[Federal Register Volume 78, Number 92 (Monday, May 13, 2013)]
[Notices]
[Pages 27941-27949]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-11299]
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DEPARTMENT OF AGRICULTURE
Forest Service
RIN 0596-AC41
Advertising and Sponsorship in Connection With Concessions
Involving Privately Owned Improvements on National Forest System Lands
AGENCY: Forest Service, USDA.
ACTION: Notice of issuance of final directive; response to public
comment.
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SUMMARY: The Forest Service is amending its internal directives for
concessions with privately owned improvements that operate under
special use permit on National Forest System (NFS) lands. Subject to
certain conditions, the final directive allows holders of concession
permits to advertise (1) inside buildings and other interior spaces
they own; (2) on chairlift restraining bars in conjunction with trail
map displays; (3) at designated ski/snowboard racing sites; and (4) at
venues for short-term competitive events. In addition, the final
directive
[[Page 27942]]
allows concessioners to advertise the services and accommodations they
offer at the concession site. The final directive also encourages
third-party sponsorships of events, projects, and programs to assist
the Agency in promoting public participation in or awareness of
management of NFS lands. The revised direction promotes consistency in
the special uses program by clarifying where advertising is permitted
or prohibited and by describing how sponsorships may be utilized and
how sponsors may be recognized. The final directive also adds several
definitions to FSM 2340 to aid in understanding terms used in this
directive.
DATES: This directive is effective May 13, 2013.
ADDRESSES: The record for this final directive is available for
inspection and copying at the office of the Director, Recreation,
Heritage, and Volunteer Resources Staff, USDA, Forest Service, 4th
Floor Central, Sidney R. Yates Federal Building, 1400 Independence
Avenue SW., Washington, DC, from 8:30 a.m. to 4:00 p.m., Monday through
Friday, except holidays. Those wishing to inspect these documents are
encouraged to call ahead at (202) 205-9530 to facilitate access to the
building.
FOR FURTHER INFORMATION CONTACT: Corey Wong, Recreation, Heritage, and
Volunteer Resources Staff, (970) 874-6668.
SUPPLEMENTARY INFORMATION:
1. Background and Need for the Final Directives
Background
The Forest Service authorizes and regulates the provision of
concession recreation services to the public through private
individuals and entities that own and operate recreational facilities
and provide services on NFS lands. These facilities and services are
authorized by special use permits and are intended to enhance
opportunities for the public to recreate on NFS lands. Concessioners
often provide the primary and sometimes the only experience on NFS
lands for many members of the public. Many people visit concessions on
NFS lands each year. For example, approximately one-half of the 60
million annual skier and snowboarder visits in the United States occur
at ski areas that operate under a Forest Service special use permit.
Thus, concessioners such as resort, marina, and ski area operators
greatly assist the Forest Service in providing outdoor recreation
opportunities in developed settings.
Concession special use permits are issued to provide for particular
types of public recreation opportunities. While the Agency recognizes
that a permit holder must charge fees to cover the cost of these
facilities and services and to provide a return on the holder's
financial investment, these authorizations are not issued simply to
generate revenue. A primary objective in the NFS recreation program is
to ``provide nonurbanized outdoor recreation opportunities in natural
appearing forest and rangeland settings'' (FSM 2302). At concession
sites, the Agency is required to manage for ``a diversity of recreation
activities that emphasize the forest setting and rustic, natural
resource-based recreation opportunities'' (FSM 2343.02). Under these
policies, the Forest Service has a responsibility at concession sites
to limit the types of development and posted displays and information
to protect the natural setting.
Prior to 2005, Forest Service directives prohibited all outdoor
advertising, except for posting of available services and
accommodations inside buildings (FSM 2343.03, para. 11). Since 2005,
the Forest Service has authorized limited outdoor advertising under an
interim directive issued on November 25, 2005. The interim directive
recognizes that it may not be economical for a concessioner to conduct
some types of activities or provide some facilities without the
financial support of third parties. In addition, the interim directive
recognizes that sponsorship of events, projects, and programs can
promote public participation in and awareness of management of NFS
lands if these activities evaluate solutions to specific natural
resource management problems, increase conservation awareness, or
promote public health or safety.
Need for the Final Directive
The final directive provides long-term direction to field employees
on advertising and sponsorship at concession sites and reflects current
trends at concession sites. At many of these sites, such as ski areas,
the nature of the setting and the activities offered have become more
developed in recent years. In addition, some activities, such as
national and international ski and snowboard racing, including Olympic
events, would not be possible if advertising were not allowed.
Financial support for certain facilities and activities from third
parties such as the National Standard Race Program is critical and
probably would not be feasible if the supporting entities were not
provided some sort of promotional opportunity. The final directive
keeps pace with these changes while ensuring that concession sites
remain a place for natural resource-based recreation, where visitors
can expect to find refuge from extensive advertising and other urban
pressures. The revisions to the provisions on sponsorship provide for a
more consistent approach nationally and more clearly distinguish
sponsorship from advertising.
2. Public Comments on the Interim Directive and Agency Responses
On November 25, 2005, the Forest Service published notice in the
Federal Register (70 FR 71081) of and requested public comment on an
interim directive governing advertising at concession sites with
privately owned improvements. The interim directive allowed holders of
concession permits to advertise inside buildings and other interior
spaces that they own. In addition, the interim directive introduced
sponsorship as a means of promoting public participation in and
awareness of management of NFS lands through events, projects, and
programs that provide for evaluation of solutions to specific natural
resource management problems, increase conservation awareness, or
promote public health or safety.
