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49 FR 34332-01
1984 WL 117608 (F.R.)
(Cite as: 49 FR 34332)

Bureau of Land Management
43 CFR Part 8370
[Circ. No. 2551]

Use Authorizations; Amendment of Subpart 8372--Special Recreation Permits,
Other Than on Developed Recreation Sites

Wednesday, August 29, 1984

*34332 AGENCY: Bureau of Land Management, Interior.

ACTION: Final rulemaking.

SUMMARY: This final rulemaking amends 43 CFR Subpart 8372--Special Recreation Permits, Other Than on Developed Recreation Sites, by clearly stating the actions specifically prohibited under the regulations and the penalties that would apply upon conviction. It states the grounds for exemption from Special Recreation Permit requirements, authorizes the Director of the Bureau of Land Management to set recreation permit fee schedules to help reimburse the United States for administrative costs incurred in permitting recreational use of public lands, replaces the requirements that an applicant for a waiver of fees submit documentation of its official recognition as an educational or scientific institution with discretion on the part of the authorized officer to require such documentation, allows commercial educational users to obtain such waivers, and states the appeals procedures.

EFFECTIVE DATE: September 28, 1984.

ADDRESS: Inquiries or suggestions should be sent to: Director (340), Bureau of Land Management, 1800 C Street, NW., Washington, D.C. 20240.

FOR FURTHER INFORMATION CONTACT: Bruce Brown, (202) 343-9353.

SUPPLEMENTARY INFORMATION: The proposed rulemaking revising the special recreation permit regulations was published in the Federal Register on May 6, 1983 (48 FR 20630), and, because of a production error in the Federal Register, republished on May 18, 1983 (48 FR 22462). Comments were invited for a period of 60 days beginning May 18, 1983, during which period a total of 111 comments were received addressing the proposed regulations, with 25 coming from outfitters, 1 from an office of a Federal agency, 2 from attorneys, 9 from associations, 4 from States, 1 from local government, 66 from individuals, and 3 from educational institutions. In addition, 84 comments were received on the proposed recreation permit policy published in the Federal Register on April 8, 1983 (48 FR 15275), many of which discussed the proposed regulations as well. All of the comments have been given careful consideration during the decisionmaking process on this final rulemaking. There were wide variations in the subject matter of, and the positions taken in, the comments on the proposed rulemaking. Some comments supported the proposed rulemaking in general, many opposed it for various general reasons. Numerous comments opposed the fee schedule published in the preamble of the proposed rulemaking. In addition, several comments addressed the proposed special recreation permit policy published in the Federal Register on April 8, 1983 (48 FR 15275), and several others referred to the proposed policy of the U.S. Forest Service. These comments were considered to the extent their applicability to this rulemaking could be determined. Many of the comments contained discussions of specific sections of the proposed rulemaking and recommended changes, some of which have been adopted by the final rulemaking. This preamble will only discuss those sections that were the subject of specific comments.

Special Recreation Permit Fee Schedule The schedule of permit fees published in the preamble of the proposed rulemaking generated numerous comments addressing several different aspects of the schedule. Some comments addressed the authority to establish fees, the possibility of using the Consumer Price Index to guide annual fee increases, various specific fee rates, the amount of environmental degradation likely as a basis for setting fees, and the specific fee schedule each type of permittee is required to pay.

