[Federal Register Volume 60, Number 168 (Wednesday, August 30, 1995)]
[Rules and Regulations]
[Pages 45258-45295]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-21225]
[[Page 45257]]
_______________________________________________________________________
Part III
Department of Agriculture
_______________________________________________________________________
Forest Service
_______________________________________________________________________
36 CFR Parts 251 and 261
Land Uses and Prohibitions; Final Rule
Federal Register / Vol. 60, No. 168 / Wednesday, August 30, 1995 /
Rules and Regulations
[[Page 45258]]
DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Parts 251 and 261
[RIN 0596-AA80]
Land Uses and Prohibitions
AGENCY: Forest Service, USDA.
ACTION: Final rule.
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SUMMARY: This final rule revises the existing rules governing
noncommercial group uses and noncommercial distribution of printed
material within the National Forest System. These revisions ensure that
the authorization procedures for these activities comply with First
Amendment requirements of freedom of speech, assembly, and religion,
while providing a reasonable administrative system for allocating space
among scheduled and existing uses and activities, addressing concerns
of public health and safety, and controlling or preventing adverse
impacts on forest resources.
EFFECTIVE DATE: This rule is effective September 29, 1995.
FOR FURTHER INFORMATION CONTACT: John Shilling, telephone number (202)
205-1426, or Sharon Prell, telephone number (202) 205-1414, Recreation,
Heritage, and Wilderness Resources Management Staff (2340), Forest
Service, USDA, PO Box 96090, Washington, DC 20090-6090, or Ellen R.
Hornstein, telephone number (202) 720-9616, Natural Resources Division,
Office of the General Counsel, USDA.
SUPPLEMENTARY INFORMATION:
Statutory and Regulatory Background
The First Amendment of the United States Constitution provides in
part that the government may not abridge the freedom of speech or the
right to assemble peaceably and that the government may not pass laws
prohibiting the free exercise of religion (U.S. Const., amend. I).
Freedom of speech means the right to disseminate ideas freely, both
orally or in writing. Free exercise of religion means the right to
practice one's religion freely.
It is well established that the government may enforce reasonable
time, place, and manner restrictions on First Amendment activities.
Such restrictions are constitutional when justified without regard to
the content of the regulated speech, when narrowly tailored to further
a significant governmental interest, and when they leave open ample
alternative channels for communication of information. Clark v.
Community for Creative Non-Violence, 468 U.S. 288, 293 (1984). Permits
have been recognized as constitutional restrictions of time, place, and
manner for activities involving the expression of views, including
religious gatherings, when specific and objective standards guide the
licensing authority. Shuttlesworth v. City of Birmingham, 394 U.S. 147,
150-51, 153 (1969); Cantwell v. Connecticut, 310 U.S. 296, 304-05
(1940).
On March 3, 1891, Congress authorized the President to set aside
federal lands as public forest reservations (16 U.S.C. 471). On June 4,
1897, Congress directed the Secretary of the Interior to protect the
forests within those reservations and to regulate their occupancy and
use (16 U.S.C. 551). On February 1, 1905, Congress transferred the
authority to manage the national forest from the Secretary of the
Interior to the Secretary of Agriculture (16 U.S.C. 472).
Today there is 155 national forests comprising approximately 191
million acres in 42 States, the Virgin Islands, and Puerto Rico. These
forests, together with 20 national grasslands, land utilization
projects, purchase units, and other lands, constitute the National
Forest System.
The Forest Service, an agency of the United States Department of
Agriculture, is charged with managing the resources of the National
Forest System for multiple uses as well as for the provision of goods,
services, and other amenities for current and future generations. The
Multiple-Use Sustained-Yield Act of 1960 (MUSY) (16 U.S.C. 528-531)
authorizes the Forest Service to manage diverse public, private,
governmental, and commercial uses of National Forest System lands.
These uses are collectively known as special uses.
The Forest Service regulates activity on National Forest System
lands by issuing special use authorizations. Issuing special use
authorizations allows the Forest Service to protect resources and
improvements on National Forest System lands, to allocate space among
potential or existing uses and activities, and to address concerns of
public health and safety. The rules at 36 CFR part 251, subpart B,
govern the issuance of special use authorizations for all uses of
National Forest System lands, improvements, and resources, except for
the disposal of timber (part 223) and minerals (part 228) and the
grazing of livestock (part 222).
The Forest Service administers approximately 65,000 special use
authorizations annually. Examples of authorized uses include ski
resorts and marinas, campground concessions, pipelines, communication
sites, and commercial outfitting and guiding services. Competition for
available sites for these uses and activities has increased as more
legal restrictions, such as the Endangered Species Act (ESA) (16 U.S.C.
531 et seq.) and the National Historic Preservation Act (NHPA) (16
U.S.C. 470 et seq.), have been placed on the use of National Forest
System lands.
The Forest Service hosts many types of group activities, both
commercial and noncommercial, on National Forest System lands. Examples
of these activities include fishing contests, mountain bicycle and
motorcycle races, group camping, hikes, and horseback rides, and
demonstrations and assemblies.
Large group gatherings in the national forests have significant
adverse impacts on forest resources, public health and safety, and the
agency's ability to allocate space in the face of increasing
constraints on the use of National Forest System lands. These adverse
impacts include the spread of disease, pollution from inadequate site
cleanup, soil compaction from inadequate site restoration, damage to
archaeological sites, and traffic congestion.
On June 21, 1984, the Secretary of Agriculture promulgated a
revision to 36 CFR part 251, subpart B. The purpose of the rule was to
allow the Forest Service to protect forest resources, to address
concerns of public health and safety, and to allocate space among uses
and activities by regulating all types of noncommercial group uses. The
rule required a special use authorization for two types of
noncommercial group uses, recreation events and special events, both of
which involved ten or more participants or spectators. As defined,
recreation events included activities involving competition,
entertainment, or training, and special events included meetings,
assemblies, demonstrations, parades, or other activities involving the
expression of views. Noncommercial groups that did not fall into either
of these categories did not require a special use authorization.
Moreover, the rule contained different standards for denying a special
use authorization for each type of group use (49 FR 25449).
Subsequently, a federal district court held that it is
unconstitutional to require a group to obtain a special use
authorization simply because its members gather to exercise their
constitutional right of free speech. The court explained that the
Forest Service has the right to regulate large group activities on
government land, but only if the regulation is content-neutral and
[[Page 45259]]
applies to all large groups. United States v. Israel, No. CR-86-027-
TUC-RMB (D. Ariz. May 10, 1986).
On May 10, 1988, the Forest Service published an interim rule
amending 36 CFR 251.50 through 251.54 to comport with First Amendment
rights of assembly and free speech within the National Forest System
(53 FR 16548). Upon challenge of this rule, a federal district court
held that the Forest Service had failed to show good cause for adopting
the interim rule without prior notice as required by the Administrative
Procedure Act (APA) under 5 U.S.C. 553. United States v. Rainbow
Family, 695 F. Supp. 294, 302-06 (E.D. Tex. 1988). In addition, the
court invalidated the classification established by the 1984 rule,
which on its face singled out group uses involving expressive
activities and required that they be treated differently from other
types of group uses. The court held that the 1984 rule lacked clear and
objective standards for determining when a group activity is a
``recreation event'' and when it is a ``special event'' involving the
exercise of free speech. Rainbow Family, 695 F. Supp. at 309, 312. The
court further held that the standards for evaluating an application for
an authorization for expressive conduct were unconstitutionally vague
as they vested too much discretion in the authorized officer. Id. at
309-12. The court also ruled that the 1984 regulations were invalid for
failure to impose a timeframe for filing and acting on an application
and that the absence of any requirement in the 1984 regulations that a
reason be stated for denial of a special use authorization made it
impossible to discern the grounds for an authorized officer's decision.
Id. at 311-12. Finally, the court held that the 1984 rule was invalid
for failure to provide for judicial review of the administrative
determination. Id. at 311.
As a result of these court rulings, on May 6, 1993, the Forest
Service published a proposed rule to regulate noncommercial group uses
and noncommercial distribution of printed material on National Forest
System lands in compliance with First Amendment requirements of
assembly and free speech (58 FR 26940). To achieve this goal, the
proposed rule contained specific, content-neutral criteria for
evaluating applications for noncommercial group uses and noncommercial
distribution of printed material and required that the same criteria be
applied to those activities regardless of whether they involve the
exercise of First Amendment rights. The proposed rule also required an
authorized officer to notify an applicant in writing of the reasons for
denial of a special use authorization and provided for immediate
judicial review of a decision denying an authorization.
In addition to publishing the proposed rule in the Federal
Register, the Forest Service gave direct notice of the proposed rule to
numerous interested parties and invited their comments. The comment
period for the proposed rule lasted 90 days, closing August 4, 1993.
Summary of Comments and Responses
A total of 603 comments were received during the comment period. Of
these, 590 comments were received from individuals, two from elected
officials, one from a State department of health, and ten from
organizations, including two chapters of the American Civil Liberties
Union. Most comments were individually written letters or postcards;
several comments were form letters and some were petitions containing
20,451 signatures. All comments have been given full consideration in
adoption of this final rule.
General Comments
Comment. Freedom of Assembly. Approximately 175 respondents stated
that requiring permits for expressive activities violates the
constitutional right of assembly. Most of these respondents indicated
that the First Amendment right of assembly is absolute and that any
attempt to regulate assemblies on public land is invalid per se.
Specific and recurrent comments from these respondents were as follows:
--That the special use authorization requirement in the proposed rule
is generally illegal;
--That no possible governmental interest can justify restrictions on
free speech;
--That any regulation of First Amendment activities is content-based
per se;
--That there are no acceptable criteria by which to judge an
application for authorization of First Amendment activities;
--That Clark v. Community for Creative Non-Violence, 468 U.S. 288
(1984), a case cited in the preamble in support of the proposed rule,
violates both the letter and spirit of the Bill of Rights;
--That the significant governmental interest standard should not apply
because it is too low to justify abridgment of constitutional rights,
and that the standards of compelling governmental interest and clear
and present danger should apply instead;
--That Clark v. Community for Creative Non-Violence, 468 U.S. 288
(1984), and Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969),
cases cited in the preamble in support of the proposed rule, are too
recent and untested;
--That although courts may allow reasonable time, place, and manner
restrictions on First Amendment activities, the United States
Constitution is still the highest law of the land;
--That the United States Constitution is a permit;
--That humanity is a permit;
--That Americans do not need authorization to exercise basic
constitutional rights;
--That the proposed rule imposes a prior restraint and is an undue
burden on the public;
--That the Rainbow Family cannot comply with the permit requirement;
--That rights cannot be extinguished by decree of an executive agency;
--That one person should not be able to tell another person what to do;
--That everyone should be able to choose when and where they want to
gather on public land and distribute noncommercial printed material;
--That in exercising their First Amendment right of assembly, people
should be able to act as they please;
--That national forests should remain open to all;
--That national forests are supported by tax dollars and that taxpayers
have a right to gather on public lands;
--That public land belongs to the people and that they should be able
to use it without a permit;
--That the proposed rule discriminates against humans, who are given
fewer rights than animals to gather in the national forests;
--That assemblies on the national forests provide thousands of people
with a fine vacation; and
--That if a similar rule were applied in cities or towns, the rule
would amount to imposition of martial law.