The notice of the interim directive was posted electronically on
the Federal Register Web site, www.gpoaccess.gov, and on the FirstGov
e-rulemaking site, www.regulations.gov. The Agency posted the notice
and the interim directive on its special uses Web site, www.fs.fed.us/
recreation/permits. The notice provided for a 120-day public comment
period ending March 27, 2006. The Forest Service received 190 comments
on the interim directive. Each respondent was grouped in one of the
following categories:
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Business................................................ 9
Commercial Recreation Permit Holder or Association...... 3
Individual.............................................. 172
Environmental Organization.............................. 5
Recreation Organization................................. 1
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The 190 respondents represented 16 States and the District of
Columbia. Most comments were short statements of one paragraph or less
provided via email. Fewer than 20 of the comments were identical.
Many respondents offered general comments supporting or opposing
the interim directive, while others offered comments on specific
sections of the interim directive. Most respondents stated that NFS and
other Federal lands should be a refuge from the constant
[[Page 27943]]
barrage of commercialism in their daily lives and that advertising
detracts from the natural environment they seek when visiting the NFS.
These respondents generally objected to any change in the Agency's pre-
2005 policy on advertising.
Many respondents objected to the designation of the side of a
restraining bar facing the rider on a chairlift as an indoor space
owned by the permit holder and therefore eligible for placement of
advertising. Several respondents stated that the advertisements on a
chairlift restraining bar did not diminish their experience and were
helpful.
Other respondents provided specific comments about other agency
policy-making efforts or existing Forest Service direction in other
areas, which are beyond the scope of the interim directive.
Untimely comments were not considered.
General Comments and Responses
Comment. Several respondents observed that the Forest Service
provided no information supporting the public need to revise the policy
on advertising. One respondent stated that there is no historical
precedent that supports advertising as a legitimate use of Federal
lands.
Response. The Agency believes that in general outdoor advertising
on NFS lands at concession sites is not appropriate. The Forest Service
has not identified outdoor advertising generally as a needed public
service. However, there are limited situations where advertising at
concession sites on NFS lands provides a useful public service that
would not otherwise be available. Further clarification and clear
limitations on advertising opportunities are important aspects of the
revised policy. Specifically, the final directive (1) more clearly
defines what constitutes an indoor space where advertising is allowed
and specifies applicable restrictions, including those governing
advertising on chairlift restraining bars; (2) clarifies that permit
holders may advertise their own accommodations and services; (3)
indicates that printed materials distributed at concession sites, such
as trail map brochures, are not subject to advertising restrictions;
(4) provides for limited advertising opportunities at short-term
competitive events, such as ski races; and (5) includes provisions for
limited advertising at designated competitive courses that are used
throughout an operating season.
In terms of sponsorships, the Forest Service sees a public need to
promote public interest and participation in management of NFS lands.
The Agency believes this objective is met by sponsorship of events,
projects, and programs that provide for evaluation of solutions to
specific natural resource management problems, increase conservation
awareness, or promote public health or safety. Without sponsorship
opportunities, these endeavors might not provide a return on investment
for concessioners and therefore most likely would not be undertaken.
Comment. Several respondents were concerned that implementation of
the interim directive will lead to incremental proliferation of
advertising at concession sites due to pressure from permit holders and
advertisers on authorized officers.
Response. The Forest Service believes that the final directive
provides sufficient controls on advertising to prevent the incremental
proliferation of advertising at concession sites.
Comment. Several respondents expressed a concern that the revenues
generated from advertising at concession sites will result in a
reduction in public support for Forest Service appropriations from tax
revenues, as well as a reduction in the public's sense of ownership of
NFS lands.
Response. Most advertising revenues will not accrue to the Forest
Service. Rather, they will accrue to permit holders. The Forest Service
will obtain only a percentage of advertising revenue as part of the
land use fee for concessions. Therefore, implementation of the final
directive will have minimal effect on public support for Forest Service
appropriations or the public's sense of ownership of NFS lands.
Comment. One respondent voiced opposition to concessioners
operating on NFS lands.
Response. Whether concessions are an appropriate use of NFS lands
is outside the scope of the interim directive and therefore was not
considered in formulation of the final directive.
Comment. Many respondents expressed opposition to the interim
directive because they believed it will result in commercialization of
NFS lands, promote corporate branding, and generate profits for
resorts.
Response. The Agency believes the final directive includes
sufficient restrictions to protect the National Forest setting. The
Forest Service understands that both permit holders and third parties
are motivated by a variety of factors, including financial
considerations. Most concession permit holders are for-profit
businesses.
Comment. One respondent stated that the interim directive will
allow posting of religious messages.
Response. The final directive defines advertising as ``the act of
calling public attention to a product or business'' and therefore does
not apply to the posting of religious information.
Comment. One respondent stated that the interim directive provides
no assurance that any of the revenues generated will be devoted to a
public purpose that enhances the recreation experience. This respondent
also noted that in implementing the interim directive, the Forest
Service will be conveying valuable property rights of the United States
to concessioners without receiving compensation.
Response. The advertising revenues a permit holder generates are
subject to land use fees that are returned to the U.S. Treasury. The
Forest Service believes that the changes made to the interim directive
will help ensure that sponsorship funding will be focused on promoting
public awareness of and engagement in management of NFS lands.