Some stated, in general terms, that the whole matter of permit fees should be further studied before fees are decided upon. However, the Bureau of Land Management is required by 43 CFR 8372.4 to charge use fees for special recreation permits. The fee schedule reflects the criteria for establishing such fees as described in section 4(d) of the Land and Water Conservation Fund Act, and is fair and equitable. Moreover, the Bureau is authorized to adjust the fees should it proves necessary or desirable to do so. One comment suggested that fees be pegged to the Consumer Price Index. The Consumer Price Index does not reflect the true increase in value of recreation compared to that of the other elements used to calculate the Index. Inflation in the costs of other commodities and services has not been as rapid as that in the cost of recreation. One comment preferred a flat fee, amount unspecified, for all recreational users of the public lands plus an additional fee for commercial outfitters of 3 percent of their adjusted gross receipts. The user day fee schedule for commercial permits is tied to the charges the operators assess their clients. This schedule includes both the cost of issuing and administering the permit and a charge for the opportunity to make a profit using Federal resources. Applicants for competitive permits are assessed a flat fee or percentage of gross, which also represents the cost of issuing and administering the permit plus a return for the use of Federal resources. Other special recreation permits are issued at a flat user day fee that represents the average cost of issuance and administration of these permits. Some comments argued that certain users of public lands should be charged greater fees because of the greater impact of their preferred recreation on the environment. The criteria for establishing fees are set forth in section 4(d) of the Land and Water Conservation Fund Act (16 U.S.C. 460l-6(d)). This law requires consideration to be given to the benefits received by the recipient, the direct and indirect cost to the Government, the public policy or interest served, the comparable recreation fees charged by non-Federal public agencies, the economic and administrative feasibility of fee collection and other pertinent factors. There is no specific provision for basing fees on the degree of environmental impact. Such a criterion would be very difficult to establish since monetary value assigned to environmental degradation would be difficult to determine, be highly controversial, and create a wide range of fees that could not be adequately justified. However, environmental impact it considered in reviewing a permit application. The National Environmental Policy Act, through the environmental analysis-environmental impact statement process, enables the authorized officer to determine how the event or activity affects the environment. Also, as required in 43 CFR 8372.5(b), stipulations to mitigate adverse impacts are made part of the terms and conditions of the permit, if it is issued. In an environmental impact statement is required, the cost of that process will be assumed by the applicant.

*34333 (1) Commercial Use

Several comments stated that the proposed fee increases for commercial outfitters would be consumed by bookkeeping costs for the Bureau and greatly add to such costs of the outfitters. They felt the means of calculating and collecting fees would be too complex for all concerned. Other comments said that 3 percent of the adjusted daily charge of commercial outfitters would be too high and would drive some out of business. They suggested no more than a 1 percent fee. Others stated that 3 percent of the adjusted daily charge would not be enough suggesting 5 percent to reflect the profit making opportunities afforded commercial outfitters. Some comments urged that the commercial fee should be the same flat rate for all commercial permittees. This proposal has been rejected because it would impose unfair burdens and disproportionate costs on outfitters with low daily charges. Some outfitters provide very limited services, such as cross-country ski trail marking and grooming, for which they charge a small amount, while other outfitters may provide very costly services such as transporting skiers by helicopter. If the cross-country ski operator was to pay the same permit fee as the helicopter ski operator, it would represent a much greater percentage of the cross-country operator's income. One comment suggested that commercial outfitters should pay no less than the oil and gas lease royalty rate, 12 1/2 percent, for their use of the public lands, and that private recreationists should pay no more per day than do ranchers to graze livestock on the public lands, which currently is $0.046 per day per animal. Fees for grazing allotments and oil and gas production are established by separate enabling legislation and have no bearing on recreation use or fees. Some comments said that the $100 minimum permit fee is excessive considering that they only outfit a limited number of commercial trips each year. This fee is not excessive because it is intended to attempt to recover the cost of issuance and it applies to a permit with a term of up to 5 years. Others comments suggested that outfitters who charge high prices should pay a proportionally smaller fee because they relieve the Government of having to provide as many services to their clients. There is no justification for charging higher-cost commercial outfitters lower permit fees based on level of impact or service provided. Permit fees relate to administrative cost and value to the user, not environmental impact or services offered. It is not reasonable to expect that the United States would or should supply services for the public that are normally provided by outfitters. After considering all these comments there did not appear to be enough justification to modify the commercial fee schedule contained in the proposed rulemaking. While the schedule requires some calculation to determine the fee paid the Bureau, the benefits of such a schedule outweigh the burdens, and it is more acceptable than the alternatives. The fees each commercial outfitter will pay provide a fair and equitable return for the privilege of using Federal resources for commercial purposes. The fee schedule proposed was carefully crafted after extensive consultation with a special committee from the outfitter and guide industry, and officials of the U.S. Forest Service, who have adopted the same schedule.

(2) Competitive Use Several comments argued that $2.00 per user day or 3 percent of the gross receipts for competitive events would be inflationary and more than some individuals or recreation organizations could pay. The increases are designed to allow the Bureau to recover a greater portion of its costs. Fees have not been increased, except in certain localities, since 1972. The fee for competitive use remains at $2.00 or 3 percent of the gross receipts, whichever is greater, so that the fee can be related to the cost of issuing and monitoring the permit and the value of the resource to users.