Response. The United States Supreme Court, the highest court in the
country, is the ultimate arbiter of the United States Constitution.
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177-78 (1803). As noted in
the preamble to the proposed rule and the preamble to this final rule,
the Supreme Court has repeatedly held that the government may enforce
reasonable time, place, and manner restrictions on First Amendment
activities. Such restrictions are appropriate where they are content-
neutral, where they are narrowly tailored to further a significant
[[Page 45260]]
governmental interest, and where they leave open ample alternative
channels for communication of information. Clark v. CCNV, 468 U.S. at
293. Permits have been recognized as constitutional restrictions of
time, place, and manner for expressive activities when specific and
objective standards guide the licensing authority. Shuttlesworth, 394
U.S. at 150-51, 153. Both Clark v. CCNV and Shuttlesworth involve time,
place, and manner restrictions on demonstrations in urban areas. Clark
v. CCNV has been cited nearly 400 times by numerous courts, including
over 40 times by the Supreme Court. Shuttlesworth has been cited over
600 times by numerous courts, including over 50 times by the Supreme
Court. These cases have been extensively tested.
The final rule meets the constitutional requirements of Clark v.
CCNV and Shuttlesworth. The final rule does not restrict, and is not
intended to restrict, freedom of thought or expression, nor does the
final rule prohibit expressive activities. Rather, the final rule
establishes a permit system with specific and objective standards that
further the significant governmental interests of resource protection,
allocation of space in the face of greater restrictions on the use of
public land, and promotion of public health and safety. The final rule
presumes that a special use authorization will be granted and restricts
the content of an application to information concerning time, place,
and manner for activities subject to the rule. Under the final rule, if
an application is denied and an alternative time, place, or manner will
allow the applicant to meet the evaluation criteria, the authorized
officer must offer that alternative.
Comment: Free Exercise of Religion. Forty-eight respondents
commented that the proposed rule infringes on the free exercise of
religion. Specifically, these respondents stated that permits are
unconstitutional as applied to religious activity, citing Shuttlesworth
and Cantwell; that Rainbow Family Gatherings are protected under the
free exercise clause of the United States Constitution; that Rainbow
Family Gatherings involve the exercise of religion; that Rainbow Family
Gatherings are a religious experience; that Rainbow Gatherings provide
spiritual growth; that the woods are the Rainbow Family's church; that
people choose to gather with those of similar religious beliefs in the
cathedral of nature; that the proposed rule would restrict gatherings
for the purpose of spiritual expression; that the proposed rule targets
those who go to the forest to worship; and that, to many, particularly
Native Americans, public land includes sacred ground.
Response. The final rule does not infringe and is not intended to
infringe upon the free exercise of religion. Under Shuttlesworth and
Cantwell, permits have been recognized as constitutional restrictions
of time, place, and manner for activities involving the expression of
views, including religious gatherings, when specific and objective
standards guide the licensing authority. 394 U.S. at 150-51, 153; 310
U.S. at 304-05. In Cantwell, the Supreme Court stated that the
regulation of solicitation generally in the public interest is
constitutional where the regulation does not involve any religious test
and does not unreasonably obstruct or delay the collection of funds,
even if the collection is for a religious purpose. The Court held that
this type of regulation does not constitute a prohibited prior
restraint or impose an impermissible burden on the free exercise of
religion. Id. at 305.
Similarly, this final rule is a general regulation in the public
interest, does not involve any religious test, and does not
unreasonably obstruct or delay activities subject to the rule.
Therefore, the final rule is not open to any constitutional objection
under the Free Exercise Clause of the First Amendment, even if some of
the activities subject to the rule are for a religious purpose.
Requiring a special use authorization for all group uses of
National Forest System lands does not substantially burden the free
exercise of religion and therefore does not trigger the compelling
interest standard under the Religious Freedom Restoration Act of 1993
(42 U.S.C. 2000bb note).
The Supreme Court has held that the nature of the burden is
relevant to the standard the government must meet to justify the
burden. Bowen, Secretary of Health and Human Serv. v. Roy, 476 U.S.
693, 707 (1986). In cases in which the Supreme Court has invalidated a
governmental action that interfered with an individual's practice of
religion, the Court has relied directly or indirectly on the coercive
nature of the governmental action or regulation and the imposition of
penalties on the free exercise of religion. See, e.g., Thomas v. Review
Bd. of Indiana Employment Sec. Div., 450 U.S. 707, 716-17 (1991)
(denial of unemployment benefits to applicant whose religion forbade
him to fabricate weapons); Wisconsin v. Yoder, 406 U.S. 205, 218-19
(1972) (enforcement of compulsory high school attendance law against
Amish, in violation of their religion and way of life); Sherbert v.
Verner, 374 U.S. 398, 403-06 (1963) (denial of unemployment
compensation benefits to applicant who refused to accept work requiring
her to violate the Sabbath). In these cases, the governmental action or
legislation criminalized religiously inspired activity or inescapably
compelled conduct that some find objectionable for religious reasons.
In contrast, the Supreme Court has upheld governmental action or
regulation that indirectly and incidentally imposes a burden on the
practice of religious beliefs or calls for a choice between securing a
governmental benefit and adherence to religious beliefs. See, e.g.,
Roy, 476 U.S. at 707-08 (federal statute requiring states in
administering certain welfare programs to use Social Security numbers,
where use of these numbers violated Native American applicants'
religious beliefs); Hamilton v. Regents of University of California,
293 U.S. 245, 262-65 (1934) (curriculum in state university requiring
all students to take military courses, where some students sought
exclusion from those courses on grounds of their religious beliefs and
conscientious objections to war). In these cases, the challenged
governmental action interfered significantly with the ability of
private persons to pursue spiritual fulfillment according to their own
religious beliefs. In none of these cases, however, were the affected
individuals coerced by the government's action into violating their
religious beliefs, nor did the governmental action penalize religious
activity by denying any person an equal share of the rights, benefits,
and privileges enjoyed by other citizens. Roy, 476 U.S. at 703. Under
these cases, absent proof of an intent to discriminate against
particular religious beliefs or against religion in general, the
government meets its burden when it demonstrates that a challenged
requirement for governmental benefits, neutral and uniform in its
application, is a reasonable means of promoting a legitimate public
interest. Id. at 707-08.
Like the governmental action in Hamilton and Roy, this final rule
has no direct or indirect tendency to coerce individuals into acting
contrary to their religious beliefs. Nothing in the final rule suggests
antagonism by the Department towards religion generally or towards any
particular religious beliefs. The special use authorization requirement
for group uses is facially neutral and applies to all types of these
activities. The Department has made no provisions for individual
exemptions to this requirement. Moreover, the requirement is a
reasonable means of
[[Page 45261]]
promoting the legitimate public interests of resource protection,
allocation of space in the face of increasing competition for the use
of National Forest System lands, and promotion of public health and
safety.
Comment: Noncommercial Distribution of Printed Material. Several
respondents commented on some issues pertaining to the requirement to
obtain a special use authorization for noncommercial distribution of
printed material. Approximately 19 respondents stated that the agency's
concerns about adverse impacts associated with noncommercial
distribution of printed material are hypothetical or inadequate to
justify the regulation. One respondent stated that the Bible or other
religious tracts could be banned under the proposed rule. Four
respondents stated that the special use authorization requirement for
noncommercial distribution would allow the agency to censor printed
material. Six respondents stated that the proposed rule singles out
expressive conduct in regulating noncommercial distribution of printed
material. Three respondents stated that the agency can address resource
problems associated with noncommercial distribution by establishing a
specific and objective policy on posting, fixing, or erecting printed
material and on maintaining safe traffic conditions, rather than
deciding on a case-by-case basis where and when the activity will be
allowed.
One respondent, citing United States v. Picciotto, 875 F.2d 345
(D.C. Cir. 1989), argued that resource problems associated with
posting, affixing, or erecting printed material cannot be addressed by
adding unpublished conditions to special use authorizations, and that
any desired restrictions must be published in a rule. Another
respondent advised the agency to promulgate regulations making each
group responsible for its own discarded printed material. Three
respondents commented that regulations already exist for dealing with
resource impacts associated with distribution of printed material.
Seven respondents questioned where they could distribute noncommercial
printed material if they could not do it on public lands. One
respondent stated that distribution is defined too broadly in the
proposed rule to allow for ample alternative channels of communication.
Five respondents stated that the special use authorization requirement
for noncommercial distribution of printed material could have the
effect of stifling legitimate public protests of Forest Service
activities. One respondent commented that a permit for noncommercial
distribution of printed material could be denied for any reason.
Response. The Department has carefully examined the special use
authorization requirement for noncommercial distribution of printed
material. Based on the comments received on resource impacts and on the
Department's review of resource impacts associated with noncommercial
distribution of printed material, the Department has determined that
these impacts are not significant enough to warrant regulation at this
time. Therefore, the Department has removed from the final rule the
special use authorization requirement for noncommercial distribution of
printed material.
Comment: Significant Governmental Interests. Approximately 75
respondents commented that the Forest Service had not established a
significant interest in promulgating the rule. Specifically, these
respondents stated that there is no significant governmental interest
in protecting the nation's public lands; that the Forest Service's
mandate to protect the national forests under 16 U.S.C. 551 is not at
issue; that there is no beneficial reason for the regulation; that the
proposed rule fails the significant governmental interest test in Clark
v. CCNV; that time, place, and manner restrictions are being imposed
without an initial finding that they are required; and that
restrictions on group uses should exist only when there is a clear
environmental reason.
Respondents also stated that the agency's concerns about resource
impacts are hypothetical or vague and insignificant; that the agency
needs proof of resource damage in order to justify the proposed rule;
that the agency has not cited evidence that 25 or more people have a
greater impact on forest resources and facilities than fewer than 25
people; that 25 or even several hundreds of people gathered for
peaceful purposes cannot be a threat to public safety or the
environment; that the collective impact on forest resources by a group
is equal to or less than the cumulative impact of an identical number
of individuals; that it is easier to monitor large group gatherings
than small bands of individuals; that individuals in aware groups can
monitor each other; that the respondent takes care of the land; that
the respondents are not harming the land; that unlike off-road
motorcycle races, activities involving the expression of views do not
harm forest resources; that group uses cannot cause irreparable damage;
that the proposed regulation would take the national forests away from
people who gather there at no one else's expense; that large group
gatherings do not cost the government a lot of money; and that there
have not been any public health problems associated with group uses.