Enhancement of the recreation experience is not an objective of the
sponsorship program, although it could be a secondary result in some
cases. Sponsorship and advertising provided for in the final directive
do not convey a property interest to permit holders.
Comment. Some respondents supported the interim directive and
stated that it will provide more clarity and consistency for
concessioners.
Response. The Forest Service believes that the changes contained in
the final directive are important to help reduce confusion and promote
consistent application.
Comment. One respondent stated that sponsorships were needed for
some concessions to underwrite services and amenities provided to the
public.
Response. This comment confuses advertising and sponsorship.
Sponsorship is not intended as a means for the holder to cover
operating expenses or finance new recreational facilities. The final
directive includes more explicit language on this point and reiterates
that to qualify for sponsorship, events, projects, and programs must
provide for evaluation of solutions to specific natural resource
management problems, increase conservation awareness, or promote public
health or safety.
Comment. One respondent stated that the interim directive was too
restrictive with respect to the types of commercial information that
may be posted in the base area of ski resorts. This respondent noted
that the base area is already developed and that posting some
[[Page 27944]]
commercial information at that location beyond what the interim
directive allows would not detract from the outdoor experience.
Response. The Forest Service agrees that the base area of ski
resorts, especially those with intermingled private and Federal land
ownership, often has a more developed appearance. However, the Agency
does not believe it would be appropriate or practical for the amount of
commercial information allowable to be based on the level of
development.
Comment. Some respondents expressed a concern about the need to
analyze adverse effects from the interim directive on scenic quality,
open space, and the Forest Service's mission and core values.
Response. With respect to advertising, the Agency does not believe
that the final directive will have adverse effects on scenic quality,
open space, or the Forest Service's mission and core values because
advertising will be confined to indoor spaces; chairlift restraining
bars, provided certain conditions are met; holder services, provided
certain conditions are met; printed materials and other media produced
outside the permit area and distributed inside the permit area,
provided they are not posted in outdoor settings inside the permit
area; short-term competitive events; and at the start and finish points
of designated ski and snowboard race courses and terrain parks.
With respect to sponsorship, the Agency does not believe that the
final directive will have adverse effects on scenic quality, open
space, or the Forest Service's mission and core values because events,
projects, and programs must provide for evaluation of solutions to
specific natural resource management problems, increase conservation
awareness, or promote public health or safety. Moreover, the final
directive does not approve or disapprove any event, project, or
program. Events, projects, and programs proposed for sponsorship will
be subject to the requisite analysis under the National Environmental
Policy Act (NEPA). Issues pertaining to scenic quality and open space
that arise in connection with these events, projects, and programs
could be addressed in any required environmental analysis.
Comment. One respondent asserted that the interim directive will
eventually affect many small entities.
Response. The final directive will apply only to holders of
concession permits authorizing facilities that are constructed and
operated by the permit holder on NFS lands. These facilities primarily
include operations such as resorts, marinas, and ski areas, some of
which are not built and operated by small entities. The final directive
will apply equally to all these permit holders, regardless of the size
of the business. Moreover, the final directive enhances the financial
position of these concessioners to the extent the final directive
allows advertising and sponsorship, which will generate revenue for the
concessioners. The Forest Service believes it is unlikely that there
would be any change in the number of special uses authorized as a
result of the final directive.
Comment. Several respondents stated that State and local law
regarding advertisement of alcohol and other products will be preempted
by the interim directive.
Response. The final directive governs the time, place, and manner
in which advertising may take place at concessions on NFS lands. The
final directive does not address the types of products that may be
advertised and therefore does not preempt State and local law governing
advertisement of specific products such as alcohol. State and local law
regarding advertisement of alcohol and other products will still be in
effect.
Comment. Several respondents expressed concerns about the effect
the interim directive will have on NFS lands outside the permit area.
One respondent was concerned that the interim directive will lead to
requests from businesses to allow advertising along roads and scenic
byways.
Response. The final directive provides for limited advertising only
within the permit area for concessions involving privately owned
improvements. The final directive does not allow advertising in other
contexts on NFS lands, including along roads and scenic byways.
Therefore, the Agency does not believe that the final directive will
have any effect on NFS lands outside the permit area for these
concessions, nor does the Agency believe that the final directive will
lead to requests from businesses to allow advertising along roads and
scenic byways.
Comment. Several respondents stated that they believed that the
interim directive will give companies and donors undue influence over
Forest Service decision-makers.
Response. Under the final directive, the business relationship for
both advertising and sponsorship is between the advertiser or sponsor
and the concessioner. The Agency's role is limited to ensuring that
advertising and sponsorship meet the requirements in the final
directive. The final directive restricts advertising to specific
situations and more clearly defines sponsorships. In the case of
advertising, the final directive helps meet the Agency's objectives of
resource protection and scenery management. In the case of sponsorship,
the final directive helps meet the Agency's objectives regarding
natural resource management, conservation awareness, and promotion of
public health and safety.
Comment. A few respondents made suggestions regarding accounting
for funds received by the Forest Service under the interim directive,
including retaining the funds in the unit where they are collected,
requiring advertisers to enter into an agreement with the permit holder
for use of NFS lands, and ensuring that the United States receives
market value fees for advertising and sponsorship revenue received by
concessioners under the interim directive. Other respondents asked the
Forest Service to ensure that the additional revenue generated under
the interim directive be devoted to public programs, projects, or
activities.
