124 Filed 5-15-00; 8:45 am]
BILLING CODE 4310-84-P