Approximately 30 respondents recognized the Forest Service's
significant interest in protection of forest resources. In particular,
these respondents stated the following:
--That requiring a special use authorization is appropriate if the size
of a group exceeds the capacity of a given area, including campgrounds
and parking and staging areas;
--That to protect natural resources, it may be necessary for the Forest
Service to regulate activity on National Forest System lands through
issuance of special use authorizations;
--That to further the public interest, there is sometimes a need for
the government to require a special use authorization for some First
Amendment activities;
--That the concerns associated with large numbers of people gathering
on unspoiled land are a challenge and that the people's right to
assemble needs to be balanced against the custodial responsibility of
the Forest Service;
--That any reasonable rules that would protect and preserve the
integrity of the National Forest System are appropriate, that the
National Forest is an invaluable asset that must be accessible to
responsible public use, and that the Forest Service is charged with
balancing these concerns;
--That the Forest Service has a mandate to manage National Forest
System lands;
--That gatherings on public lands should be subject to guidelines
established by the Forest Service;
--That some rules and regulations are essential;
--That regulations protecting natural resources are warranted, provided
the rules do not infringe upon constitutional rights and provided they
target only those who damage natural resources;
--That any rule that helps preserve the national forests is
appropriate;
--That restricting access to National Forest System lands is
permissible where human impact would harm native wildlife;
--That sanitation and site clean-up are important;
--That the agency's concern for the safety and integrity of the
national forests is appropriate;
--That Forest Service employees are to be commended for dedicating
their lives to protecting the national forests so that all can enjoy
them;
[[Page 45262]]
--That the Forest Service gets paid to protect the national forests and
the safety of forest visitors;
--That the agency should be concerned about the well-being of the
national forests and those who use them;
--That more people have a greater impact on forests;
--That 25 or more people would definitely have a greater impact on
resources and facilities than a smaller group of people.
Response. As numerous respondents noted, the Forest Service has a
mandate to protect the 155 national forests and regulate their
occupancy and use for all members of the public (16 U.S.C. 472, 551).
Under that mandate, the Department has established three significant
interests in promulgating this rule: (1) Protection of forest resources
and facilities; (2) promotion of public health and safety; and (3)
allocation of space in the face of greater competition for the use of
National Forest System lands. While noncommercial group use is an
appropriate use of National Forest System lands and exercise of First
Amendment rights is extremely important, it is vital to address these
significant interests. Numerous respondents have also recognized that
these interests are significant. In addition, the Supreme Court has
specifically held that protection of public lands for current and
future generations is a significant governmental interest. See Clark v.
CCNV, 468 U.S. at 296.
The Forest Service has encountered a variety of problems in
connection with noncommercial group use of National Forest System
lands. These problems, which are attributable to the size of groups,
the concentration of people in a given area, and the physical intensity
of the use, have arisen in connection with many different types of
noncommercial group uses, both those involving and those not involving
the expression of views. These problems have included the spread of
disease, pollution from inadequate site clean-up, soil compaction from
inadequate site restoration, resource damage in critical salmon
habitat, resource damage in riparian zones and meadows, damage to
archaeological sites, and traffic congestion.
Although one individual could cause much damage, for example, by
setting a forest fire, and a series of individuals could perhaps over
time have a significant impact on forest resources, in the Forest
Service's experience large groups typically have more impact on a given
area than individuals and, with limited exceptions, a special use
authorization is not needed for individual uses. Regardless of whether
the damage caused by these problems is irreparable, the Department
believes that it would further the public interest to control or
prevent the damage through a special use authorization system for
noncommercial group uses. The authorization system also will allow the
Forest Service to allocate space among noncommercial group uses and
scheduled and existing uses and activities, including protection of
habitat for endangered, threatened, or other plant and animal species.
Comment. Adverse Impacts of Group Uses. Approximately 64
respondents argued that other activities, such as off-road
motorcycling, clear-cutting, mining, and grazing, have a greater impact
on forest resources than noncommercial group uses. Specifically, these
respondents stated:
--That the agency's resource impacts rationale seems inadequate, given
that the disposal of timber and minerals and the grazing of livestock
are exempted from regulation;
--That noncommercial uses and activities are regulated more stringently
than other uses that have greater impacts;
--That noncommercial uses and activities should not be included in the
same regulatory framework as other special uses, such as the disposal
of timber and minerals and the grazing of livestock, that have greater
impacts;
--That under the proposed rule, exploitation of the forest for monetary
gain would take precedence over the right to assemble;
--That the Forest Service has done more damage to public lands than
noncommercial group uses;
--That commercial uses of the national forests should be banned; and
--That clear-cutting authorized by the agency was responsible for the
listing as an endangered species of a fresh water mussel in a creek at
the site of the 1993 Alabama Rainbow Family Gathering.
Response. The Department disagrees with these comments. The
disposal of timber and minerals and the grazing of livestock are not
exempted from regulation. As noted in the preamble to the proposed and
final rules, the disposal of timber is regulated in 36 CFR part 223;
the disposal of minerals is regulated in 36 CFR part 228; and the
grazing of livestock is regulated in 36 CFR part 222. The disposal of
timber and minerals and the grazing of livestock are thus subject to
separate regulations from noncommercial uses and activities. The
regulation of timber and mineral disposal and livestock grazing has no
bearing on the regulation of noncommercial uses and activities,
including activities involving the expression of views. All other
commercial uses and activities of National Forest System land require a
special use authorization under 36 CFR part 251, subpart B. All
commercial uses of National Forest System lands undergo environmental
and other reviews prior to approval of any on-the-ground activities.
Commercial use of the National Forest System is appropriate. MUSY
authorizes the Forest Service to manage National Forest System lands
for both commercial and noncommercial uses (16 U.S.C. 528-531). The
agency's regulation of the disposal of timber and minerals and the
grazing of livestock is beyond the scope of this rulemaking. The
relative impacts of commercial uses and noncommercial group uses are
not relevant to this rulemaking. What is relevant are the impacts of
noncommercial group uses and whether controlling and preventing those
impacts warrant regulation of noncommercial group uses. This Department
believes that mitigation and prevention of the impacts associated with
noncommercial group uses are significant interests that justify the
special use authorization requirement.
Noncommercial group uses will not be regulated more stringently
under the final rule than other uses and activities that have greater
impacts. The final rule restricts the content of an application to
information concerning time, place, and manner for noncommercial group
uses and establishes very limited circumstances under which an
authorized officer can deny or revoke a special use authorization for
noncommercial group uses. In contrast, commercial uses and activities
subject to 36 CFR parts 222, 223, 228, and 251 are governed by complex
regulations that give the authorized officer broad discretion
administering the applicable authorization.
Comment. Significant Governmental Interests With Respect to Rainbow
Family Gatherings. The Rainbow Family of Living Light organizes regular
gatherings in the national forests to celebrate life, worship, express
ideas and values, and associate with others who share their beliefs.
The largest of these meetings is the annual Rainbow Family Gathering.
The annual Gathering is held at an undeveloped site in a different
national forest each summer and attracts as many as 20,000 people from
across the Nation and around the world.
[[Page 45263]]
Approximately 130 respondents wrote that the Forest Service has not
established a significant interest in requiring a special use
authorization for Rainbow Family Gatherings. These respondents stated
that concerns associated with Rainbow Family Gatherings have not
materialized; that there has been no significant damage in 20 years of
Rainbow Family Gatherings; that the Rainbow Family has had gatherings
of up to a few thousand people for over a two-week period without major
impact to the land or input from the Forest Service; that there is no
reason to believe that any similar group would behave differently; and
that reports of Rainbow Family Gatherings do not describe any adverse
impacts associated with the Gatherings, which have less impact on
forest resources than twelve Boy Scouts.
These respondents further stated that there is no hazardous
situation, taking of an endangered species, or out of the ordinary
resource damage associated with Rainbow Family Gatherings; that the
forest is left in better condition after Rainbow Family Gatherings,
unlike the way most campers and hunters leave public lands; that at the
1993 Rainbow Family Gathering in Alabama, campsites were carefully
planned, garbage was neatly collected and recyclables separated, signs
were posted so as to ensure no significant impact on trees, latrines
were strategically placed and plainly marked, and an effort was made to
notify all Rainbow Family members of the presence of endangered fresh
water mussels in a creek at the site; that there has never been a
serious illness or public health problem at a Rainbow Family gathering;
that Rainbow Family Gatherings usually occur without adverse impact to
public health, safety, land, or property; that the Rainbow Family does
not need to be regulated by the Forest Service because it has an
internal consensus process for regulating itself; that the Rainbow
Family takes care of parking; water supply, kitchen hygiene, latrines,
and camp safety; that the agency's concern for public health and safety
is specious; and that considerations of public health are not related
to the purposes of the rule.
Four respondents acknowledged that the annual Rainbow Family
Gatherings have a significant impact on the national forests. One
respondent stated that camping by any group the size of the annual
Rainbow Family Gathering will necessarily have some noticeable impact
on the land. Another commented that national forests should be
protected and that Rainbow Family Gatherings have a detrimental effect
on the plants and animals in the forests. A third acknowledged that
Rainbow Family Gatherings take their toll on the ecosystem, and a
fourth noted that the annual Rainbow Family Gatherings have a
considerable impact on the undeveloped sites chosen for the Gatherings.
One respondent noted that many Rainbow Family members required
emergency room care during the 1993 Gathering and suggested that the
Rainbow Family should arrange for community liaisons prior to the
annual Gathering. Two respondents commented that water pollution is
evident in the National Forest System: one respondent stated that all
water on National Forest System lands should be tested; the other
stated that Rainbow Family Gatherings must address the sufficiency of
potable drinking water before the Gatherings take place.
Response. Forest Service experience is that the Rainbow Family has
encouraged gatherers to pick up trash, recycle, compost, protect water
sources by not camping or washing near them, naturalize campsites and
trails, use latrines, and bury waste. The Rainbow Family also has shown
a concern for sanitation at the Gatherings. Nevertheless, the annual
Gatherings have a considerable impact on the national forest sites
selected by the Rainbow Family and in some instances on public health
and safety as well. Controlling or preventing adverse impacts on forest
resources and addressing concerns of public health and safety are two
purposes of this rule.
Typically, the Rainbow Family chooses an undeveloped site with open
fields or meadows. Access to the site is limited. Backcountry eating,
sleeping, and cooking facilities are set up for as many as 20,000
people. Parking must be available for their vehicles, which range from
cars to double decker buses.
At the 1987 Gathering in North Carolina, for example, impacts
included soil compaction and loss of vegetation in the paths to various
camps and in the surrounding fields. At the end of the Gathering, there
were four acres of fields and about eight miles of paths 12 to 25 feet
wide with compacted soil and complete loss of vegetation. Only the
latrines near the fields where activities took place were covered;
latrines in outlying camps were left open with human waste exposed. The
Forest Service had to complete rehabilitation of the site because the
Rainbow Family had failed to rehabilitate it adequately. Garbage and
trash were not always removed promptly from collection points and piled
up. Although the garbage and trash were separated, they were mixed
together in receptacles provided by the county. At the end of the
Gathering, the Forest Service had to remove a dump truck load and a
pickup truck load of garbage that had been left along the sides of the
main road through the site.
A serious public health threat arose at the 1987 Gathering. At the
site of this Gathering, many Rainbow Family members did not boil water
from springs that were high in fecal coliform bacteria. During the week
of July 1-4, many people had diarrhea and fever. As people at the
Gathering became sick, they used the latrines less and less. Uncovered
human wastes were scattered where people traveled and camped. Many
people went barefoot and their stepping in uncovered human wastes
helped transmit the disease. Hospitals in two states notified the
Centers for Disease Control (CDC, now called the Centers for Disease
Control and Prevention) in Atlanta that cases of confirmed shigellosis
had been detected among people who had attended the Gathering.
