05-23256. Advertising and Sponsorship in Connection With Concessions Involving Privately Owned Improvements on National Forest System Lands

AGENCY:

Forest Service, USDA.

ACTION:

Notice of interim directive; request for public comment.

SUMMARY:

The Forest Service is issuing an interim directive (ID) revising direction in Forest Service Manual (FSM) 2340.03 governing advertising and sponsorship in connection with concessions involving privately owned improvements operated under special use permits on National Forest System (NFS) lands. The ID allows holders of concession permits to advertise inside buildings and other interior spaces that they own, subject to certain conditions, and encourages cooperative relationships and sponsorships that promote public participation in the management of NFS lands. The Forest Service is requesting comment from the public on the provisions contained in this ID in order to develop a final policy. The ID will be in effect until removed or adoption of a final policy through an amendment to FSM 2340.03.

DATES:

Comments must be received in writing by March 27, 2006.

ADDRESSES:

Send comments by mail to USDA, Forest Service, Attention: Carolyn Holbrook, Recreation and Heritage Resources Staff (2340), 1400 Independence Avenue, SW., Stop 1125, Washington, DC 20250-1125 or by facsimile to Carolyn Holbrook, 202-205-1145, or by e-mail to [e-mail]. Comments also may be submitted by following the instructions at the federal eRulemaking portal at http://www.regulation.gov. If comments are sent by e-mail or facsimile, the public is requested not to send duplicate comments via mail. Please confine comments to issues pertinent to the ID, explain the reasons for any recommended changes, and where possible reference the specific wording being addressed.

All comments on the ID, including names and addresses when provided, will be placed in the record and will be available for public inspection and copying. The public may inspect comments received on this ID in the Office of the Director, Recreation and Heritage Resources Staff, 4th Floor Central, Sidney R. Yates Federal Building, 14th and Independence Avenue, SW., Washington, DC, on business days between the hours of 8:30 a.m. and 4 p.m. Those wishing to inspect comments are encouraged to call ahead at [phone] to facilitate entry into the building.

FOR FURTHER INFORMATION CONTACT:

Carolyn Holbrook, Recreation and Heritage Resources Staff, [phone].

SUPPLEMENTARY INFORMATION:

1. Background and Need

Encouraging Investment Through Limited Advertising and Recognition of Cooperators and Sponsors

The Forest Service regulates the provision of concession services to the public by private individuals and entities that own and operate recreational facilities and services on NFS lands (concessionaires). These facilities and services, which are authorized by special use permits, enhance opportunities for the public to recreate on NFS lands. Concessionaires are the primary contact for many people visiting National Forests, and they often provide information and education to the public about the National Forests. Thus, concessionaires, such as resort, marina, and ski area operators, greatly assist the Forest Service in providing information and services to the public.

The Forest Service wants to encourage concessionaires to promote public participation in the management of NFS lands by proposing public services, evaluating solutions to specific natural resource management problems, and promoting conservation awareness and public health and safety. These endeavors may cost money without generating a return on investment by the concessionaires. Concessionaires have encouraged the agency to consider sponsorship and advertisement as ways to generate funding for these types of activities.

Proposed Changes to FSM 2343.03

Paragraph 11. Paragraph 11 has been revised to allow concessionaires to advertise products and services inside buildings and other interior spaces they own, including chairlift restraining bars facing the rider. However, paragraph 11 does not allow display of the Forest Service shield or other agency symbols in conjunction with product or service names or advertisements to avoid any other appearance of agency endorsement of products or services. Paragraph 11 allows exterior signage that merely identifies the types of goods or services provided within the permitted facilities with prior written approval from the authorized officer. Except for short-term special events provided for in paragraph 12(c), advertising outside of buildings or interior spaces owned by the concessionaire or along roads on NFS lands is prohibited.

Current paragraph 12. Current paragraph 12 has been renumbered as paragraph 13 in the ID. No other changes were made to this paragraph.

New Paragraph 12. New Paragraph 12 encourages cooperative relationships and sponsorships that promote public participation in the management of NFS lands, including programs or projects that involve public services, evaluate solutions to specific natural resource management problems, or promote conservation awareness or public health and safety. Paragraph 12 requires that these programs or projects have prior written approval from the authorized officer and that they include a plan that describes the program or project; its duration, objective, outcome, and target audience; and communication or marketing strategies for the program or project.