Response. The Forest Service does not have the authority to retain
land use fees for concession permits involving privately owned
improvements, including the part of the fees attributable to
advertising and sponsorship revenues. These fees will be deposited in
the U.S. Treasury. Advertisers will enter into advertising agreements
with holders of permits for concessions involving privately owned
improvements. The Forest Service will not be a party to these
agreements. A land use agreement between these parties is unnecessary,
as the permit holder is responsible for use and occupancy of NFS lands
for the concession, including advertising and sponsorship authorized
under the final directive. The Forest Service collects land use fees
based on market value for concessions involving privately owned
improvements. To the extent authorized by law, revenues derived from
advertising and sponsorships will be factored into calculation of these
land use fees. The National Forest Ski Area Permit Fee Act (16 U.S.C.
497c(f)) exempts sponsorship event revenue from the land use fee
calculation for ski area permits. Although the Forest Service cannot
retain and spend revenues generated from advertising and sponsorship
under the final directive, sponsored events, projects, and programs
promote the public interest by providing for evaluation of solutions to
specific natural resource management problems, increasing conservation
awareness, or promoting public health or safety.
[[Page 27945]]
Specific Comments and Responses
FSM2343.03, Paragraph 11--Advertising
Prior to issuance of the interim directive in 2005, Forest Service
policy prohibited all advertising at concession sites, except for signs
on buildings that simply iterated the services and accommodations
available inside. Forest Service policy did not address advertising
inside buildings and other structures. Paragraph 11 of the interim
directive addressed this issue by allowing for advertising in interior
spaces owned by the permit holder. The interim directive included
chairlift restraining bars at ski areas as an interior space. Paragraph
11 also cited paragraph 12 for guidance regarding advertising for
short-term special events.
Confusion between advertising and sponsorship has been the most
common obstacle to consistent implementation of the interim directive.
To distinguish sponsorship recognition more clearly from advertising,
the final directive defines sponsorship as ``monetary or in-kind
support from an individual or entity for an event, project, or program
that promotes public participation in or awareness of management of
National Forest System lands'' (FSM 2340.5). In contrast, advertising
is defined as ``the act of calling public attention to a product or
business.'' Additionally, the final directive addresses this confusion
by focusing on advertising in paragraph 11 and on sponsorship in
paragraph 12. In addition, paragraph 11 of the final directive includes
limited exceptions to the general advertising prohibition, some of
which might have been approved as sponsorships under the interim
directive.
In response to public comments, the final directive clarifies that
chairlift restraining bars facing passengers are not an interior space,
but qualify as a location for placement of advertising if the
advertising meets the conditions enumerated in the final directive.
Specifically, based on the recognition that trail maps are helpful to
ski area visitors, the advertising must be included in a trail map
display and must not exceed 33 percent of the surface area of the panel
facing passengers.
Paragraph 11 of the final directive also includes other exceptions
to the general advertising prohibition that might have previously been
treated as sponsorships because of ambiguity in the interim directive.
The final directive clarifies that concession permit holders may
advertise their services and accommodations at their concession site
and that printed materials and other media produced outside the permit
area that contain advertising may be distributed at the concession
site, provided they are not posted in outdoor settings in the permit
area. The final directive also includes exceptions for advertising at
short-term competitive events and for limited advertising at designated
ski and snowboard race courses and snow sports terrain parks.
The Forest Service recognizes that concessioners may have some
advertisements and displays under contract with third parties that do
not meet the requirements of the final directive. Therefore, the final
directive provides that these advertisements and displays may remain in
place through the term of the current contract. Finally, as in the
interim directive, the final directive prohibits display of Forest
Service symbols in conjunction with product or service names and
advertisements and requires prior written approval for exterior
signage.
Comment. Many respondents stated that expanding opportunities for
advertising in indoor spaces owned by permit holders would detract from
the natural environment they expect on NFS lands. One respondent stated
that social science research indicates that increased commercialism
results in less enjoyment of the outdoor experience.
Response. The interim and final directives authorize advertising
only at concessions with privately owned improvements, such as ski
areas, marinas, and other resorts. These concessions involve
significant developments. Nevertheless, the Agency believes that even
these developed settings should offer visitors some degree of refuge
from urban and commercial influences. The restrictions in the final
directive strike a balance between allowing advertising in some
contexts at commercial public service sites and maintaining the natural
integrity of these areas so that they stand apart from urban settings
as a place for natural resource-based outdoor recreation.
Comment. Many respondents expressed opposition to allowing
advertising on chairlift restraining bars. These comments were often
focused on a pilot program that was in place in Colorado where
advertising was integrated into trail map displays. Respondents
frequently stated that chairlift restraining bars should not be
considered an indoor space; that riding on a chairlift was a highly
outdoor experience; and that advertising on the restraining bar would
detract from their enjoyment of the natural setting. Several
respondents objected to being a captive audience to the advertising
while on a chairlift. One respondent suggested that if a ski area
believes that trail map displays on chairlift restraining bars add
value to the recreation experience, the maps could be provided without
advertising.
Response. The Forest Service agrees that chairlift restraining bars
should not be considered an indoor space. However, the Agency believes
that trail map displays on chairlift restraining bars provide a useful
public service and that recognition of third-party support in the
limited manner authorized by the final directive will not unduly
detract from the outdoor experience of skiers and snowboarders. The
fact that trail map displays on chairlift restraining bars did not
exist before advertising was allowed in conjunction with them suggests
that permit holders would be unlikely to include the displays without
that support.