Shigellosis is a highly contagious form of dysentery, caused by
shigellae bacteria. The disease is transmitted by direct or indirect
fecal-oral contact from one person to another or by contaminated food
or water. Individuals primarily responsible are those who fail to clean
adequately their fecally contaminated hands. Transmission by water,
milk, or flies may occur as a result of direct fecal contamination. One
need ingest only a small number of organisms to contract the disease,
and symptoms normally appear within seven days.
Two CDC doctors visited the site of the Gathering the week after
July 4 and interviewed a large percentage of the Rainbow Family members
remaining at the site. The doctors estimated that 65 percent of those
people had shingellosis. At the doctors' suggestion, the Forest Service
closed the site to other members of the public from July 15 to 29 for
health reasons. By the middle of August, 25 states reported outbreaks
of shigellosis traced to people who had attended the Gathering. In
early October, cases of the disease were still being reported in 25
states.
Forest Service reports of Rainbow Family Gatherings document
adverse impacts associated with the Gatherings. Two of these reports,
on the 1991 and 1992 annual Gatherings, were submitted by a respondent
along with comments on this rulemaking.
The report on the 1991 Gathering in Vermont documents that site
clean-up and rehabilitation were inadequate after the 1990 Gathering in
Minnesota. Gatherers left cigarette butts and plastic twist ties on the
ground, dumped glass
[[Page 45264]]
bottles and metal spoons in compost pits, abandoned a 200-gallon water
tank, and left latrines uncovered.
The report on the 1991 Gathering documents that while conducting
site clean-up and rehabilitation inspections after the 1991 Gathering,
agency officials found a large amount of human waste scattered
throughout the woods, even though a sufficient number of well-
constructed latrines were distributed throughout the Gathering site.
In addition, the 1991 report notes resource damage that resulted
from the impact of large numbers of people using the area. Soil
compaction occurred wherever human use was concentrated, that is, at
the main meadow, kitchens, camps, and heavily used trails. Vegetation
and duff layers in these areas were worn away. New trails made during
the Gathering showed varying amounts of erosion. Soil was dug up and
sloughed downhill, leaving tree roots exposed. Gatherers made trails
down to brooks, often on steep slopes. Eroding soils from these trails
threatened the stability and integrity of stream banks and water
quality. In several places trails crossed historic rock walls. Heavy
pedestrian traffic over the walls caused them to crumble and flatten.
An archaeological site located on the trail from the front gate to the
main meadow of the Gathering was damaged.
At the 1992 Gathering in Colorado, an insufficient number of
latrines were dug at two areas with large concentrations of people
(approximately 4200 total). Latrines that were dug at these areas were
not placed at flagged locations, and some were too near open water. In
general, latrine locations were not adequately marked, particularly at
the beginning of the Gathering, which resulted in some surface
deposition. Many latrines were not properly covered. No sanitation lime
was available until one county health department worker donated 150
pounds to the Rainbow Family.
During the clean-up effort, however, all evidence of surface
deposition was removed and all but a few latrines in remote locations
were filled in correctly. Clean-up was reasonably orderly, but not
timely. While all physical evidence of the Gathering was removed or
rearranged to present a natural appearance, the quality of
scarification and seeding of exposed soil was variable.
Twenty-seven acres of National Forest System lands in Colorado used
for the 1992 Gathering were affected. Soil compaction and loss of
vegetation occurred in areas of concentrated use. There were also
several traffic and parking problems at the 1992 Gathering. Most of the
access routes were steep, winding, single-lane gravel roads. The
increased traffic and unfamiliarity of gatherers with these types of
road conditions created a safety hazard.
CALM (Center for Alternative Living Medicine) is the group in the
Rainbow Family entrusted with the medical care of Family members. At
annual Gatherings, CALM sets up health units to treat gatherers'
ailments and injuries. CALM represented that they could furnish more
than basic first aid at the 1992 Gathering. Visits to CALM units by
health department officials and local hospital staff revealed that CALM
was equipped to provide only first aid. Many of the bandages at the
units were old surplus military issue. Other supplies were limited. No
protocol was established to deal with emergency situations. Because
CALM was not equipped to deal with emergencies or injuries requiring
more than basic first aid, 46 people attending the Gathering had to be
treated at a local hospital.
The Department believes that it would be more effective and
efficient for the Rainbow Family to address these types of medical and
sanitation issues prior to the annual Gathering through the special use
authorization process and through enhanced coordination with state and
local authorities than on a spontaneous or post hoc basis.
Comment. Need for Law Enforcement at Rainbow Family Gatherings.
Approximately 25 respondents commented that law enforcement at Rainbow
Family Gatherings is unnecessary. These respondents stated that there
are no threatening incidents at Rainbow Family Gatherings; that Rainbow
Family members police themselves; that Rainbow Family members always
comply with Forest Service regulations; that all serious problems and
violent individuals are brought to the attention of local law
enforcement; that Rainbow Family Gatherings have posed fewer security
problems than other gatherings of equivalent size; that there are a
smaller number of incidents each year; that no drug use was observed at
the 1993 Gathering in Alabama; and that unlike uses of public streets
or public property in a city, which have impacts on traffic, parking,
and neighborhoods and require law enforcement services, group uses of
National Forest System lands have no impacts on public facilities and
do not require law enforcement services.
In contrast, one respondent acknowledged that Rainbow Family
Gatherings attract some people who are not responsible. Several
respondents noted that there has been public nudity at the Gatherings.
Citing use of marijuana and psychedelics, one respondent noted that the
actions of many Rainbow Family members are illegal under present drug
laws. Two others noted the use of drugs by some members of the Rainbow
Family. One respondent also noted the use of alcohol at Rainbow Family
Gatherings.
Response. The Department disagrees that law enforcement at Rainbow
Family Gatherings is unnecessary. Most Rainbow Family members who
gather on national forests are peaceful and law-abiding. As several
respondents noted, however, the annual Gatherings attract some who are
not.
Consumption of alcoholic beverages is not condoned by the Rainbow
Family and is discouraged within the main Gathering. A separate camp,
known as ``A'' Camp, is usually set up along the access route to the
main Gathering for those who drink alcoholic beverages. ``A'' camp has
been a problem at several Rainbow Family Gatherings because of its
location. ``A'' Camp gatherers have panhandled, extorted money, and
confiscated liquor from people entering the Gathering. Gatherers at
``A'' Camp also have harassed law enforcement officers and Forest
Service personnel.
Forest Service and local law enforcement officers issue a sizeable
number of citations for various violations of federal and local law at
Rainbow Family Gatherings. For instance, at the 1987 Gathering, there
were 311 violations, including citations for driving violations,
resource violations, public nudity, impeding traffic, public nuisance,
and interfering with an officer. After the Gathering, marijuana plants
sprouted where the soil had been dug up by members of the Rainbow
Family to plant flowers. Within three weeks after the Gathering, the
Forest Service found seventeen marijuana plants approximately one to
two feet tall growing from seeds scattered from the handling of
marijuana. Possession of marijuana is a violation of federal law. See
21 U.S.C. 844.
At the 1991 Gathering, the Forest Service issued 69 notices for ten
different violations, including camping in a restricted area, public
nudity, parking in violation of instructions, operating a vehicle
recklessly, failing to stop for an officer, operating off road
carelessly, occupying a day use area, parking in other than designated
areas, operating a vehicle off road, and giving false information. Two
Rainbow Family members were arrested on drug charges, one for
possession and the other for sale of LSD.
[[Page 45265]]
The Forest Service's non-environmental concerns were met with
resistance at the 1992 Gathering. For example, 20 to 30 Rainbow Family
members staged a civil disobedience protest of a Forest Service order
closing an area to camping and parking because of safety risks (the
area was located on a timber haul route) and commitments made to other
users (livestock was scheduled to use the area). Gatherers gradually
removed vehicles from the area, but the agency had to tow five from the
site.
During the 1992 Gathering, there were 43 arrests of Rainbow Family
members on nine different charges, including use of a controlled
substance, child abuse, traffic violations, theft, disorderly conduct
and harassment, disorderly conduct and possession of a concealed
weapon, motor vehicle theft, a wildlife violation, and existence of
outstanding warrants.
By comparison, there were 82 arrests of non-Rainbow Family members
during the period of the Gathering in the county where the Gathering
was held, and 81 during that same period in the previous year. Thus,
there was more than a 50 percent increase in the number of arrests in
the county during that period, due solely to the presence of the
Rainbow Family.
Comment: Government's Intent With Respect to the Rainbow Family.
Approximately 50 respondents commented that Rainbow Family Gatherings
contribute to world peace and love. Many of these respondents asked the
agency not to break up the Gatherings.
Seventy-two respondents stated that the proposed rule is a direct
attack on the Rainbow Family or is written with the Rainbow Family in
mind. Specifically, these respondents believed that the Rainbow Family
is the group most affected by the proposed rule; that no other group is
mentioned in showing a need for the regulations; that in United States
v. Israel and United States v. Rainbow Family, the agency tried to stop
Rainbow Family Gatherings; that the agency imposes less stringent
standards for site clean-up on more mainstream groups; that the
proposed rule is a vehicle for spying on Rainbow Family members; that
Forest Service and state and local law enforcement officers have
selectively enforced laws to harass and intimidate people attending
Rainbow Family Gatherings; that law enforcement officers have looked
for activity that could be construed as illegal; that the Forest
Service has been unreasonable and hostile at Rainbow Family Gatherings;
that the number of law enforcement officers at Rainbow Family
Gatherings is excessive and a waste of money; that law enforcement
officers have established checkpoints at the entrance to Rainbow Family
Gatherings to search cars and to verify car registration, car
insurance, and driver's licenses; that at the 1993 Gathering in
Alabama, a few people without car registration or insurance were held
in chains and beaten; that state police at the 1993 Gathering conducted
regular armed patrols and random searches; and that some Rainbow Family
members have been taken into custody and forced to pay a fine for their
release.
In contrast, one respondent stated that the proposed rule is
clearly aimed at more than just one type of gathering. Another
respondent noted that to comply with cases on point, the regulation has
been modified to treat all group uses the same, regardless of whether
they involve the expression of views. One respondent commented that the
Forest Service was hospitable and kept order and did a remarkable job
handling the crowd at the 1993 Gathering. Another respondent stated
that the Forest Service did an excellent job helping the Rainbow Family
have a safe and healthy gathering in 1993 and added that the Forest
Service was friendly and helpful.
Response. The intent of this rule is not to break up or prohibit
any group uses, including Rainbow Family Gatherings. Rather, the intent
of this rule is to control or prevent harm to forest resources, address
concerns of public health and safety, and allocate space. In United
States v. Israel and United States v. Rainbow Family, the Forest
Service was not attempting to prohibit the Rainbow Family Gathering,
but rather to enforce existing group use regulations where the Rainbow
Family had failed to obtain a special use authorization.
The Forest Service hosts many types of noncommercial group uses on
National Forest System lands, such as company picnics, weddings, group
hikes and horseback rides, demonstrations, and group gatherings. This
final rule does not single out any particular group or type of event.
As two respondents noted, this rule applies to all noncommercial group
uses, both those involving and those not involving the expression of
views. The Department intends to apply this rule consistently and
fairly as required by law to all noncommercial group uses.