(3) Other Uses. Several comments said that the $2.00 per user day fee paid by private recreationists would in some cases be greater than the fees paid by some commercial outfitters. This is true. As explained earlier in this preamble, the fees charged for non-commercial uses are intended to recover the costs of issuing and administering the permits. It would be impossible to charge daily fees for non-commercial users equal to or less than the amount paid by all commercial outfitters and still cover the cost of administering the permit program. The proposed non-commercial fee was based on the Bureau-wide average of the costs of issuing permits and administeringthe program. A comparison of this average cost with the average fee paid by commercial permittees reflects a lower fee to non-commercial users. Since the time the proposed rulemaking was published, some of our field offices have initiated a non-commercial fee as authorized by existing regulations. Based on this experience and after considering the comments on the proposed rulemaking it has been determined that the fee for non-commercial permits should be reduced to $1.50 per user day. This is a reasonable proportion of the average fee charged commercial permittees. In most cases this fee will be less than the commercial fee and still cover the cost of administering the permit program. One comment said that recreation fees charged by all Federal agencies should be the same. While all the fees adopted are not identical with those of other land-managing agencies, they are comparable, and differ only because of differences in management requirements of the several agencies. Neither the Forest Service nor the National Park Service objected to the proposed fee schedule. The commercial fee schedule is identical to that proposed by the Forest Service. In some particular cases the fee schedule may be adjusted to accommodate joint management agreements with other agencies. In these cases a required permit may be issued jointly or separately by the agencies involved. When issued jointly, one fee will be charged and revenues split accordingly between the agencies. When separate permits are issued by more than one agency, it is intended that the combined fees charged would be no more than the amount that would have been charged for the entire permitted activity by the agency having the higher fee. One comment said it was confusing for the Bureau to use the term "user day" instead of the term "service day" employed by the Forest Service to mean the same thing. The term "user day" is more appropriate for use on the public lands than "service day" because it does not imply that permit fees are based on services provided by the Bureau of Land Management. Several comments suggested that permit fees should be allocated to the benefit of the same area from which they were collected. The Department of the Interior Appropriation Act for fiscal year 1981 requires revenues from recreation fees to be deposited in the general fund of the Land and Water Conservation Fund instead of a special separate fund provided under section 4(f) of the Land and Water Conservation Fund Act. Prior to the FY 1981 Appropriation Act the revenues in the special account were available for appropriation, without prejudice to appropriations from other sources for the same purposes, for any authorized *34334 outdoor recreation function of the Bureau of Land Management. Now revenues cannot be earmarked to support the activities that generated them, but are available only by general appropriation from the Land and Water Conservation Fund. After considering all the comments on the proposed special recreation permit fees, the following revised schedule has been adopted. It states the fees that are required for special recreation uses of public lands administered by the Bureau of Land Management in accordance with 43 CFR 8372.4(a)(1). This fee schedule will be phased in over a 3-year period beginning in 1984. This schedule was also published in the Federal Register on February 10, 1984 (49 FR 5300), as part of the final special recreation permit policy. The fee schedule was effective February 10, 1984. Allowances for proportional fees may be made, based on use of other lands along with public lands. Exceptions to the fees listed below may be granted by written order from the Director. (1) Commercial use--$100 for the term of the permit or the amount from the table below per participant, whichever is greater, is required. In determining the adjusted daily charge, the authorized officer will recognize that operators may, under certain circumstances, adjust their advertised customer rates, or that certain associated customer charges may be deducted from the daily amount charged participants. Deductions may be limited to off-site transportation and lodging expenses either before or after the associated permitted use, or fees paid to others for services off public lands. Documentation of the basis for adjusted customer rates may be required by the authorized officer.

