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2710.11 - Statutory Authority.
Those special land uses of a right-of-way nature described in Title V of Public Law 94-579,
Federal Land Policy and Management Act of 1976, must now be issued under the authority of
this new statute. Generally these include all forms of use in the following categories:
700 - TRANSPORTATION (except easements for roads under the
Highway Act and the Act of October 13, 1964)
800 - UTILITIES AND COMMUNICATIONS - (except easements for oil
and natural gas pipelines under the
amended Mineral Leasing Acto of
November 16, 1973)
900 - WATER (except watersheds)
Plus applicable systems and facilities in:
300 - COMMUNITY, and
400 - INDUSTRIAL
The actual text is as follows. Refer questions of interpretation to
the Regional Office:
TITLE V - RIGHTS-OF-WAY
Authorization to Grant Rights-of-Way
Sec. 501.
(a) The Secretary, with respect to the public lands and, the Secretary of Agriculture, with
respect to lands within the National Forest System (except in each case land designated as
wilderness), are authorized to grant, issue, or renew rights-of-way over, upon, under, or through
such lands for
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(1) reservoirs, canals, ditches, flumes, laterals, pipes, pipelines, tunnels and other
facilities and systems for the impoundment, storage, transportation, or distribution of water;
(2) pipelines and other systems for the transportation or distribution of liquids and gases,
other than water and other than oil, natural gas, synthetic liquid or gaseous fuels, or any refined
product produced therefrom, and for storage and terminal facilities in connection therewith;
(
3) pipelines, slurry and emulsion systems and conveyor belts for transportation and
distribution of solid materials, and facilities for the storage of such materials in connection
therewith;
(4) systems for generation, transmission, and distribution of electric energy, except that
the applicant shall also comply with all applicable requirements of the Federal Power
Commission under the Federal Power Act of 1935 (149 Stat. 8471; 16 U.S.C. 791);
(5) systems for transmission or reception of radio, television, telephone, telegraph, and
other electronic signals, and other means of communication;
(6) roads, trails, highways, railroads, canals, tunnels, tramways, airways, livestock
driveways, or other means of transportation except where such facilities are constructed and
maintained in connection with commercial recreation facilities on lands in the National Forest
System; or
(7) such other necessary transportation or other systems or facilities which are in the
public interest and which require right-of-way, over, upon, under, or through such lands.
No final or long-term documents for rights-of-way should be issued pending additional direction
from the Chief's Office. Existing rights-of-way permits and easements are not affected by the
Act until the authorization of rights-of-way should be deferred to the extent possible but may be
authorized on a temporary basis and in accord with current procedures. Only terminable permits
will be issued.
Cite the "Act of October 21, 1976 (P.L. 94-579)." They must contain the following termination
clause:
Unless sooner terminated or revoked in accordance with the provisions of the permit,
this permit shall expire and become void upon issuance of a new authorization or one
year after publication of regulations by the Secretary of Agriculture under the
provisions of Title V, P.L. 94-579, whichever comes first, but a new authorization to
occupy and use the same National Forest land will be issued provided the permittee
will comply with the then-existing rules and regulations governing the occupancy and
use of National Forest lands."
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It should be understood that the "...then-existing laws and regulations..." will be limited to
occupancy and use for rights-of-way and associated facilities.
In any permit which includes a high hazard or unlimited liability clause (FSM 2783.11f, clause
F-23), the clause will be supplemented as follows:
"Provided, however, any liability for damages which may be incurred by the
permittee under this instrument is subject to a maximum limitation on damages as set
forth in Public Law 94-579.
This limitation is being developed, and this insturment will be modified to include the
specific amount of the limitation when it is developed. The liability for any damage
in excess of this amount shall be determined according to the ordinary rules of
negligence."
Prior to issuance, the case file must be reviewed to ensure that it reflects consideration of the
terms and conditions specified in sections 504 and 505 of the Act.
Rights-of-ways for projects involving both the BLM and FS should be closely coordinated to
ensure uniform treatment of applicants, particularly in regard to planning requirements,
maximum R/W widths, and in the case of oil and gas pipelines rates of charge for reimbursable
costs. Appropriate reimbursable clauses are contained in the standard oil and gas pipeline
permit.
2710.12 - Regulations.
Free Use, 36 CFR 251.2. The term "Free Use," and older references to regulations, U-11, U-12,
are void and have been replaced by 36 CFR 251.57, "Rental Fees." Regulation 36 CFR 251.57
requires that an annual rental fee be established for special-use permits and goes on to allow that
fee to be waived when:
1. It would be equitable and in the public interest to do so, and
2. The use qualifies under one of the conditions listed under 36 CFR 251.57(b).
The regulations exclude municipal utilities and cooperatives from any fee waiver where their
principal source of revenue from the authorized use is customer charges.