The Forest Service makes every effort to be friendly and hospitable
and to help every group have a safe and healthy visit to the national
forests. The agency's law enforcement approach at large group
gatherings reinforces this effort. As shown by the reports on the 1991
and 1992 Rainbow Family Gatherings, agency law enforcement officers
endeavor to act as good hosts to prevent potential problems; to provide
for public safety; to maintain close coordination with other involved
agencies, such as the local highway patrol, sheriff's office, and
health department; and to ensure in a courteous, professional manner
compliance with federal, state, and local law and agency regulations.
To meet these objectives, enhanced law enforcement is needed for
group uses. Perimeter patrols by local and federal law enforcement
agencies during the 1991 Rainbow Family Gathering, for example, focused
on protecting local residents and their property, facilitating traffic
flows, maintaining safety on all state and local roads, and responding
to visitors' needs or calls for help.
The Forest Service has endeavored to enforce its regulations not
only fully but fairly. Some Rainbow Family members who have committed
violations at the annual Gatherings have been taken into custody and/or
have had to pay a fine. For example, after coordinating with a local
United States Magistrate and Assistant United States Attorney, Forest
Service law enforcement officers adopted a procedure at the early
stages of the 1992 Rainbow Family Gathering to allow prosecution of
violators who were temporarily residing in the area. This procedure
required violators either to pay a fine upon issuance of a violation
notice or to be taken into custody and brought before a magistrate. By
paying the fine, the violator did not forego the right to appear in
court and contest the violation.
Shortly after receiving complaints about the procedure from Rainbow
Family members, the United States Attorney's office recommended that
the procedure be altered. The new procedure required that a violation
notice for an optional appearance be issued if the violator could
present sufficient identification (driver's license, vehicle
registration, and proof of insurance in the driver's name). If adequate
identification could not be presented, the violator would have to pay
the fine upon issuance of the violation notice or be detained. This
change in procedure illustrates the agency's effort to balance its law
enforcement obligations against its concern for due process.
The Department acknowledges that the level of law enforcement
activities may not always have been appropriate for group uses. For
example, while it may be appropriate to post Forest
[[Page 45266]]
Service officials at the entrance to a Rainbow Family Gathering to
deter illegal activity and to provide helpful information on the
national forests and resource protection, it is not necessary or
appropriate to search cars entering the Gathering or to verify the
driver's car registration, insurance, and license. This practice was
curtailed at a gathering in Mississippi in July 1993 as soon as it came
to the attention of responsible Forest Service officials. Promulgation
of this rule will help the Department ensure a consistent, nationwide
approach to law enforcement for group uses.
Comment: Government's Intent Generally. Approximately 40
respondents believed that the intent of the proposed rule is to allow
the Forest Service to deny the use of public lands to groups the agency
finds undesirable. These respondents stated that the history of the
rule shows that the agency's intent is to restrict speech and that by
regulating all noncommercial activities under the same standards, the
agency is in effect still attempting to restrict First Amendment
rights. These respondents felt that if the agency really supported the
rights of free speech and assembly, it would be apparent from the
proposed rule and there would be no need to state it in the preamble.
Other respondents stated that the proposed rule masks an agenda
that has nothing to do with protecting resources and addressing public
health and safety; that the Forest Service has invoked public health
concerns rigidly and arbitrarily to discourage gatherings and has used
these concerns as a pretext for taking other enforcement action, such
as dealing with the use of illegal drugs; and that given the proposed
rule is written like a legal brief, with a provision for immediate
judicial review, and the agency's past attempts to regulate
noncommercial group use, it is reasonable to view this regulation as an
attempt to restrict assemblies via court order.
Other respondents stated that the agency should specify what will
be done to ensure that enforcement of the rule will not result in acts
of terrorism against those who like to gather in the national forests;
that the proposed rule targets those who go to the forests to worship;
that the proposed rule is a direct attack on naturists; that the agency
doesn't need a regulation to ensure equal treatment for all groups
because equal treatment is already guaranteed by the Constitution; that
the proposed rule can be selectively enforced and is therefore
discriminatory in nature; that the proposed rule is discriminatory in
nature, particularly in view of the severe restrictions on Native
Americans' access to tribal lands and the intimidation of Native
Americans by law enforcement; and that those responsible for the
inception and formulation of the proposed rule are enemies of the
people of this country.
Response. The intent of this rule is not to deny the use of
National Forest System lands to any group, nor is the intent of this
rule to restrict speech. Rather, the intent of this rule is to
implement reasonable time, place, and manner restrictions on group uses
of National Forest System lands.
In addition to the need to mitigate adverse impacts on forest
resources and to address concerns of public health and safety, there is
a need to allocate space in the face of increasing legal constraints on
the use of National Forest System lands, including the need to protect
endangered, threatened, or other plant and animal species. The
competition for available sites in the national forests among animals,
plants, and humans has increased as more demands and restrictions have
been placed on use of the national forests. Requiring a special use
authorization allows the agency to act as a kind of ``reservation
desk'' for proposed uses and activities, including noncommercial group
uses.
The Department believes that its support for the rights of free
speech and assembly is not only stated in the preamble, but is apparent
from the language and structure of the rule. The rule does not single
out any group. On the contrary, the final rule establishes one category
called ``noncommercial group uses''; restricts the content of an
application for noncommercial group uses to information concerning
time, place, and manner; applies the same evaluation criteria to all
applications for noncommercial group uses regardless of whether they
involve the expression of views; establishes specific, content-neutral
evaluation criteria for noncommercial group uses; provides that
applications for noncommercial group uses will be granted or denied
within a short, specific timeframe; provides that if an application is
denied and an alternative time, place, or manner will allow the
applicant to meet all the evaluation criteria, the authorized officer
will offer that alternative; provides that the authorized officer will
explain in writing the reason for denial of applications for
noncommercial group uses; and provides that such a denial is
immediately subject to judicial review. These provisions have been
included to meet the constitutional requirements of a valid time,
place, and manner restriction identified in case law, including United
States v. Israel and United States v. Rainbow Family.
This rule is needed to ensure equal treatment for all groups.
Various members of the public and state and local governments have
criticized the Forest Service for applying a double standard in not
requiring all large groups to obtain a special use authorization. This
rule ensures that all noncommercial groups are treated equally under
the law.
It is the Department's intent that this rule will be applied
consistently to all noncommercial groups as required by law. Moreover,
it is essential, both as a matter of fairness and as a matter of
constitutional law, that this rule be applied uniformly. The Forest
Service intends to provide training to its personnel to ensure that the
rule is implemented consistently.
Comment: Least Restrictive Means To Further the Government's
Interests. Approximately 95 respondents indicated that the Forest
Service has not employed the least restrictive means to achieve its
interests. These respondents stated that the proposed rule is
unnecessary because, as the court in the Rainbow Family case held,
there are other laws and regulations that address the agency's
interests in promulgating the proposed rule; that the agency should
deal with violations of other regulations as they occur; that there is
no need for a permit requirement because encouraging groups to contact
the agency prior to their proposed activities is sufficient to address
the agency's concerns; that the agency does not need to require a
permit because requiring notice of a proposed activity is sufficient;
that mid-sized groups of 50 to 100 people should only have to notify
the Forest Service of their activity, rather than obtain a permit; that
there is no need for an application and permitting system and that the
agency should allow a group to gather if they meet all other parts of
the proposed rule; and that the proposed rule should not apply at
developed campgrounds or areas set aside for group uses.
Additionally, these respondents stated that given that impacts vary
depending upon the type of activity, the Forest Service should issue
specific and objective standards for those activities that are
problematic, and that the agency could also intensify education
programs for specific groups that cause problems; that a special use
authorization should not be required for church, club, or family
gatherings; that a simple assessment, roping off of high-risk areas,
and site-specific camping requirements have sufficed for
[[Page 45267]]
gatherings of over 20,000; and that with respect to the Rainbow Family,
the Forest Service has been able through informal cooperation to
achieve its objectives concerning resource protection, promotion of
public health and safety, and space allocation.
Response. Less restrictive alternatives are not part of the test
for the validity of a time, place, and manner regulation like this
final rule. Rather, the test is limited to whether the regulation is
content-neutral, whether it is narrowly tailored to further a
significant governmental interest, and whether it leaves open ample
alternative channels for communication. Clark v. CCNV, 468 U.S. at 293.
In Clark v. CCNV, where the Court upheld a National Park Service
regulation that prohibited camping in certain parks in Washington,
D.C., the Supreme Court rejected the Court of Appeals' view that the
challenged regulation was unnecessary, and hence invalid, because there
were less speech-restrictive alternatives that could have satisfied the
governmental interest in preserving national park lands. The Supreme
Court held that the less-restrictive alternatives proposed by the Court
of Appeals represented no more than a disagreement with the National
Park Service over how much protection the core parks require or how an
acceptable level of preservation is to be attained. 468 U.S. at 299.
Thus, it is immaterial if there are less restrictive alternatives
to the special use authorization requirement for noncommercial group
uses, as long as the final rule meets the test for constitutionality
enunciated in Clark v. CCNV. Under Clark v. CCNV, the federal land
management agencies, rather than the courts, have the authority to
manage federal lands and the competence to judge how much protection of
those lands is wise and how that level of conservation is to be
attained. 468 U.S. at 299.
Even though less restrictive alternatives are not part of the test
for constitutionality for time, place, and manner regulations, the
Department believes that the special use authorization requirement is
the least restrictive means to accomplish the government's interests.
Other laws and regulations, such as the Endangered Species Act and
rules providing for the issuance of closure orders, address resource
protection and public health and safety in general. Other laws and
regulations do not, however, provide the framework necessary for
applying those standards for resource protection and public health and
safety to noncommercial group uses. Other laws and regulations do not
allow the Forest Service to control or prevent adverse impacts on
forest resources from noncommercial group uses, to address concerns of
public health and safety associated with noncommercial group uses, or
to allocate space for noncommercial group uses and other uses and
activities.
In United States v. Rainbow Family, the court denied the
government's motion for a preliminary injunction to enforce the group
use regulation on the grounds that the regulation was unconstitutional
and not validly implemented. The court stated in dicta that the
government had an adequate remedy at law which would also preclude
granting the motion, in that there were other laws and regulations to
address the government's concerns in seeking the injunction. 695 F.
Supp. at 314. The court never ruled on the existence of an adequate
remedy at law for purposes of obtaining a preliminary injunction. Even
if the court had ruled on this issue, it would have been immaterial to
the assessment of the constitutional validity of this final rule.
Requiring notice of a proposed activity is also insufficient to
address the concerns underlying the final rule because the agency still
lacks the ability to regulate the activity. Without the application and
permitting system, the authorized officer cannot determine whether the
evaluation criteria in the final rule are satisfied. This final rule
will not apply at developed recreation sites where use is allocated
under a formal reservation system and where the agency has the
authority to manage and to charge a user fee to the public under the
Land and Water Conservation Fund Act (16 U.S.C. 4601-6a).
The Department has determined that it has sufficient interests in
regulating noncommercial group uses. Regulating only those activities
or groups that have caused problems in the past would be difficult to
defend. The courts in United States v. Israel and United States v.
Rainbow Family held that in regulating noncommercial group uses the
agency cannot single out expressive conduct and treat it differently
from other activities, and that the regulation must have clear and
objective standards. Regulating only certain groups or activities based
on a judgment of which ones have caused problems sufficient to warrant
regulation could be viewed as singling out expressive conduct on the
basis of a subjective standard. The same concern would apply if the
Department exempted certain types of noncommercial group uses, like
church, club, or family gatherings, from the special use authorization
requirement.