Comment. Some respondents were supportive of the usefulness and
convenience of trail map displays on chairlift restraining bars. A few
of these respondents thought the advertising or message on the map was
either useful or did not negatively affect their experience. One
respondent noted that the three types of maps available (on paper, on
chairlift restraining bars, and posted on the mountaintop) were
redundant and unnecessary.
Response. The Agency believes that trail maps that are attached to
chairlift restraining bars are a positive amenity for skiers and
snowboarders. However, the interim directive allowed advertising on
chairlift restraining bars with no requirement that the display include
a trail map or any other public service feature. Likewise, the interim
directive did not include any limit on the size or extent of
advertising that may be placed on chairlift restraining bars. The final
directive does not allow any advertising on chairlift restraining bars
unless it is part of a trail map display and conforms to the other
limitations specified.
Comment. Some respondents expressed concern that the interim
directive will lead to advertising in other areas at resorts. One
respondent stated that considering chairlift restraining bars an indoor
space will lead to advertising on rope tow handles and platters on
tows. Another respondent stated that advertising on chairlift
restraining bars will probably lead to electronic alternating message
displays.
Response. The Forest Service believes that the final directive
includes sufficient restrictions to prevent the
[[Page 27946]]
expansion of advertising into other areas of resorts and undesirable
formats.
Comment. One respondent was concerned that allowable commercial
displays will be beyond the power of the Forest Service to regulate, no
matter how offensive or tasteless they are.
Response. The final directive merely addresses the time, place, and
manner of sponsorship recognition and advertising. The Forest Service
does not believe advertising and sponsorship recognition under the
final directive will be objectionable to most members of the public
because the final directive establishes clear limits on the extent of
the displays. In addition, State and local government restrictions on
these displays will still apply. Moreover, the activities offered at
commercial public service sites tend to be family-oriented, and the
Agency expects that permit holders will use good judgment as to the
content of materials they post.
Comment. One respondent expressed concern that the interim
directive will make it more difficult for the Forest Service to enforce
the requirement that permit holders acknowledge in their brochures and
advertising that their concession is located on NFS lands. Another
respondent noted that NFS visitors will infer that the Forest Service
endorses the products and services that are advertised on NFS lands.
Response. Special use permits for concessions involving privately
owned improvements continue to require holders to acknowledge in their
brochures and other printed materials that their concessions are
located on NFS lands. The final directive expressly states that Forest
Service symbols must not appear in conjunction with commercial product
or service names and advertisements and that care must be taken to
avoid any other appearance of Agency endorsement of products or
services. The final directive also states that placement of product or
service names or advertisements on Government vehicles is always
prohibited. In addition, the final directive addresses endorsement and
the appearance of endorsement by more clearly describing the situations
where advertising may be permitted and providing clearer direction for
sponsorship recognition.
FSM2343.03, Paragraph 12
Before 2005, Forest Service directives did not address the use of
sponsorships at commercial public service sites. The 2005 interim
directive allowed sponsorship recognition and provided guidance on its
implementation. Since 2005, confusion between advertising and
sponsorship recognition has impeded consistent application of the
interim directive and has resulted in approval of some projects that do
not conform with the interim directive's objective of promoting public
participation in management of NFS lands. The final directive
reinforces this objective by emphasizing that sponsorship recognition
is not intended to offset the cost of operating a public service site,
attract more customers, or provide financial support for basic elements
of a permit holder's operations.
Paragraphs 12(a) through 12(c) closely parallel the interim
directive in describing how sponsors may be recognized. Paragraph 12(a)
describes the duration and location of sponsor recognition; paragraph
12(b) describes the content of allowed recognition; and paragraph 12(c)
addresses sponsored events and describes how sponsors may be recognized
at event sites.
Comment. Some respondents were concerned that the concept of public
participation in management of NFS lands was not clearly defined in the
interim directive.
Response. The Forest Service agrees. The final directive includes
changes that more clearly define sponsorships and the objectives of
sponsorship recognition. Under the final directive, events, projects,
and programs that provide for evaluation of solutions to specific
natural resource management problems, increase conservation awareness,
or promote public health or safety will be suitable for sponsorship
initiatives. Some examples of events, projects, and programs that are
appropriate for sponsorship include (1) interpretative displays that
inform visitors about the area's geology, wildlife, or vegetation; (2)
initiatives seeking public involvement or support for Forest Service
watershed or wildlife habitat improvement projects or Forest Service
efforts to reduce the spread of noxious weeds; and (3) promotion of
public safety programs for visitors to the concession or surrounding
NFS lands. Exhibit 01 has been added to the final directive to provide
an example of a plan for an appropriate sponsorship.
Comment. Several respondents commented about the terms used in the
interim directive. One respondent stated that ``trademark'' should be
defined to include a name, word, phrase, slogan, symbol, logo, or
design that allows the trademark owner to dictate its use in
identifying a product. Another respondent commented that use of the
term ``cooperator'' may imply that the interim directive applies to
interpretive associations that work with the Forest Service.
Response. The word ``trademark'' is a term of art in advertising
and business that does not need to be defined in the final directive.
The term ``cooperator'' is not used in the final directive. The final
directive applies only to commercial public service sites involving
privately owned improvements that are authorized under a special use
permit. Interpretive associations do not operate these concessions.