   Adjusted daily charge collected       Fee paid to the bureau per user day
       by permittee from each
                                     Feb. 10, 1984  Jan. 1, 1985    Jan. 1, 1986
  $8.00 or less ............................ $0.25          $0.25           $0.25
  $8.01 to $20.00 ............................ .30            .35             .40
  $20.01 to $35.00 ........................... .45            .60             .80
  $35.01 to $50.00 ........................... .60            .95            1.30
  $50.01 to $75.00 ........................... .80           1.35            1.90
  $75.01 to $100.00 ......................... 1.05           1.80            2.60
  $100.01 to $125.00 ........................ 1.30           2.35            3.40
  $125.01 to $150.00 ........................ 1.50           2.80            4.10
  $150.01 to $175.00 ........................ 1.80           3.30            4.90
  $175.01 to $200.00 ........................ 2.00           3.80            5.60
  $200.01 to $250.00 ........................ 2.40           4.55            6.75

  $250.01 to $300.00 ........................ 2.90           5.55            8.25
  Over $300.00 ........................ (  [FN1] )     (  [FN2] )      (  [FN3] )
  1 1 percent of adjusted daily charge per participant.
  2 2 percent of adjusted daily charge per participant.
  3 3 percent of adjusted daily charge per participant.

(2) Competitive use--$2.00 per user day or 3 percent of the gross receipts, whichever is greater, is required. When use is both commercial and competitive, the competitive fee shall be charged. Gross receipts include total income which has been generated from the permitted activity before deducting costs such as insurance, prizes, other permit or license fees, etc. Gross receipts would also include total supplemental moneys collected through sponsor contributions, other donations, the sale of clothing, specialized equipment, or food and beverages when sold on an incidental basis at the permitted activity.

(3) Other uses--$1.50 per user day for uses other than commercial or competitive events, uses involving more than 50 vehicles including those of participants and spectators, or uses taking place in special areas for which permits are required.

Section 8372.0-5 Definitions

The definition section of the proposed rulemaking was the subject of a number of comments. The definitions used in the proposed rulemaking have been carefully reviewed in an effort to simplify and clarify the defined terms. Comments requested that definitions be added in the final rulemaking for the following terms: "user day," "gross receipts," "actual cost" and "adjusted daily charge." The term "user day" is defined in the existing regulations at 43 CFR 8372.0-5(h). A definition for the term "actual costs" is not necessary. When actual costs are imposed under s 8372.4(a)(2), the user will have an opportunity to review an itemization of the costs. The other two terms, "gross receipts" and "adjusted daily charge", are not referred to in the regulations, but rather in the fee schedule included in the preamble of the proposed rulemaking. Explanations of these terms have been included in the discussion of the fee schedule in this preamble. One comment recommended that the definition of "special area" in the existing regulations at s 8372.0-5(g) be amended so that special areas would include areas where control measures are necessary for the protection of public health, safety or the environment. This change does not need to be included in the final rulemaking because the existing definition includes areas deemed to require special management and control measures for their protection, and the regulations at 43 CFR 8364.1(a) permit the authorized officer to close or restrict access to areas for human health or safety reasons. There is no need to include that concept in the definition of "special area" and no justification for requiring a permit or charging a fee to enter such restricted or closed areas. One comment suggested that "educational use" is too narrowly defined, that it should include more than just accredited institutions of learning. The suggestion is not adopted. It would be unnecessarily burdensome and expensive for the Bureau to review a multitude of exemption requests from a variety of entities without a readily applicable standard for educational use. The requirement that the applicant be an accredited institution of learning provides an administratively convenient standard. A broader definition would also be subject to varying interpretations in different offices of the Bureau.

Section 8372.0-7 Enforcement

One comment opposed any regulation of recreation on public lands. However, some regulation of recreation on public lands is necessary to protect persons and property, to maintain their comfort and well being, and to protect resources. Access to certain special areas is controlled to prevent overcrowding and degradation of the recreational and environmental resources present. Several other commenters supported the enforcement provisions of the proposed rulemaking, but suggested that the enforcement authority be extended to prevent off-road vehicle users from interfering with livestock grazing and to control the behavior of spectators as well as recreational event participants. These concerns are addressed in the grazing regulations (43 CFR Part 4100) and in the rules of conduct (43 CFR Part 8360). Several comments objected to the provisions in s 8372.0-7(a) (3) and (4), which, respectively, prohibit knowing participation in an event or use for which a permit is required but has not been issued, and prohibit the permit holder from failing to place a copy of it where all participants may read it. These two provisions have been adopted as proposed. Individual participants will be held co-responsible with the sponsor-organizer of an unauthorized event only where the government can prove that individual's guilty intent. As for posting the permit, the rulemaking contemplates that it will be posted at the staging area of each activity or at some other reasonable place where participants can see it. This is necessary so that participants may be assured the event is legal, but it does not require the permit to be visible to participants at all times during the event, as one comment suggested. One comment suggested that the permittee should carry a copy of the permit at all times during the *34335 recreational use and present it to Bureau of Land Management officials upon request. This suggestion has been adopted in the final rulemaking.