Finally, as shown by the reports on the 1991 and 1992 Rainbow
Family Gatherings, the Forest Service has not always been able to
achieve its objectives concerning resource protection and space
allocation through informal cooperation with the Rainbow Family. In
particular, agency personnel have been frustrated in dealings with
Rainbow Family members because informal agreements made with one
individual or subgroup have not been respected by other group members.
It has thus been difficult for the agency to obtain commitments from
the Rainbow Family on issues pertaining to the Gatherings. On a number
of issues, the agency has had to recommence discussions at each
encounter with Rainbow Family members. The special use authorization
process will enhance the agency's ability to achieve its objectives by
allowing the agency to obtain commitments from the Rainbow Family that
apply to the group as a whole.
Comment: Ample Alternative Channels for Communication.
Approximately 27 respondents felt that the proposed regulation does not
leave open ample alternative channels of communication. These
respondents stated that there is no adequate substitute for peaceable
assembly as a form of communication; without a permit, a proposed
activity could not occur on National Forest System lands; and that the
Rainbow Family is not an organized group and has no other place to go.
Response. The Department disagrees with these comments. The final
rule leaves open ample alternative channels of communication. The final
rule does not restrict, and is not intended to restrict, freedom of
thought or expression. Nor does the final rule prohibit any expressive
activities. Rather, the final rule requires a special use authorization
for noncommercial group uses on the national forests. Moreover,
Sec. 251.54(h)(2) of the final rule provides that if an application is
denied and an alternative time, place, or manner will allow the
applicant to meet all the evaluation criteria, the authorized officer
shall offer that alternative.
Comment: Enforceability. Approximately 28 respondents commented on
the enforceability of the proposed rule. Specifically, six respondents
stated that enforcement of the rule would be provocative and
confrontational because the rule would be ignored and the agency would
have to make mass arrests, disperse large crowds, or obtain a
restraining order to enforce it. Thirty respondents stated
[[Page 45268]]
that the cost to administer or enforce the rule either would exceed
income, would be a waste of taxpayer dollars, or would overburden the
Forest Service and the court system.
Response. The Forest Service currently works to the extent possible
with organizers of group uses before, during, and after the activities
take place to try to prevent problems. Adoption of this final rule will
not change the agency's efforts to work cooperatively with groups who
wish to use National Forest System lands, nor does the agency foresee
any problem with implementation of the final rule. If a group fails to
obtain a special use authorization that is required by the rule, the
agency can take other action short of making mass arrests or obtaining
a restraining order. For example, in most federal judicial districts,
the agency may impose a fine for failure to obtain a special use
authorization required for use and occupancy of National Forest System
lands.
No income to the U.S. Treasury is generated under the final rule.
There are always costs to the taxpayer when large groups use the
national forests. As the reports on the 1991 an 1992 Rainbow Family
Gathering indicate, the agency incurs substantial costs in connection
with group uses in order to protect the resource, address concerns of
public health and safety, and allocate space. For example, some of the
costs cover water quality testing, road maintenance, personnel,
scarification, and law enforcement. Requiring a special use
authorization should decrease rather than increase these costs by
enhancing the agency's ability to prevent or minimize resource damage.
Comment: Efficacy of the Rulemaking. Approximately 23 respondents
commented that promulgating this regulation is a waste of time and
money because it will be struck down by the federal courts, like the
two prior attempts before it.
Response. The final rule ensures that the authorization procedures
for noncommercial group uses comply with First Amendment requirements
while providing a reasonable administrative framework for addressing
the significant governmental interests identified in the rule. The
Department has structured this rule very differently from the 1984 rule
that was struck down in United States v. Israel and United States v.
Rainbow Family. Those courts held that the 1984 rule on its face
singled out expressive conduct and required that it be treated
differently from other activity; lacked clear and objective standards
for evaluating applications for expressive activities; and lacked
procedural safeguards required by constitutional law. The court in
United States v. Rainbow Family invalidated the 1988 version because
the agency had failed to show good cause under the APA for adopting an
interim rule without prior notice and comment.
In contrast, this final rule establishes a single regulatory
category that includes expressive and non-expressive activities;
applies the same specific, content-neutral evaluation criteria to all
applications in that category; and contains all the procedural
safeguards required by case law. Rather than publish an interim rule
that goes into effect upon publication but before comments are received
and analyzed, the agency published a proposed rule for notice and
comment, and the Department is publishing a final rule incorporating
the analysis of timely received comments. The final rule does not go
into effect until 30 days after it is published. In promulgating this
rule, the Department has meticulously complied with all requirements of
the APA.
Comment: Consequences of Noncompliance. Nine respondents stated
that the penalty for violating the rule is excessive. One of these
respondents commented that the proposed rule could make too many things
a crime and could provide for excessive penalties for the pettiest
infractions. One respondent commented that the agency gave insufficient
notice of the penalty.
Response. The penalty for violating any prohibition in 36 CFR part
261, including use and occupancy of National Forest System lands
without a special use authorization when an authorization is required,
is a fine of up to $5,000 or imprisonment for up to six months, or both
(see 16 U.S.C. 551; 18 U.S.C. 3559, 3571). This penalty is authorized
by statute and is not subject to amendment by regulation. Consequently,
the penalty was not discussed in the proposed rule.
In the context of this rule, the penalty would apply only if a
noncommercial group failed to obtain a special use authorization for a
group use of National Forest System lands. In such a case,
noncommercial groups would be subject to the same penalty imposed on
other forest users for violation of the prohibitions found at 36 CFR
part 261.
Summary of Comments by Section of the Proposed Rule
The vast majority of respondents opposed the rule. Many did not
state the reason for their opposition. Most opposed the rule in the
belief that the rule would infringe upon their First Amendment rights
to gather and to disseminate information.
The following is a section-by-section summary of timely received
comments and the Department's responses to those comments in the final
rule.
Amendments to Part 251
Section 251.51--Definitions
The definitions in the rule are important because they determine
applicability of the rule. The following terms were defined in the
proposed rule: Commercial use or activity, Distribution of printed
material, Group event, Noncommercial use or activity, and Printed
material. Approximately 47 respondents commented on the definitions in
the proposed rule. Eleven respondents commented on the definition of
Commercial use or activity. Thirty-one respondents commented on the
definition of Group event. Other definitions addressed were
Distribution of printed material and Printed material. One respondent
commented that the definitions are generally illegal.
Comment: ``Commercial use or activity.'' Respondents commented that
the definition for commercial use or activity is too vague and broad
and could include activities that are considered to be noncommercial.
For example, respondents felt that the following could be considered a
commercial activity under this definition:
--A scout troop sharing food;
--A school troop pooling meal and travel expenses;
--An activity involving the exchange of clean-up chores;
--An exchange of pocket knives;
--Bartering;
--Children trading beads or baseball cards; or
--A hug, smile, or handshake.
Respondents felt that bonding could be required if the costs of the
activity were supported in part by donations; that the term
``commercial'' should apply to business activities that generate a
profit, rather than to the exchange of gifts or barter; and that a
better definition of ``commercial use or activity'' would include the
phrase ``having profit as the primary aim.''
Response. The Department agrees that the definition for commercial
use or activity in the proposed rule was ambiguous and could be
construed to include some activities that are noncommercial. However,
the Department believes that uses or activities that do not have profit
as the primary aim may still be considered commercial and that the
phrase ``having
[[Page 45269]]
profit as the primary aim'' is too vague and too difficult to apply to
all the uses and activities on National Forest System lands.
Instead, the Department has clarified the definition for commercial
use or activity in the final rule to include only those uses or
activities (1) where an entry or participation fee is charged, or (2)
where the primary purpose is the sale of a good or service.
Under this definition, uses or activities involving the exchange of
a product or service, such as trading pocket knives or clean-up chores,
will not be considered commercial. Uses or activities where the sale of
a good or service is merely secondary, such as a gathering where the
primary purpose is to worship and exchange views, but where some arts
and crafts may be sold incidentally to the gathering, will not be
considered commercial.
Comment: ``Group event.'' One respondent commented that the
definition for group event would now include special events, recreation
events, and all other noncommercial groups, and that this equal
treatment of all groups is an outrageous misuse of power which allows
for complete disregard for the intent of the group.
Two respondents commented that the threshold of 25 or more in the
definition for group event is arbitrary and irrelevant, and that other
than with extremely large groups, it is not the size of a group but the
actions of a group and the site selected that determine the amount of
impact. One of these respondents stated that an orderly church group of
200 can do less damage than a group of 50 demonstrators; the other
commented that one person who is careless with a match can do more
damage than 50 people swimming in a stream.
One respondent commented that the public has not had an opportunity
to read, analyze, and comment on the agency's review of potential
impacts that led to the definition of a group as 25 or more people. Two
respondents commented that the agency should set different thresholds
for a group according to the duration of the proposed activity and its
impact on the land, and that the 25-person threshold is arbitrary and
may be too large or small depending on special local conditions.
Another respondent voiced strong support for a 25-person cutoff,
while eleven other respondents stated that 25 people is too low a
threshold for a group event. One suggested 50 or 50 to 100 people. One
suggested 50 people, which the respondent stated is the number used by
the Bureau of Land Management. Another respondent who suggested 50
people felt that the 25-person threshold would create an undue burden
by including many school camping groups and groups gathering only to
secure academic credentials, and that the agency does not need to
regulate these groups because group leaders with college and graduate-
level degrees will always choose sites for their groups where the seven
evaluation criteria will be met. One respondent suggested 95 people.
One respondent stated that with the 25-person threshold, every family
reunion and church picnic would require a permit. Another respondent
suggested 250 people in order to allow most ``average'' group
activities, such as family reunions and church or company picnics, to
use National Forest System lands without an undue paperwork burden.
One respondent stated that the number of people for a group event
should be as large as possible and that there are areas of National
Forest System lands that can accommodate far more than 25 people. This
respondent suggested that like the National Park Service, the Forest
Service should designate such areas by regulation and establish a
higher number for these areas, so that large groups can gather on short
or no notice. In support, this respondent cited the National Park
Service's regulations for the National Capital Region at 36 CFR
7.96(g)(2)(ii).
Four respondents were unclear about how the rule would be applied
if more than 25 people unexpectedly end up using the same site. One of
these respondents stated that it would also be unclear how the rule
would be applied if several score people were camping in a large area,
but far apart.
Two respondents stated that there is no way to tell how many people
will appear at a group event, and that 23 people could be anticipated,
but two more could show up, for example, for Rainbow Family site
scouting parties. Two respondents stated that the phrase ``and/or
attracts'' should be deleted. Specifically, one of these respondents
stated that it is reasonable to hold a group responsible for predicting
the size of its own turnout, but not for predicting how many unrelated
and uninvited outsiders may be attracted to an event. This respondent
noted that it is appropriate to require a group that anticipates
attracting 25 or more uninvited people to notify the agency in advance.
Three respondents commented that spontaneous gatherings would be
eliminated. Two of these respondents commented that large families and
church groups that spontaneously camp or conduct other activities on
the national forests would not have time to get a permit.