Comment. Several respondents commented that sponsor recognition was
essentially advertising designed to promote brand identification and
should not be allowed. Some of these respondents believed that
sponsorship recognition will commercialize NFS lands and that the
revenues generated will not be devoted to public participation in
management of NFS lands and will instead generate profits for the
resorts. Several respondents objected to inclusion of corporate logos
in sponsorship recognition on the grounds that they were just another
form of advertising.
Response. To distinguish sponsorship recognition more clearly from
advertising, the final directive defines sponsorship as ``monetary or
in-kind support from an individual or entity for an event, project, or
program that promotes public participation in or awareness of
management of National Forest System lands'' (FSM 2340.5). In contrast,
advertising is defined as ``the act of calling public attention to a
product or business.'' The Agency believes the final directive includes
adequate controls to ensure that sponsorship recognition does not
become advertising by another name.
Comment. Several respondents expressed concern that sponsorship
recognition will place undue influence on Forest Service managers. One
respondent commented that if one sponsor is recognized, it will be
difficult for the Forest Service to refuse recognition to any other
sponsor and that the Agency will not be able to prevent posting of
corporate logos for alcohol, tobacco, and gaming interests. Another
respondent stated that sponsorship recognition will create an insidious
and pervasive corrupting influence on cash-starved Forest Service
managers; that corporations will exert improper leverage over the
Agency through donations; and that Forest Service officials will be
forced to solicit contributions.
Response. Sponsors will enter into sponsorship agreements with
holders of permits for concessions involving privately owned
improvements. The Forest Service is not subject to undue influence, as
the Agency will not be a
[[Page 27947]]
party to these agreements and will receive funds from these agreements
only to the extent the funds are factored into the land use fee. The
National Forest Ski Area Permit Fee Act (16 U.S.C. 497c(f)) exempts
event sponsorship revenue from the land use fee calculation for ski
area permits. Sponsored events, projects, and programs promote the
public interest by providing for evaluation of solutions to specific
natural resource management problems, increasing conservation
awareness, or promoting public health or safety. The final directive
does not restrict the number and type of sponsors. Rather, the final
directive limits how sponsors can be recognized.
Comment. One respondent commented that sponsorship recognition
should be expanded beyond resorts to allow other groups to work more
effectively with the Forest Service.
Response. The interim and final directives apply only to concession
sites with privately owned facilities. Expanding sponsorship
recognition to other contexts is beyond the scope of the interim and
final directives.
Comment. Many respondents were concerned that the interim directive
needed either more specificity or more latitude to provide authorized
officers with effective guidelines when considering approval of
sponsorship recognition and outdoor advertising for short-term events.
Concerns included (1) the need for additional direction on the size,
scope, location, and timing of sponsor recognition and advertising to
apply the interim directive consistently on NFS lands; (2) lack of
sufficient guidance to determine when sponsorship recognition and
advertising are excessive; (3) insufficient distinction between
sponsorship and advertising; and (4) excessive constraints on allowable
recognition.
Response. The Forest Service agrees that effective guidelines are
needed when considering approval of sponsorship recognition and outdoor
advertising. Based on public comments on the interim directive and
experience gained since 2005, the final directive provides more
guidance to the authorized officer in determining whether to approve
advertising and sponsorship recognition. In addition, the final
directive more clearly differentiates between advertising and
sponsorship recognition. The Agency believes that advertising and
placement of commercial displays on NFS lands are generally not
appropriate and should be allowed only in limited circumstances,
subject to certain constraints. Therefore, the final directive provides
only specific exceptions to the advertising prohibition and authorizes
sponsorship recognition only in specified circumstances that serve the
public interest, rather than providing more latitude for the authorized
officer.
Comment. Several respondents stated that the interim directive does
not contain sufficient clarity to manage sponsorship recognition
effectively. Some respondents commented that the interim directive
should contain criteria for determining how much sponsorship
recognition should be allowed and should contain provisions preventing
commercial displays from being installed all over a ski area. One
respondent stated that the interim directive will allow every chair on
every chairlift to be turned into a billboard and objected to a 25-foot
advertising banner for a ski manufacturer on the outside of a yurt
where skis are rented being considered sponsorship recognition.
Response. The final directive includes more specificity to allow
authorized officers to manage sponsorship recognition as intended in
the interim directive and set more specific limits on the extent of
advertising. For example, the final directive clarifies that
sponsorship recognition may not be used to fund services or facilities
required for the concession. With the additional specificity, the
Agency believes the final directive will not allow chairs on ski lifts
to become billboards. A banner for a ski manufacturer placed on the
outside of a yurt where skis are rented would not meet the requirements
of a sponsorship.
Comment. Some respondents were concerned that sponsorship
recognition would become more prevalent on NFS lands and would appear,
for example, on ski trail signs.
Response. The Forest Service believes that the additional
limitations included in the final directive will prevent inappropriate
posting of commercial information.
Comment. One respondent commented that the special events
provisions in the interim directive give the Forest Service undue
control over management and promotion of the concessioners' business
and that the Agency should provide a resort a certain number of days
each season to allow advertising for special events.
Response. Paragraph 11 of the final directive includes provisions
allowing holders to promote the services and accommodations they offer
at their concession. Furthermore, the final directive allows outdoor
advertising on chairlift restraining bars and in connection with short-
term events, subject to certain restrictions. However, the Forest
Service issues concession special use permits to provide for public
recreation, not simply to provide a business opportunity for permit
holders.
Comment. Several respondents expressed concern about sponsorship
recognition for short-term special events. Some respondents stated that
temporarily waiving the advertising prohibition for special events is
too expensive and allows almost any advertising to be approved. Another
respondent commented that successive and simultaneous short-term events
will result in de facto permanent advertising and aggressive marketing
campaigns and will make the national forests look more like a strip
mall.