Section 8372.0-7 Penalties

Several comments addressed the Penalties section, s 8372.0-7(b), urging that penalties be increased, and that penalties be levied for environmental degradation by permit holders. Penalties are set by section 303 of the Federal Land Policy and Management Act (43 U.S.C. 1733), and violation of environmental stipulations made under 43 CFR 8372.5(b) will be subject to penalty under section 303. One comment questioned whether permit holders as well as unauthorized users will be subject to civil suit. A provision to this effect has been adopted in the final rulemaking, and permittees may be civilly liable for permit or regulations violations.

Section 8372.1-3 Exceptions

Several comments addressed s 8372.1-3(a), which exempts Bureau of Land Management sponsored or cosponsored events from permit requirements. One opposed this provision as too broad, allowing Bureau personnel to play favorites with outfitters. However, it would be counterproductive, burdensome and unnecessary for the Bureau to obtain a permit in order to use or sponsor use of the public lands. Any alleged abuse that might occur could be challenged by appeal, or even called to the attention of the Inspector General of the Department of the Interior. The subsection has been adopted as proposed. Two comments suggested, respectively, that recreation permit fees should be waived for groups performing volunteer work on the public lands and for nonprofit groups conducting events to benefit charitable causes or institutions. Volunteer worktrips would normally be sponsored or cosponsored by the Bureau of Land Management, and would therefore be exempted from the permit requirement by s 8372.1-3(a). However, there is no authority in Departmental regulations or law for general exemptions for volunteers or nonprofit groups. The authorized officer will evaluate requests for such exemptions on a case-by-case basis. One comment asked for a separate fee and permit category for recreational users that do not fit readily into the fee schedule in this rulemaking, such as local government entities that run outings. The suggestion has not been accepted in the final rulemaking because 4 permit categories can accommodate all uses requiring a special recreation permit. The fees are not excessive, and there is no authority for fee waivers for local government entities. Several comments questioned the provision in s 8372.1-3(b) of the proposed rulemaking, which allows exemption from permit requirements for events affecting less than one mile of public lands and not threatening resource damage. The objection to the provision was that one mile may be an arbitrary figure. This exemption has been in effect since 1978 and has worked well. It gives the authorized officer discretion to require a permit and fee if significant damage will occur, regardless of the small acreage affected, and will continue to provide for a fair return for the use of public land resources. This provision applies also to all river use, so that permit and fee requirements may be effective for river segments adjacent to more than one shoreline mile of public lands. This clarification has been made in the final rulemaking. One comment stated that, in some areas, it may be necessary to provide a special exception to the permit requirements when scattered small tracts of public lands are involved and recreational use affects land owned or administered by a variety of agencies or entities. The Bureau manual and other directives of the Bureau of Land Management are the appropriate vehicles for instructing field personnel in how to deal with "checkerboard" landownership areas in implementing these regulations. Allowance for proportional use may be made, based on use of other land along with public lands, and exceptions to the fee schedule may be granted by written order from the Director. Numerous comments addressed s 8372.1-3(c) of the proposed rulemaking, which allows the authorized officer to waive permit and fee requirements for non- commercial, competitive, off-road vehicle events with no cash prizes, no public advertising and involving fewer than 50 vehicles. These comments were of three general categories: opposition to a permit requirement for competitive off- road vehicle events of any size, questions whether permits and fees apply to other sorts of events, and requests that the threshold number of vehicles be lowered, so that events featuring more than 10 vehicles (or some other similarly low number) would be subject to permit and fee requirements. Competitive off-road vehicle events require a permit primarily to assure that environmental resources will not be adversely affected. There is no need to lower the threshold, because the authorized officer has discretion to require permits and fees for all competitive events with fewer than 50 vehicles if circumstances require. However, s 8372.1-3(c) has been amended to add a condition that there be no likelihood of significant damage to the resources or need for monitoring. This section of the rulemaking has also been amended to apply the 50 vehicle limitation to other kinds of competitive events, where vehicles are used to get to the event site on public lands, even if the vehicles are not used in the event itself, and to include spectators' vehicles in the limitation. The 50 vehicle limitation has been retained in the regulations. Although there are no standard criteria to quantify this or any number, it represents a reasonable figure, justifiable from past experience. Standard criteria, applicable to the wide variety of landscape types where events could occur on public lands, would be inappropriate. One comment urged that fees be waived if an Environmental Assessment has determined that there is no significant environmental impact expected from the event. As stated above, the fee schedule is not designed to compensate for environmental impacts, but rather to pay administrative costs and, in the cases of commercial and competitive use, to recover fair value for the use of public land resources. One comment urged that a filled quota of long term recreation permits for a given area should not alone bar approval of an application for a one-time-only use. The suggestion has not been included in the final rulemaking. Quotas or allocations in specific areas are determined through the land management planning process and are established as the maximum allowable use an area can sustain and meet the prescribed resource management objectives. Therefore, use above this level would not be consistent with the adopted management plan. The authorized officer retains discretion to allow such one-time-only uses if circumstances, such as underuse by a permit holder, or cancellation of scheduled use, allow such use.