Response. The Department has substituted the term ``group use'' for
``group event'' in the definitions section and elsewhere in the final
rule because use of the term ``group event'' in this rule could be
confused with use of the term ``recreation event'' in the Forest
Service Manual. In section 2721.49 of the Forest Service Manual,
``recreation event'' refers to commercial group uses where an entry or
participation fee is charged, such as certain motorcycle races or
fishing contests. This final rule applies only to noncommercial, not
commercial, group uses.
The definition for group use includes all noncommercial group uses,
regardless of whether they involve the expression of views, because the
courts have held that it is unconstitutional for the regulation to
single out expressive activity and treat it differently from other
activity.
The Department agrees that the duration of the activity and the
site selected have some effect on the amount of resource impacts and
that one individual could cause a lot of damage, for example, by
starting a forest fire. However, in the Forest Service's experience,
the size of a group has a significant effect on the potential for
resource damage: Typically, large groups have more impact on a given
area than individuals. A numerical threshold is a purely objective,
non-discretionary way to determine applicability of the regulation. In
contrast, an assessment based on the type of activity could be
subjective and discretionary and therefore unconstitutional.
The Department has carefully reviewed the comments concerning the
appropriate numerical threshold for a group use and has carefully
reviewed the Forest Service's experience with all types of
noncommercial group uses on National Forest System lands, particularly
with respect to resource impacts associated with these uses. The
Department's review of impacts associated with noncommercial group uses
is not based on a study, but on the Forest Service's experience in the
field. Parts of this review were discussed in the response to comments
on the Department's significant interests in promulgating this rule.
Based on its review of the comments on the numerical cutoff for a
group and of the adverse impacts associated with group uses, the
Department has determined that a 25-person threshold is too low and
that 75 people would be a
[[Page 45270]]
more appropriate threshold for applicability of the rule.
The Department recognizes that any numerical threshold is arbitrary
in that a group of 74 people could have as much impact on forest
resources as a group of 75, and that 25 people could have more impact
than 100, depending on the type of activity and the characteristics of
the site. Nevertheless, the Department believes that a numerical
threshold is the fairest and most objective standard for applicability
of the rule and that groups with 75 or more people tend to have a
greater impact on National Forest System lands than smaller groups.
The National Park Service designates sites that are available for
public assemblies in the National Capital Region and other park areas.
These regulations can be found at 36 CFR 2.51, 7.96(g)(2)(ii). The
Department does not believe it is practicable or necessary to require
designation of sites that are available for noncommercial group uses of
National Forest System lands. In general, the National Park Service and
the Forest Service administer different amounts and types of land and
different varieties of uses and activities on the land and therefore
cannot take exactly the same approach to land management.
In the contiguous 48 states the National Park Service manages
approximately 25.5 million acres of land with many fairly developed
sites and an extensive reservation system. To a significant degree,
public use of National Park Service land is concentrated. In contrast,
in the contiguous 48 states the Forest Service manages approximately
169 million acres of land with primarily expansive, undeveloped
resources. Management units in the National Forest System are generally
not subject to the same level of regulation as National Park Service
management units, and the Forest Service oversees a broader variety of
uses and activities than the National Park Service. Generally, whereas
the National Park Service has a preservation mission, the Forest
Service has a multiple-use mission.
Finally, the Department does not need to designate specific sites
because this final rule allows noncommercial groups to gather on very
short notice without designation of specific sites. Section
251.54(f)(5) of the final rule provides for submission of applications
up to 72 hours before a proposed activity and provides for a very
short, specific timeframe for granting or denying applications.
This rule is intended to apply to noncommercial uses that involve
groups of 75 or more people. The rule is not intended to apply to 75 or
more individuals who do not arrive as part of a particular group or in
connection with an organized activity, such as 75 or more people who
reserve campsites individually rather than as a group at a popular
developed recreation area on a holiday weekend. To clarify this intent,
the Department is adding the words ``a group of'' to the definition for
group use.
The rule is intended to apply to groups of 75 or more people that
have requested use of a certain area for a noncommercial activity. The
rule will apply to a group of 75 or more people that request to camp in
the same area, even if they intend to camp far apart from each other.
The Department believes that it is reasonable for groups to
estimate the expected number of participants and spectators at their
activities. For example, groups could base their estimate on past
experience and/or how many have expressed interest or have committed to
participate in an activity. The Department agrees, however, that the
phrase ``and/or attracts'' should be deleted from the definition for
group use because it is not reasonable for groups to predict how many
unrelated and uninvited outsiders may be attracted to an activity.
Accordingly, the Department has deleted the phrase ``and/or attracts,''
but has added the phrase ``either as participants or spectators,'' to
make it clear that an activity involving a group of 75 or more people,
regardless of whether they are participants or spectators, requires a
special use authorization.
The Department believes that in order to meet its objectives of
ensuring resource protection, addressing public health and safety
concerns, and allocating space in the face of greater legal constraints
on the use of the land, it is both fair and necessary to require
noncommercial groups of 75 or more people to obtain a special use
authorization prior to their activity. Under the final rule,
noncommercial group uses can be very close to spontaneous because
applications for a special use authorization may be submitted up to 72
hours prior to the activity.
Comment. ``Distribution of printed material.'' One respondent
stated that including the solicitation of views or signatures in the
definition for distribution of printed material violates the First
Amendment. Another respondent stated that this definition is broadly
defined to include soliciting information in conjunction with the
distribution of printed material. Another stated that the definition
for distribution of printed material is too broad and that any
distribution of printed material would be regulated, not just
distribution associated with a group use.
Response. The definition for ``distribution of printed material''
has not been included in the amendments to part 251 in the final rule,
as the Department has decided not to require a special use
authorization for noncommercial distribution of printed material in the
final rule.
Comment. ``Printed material.'' Two respondents commented that
including photographs in the definition for printed material is
unjustified because the rule could be construed to cover one person
showing a photograph to another. One respondent stated that the
definition for printed material is too broad and that any distribution
of printed material would be regulated, not just distribution
associated with a group use.
Response. As previously noted, the Department has removed the
special use authorization requirement for noncommercial distribution of
printed material from the final rule. Therefore, the definition for
``printed material'' has been removed from the amendments to part 251
in the final rule.
The Department believes that the changes noted in response to
comments received make the definitions clear and help ensure that the
final rule is constitutional, both as written and as applied.
Section 251.54--Special Use Applications. This section of the
existing rule prescribes procedures and requirements for processing
applications for special use authorizations.
Comment. Section 251.54(a) of the existing rule encourages all
proponents to contact an authorized officer as early as possible so
that potential constraints may be identified, the proposal can be
considered in forest land and resource management plans (forest plans)
if necessary, and processing of an application can be tentatively
scheduled. The proposed rule offered a technical amendment to
Sec. 251.54(a) to make clear that the proponent will be given guidance
and information about the items listed in Secs. 251.54(a)(1) through
(a)(8) only to the extent applicable to the proposed use and occupancy.
Three respondents commented on this provision. One respondent
commented that the word ``encourage'' in Sec. 251.54(a) is too vague.
Another respondent commented that Sec. 251.54(a) is too vague and
allows the Forest Service to delay processing of an application by
asking for more information. Another
[[Page 45271]]
respondent noted that ``providing for consideration of proposals in
forest plans if necessary'' allows the agency either to move existing
uses or activities that conflict with a proposal or to deny a permit
for the proposal.
Response. These comments address a provision in the existing rule
that was not proposed for amendment and which is therefore beyond the
scope of this rulemaking. However, the Department wishes to assure
those who commented that the intent of Sec. 251.54(a) is to encourage
proponents to talk to the Forest Service about proposed uses and
activities as early as possible and even before an application is
submitted so as to facilitate, not delay, the processing of
applications.
The rules in subpart B of part 251 apply to all special uses, both
commercial and noncommercial. The amendment proposed to Sec. 251.54(a)
was in the last sentence and was necessary to ensure that applicants
for noncommercial group uses receive relevant information. For example,
as noted in the preamble of the proposed rule, fees and bonding
requirements listed in Sec. 251.54(a)(4) do not apply to applications
for noncommercial group uses.
Comment. Section 251.54(e) of the existing rule specifies the
information that must be contained in an application for a special use
authorization. The proposed rule amended Sec. 251.54(e)(1) to specify
applicant identification requirements applicable to all special uses.
Specifically, Sec. 251.54(e)(1) of the proposed rule required an
applicant for any type of special use authorization to provide his or
her name and mailing address, and, if the applicant is not an
individual, the name and address of the applicant's agent who is
authorized to receive notice of actions pertaining to the application.
Two respondents noted that it makes sense to require applicants to
provide their names and mailing addresses so that the Forest Service
will be able to contact applicants and send them their permits. One of
these respondents also stated that there would be no need for this
provision if a permit were not required. The other commented that
providing a name in a cooperative spirit and signing a permit are two
different matters.
One respondent stated that the requirement for an applicant's
address discriminates against the homeless.
Approximately 25 respondents commented that the Rainbow Family has
no leader who can act as agent for the group. These respondents stated
that Rainbow Family Gatherings are often spontaneous and that the group
lacks the requisite hierarchy; that this provision infringes on freedom
of speech by requiring the Rainbow Family to retreat from one of its
fundamental principles--i.e., lack of hierarchy--in order to gather in
practice of that principle; and that this provision violates the
Rainbow Family's tribal sovereignty and spiritual integrity and is
equivalent to asking the Catholic Church to submit an application to
have a Mass.
Response. The proposed rule amended Sec. 251.54(e)(1) for clarity
by reorganizing its contents. No amendment in substance was made. These
comments address a provision in existing Sec. 251.54(e)(1) that was not
proposed for amendment and which is therefore beyond the scope of this
rulemaking.
For administrative purposes, it is necessary to require an
applicant for any kind of special use authorization to provide his or
her name and mailing address, and, if the applicant is not an
individual, the name and address of the applicant's agent. Without that
information, the Department has no way of contacting the applicant
concerning the content or disposition of the application. This
provision does not discriminate against anyone because it applies to
any applicant for any type of special use authorization.
As discussed in response to comments on Sec. 251.50(c), this
regulation also does not impose an undue burden on free exercise of
religion. Religious groups, including the Catholic Church, have applied
for and obtained permits in order to hold services on public lands. See
e.g., O'Hair v. Andrus, 613 F.2d 931 (D.C. Cir. 1979) (National Park
Service permit authorizing outdoor Mass conducted by Pope John Paul II
on National Mall).
The Department believes it is both fair and appropriate to apply
this provision to all applicants, including the Raimbow Family. Even if
the Rainbow Family has no leader, members of the group can still
designate a representative who can receive notice of actions pertaining
to an application for a special use authorization. For example, several
respondents commented that the Rainbow Family engages in decisionmaking
by consensus and that councils meet to make decisions that affect the
group. Thus, one of these councils could select a representative for
the purpose of Sec. 251.54(e)(1).