Paragraph 12(a) allows cooperator or sponsor recognition only during and within the proximity of the program or project and, to the extent practical, requires that the recognition be integrated into the program or project so that participants and spectators can make a clear connection between the cooperator or sponsor and the public service being provided. In addition, paragraph 12(a) prohibits recognition of cooperators or sponsors on government vehicles.

Paragraph 12(b) limits recognition of cooperators or sponsors in signs, printed and electronic media, wayside and kiosk exhibits, and temporary facilities to acknowledgment of the cooperator's or sponsor's public service initiative, which can include the cooperator's or sponsor's name and trademark.

Paragraph 12(c) allows recognition of cooperative support for or sponsorship of short-term special events, such as races, competitions, festivals, clean-up days, and volunteer events. Paragraph 12(c) allows temporary waiver of the prohibition against exterior advertising during short-term special events sponsored by the holder (rather than by the Forest Service, with support from a cooperator). Recognition of sponsors during these events may appear on banners, posters, flyers, and temporary facilities and could include sponsor names, sponsor trademarks, sponsor product names and services, and sponsor advertisements. Paragraph 12(c) also prohibits use of the Forest Service shield or other agency symbol in conjunction with sponsor product names, services, and advertisements on banners, posters, flyers, and temporary facilities, and care has to be taken to avoid any other appearance of agency endorsement of sponsor products and services in connection with the events. In addition, paragraph 12(c) also prohibits recognition of cooperators or sponsors on government vehicles.

Current Paragraph 13. Current paragraph 13 is renumbered as paragraph 14 in the ID.

Paragraph 14. Paragraph 14 has been revised for clarity. In contrast to advertising of commercial products and services at concession sites as provided under paragraphs 11 and 12, it is appropriate in advertising about Forest Service concessions to identify authorized facilities and services with the Forest Service.

2. Regulatory Requirements

Environmental Impact

This ID revises national policy governing administration of special use permits for concession uses involving privately owned facilities. Section 31b of Forest Service Handbook 1909.15 (57 FR 43180, September 18, 1992) excludes from documentation in an environmental assessment or environmental impact statement “rules, regulations, or policies to establish Service-wide administrative procedures, program processes, or instructions.” The agency's conclusion is that this ID falls within this category of actions and that no extraordinary circumstances exist which would require preparation of an environmental assessment or environmental impact statement.

Regulatory Impact

This ID has been reviewed under USDA procedures and Executive Order 12866 on regulatory planning and review. It has been determined that this is not a significant directive. This ID will not have an annual effect of $100 million or more on the economy, nor would it adversely affect productivity, competition, jobs, the environment, public health and safety, or State or local governments. This ID will not interfere with an action taken or planned by another agency, nor will it raise new legal or policy issues. Finally, this ID will not alter the budgetary impact of entitlement, grant, user fee, or loan programs or the rights and obligations of beneficiaries of such programs. Accordingly, this ID is not subject to Office of Management and Budget review under Executive Order 12866.

Moreover, this ID has been considered in light of the Regulatory Flexibility Act (5 U.S.C. 602 et seq.). It has been determined that this ID will not have a significant economic impact on a substantial number of small entities as defined by the act because the ID will not impose recordkeeping requirements on them; it will not affect their competitive position in relation to large entities; and it will not significantly affect their cash flow, liquidity, or ability to remain in the market. The benefits cannot be quantified and are not likely substantially to alter costs to small businesses.

No Takings Implications

This ID has been analyzed in accordance with the principles and criteria contained in Executive Order 12630, and it has been determined that the ID will not pose the risk of a taking of private property.

Civil Justice Reform

This ID has been reviewed under Executive Order 12988 on civil justice reform. If this ID were adopted, (1) all State and local laws and regulations that are in conflict with this proposed directive or that would impede its full implementation will be preempted; (2) no retroactive effect will be given to this proposed directive; and (3) it will not require administrative proceedings before parties may file suit in court challenging its provisions.

Federalism and Consultation and Coordination With Indian Tribal Governments

The agency has considered this proposed directive under the requirements of Executive Order 13132 on federalism, and has made an assessment that the ID conforms with the federalism principles set out in this executive order; will not impose any compliance costs on the States; and will not have substantial direct effects on the States, the relationship between the Federal Government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, the agency has determined that no further assessment of federalism implications is necessary at this time.

Moreover, this ID does not have tribal implications as defined by Executive Order 13175, entitled “Consultation and Coordination With Indian Tribal Governments,” and therefore advance consultation with Tribes is not required.

