[Code of Federal Regulations]
[Title 36, Volume 2]
[Revised as of July 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 36CFR251.56]

[Page 317-320]
 
              TITLE 36--PARKS, FORESTS, AND PUBLIC PROPERTY
 
          CHAPTER II--FOREST SERVICE, DEPARTMENT OF AGRICULTURE
 
PART 251_LAND USES--Table of Contents
 
                         Subpart B_Special Uses
 
Sec. 251.56  Terms and conditions.

    (a) General. (1) Each special use authorization must contain:
    (i) Terms and conditions which will:
    (A) Carry out the purposes of applicable statutes and rules and 
regulations issued thereunder;
    (B) Minimize damage to scenic and esthetic values and fish and 
wildlife habitat and otherwise protect the environment;
    (C) Require compliance with applicable air and water quality 
standards established by or pursuant to applicable Federal or State law; 
and
    (D) Require compliance with State standards for public health and 
safety, environmental protection, and siting, construction, operation, 
and maintenance if those standards are more stringent than applicable 
Federal standards.
    (ii) Such terms and conditions as the authorized officer deems 
necessary to:
    (A) Protect Federal property and economic interests;

[[Page 318]]

    (B) Manage efficiently the lands subject to the use and adjacent 
thereto;
    (C) Protect other lawful users of the lands adjacent to or occupied 
by such use;
    (D) Protect lives and property;
    (E) Protect the interests of individuals living in the general area 
of the use who rely on the fish, wildlife, and other biotic resources of 
the area for subsistence purposes;
    (F) Require siting to cause the least damage to the environment, 
taking into consideration feasibility and other relevant factors; and
    (G) Otherwise protect the public interest.

    Note to paragraph (a)(1)(ii)(G): The Department is making explicit 
its preexisting understanding of Sec. 251.56(a)(1)(ii)(G) of this 
subpart in the context of authorizing noncommercial group uses of 
National Forest System lands. Section 251.56(a)(1)(ii)(G) provides that 
each special use authorization shall contain such terms and conditions 
as the authorized officer deems necessary to otherwise protect the 
public interest. In the context of noncommercial group uses, the Forest 
Service interprets the term ``public interest'' found in Sec. 
251.56(a)(1)(ii)(G) to refer to the three public interests identified by 
the Forest Service on August 30, 1995. These public interests include 
the protection of resources and improvements on National Forest System 
lands, the allocation of space among potential or existing uses and 
activities, and public health and safety concerns. Under this 
construction, Sec. 251.56(a)(1)(ii)(G) allows the Forest Service to 
impose terms and conditions that are not specifically addressed in Sec. 
251.56(a)(1)(ii)(A)-(F) but only those that further these public 
interests. The Forest Service shall implement and enforce Sec. 
251.56(a)(1)(ii)(G) in accordance with this interpretation.

    (2) Authorizations for use of National Forest System lands may be 
conditioned to require State, county, or other Federal agency licenses, 
permits, certificates, or other approval documents, such as a Federal 
Communication Commission license, a Federal Energy Regulatory Commission 
license, a State water right, or a county building permit.
    (b) Duration and renewability--(1) Requirements. If appropriate, 
each special use authorization will specify its duration and 
renewability. The duration shall be no longer than the authorized 
officer determines to be necessary to accomplish the purpose of the 
authorization and to be reasonable in light of all circumstances 
concerning the use, including
    (i) Resource management direction contained in land management and 
other plans;
    (ii) Public benefits provided;
    (iii) Cost and life expectancy of the authorized facilities;
    (iv) Financial arrangements for the project; and
    (v) The life expectancy of associated facilities, licenses, etc. 
Except for special use authorizations issued under the National Forest 
Ski Area Permit Act of 1986, authorizations exceeding 30 years shall 
provide for revision of terms and conditions at specified intervals to 
reflect changing times and conditions.
    (2) Ski area permits. (i) For authorizations issued under the 
National Forest Ski Area Permit Act of 1986, the authorized officer 
normally shall issue a ski area authorization for 40 years, if, upon 
consideration of information submitted by the applicant, the authorized 
officer finds that the ski area development meets the following 
standards:
    (A) In the case of an existing permit holder, existing on-site 
investment is of sufficient magnitude to justify authorization for 40 
years;
    (B) In the case of an existing permit holder, existing investment of 
capital is in ski-related facilities;
    (C) Planned investment capital is directly related to development of 
ski area facilities and is not for financing regular, ongoing operation 
and maintenance costs;
    (D) Ski facilities requiring long-term investment are, or will be, 
located predominately on land authorized under a permit;
    (E) The number and magnitude of planned facilities, as detailed in a 
Master Development Plan, clearly require long-term financing and/or 
operation;
    (F) The United States is not the owner of the principal facilities 
within the authorized ski area.
    (ii) A term of less than 40 years shall be authorized for a ski area 
when the applicant requests a shorter term or when, in the authorized 
officer's discretion:

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    (A) Analysis of the information submitted by the applicant indicates 
that a shorter term is sufficient for financing of the ski area;
    (B) The ski area development, whether existing or proposed, does not 
meet the standards of paragraph (2)(i)(A) through (F) of this section; 
or
    (C) A 40-year authorization would be inconsistent with the approved 
forest land and resource management plan governing the area (36 CFR part 
219).
    (c) Preconstruction approvals. Forest Service approval of location, 
design and plans (or standards, if appropriate) of all developments 
within the authorized area will be required prior to construction.
    (d) Liability. Holders shall pay the United States for all injury, 
loss, or damage, including fire suppression costs, in accordance with 
existing Federal and State laws.
    (1) Holders shall also indemnify the United States for any and all 
injury, loss, or damage, including fire suppression costs, the United 
States may suffer as a result of claims, demands, losses, or judgments 
caused by the holder's use or occupancy.
    (2) Holders of special use authorizations for high risk use and 
occupancy, such as, but not limited to, powerlines and oil and gas 
pipelines, shall be held liable for all injury, loss, or damage, 
including fire suppression costs, caused by the holder's use or 
occupancy, without regard to the holder's negligence, provided that 
maximum liability shall be specified in the special use authorization as 
determined by a risk assessment, prepared in accordance with established 
agency procedures, but shall not exceed $1,000,000 for any one 
occurrence. Liability for injury, loss, or damage, including fire 
suppression costs, in excess of the specified maximum shall be 
determined by the laws governing ordinary negligence of the jurisdiction 
in which the damage or injury occurred.
    (e) Bonding. An authorized officer may require the holder of a 
special use authorization for other than a noncommercial group use to 
furnish a bond or other security to secure all or any of the obligations 
imposed by the terms of the authorization or by any applicable law, 
regulation or order.
    (f) Special terms and conditions--(1) Public service enterprises. 
Special use permits authorizing the operation of public service 
enterprises shall require that the permittee charge reasonable rates and 
furnish such services as may be necessary in the public interest, except 
where such rates and services are regulated by Federal, State or 
municipal agencies having jurisdiction.
    (2) Common carriers. Oil and gas pipelines and related facilities 
authorized under section 28 of the Mineral Leasing Act of 1920, 41 Stat. 
449, as amended (30 U.S.C. 185), shall be constructed, operated and 
maintained as common carriers. The owners or operators of pipelines 
shall accept, convey, transport, or purchase without discrimination all 
oil or gas delivered to the pipeline without regard to whether such oil 
or gas was produced on Federal or nonfederal lands. In the case of oil 
or gas produced from Federal lands or from the resources on the Federal 
lands in the vicinity of the pipeline, the Secretary may, after a full 
hearing with due notice thereof to interested parties and a proper 
finding of facts, determine the proportionate amounts to be accepted, 
conveyed, transported, or purchased. The common carrier provisions of 
this section shall not apply to any natural gas pipeline operated (i) by 
any person subject to regulation under the Natural Gas Act, 52 Stat. 
821, as amended, (15 U.S.C. 717) or (ii) by any public utility subject 
to regulation by a State or municipal regulatory agency having 
jurisdiction to regulate the rates and charges for the sale of natural 
gas to consumers within the State or municipality. Where natural gas not 
subject to State regulatory or conservation laws governing its purchase 
by pipeline companies is offered for sale, each pipeline company shall 
purchase, without discrimination, any such natural gas produced in the 
vicinity of the pipeline.
    (g) Conversion of Ski Area Authorizations. (1) The Forest Service 
shall request that all existing permit holders convert existing 
authorizations for ski areas to a new authorization issued pursuant to 
the National Forest Ski Area Permit Act.

[[Page 320]]

    (2) Any current holder of a ski area permit who wishes to convert an 
existing permit to one issued pursuant to the National Forest Ski Area 
Permit Act must submit a written request for the new authorization to 
the authorized officer.
    (3) With the consent of the holder, the authorized officer shall 
convert the authorization if:
    (i) The holder is in compliance with the existing authorization;
    (ii) All fees currently due under the existing authorization are 
paid in full; and
    (iii) Any proposed modifications of terms and conditions of the 
existing authorization included in a request for conversion meet the 
standards of paragraphs (2)(i) (A) through (F) of this section and the 
relevant requirements of this subpart.
    (4) A holder retains the right to decline a new authorization 
offered pursuant to this paragraph and to continue to operate under the 
terms of the existing permit. However, pursuant to the rules at Sec. 
251.61 of this subpart, major modifications of existing permits shall 
require conversion to a permit issued under the authority of the 
National Forest Ski Area Permit Act, unless the holder provides 
compelling justification for retaining the existing permit.

[45 FR 38327, June 6, 1980, as amended at 49 FR 46895, Nov. 29, 1984; 54 
FR 22594, May 25, 1989; 60 FR 45294, Aug. 30, 1995; 63 FR 65967, Nov. 
30, 1998; 64 FR 48960, Sept. 9, 1999]