Section 8372.4 Fees

Several comments questioned whether it was intended to remove from the regulations the provision in existing s 8372.4 for a $10.00 filing fee. This provision has been removed in this rulemaking. The filing fee requirement has been replaced by the $100 minimum *34336 permit fee requirement for commercial permits contained in the fee schedule. Many comments objected to the provision in s 8372.4(a)(2) of the proposed rulemaking, which would allow the authorized officer to charge fees higher than those in the fee schedule under certain circumstances. They feared the authorized officer could indiscriminately raise fees. This provision has been removed in the final rulemaking. While the fee schedule may not allow some Bureau offices to recover the entire administrative costs of issuing permits, these instances will be few and on a Bureau-wide average will even out. If circumstances require, exceptions to the fee schedule may be granted by the Director as provided in s 8372.4. Other comments objected to the provision in s 8372.4(a)(3), which would allow the authorized officer to require a non-refundable advance payment of part or all of the fee. In the proposed rulemaking, this provision had two purposes: to recover the costs of processing the application, and to discourage users from failing to appear for their appointed reservation. Failure to appear without notice may make the allocated resource unavailable to other possible users. In response to the comments, and to clarify this intent, paragraph (3) has been revised and relocated as subparagraph (2) in redesignated s 8372.4(b), which describes the procedures for payment of use fees. Revised paragraph 8372.4(b)(2) requires use fees to be nonrefundable where the amount of intended use is precisely specified in the application, except when notification of whole or partial cancellation is made in sufficient time to allow reallocation of use to others. This paragraph also states that, in the discretion of the authorized officer, such refunds are subject to a minimum fee for processing the permits. Several comments addressed s 8372.4(a)(4), which provides for the collection of actual costs to the United States instead of the fees, when the estimated costs of permit issuance and monitoring exceed $5,000. One comment suggested that the deadline for notification of the applicant that actual costs will be required be extended from 15 to 30 days after receipt of the application. This suggestion has been adopted in the final rulemaking. However, a suggestion that permittees be allowed to substitute the value of work done that is incidental to their recreation use (removal of litter, and repair of trail damage, left by others, for example) for the fees or actual costs paid to the United States has been rejected. Permittees are responsible for their own litter and trail damage as a permit stipulation or condition. This is necessary to mitigate adverse impacts to environmental resources. Any additional work that a permittee may perform is strictly on a volunteer basis and will not normally reduce the fees due the Government. Commercial permittees may perform such work to make the recreational experience more attractive to their customers. However, there may be specific instances where the authorized officer may waive permit and fee requirements under the criteria of s 8372.1-3. Requests for exemption will be evaluated on a case-by-case basis. Several comments addressed s 8372.4(c) of the proposed rulemaking, which gives the authorized officer discretion to require applicants for waiver of fees to provide documentation of their official recognition as educational or scientific institutions. One comment supported the provision as proposed, but others suggested that the waiver provision be extended to non-profit organizations, or that temporary use permits be issued instead of recreation permits because the use is not primarily recreational. These suggestions have not been adopted because the rulemaking is intended to parallel the Departmental regulations at 36 CFR Part 71, which allows waivers only for scientific and educational uses and does not provide for temporary use permits for such uses.