Response. The Forest Service agrees that a temporary waiver is too
expensive and difficult to manage effectively. The final directive
eliminates this provision and limits posted commercial information to a
sponsor's name and trademark. The Forest Service believes that the
restrictions on advertising in connection with short-term events will
prevent de facto permanent advertising.
Comment. One respondent stated that the interim directive should
allow local ski race teams, working with ski areas, to place company
sponsor names on the back of chairlifts because the revenue from this
program would help fund the teams.
Response. Providing financial support to local ski race teams would
not promote public participation in management of NFS lands and would
not qualify for sponsorship recognition in most cases under the final
directive.
FSM 2343.03, Paragraph 13 (Previously Paragraph 12)
This section specifies holders' responsibilities for the safety of
their employees and the public while participating in activities
covered by the holders' special use permit.
Comment. Several respondents expressed concerns about skier safety
with respect to advertising panels placed on chairlift restraining
bars.
Response. This paragraph was merely renumbered; no substantive
changes were made to this paragraph. The Agency does not believe that
advertising that is part of a trail map display on a chairlift
restraining bar presents an increased safety risk. The Agency is not
aware of any safety-related incidents that have occurred since 2005
when the interim directive went into effect.
FSM 2343.03, Paragraph 14 (Previously Paragraph 13)
This paragraph requires that advertising of facilities and services
be
[[Page 27948]]
free from discriminatory statements and include recognition that
facilities and services are located on NFS lands. This paragraph was
merely renumbered. No substantive changes were made to this paragraph,
and no comments were received on this paragraph.
3. Summary of Revisions to the Proposed Directives
The Agency has made changes to the interim directive based on
public comments and experience acquired in implementing the interim
directive since 2005. The Agency believes that the changes to the
interim directive add clarity and provide for more consistent
application. In addition, the Agency has revised the interim directive
to include a definition for sponsorship and a terrain park. The changes
to the interim directive at FSM 2343.03 are summarized below.
Paragraph 11--Advertising. The Agency revised this paragraph to
include the title ``Advertising'' to distinguish this activity more
clearly from sponsorship; to note that advertising is prohibited except
as specified in paragraphs 11 and 12; to state that naming of
facilities intended to promote the products or services of a third
party is prohibited; to note that the Agency has no authority to
regulate advertising on non-NFS lands; to add provisions for removal of
noncompliant advertising and other displays; and to add subparagraphs
(a) through (f), which provide exceptions to the advertising
prohibition.
Paragraph 11(a)--Indoor Spaces. This paragraph more clearly
addresses advertising in indoor spaces; notes that chairlift
restraining bars and other ski lift components are not an indoor space;
requires that indoor advertising not be visible from outdoor locations;
and clarifies that advertising inside buildings owned by the permit
holder is permitted.
Paragraph 11(b)--Chairlift Restraining Bars. This paragraph
provides for advertising on chairlift restraining bars only when the
advertising is included as part of a trail map display and only to the
extent the advertising does not exceed 33 percent of the surface area
of the panel facing passengers.
Paragraph 11(c)--Holder Services. This paragraph allows holders to
post signs and other information at suitable indoor and outdoor
locations in the permit area that notify visitors of the location of
services offered at the concession site, provided that outdoor postings
are limited to those services provided by the holder and identify only
the name and location of services provided at the concession site. This
paragraph provides that outdoor postings may not include the name of
other companies or product descriptions, trademarks, taglines,
promotional graphics, or any other advertising for those companies.
Paragraph 11(d)--Holder Name and Logo. This paragraph allows
holders, contractors, and service providers to use vehicles in the
permit area that have the name and logo of holder or company attached
to the exterior of the vehicle.
Paragraph 11(e)--Printed Materials and Other Off-Site Media. This
paragraph notes that printed material such as trail map brochures and
other media that are produced off the NFS and that contain advertising
may be distributed at the site, but may not be posted in outdoor
settings in the permit area.
Paragraph 11(f)--Short-Term Competitive Events. This paragraph
allows authorized officers to approve outdoor advertising for
competitive events lasting 21 days or less. This paragraph also states
that advertising materials may be placed only at the event site and
must be removed as soon as practicable after the event.
Paragraph 11(g)--Designated Ski and Snowboard Race Courses and
Terrain Parks. This paragraph is new and allows entities that provide
financial or in-kind support for snow sport race courses and terrain
parks to be recognized at the start and finish points of the courses
and parks throughout the winter season; states that advertising,
taglines and other promotional materials may not be posted elsewhere at
these sites; and requires snow sport race courses and terrain parks to
be identified in a master development plan or an operating plan
approved by the authorized officer.
Paragraph 11(h)--Manufacturer's Name. This paragraph allows for a
manufacturer's name to be included on products and equipment that are
used within the permit area when they are made a part of these products
through the manufacturing process.
Paragraph 12--Sponsorship. The Agency revised this paragraph to
include the title ``Sponsorship'' to distinguish this activity more
clearly from advertising; to delete ``proposed public services'' as an
example of a sponsorship activity and to eliminate the use of the term
``cooperator''; to state that sponsorships should promote agency
conservation education and outdoor environmental education objectives;
to indicate that sponsorships should not be a means to defray the cost
of services or facilities; and to note that facilities such as trail
map bulletin boards, directional signing, and similar postings are not
appropriate for sponsorship recognition. A second section has been
added to this section to note that recognition of sponsors should be no
larger than necessary to be visible at a pedestrian scale and that such
postings should be consistent with the Forest Service Built Environment
Image Guide. A new exhibit (FSM 2343.01, exhibit 02) has been added to
illustrate the appropriate format and content for a sponsorship plan
submitted by a permit holder to the authorized officer for approval.