Energy Effects

This ID has been reviewed under Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.” It has been determined that this ID does not constitute a significant energy action as defined in the executive order.

Unfunded Mandates

Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), which the President signed into law on March 22, 1995, the agency has assessed the effects of this ID on State, local, and Tribal governments and the private sector. This ID will not compel the expenditure of $100 million or more by any State, local, or Tribal government or anyone in the private sector. Therefore, a statement under section 202 of the act is not required.

Controlling Paperwork Burdens on the Public

This ID does not contain any record-keeping or reporting requirements or other information collection requirements as defined in 5 U.S.C. part 1320 that are not already required by law or not already approved for use. Any information collected from the public as a result of implementing this ID has been approved by the Office of Management and Budget under control number 0596-0082. Accordingly, the review provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its implementing regulations at 5 CFR part 1320 do not apply.

Dated: October 24, 2005.

Dale N. Bosworth,

Chief.

3. Proposed Directive Changes for Advertising and Sponsorship at Certain Concessions

Note:

The Forest Service organizes its directive system by alphanumeric codes and subject headings. Only those sections of the Forest Service Handbook that are the subject of this notice are set out here. The intended audience for this direction is Forest Service employees charged with issuing and administrating concession special use permits involving privately owned improvements.

Forest Service Manual

2300—Recreation, Wilderness, and Related Resource Management

Chapter 2340 Privately Provided Recreation Opportunities

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2343.03—Policy

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11. The holder of a term permit may advertise products and services inside buildings or other interior spaces owned by the holder, including chair lift restraining bars facing the rider. The Forest Service shield and any other symbol identified with the agency shall not appear in conjunction with product or service names and advertisements and care shall be taken to avoid any other appearance of agency endorsement of products or services. The holder may also post exterior signage that merely identifies the types of products and services provided within those buildings. Except as provided in paragraph 12(c) for short-term special events, advertising outside those buildings or interior spaces, or along roads on National Forest System (NFS) lands, is prohibited. Any exterior signage must have prior written approval from the authorized officer.

12. Encourage cooperative relationships and sponsorships that promote public participation in the management of NFS lands, including programs or projects that propose public services, evaluate solutions to specific natural resource management problems, or promote conservation awareness or public health and safety. These programs or projects must have prior written approval from the authorized officer and must include a plan that describes the program or project; its duration, objective, outcome, and target audience; and communication or marketing strategies for the program or project. Cooperators and sponsors of these programs or projects may be recognized in accordance with the following:

a. Duration and Location of Recognition. Cooperator or sponsor recognition shall be allowed only during and within the proximity of the program or project and, to the extent practical, shall be integrated into the program or project so that participants and spectators can make a clear connection between the cooperator and sponsor and the public service being performed. Recognition of cooperators or sponsors on government vehicles is prohibited.

b. Content of the Recognition. Cooperator or sponsor recognition in signs, printed and electronic media, wayside and kiosk exhibits, and temporary facilities shall be limited to acknowledgement of the cooperator's or sponsor's public service initiative and may include the cooperator's or sponsor's name and trademark. The purpose of the recognition is to identify the sponsor, not to promote the sponsor's products or services.

c. Special Events. Recognize cooperative support for or sponsorship of short-term special events, such as races, competitions, festivals, clean-up days, and volunteer events. During short-term special events sponsored by the holder (rather than by the Forest Service, with support from a cooperator), the authorized officer may temporarily waive the prohibition on exterior advertisement. Recognition of sponsors during the events may appear on banners, posters, flyers, and temporary facilities and may include sponsor names, sponsor trademarks, sponsor product names and services, and sponsor advertisements. The Forest Service shield and any other agency symbol shall not appear in conjunction with sponsor product names, services, and advertisements on banners, posters, flyers, and temporary facilities. In addition, care shall be taken to avoid any other appearance of agency endorsement of sponsor product names and services in connection with the events. Recognition of cooperators or sponsors on government vehicles is prohibited.

13. Clearly define the holders' responsibilities for the safety of their employees and the public within the boundaries of the authorization and while participating in activities covered by the authorization. Require that safety be addressed in applications responding to prospectus offerings, special use authorizations, and operating plans.

14. Ensure that literature, brochures, and other advertising of facilities and services under special use permit that holders display or distribute do not contain misleading statements or statements that discriminate on the basis of race, color, sex (in educational and training programs), national origin, age, or disability. Also ensure that these materials state that the permitted facilities and services are located on NFS lands.

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