Section 8372.6 Appeals

Two comments discussed the provision in s 8372.5(b) that decisions of the authorized officer shall remain effective pending appeal unless the Secretary of the Interior rules otherwise--one in support, one in opposition. The provision for permit decisions to remain effective pending appeal is necessary to prevent frivolous appeals from impairing authorized and legitimate use of the public lands. A provision has been added to allow an aggrieved party believing that he or she is adversely affected by the decision, or that harm to public lands or resources may occur, to petition the Secretary for a stay of the decision pending appeal. The suggestion in one of the comments that decisions granting or denying such stays be made by the Interior Board of Land Appeals instead of the Secretary is rejected. The Secretary is better able to make the prompt decisions that may be necessary to prevent harm to the parties. One other comment, not addressing any specific section of the proposed rulemaking, requested clarification of the term "public lands" as used in this rulemaking. For purposes of this subpart, "public lands" means any land or interest in land administered by the Bureau of Land Management, and waters related thereto. Where appropriate, the rulemaking has been amended to reflect this meaning. The principal author of this final rulemaking is Bruce R. Brown, Division of Recreation, Cultural and Wilderness Resources, assisted by the staff of the Office of Legislation and Regulatory Management, Bureau of Land Management. It ishereby determined that the publication of this final rulemaking is not a major Federal action signficantly affecting the quality of the human environment and that a detailed statement pursuant to section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)) is not required. The Department of the Interior has determined that this document is not a major rule under Executive Order 12291 and that it 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.). Several comments challenged these determinations in the proposed rulemaking, stating that there will be a major financial impact on recreation users who will be required to pay fees and on outfitters and guides who will be required to pay a portion of their adjusted daily charges. However, the criterion in Executive Order 12291 for determining whether a rule is major is whether its total annual impact will be $100,000,000 or not. In this case, the financial impact of the final rulemaking will be less than that amount. In addition, while the price of permit fees will be increased, the fees will be phased in over a 3-year period. The final rulemaking will only affect individuals and groups using the public lands and related waters under the circumstances and for the recreation purposes discussed above, and educational institutions using the public lands and related waters for educational or scientific purposes. The increase in fees will compensate the United States for administering the program, with no significant impact on any entity. Information collection requirements contained in this rulemaking have been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq., and assigned clearance number 1004-0119.

List of Subjects in 43 CFR Part 8370

Public land--recreation, Recreation areas, Surety bonds.

*34337 Under the authority of 43 U.S.C. 1201, the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.), the Oregon and California Railroad and Coos Bay Wagon Road Grant Lands Act (43 U.S.C. 1181a), the Act of September 15, 1960, as amended (16 U.S.C. 670g-n), the Land and Water Conservation Fund Act of 1965, as amended (16 U.S.C. 460l-6a), and the National Trails System Act (16 U.S.C. 1241 et seq.), Subpart 8372, Part 8370, Group 8300, Subchapter H, Chapter II of Title 43 of the Code of

Federal Regulations is amended as set forth below. Dated: April 18, 1984.

Garrey E. Carruthers,
Assistant Secretary of the Interior.

1. Part 8370 is amended by adding immediately after the heading the note: kT4Note.--The information collection requirements of 43 CFR Part 8370 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. The obligation to respond is required to obtain a benefit.

s 8372.0-3 [Amended] 1. Section 8372.0-3 is amended by correcting the citation "16 U.S.C. 460(1- 6a)" to read "16 U.S.C. 460l-6a." s 8372.0-5 [Amended]

2. Section 8372.0-5 is amended by: a. Revising paragraph (b) to read as follows:
* * * * *
(b) "Actual expenses" are expenses necessarily incurred for the permitted activity or use. These include, but are not limited to, the actual costs of such items as expendable equipment and supplies. Actual expenses do not include any salaries, profit, increase of capital worth, allowances, or subsidies of any other activities of the permittee or sponsor, the purchase or amortization of nonexpendable supplies or equipment, any allowance for undersubscribed events or any monetary compensation for sponsors or participants."
* * * * *
b. Revising paragraph (e) to read as follows:
* * * * *
(e) "Educational use" is an academic activity sponsored by an accredited institution of learning.
* * * * *