3. Uses appearing to qualify under 36 CFR 251.57(b); (1), (2) and (3) will also be judged
against the following instructions:
a. No waiver will be granted where (1) the use is not intended to provide a public
service, or (2) permit operations are financed through customer charges, or (3) the
permit holder would charge the United States for similar privileges, or (4) FSM
instructions for specific categories of use require a fee. Waivers are not applicable to
rental fees for the use of Government-owned improvements.
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b. Full waivers are limited to those uses where the main purpose is to provide a
public service without customer charges. Examples are: State and county lawenforcement programs.
c. Partial waivers are established as a 40 percent discount from full fees. Minimum
annual fees will not be discounted. Partial waivers may be authorized for those uses
where:
(1) The main purpose is to provide a public service, and there are customer charges
but those charges finance only a minor or token portion of permit operations, or
(2) FSM 2720, instructions for specific categories of use, authorize a reduction,
including reductions greater than 40 percent, from full fees (except instructions on
"Free Use" are void). Examples are: (1) Services supported by a combination of
general tax funds and user contributions and (2) Organization camps.
Public services are externally oriented towards the public-at-large rather than inward towards a
particular permittee or group. A "public service" must be both fully available and of value to the
public. The service must be available, as needed, without qualification requirements and of such
a nature that most people would consider it necessary or desirable.
Customer charges may take the form of entrance fees, collections, contributions, or special tax
assessment. Distribution of general tax funds is sufficiently broad to disqualify them as
customer charges.
Waivers will not be granted under 36 CFR 251.57(b)(5) until further instructions are developed.
Refer to FSM 2715.2 for instructions on implementation of fees.
2710.4 - Responsibility. Authority Delegated to Forest Supervisors.
Unless otherwise restricted in FSM 2733.04 and FSM 2720, Forest Supervisors are authorized to
amend, reissue, or otherwise act on all special-use permits issued by the Regional Forester prior
to June 1970.
2711 - AUTHORIZATIONS.
The term "Free Use," and older references to regulations, U-11, U-12, are void and have been
replaced by 36 CFR 251.57, "Rental Fees." Regulation 36 CFR 251.57 requires that an annual
rental fee be established for special-use permits and goes on to allow that fee to be waived when:
1. It would be equitable and in the public interest to do so, and
2. The use qualifies under one of the conditions listed under 36 CFR 251.57 (b).
The regulations exclude municipal utilities and cooperatives from any fee waiver where their
principal source of revenue from the authorized use is customer charges.
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3. Uses appearing to qualify under 36 CFR 251.57 (b); (1), (2) and (3) will also be
judged against the following instructions:
a. No waiver will be granted where (1) the use is not intended to provide a public
service, or (2) permit operations are financed through customer charges, or (3) the
permit holder would charge the United States for similar privileges, or (4) FSM
instructions for specific categories of use require a fee. Waivers are not applicable to
rental fees for the use of Government-owned improvements.
b. Full waivers are limited to those uses where the main purpose is to provide a
public service without customer charges. Examples are: State and county lawenforcement programs.
c. Partial waivers are established as a 40 percent discount from full fees. Minimum
annual fees will not be discounted. Partial waivers may be authorized for those uses
where:
(1) The main purpose is to provide a public service, and there are customer
charges but those charges finance only a minor or token portion of permit
operations, or
(2) FSM 2720, instructions for specific categories of use, authorize a reduction,
including reductions greater than 40 percent, from full fees (except instructions on
"Free Use" are void). Examples are: (1) Services supported by a combination of
general tax funds and user contributions and (2) Organization camps.
Public services are externally oriented towards the public-at-large rather than inward towards a
particular permittee or group. A "public service" must be both fully available and of value to the
public. The service must be available, as needed, without qualification requirements and of such
a nature that most people would consider it necessary or desirable.
Customer charges may take the form of entrance fees, collections, contributions, or special tax
assessment. Distribution of general tax funds is sufficiently broad to disqualify them as
customer charges.
Waivers will not be granted under 36 CFR 251.57 (b) (5) until further instructions are developed.
Authority Delegated to Forest Supervisors. Unless otherwise restricted in FSM 2733.04 and
FSM 2720, Forest Supervisors are authorized to amend, reissue, or otherwise act on all specialuse permits issued by the Regional Forester prior to June 1970.
Maintenance, Rehabilitation, and Reconditioning. To insure uniform application for preparation
of fee plans, the following definitions are to be used:
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Maintenance. Maintenance of Government-owned improvements by the permittee will consist
of current, timely repairs and replacements to keep the improvements within the original
construction standards and in a safe operating condition.
Rehabilitation. Rehabilitation is the restoration of Government-owned improvements to present
standards.
Reconditioning. Reconditioning can include the conversion, expansion, or remodeling of a
Government-owned improvement to meet present standards for a specific use. However,
reconditioning should generally result in restoring a facility to its original condition.