Minor revisions were also made to subsections of this paragraph.
Paragraph 12(a)--Duration and Location of Recognition. This
paragraph has been revised to eliminate the use of the term
``cooperator'' and the reference to recognition on government vehicles,
since both are addressed earlier in paragraph 12.
Paragraph 12(b)--Scope of the Recognition. The title of this
paragraph has been revised from ``Content of the Recognition,'' and the
content of this paragraph has been revised to eliminate use of the term
``cooperator''; and to state that taglines and other promotional
materials must not be included in sponsorship recognition.
Paragraph 12(c)--Events. The title of this paragraph has been
revised from ``Special Events,'' and the content of this paragraph has
been revised to clarify that events are conducted by the holder with
the support of sponsors; to eliminate the provision that allowed the
authorized officer temporarily to waive the prohibition on exterior
advertising; to delete the reference to agency symbols, since this
restriction is included earlier in paragraph 12; and to limit sponsor
recognition at events to sponsor names and trademarks.
4. Regulatory Certifications
Environmental Impacts
Forest Service regulations at 36 CFR 220.6(d)(2) exclude from
documentation in an environmental assessment (EA) or environmental
impact statement (EIS) ``rules, regulations, or policies to establish
Service-wide administrative procedures, program processes, or
instructions.'' The Agency has concluded that these final directives
fall within this category of actions and that no extraordinary
circumstances exist that would require preparation of an EA or EIS.
Regulatory Impact
The final directive has been reviewed under USDA procedures and
Executive Order 12866 on regulatory planning and review. It has been
determined that this
[[Page 27949]]
is not a significant directive. The final directive will not have an
annual effect of $100 million or more on the economy, nor will it
adversely affect productivity, competition, jobs, the environment,
public health and safety, or State or local governments. The final
directive will not interfere with an action taken or planned by another
agency, nor will it raise new legal or policy issues. Finally, the
final directive will not alter the budgetary impact of entitlement,
grant, user fee, or loan programs or the rights and obligations of
beneficiaries of those programs. Accordingly, the final directive is
not subject to Office of Management and Budget review under Executive
Order 12866.
Moreover, the Forest Service has considered the final directive in
light of the Regulatory Flexibility Act (5 U.S.C. 602 et seq.). The
Agency has determined that the final directive will not have a
significant economic impact on a substantial number of small entities
as defined by the Act because the final directive will not impose
recordkeeping requirements on them; will not significantly affect their
competitive position in relation to large entities; and will not affect
their cash flow, liquidity, or ability to remain in the market. The
benefits of the final directive cannot be quantified and are not likely
substantially to alter costs to small businesses.
No Takings Implications
The Agency has analyzed the final directive in accordance with the
principles and criteria contained in Executive Order 12630. The Agency
has determined that the final directive does not pose the risk of a
taking of private property.
Civil Justice Reform
The Agency has reviewed the final directive under Executive Order
12988 on civil justice reform. Upon adoption of the final directive,
(1) all State and local laws and regulations that conflict with the
final directive or that impede its full implementation will be
preempted; (2) no retroactive effect will be given to the final
directive; and (3) administrative proceedings will not be required
before parties can file suit in court challenging its provisions.
Unfunded Mandates
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), the Agency has assessed the effects of the final
directive on State, local, and tribal governments and the private
sector. The final directive 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.
Federalism
The Agency has considered the final directive under the
requirements of Executive Order 13132 on federalism and has determined
that the final directive 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.
Consultation and Coordination With Indian Tribal Governments
No comments were received from Indian tribes on the interim
directive, and no comments regarding the interim directive were
submitted to the Agency in the years since its publication. The Agency
believes that most advertising and sponsorship projects that will occur
under the final directive will be in areas of the NFS that already
support fairly extensive development for recreation. Proposals for
sponsored events, projects, and programs will be subject to review, as
appropriate, under NEPA, which will offer further opportunity for
consultation with Indian tribes. Accordingly, the final directive does
not have tribal implications as defined by Executive Order 13175,
entitled ``Consultation and Coordination with Indian Tribal
Governments.''
Energy Effects
The Agency has reviewed the final directive under Executive Order
13211 of May 18, 2001, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use.'' The Agency
has determined that the final directive does not constitute a
significant energy action as defined in the Executive Order.
Controlling Paperwork Burdens on the Public
The final directive does not contain any recordkeeping or reporting
requirements or other information collection requirements as defined in
5 CFR part 1320 that are not already required by law or not already
approved for use. 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.
5. Access to the Final Directive
The Forest Service organizes its Directive System by alphanumeric
codes and subject headings. The intended audience for this direction is
Forest Service employees charged with issuing and administrating
concession special use permits involving privately owned improvements.
To view the full text of the final directive, visit the Forest
Service's Web site at http://www.fs.fed.us/im/directives/.
Dated: March 29, 2013.
Thomas L. Tidwell,
Chief, Forest Service.
[FR Doc. 2013-11299 Filed 5-10-13; 8:45 am]
BILLING CODE 3410-11-P