3. Section 8372.0-7 is revised to read as follows:
s 8372.0-7 Enforcement

(a) Prohibited acts. On all public lands and related waters, it is prohibited to:
(1) Fail to obtain a permit and pay any fee required by this subpart; (2) violate stipulations or conditions of a permit issued under authority of this subpart; (3) participate knowingly in an event or use subject to the permit requirements of this subpart where no such permit has been issued; (4) fail to post a copy of any commercial or competitive permit where all participants have the opportunity to read it; and (5) fail to show a copy of the special recreation permit to a Bureau of Land Management employee or a participant upon request.
(b) Penalties. (1) Any person convicted of committing any prohibited act in this subpart, and violators of regulations or permit terms or stipulations, may be subject to a fine not to exceed $1,000 and/or imprisonment not to exceed 12 months. (2) Authorized as well as unauthorized users may be subject to civil action for unauthorized use of the public lands or related waters and their resources, or violations of the permit terms or stipulations.

4. A new s 8372.1-3 is added to read as follows:
s 8372.1-3 Exceptions.

(a) Special Recreation Permits are not required for uses that are sponsored or co-sponsored by the Bureau of Land Management.

(b) The authorized officer may determine that permits and fees are unnecessary where a 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 significant damage to public land or water resource values.

(c) The authorized officer may waive permit and fee requirements for competitive events that are not commercial when the events comply with off-road vehicle designations for the use area, no cash prizes are awarded, fewer than 50 vehicles including those of participants and spectators are involved, there is no public advertising for the event and there is no likelihood of significant damage to public land or water resource values or need for monitoring.

5. Section 8372.4 is amended by:
a. Revising paragraph (a) to read as follows:
s 8372.4 [Amended]

(a) Fees. (1) Fees for Special Recreation Permits shall be established and maintained by the Director, Bureau of Land Management, and may be adjusted from time to time to reflect changes in costs. The fee schedule shall be incorporated in the Manual of the Bureau of Land Management, published periodically in the Federal Register and otherwise made generally available to the public.
(a)(2) Actual costs to the United States shall be charged in lieu of the fees provided in the schedule when the estimated cost of issuing and monitoring the permit (estimated at the time of application) exceeds $5,000, except when the total estimated fees from the schedule over the term of the permit exceed the estimated actual cost. In that case, the fees from the schedule shall be charged. The authorized officer shall notify the applicant in writing of such charges within 30 days of receipt of the permit application and shall not process said application until payment has been made for such charges.
* * * * *
b. Removing paragraph (b) in its entirety.
c. Redesignating paragraphs (c) and (d), as (b) and (c), respectively, and amending paragraph (b), formerly paragraph (c), by
redesignating subparagraphs (2) and (3) as (3) and (4), respectively, and inserting a new paragraph (2) to read as follows:
(2) Where the amount of intended use is precisely specified in the application, the fee shall be nonrefundable. However, on receipt by the authorized officer of notification from the applicant of the intention not to use the permit in whole or in part, in sufficient time to allow reallocation of use to others, the authorized officer may refund the fee, less a minimum amount for permit processing.
d. Amending paragraph (c), formerly paragraph (d), by removing paragraphs (c) (4) and (5) in their entirety and revising paragraph
(c)(3) to read as follows:
(c) * * *
(3) Applicants for waiver of fees on this basis may be required to provide documentation of their official recognition as educational or scientific institutions by Federal, State or local government bodies or any other documentation necessary to demonstrate educational use as defined in s 8372.0- 5(e) of this title. The use of recreational resources for which a waiver on this basis is requested shall relate directly to scientific or educational purposes and shall not be primarily for recreational purposes.

6. New s 8372.6 is added to read as follows:
*34338 s 8372.6 Appeals.

(a) Any person adversely affected by a decision of the authorized officer under this part may appeal under Part 4 of this title from any final decision of the authorized officer.

(b) All decisions of the authorized officer under this part shall remain effective pending appeal unless the Secretary rules otherwise. Petitions for stay of decisions may be made to the Secretary.

[FR Doc. 84-22879 Filed 8-28-84; 8:45 am]