2711.31 - Maintenance, Rehabilitation, and Reconditioning.
To insure uniform application for preparation of fee plans, the following definitions are to be
used:
Maintenance. Maintenance of Government-owned improvements by the permittee will consist
of current, timely repairs and replacements to keep the improvements within the original
construction standards and in a safe operating condition.
Rehabilitation. Rehabilitation is the restoration of Government-owned improvements to present
standards.
Reconditioning. Reconditioning can include the conversion, expansion, or remodeling of a
Government-owned improvement to meet present standards for a specific use. However,
reconditioning should generally result in restoring a facility to its original condition.
2712.2 - Prospectus (For Recreation Uses - LUR 100 Series Only)
3. Selection of Sucessful Applicant. When preparing a prospectus, use the following list
of criteria to judge the qualifications of applicants:
a. Kind and quantity of services and facilities to be provided.
b. Quality of services and facilities to be provided. Safety is one important aspect of
this criteria.
c. Applicant's experience in the proposed opportunity or related fields.
d. Applicant's training, education, or other qualifications in addition to experience
shown in item c.
e. Financial capability to construct required facilities and to operate for one season.
f. Bid Amount.
g. Special criteria unique to the opportunity.
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Normally, one or more of the above criteria will be considered as selection factors. These factors
are each prerequisities which must be met for selection. Example: No applicant will be selected
who does not have the financial capability to build the required facilities and operate them for
one season.
The remaining criteria are evaluation factors. These are quality indicators which can be
competitively rated on a numerical scale of 1 to 5 or 1 to 10. When comparing applicants
competitively using evaluation factors, use a system of weighting the more important factors. In
evaluating recreation concession opportunities, the criteria given the most weight are those
concerned with quality of service proposed and those involved with public safety. Return to the
Government is given less weight and used mainly to choose between applicants whose other
factors are similar.
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SEE THE PAPER COPY OF THE MASTER SET
FOR 2712.4 - 2715.14 WHICH INCLUDES
2713.32 - EXHIBIT 1 AND 2715 - EXHIBITS 1-13
2715.14c - Selecting or Developing Factors to be Used.
The gross value of fixed assets employed in connection with an existing special use permit
(permit) and acquired on or after October 1, 1985, must be capitalized (recorded as a fixed asset)
on the concessioner's or sublessee's books in accordance with generally accepted accounting
principles (GAAP) or other comprehensive bases of accounting (OCBOA) (includes Federal Tax
basis accounting) in order to be included as Forest Service fee-base gross fixed assets (GFA) to
be applied in the graduated rate fee system (GRFS). The gross value of new permit fixed assets
must be capitalized on the concessioner's books in accordance with GAAP or OCBOA in order
to be considered as a part of the Forest Service fee base GFA, nonwithstanding successor permit
ownership.
Accordingly, concessioners wishing to include in GFA the values of special utility installations
(FSM 2715.14c, item 3c) will be required to capitalize these costs on their books. Those assets
leased on a long term basis (FSM 2715.14c, item 3d) will be included as GFA only if they
qualify for capitalization under the Financial Accounting Standards Board (FASB)
pronouncement No. 13, et seq.
GFA will be scaled down proportionately when applied in fee calculations for accounting
periods of less than 1 year (short periods). Short periods occur as a result of (a) changes in
business fiscal years, (b) starting or (c) going out of business during the course of a business
fiscal year.
Acceptable criteria for scaling down GFA are generally twelfths of years, although clearlydemonstrated seasonal sales patterns may be substituted for this purpose. For example, a ski
resort operator's fiscal year ends June 30. It goes out of business at the end of March (the ninth
month in its fiscal year) during its third year of operation. Normally, 9/12 of its $120,000 in
assets, or $90,000, would qualify as GFA in the final fee calculation. The owners show proof,
however, that 90 percent of its sales are consistently generated between July 1 and March 31,
therefore $108,000 (90 percent of $120,000) would be acceptable as GFA for that final short
period.
2715.23a - Permit Fees
4. Two Calendar Months After Due Date (Plus 7-10 Days for Mail Receipt). Forests
shall use "Letter of Termination," exhibit 1, for nonpayment of fees.
Exhibit 1
SEE THE PAPER COPY OF THE MASTER SET
FOR 2715.23a - EXHIBIT 1
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2715.25 - Periodic Review of Fees.
Forests shall establish a schedule of fee reviews in accordance with parent text instructions that
will:
1. Include all land use authorizations subject to 36 CFR Part 251 - Land Uses.
2. Assure that proper fees pursuant to 36 CFR 251.57 and FSM 2700 instructions are
incorporated in all land use authorizations by January 1, 1989, and reviewed thereafter at not
more than 5-year intervals.