The court in United States v. Rainbow Family held that the Rainbow
Family is an unincorporated association that can sue and be sued. 695
F. Supp. at 298. The court also held that service of process upon the
Rainbow Family was properly effected in that case by service upon
several individuals who acted as agents or representatives of the
Rainbow Family. Id. Moreover, in 1987, representatives of the Rainbow
Family signed a consent judgment in a suit brought by the Health
Director of the State of North Carolina against the Rainbow Family for
failure to obtain a permit under the State's mass gathering statute. It
is therefore reasonable to believe that the Rainbow Family could
designate a person or persons to receive notice of actions pertaining
to an application for a special use authorization.
Comment. Under the heading ``Minimum information,''
Sec. 251.54(e)(2)(i) of the proposed rule required applicants for
noncommercial group uses to provide a description of the proposed
activity, a description of the National Forest System lands and
facilities the applicant would like to use, the estimated number of
participants and spectators, and date and time of the proposed
activity, and the name of the person or persons 21 years of age or
older who will sign a special use authorization on behalf of the
applicant.
Four respondents commented on Sec. 251.54(e)(2)(i). One respondent
stated that this requirement is generally illegal. Another respondent
stated that the agency should only require a group's name, address, and
a description and the date of the proposed activity. A third respondent
commented that it is reasonable for the agency to require information
about proposed activities on National Forest System lands, including
their location, the number of participants, and the date and time of
the proposed activity. However, this respondent stated that requiring
applicants to submit minimum information subjects them to arbitrary
standards of accuracy and demands for further information--especially
where the activity is diverse and organic, exact participation is
unknown, and set-up and clean-up times are imprecise--and that an
authorized officer could delay or deny an application because the
information provided is deemed incomplete or inaccurate. Two other
respondents stated that the agency could deny a permit if an
application was not filled out correctly or completely.
Response. The Department believes that requiring minimal
information about proposed noncommercial group uses is both reasonable
and necessary for administrative purposes and is in no way illegal.
Failure to require this information before these activities occur
[[Page 45272]]
would defeat the Department's purposes of resource protection,
promotion of public health and safety, and allocation of space within
the National Forest System. Without this information, for example, the
Forest Service would not know the kinds of mitigative and preventive
measures to take in authorizing noncommercial group uses. As a result,
these uses could pose a substantial risk of damage to National Forest
System lands and resources.
The Department's intent is to limit the information required to
those items contained in Secs. 251.54(e)(2)(i)(A)-(E), which address
only the time, place, and manner of the proposed activity. To clarify
that intent, the heading for Sec. 251.54(e)(2) has been changed from
``Minimum information'' to ``Required information.'' In addition, a
sentence has been added to Sec. 251.54(e)(2)(i) to make explicit that
the additional requirements enumerated in Secs. 251.54(e)(3) through
(e)(6) of the final rule do not apply to applications for noncommercial
group uses.
While the Department intends that information be provided for each
of the five categories as accurately and completely as possible, Forest
Service officers will not hold applicants to standards of accuracy or
completeness that are impracticable to attain. For example,
Sec. 251.54(e)(2)(i)(C) requires an estimate, not an exact number, of
participants and spectators. Under Sec. 251.54(e)(2)(i)(B), the
Department is not requiring a legal description of the land proposed
for the activity, but rather a description that is accurate and
complete enough to allow the authorized officer to determine where the
activity will occur.
Finally, the Forest Service cannot delay an application because the
information provided is incomplete or inaccurate. Section 251.54(f)(5)
of the final rule provides that an application for noncommercial group
uses must be granted or denied within 48 hours of receipt.
For the reasons stated, the final rule retains the requirement in
Sec. 251.54(e)(2)(i) without change from the proposed rule.
Comment. Section 251.54(e)(2)(i)(A) of the proposed rule required
applicants to provide a description of the proposed activity.
Three respondents commented on this provision. One respondent felt
that it is reasonable for the Forest Service to want an idea of what
people are going to do on public lands, but that if authorized officers
already know, then this issue is addressed. This respondent stated that
this information should be provided when authorized officers ask for
it, but that requiring it to be provided in advance places an undue
burden on the public.
Two respondents commented that the requirement for a description of
the proposed activity is very ambiguous and that it is not clear how
much detail is required. One of these respondents stated that the
agency could increase the chances of revocation of a permit by
requiring strict compliance with a condition that would be very
difficult to meet and that the actions of one person could put everyone
at a legal risk.
Response. It is both reasonable and necessary to require proponents
to provide in advance a description of the proposed activity. Failure
to provide prior notice of proposed activities would defeat the
Department's purposes of resource protection, promotion of public
health and safety, and allocation of space within the National Forest
System. Without this information, for example, the Forest Service would
not know the kinds of mitigative and preventive measures to take in
authorizing noncommercial group uses. As a result, these uses could
pose a substantial risk of damage to National Forest System lands and
resources.
The Department believes that Sec. 251.54(e)(2)(i)(A) is
unambiguous. Under this provision the Department is requiring a
description of the proposed activity that is accurate and complete
enough to allow the authorized officer to determine the nature of the
proposed activity, for example, whether it is a wedding reception or a
group ride. Moreover, a lack of detail in describing the proposed
activity is not a basis for revocation under Sec. 251.60(a)(1) of the
final rule.
Revocation will not be more likely for special use authorizations
issued for noncommercial group uses than for other types of uses. The
Forest Service endeavors and will continue to endeavor to ensure
compliance with all the terms and conditions of all special use
authorizations. Requiring a description of the proposed activity has no
bearing on the legal risk assumed by individual group members or the
group as a whole in connection with the proposed activity. Under this
rule, individual group members will be personally responsible for their
own actions, while the group will be responsible for the actions of its
members as a whole that relate to compliance with the special use
authorization.
Having considered the comments received, the Department has
retained without change Sec. 251.54(e)(2)(i)(A) in the final rule.
Comment. Section 251.54(e)(2)(i)(B) of the proposed rule required
applicants to provide a description of the National Forest System lands
and any facilities the applicant would like to use.
Four respondents commented on this provision. One respondent
commented that it is reasonable for the Forest Service to request a
description of the National Forest System lands a proponent would like
to use, but that requiring this information prior to the proposed
activity places an undue burden on the public. This respondent stated
that if the land selected by a proponent is not available at the time
requested, the agency should address the problem at the time of the
activity, not before.
One respondent stated that this provision would require a church
group to tell the agency where it wants to pray, which would violate
religious freedom. Another respondent commented that the agency could
authorize a smaller area than requested and that if 25 or more people
spilled over the permit boundary, use of that area would not be
authorized by the permit. One respondent stated that a group would have
to commit to a site early on, given the amount of time needed to
process an application.
Response. The Department has amended Sec. 251.54(e)(2)(i)(B) in the
final rule to require an applicant to provide the location as well as a
description of the National Forest System lands and facilities the
applicant would like to use. It is both reasonable and necessary to
require proponents to provide this information in advance. Failure to
provide prior notice of the location and a description of the proposed
activity would defeat the Department's purposes of resource protection,
promotion of public health and safety, and allocation of space within
the National Forest System. Without this information, for example, the
Forest Service would not know the kinds of mitigative and preventive
measures to take in authorizing noncommercial group uses. As a result,
these uses could pose a substantial risk of damage to National Forest
System lands and resources.
In addition, the National Environmental Policy Act (NEPA) mandates
that federal agencies prepare an environmental analysis on proposals
for major federal actions significantly affecting the quality of the
human environment (42 U.S.C. 4332(2)(C)). As one of the examples of a
major federal action, NEPA's implementing regulations include actions
approved by federal permit (40 CFR 1508.18(b)(4)). In order to comply
with NEPA, the Forest Service needs to know which National
[[Page 45273]]
Forest System lands may be impacted by a proposed activity.
Requiring religious groups to provide a description of the National
Forest System lands and facilities they would like to use does not
impose an undue burden on free exercise of religion. Religious groups
have applied for and have obtained permits to hold services at specific
sites on public lands. See, e.g., O'Hair v. Andrus, 613 F.2d 931 (D.C.
Cir. 1979) (National Park Service permit authorizing outdoor Catholic
Mass on National Mall).
Authorization of noncommercial group uses will not be less likely
than authorization of other uses. On the contrary, the Department
intends to authorize noncommercial group uses to the full extent
allowed under this rule. The Department also intends to apply this rule
consistently and fairly as required by law to all noncommercial group
uses. While the agency retains the discretion to determine the size of
an area needed to support an activity, drawing an authorization
boundary smaller than required would not be environmentally defensible
as that approach would increase rather than reduce risks to forest
resources.
The amount of time needed to process an application will not
require a group to commit to a site early. Under Sec. 251.54(f)(5) of
the final rule, applications will be granted or denied within 48 hours
of receipt. However, a group may still find it necessary to commit to a
site early due to factors that are beyond the control of the Forest
Service, such as the popularity of the site.
Comment. Section 251.54(e)(2)(i)(C) of the proposed rule required
the applicant to provide the estimated number of participants and
spectators.
Three respondents commented on this provision. One respondent
commented that it is reasonable for the Forest Service to request an
estimate of the number of participants and spectators, but that
requiring that estimate prior to an activity places an undue burden on
the public. Another respondent stated that this provision could be used
to limit attendance at an activity on the pretext of mitigating
environmental impact. One respondent commented that regulating the
number of participants and spectators is not a valid time, place, and
manner restriction.
Response. The Department believes that it is both reasonable and
necessary to require proponents to provide in advance an estimate of
the number of participants and spectators. Failure to require prior
notice of the anticipated attendance would defeat the Department's
purposes of resource protection, promotion of public health and safety,
and allocation of space within the national Forest System. Without this
information, for example, the Forest Service would not know the kinds
of mitigative and preventive measures to take in authorizing
noncommercial group uses. As a result, these uses could pose a
substantial risk of damage to National Forest System lands and
resources.
This provision is a necessary component of a valid time, place, and
manner restriction. For example, the applicable forest plan might limit
the number of people that can be accommodated at a proposed site. The
Forest Service would need an estimate of the number of participants and
spectators to determine whether that number fell within the limit
established by the forest plan. In addition, the agency would need to
know the anticipated attendance in order to determine the number of
toilets or latrines needed or the sufficiency of potable drinking water
at the proposed site. Finally, while numbers of people can have varying
degrees of environmental impact on a site, the agency cannot under this
rule limit the number of people attending an activity. The agency can
only accommodate that number.
Having considered the comments received, the Department has
retained without change Sec. 251.54(e)(2)(i)(C) in the final rule.
Comment. Section 251.54(e)(2)(i)(D) of the proposed rule required
applicants to provide the date and time of the proposed activity.
Two respondents commented on this provision. One respondent stated
that it is reasonable for the Forest Service to request the date and
time of a proposed activity, but that requiring that information before
an activity places an undue burden on the public. Another respondent
commented that the agency could authorize a shorter time than
requested, so that anyone at the site before or after that time would
be in violation of the permit.
Response. The proposed rule merely required the date and time of
the proposed activity. Thus, the proposed rule required applicants to
specify when but not how long a proposed activity would occur.
Accordingly, the Department has amended Sec. 251.54(e)(2)(i)(D) in the
final rule to require applicants to provide the starting and ending
date and time of a proposed activity.
The Department believes that it is both reasonable and necessary to
require applicants to indicate in advance both when and how long a
proposed activity will occur. Failure to require prior notice of this
information would defeat the Department's purposes of resource
protection, promotion of public health and safety, and allocation of
space within the National Forest System. Without this information, for
example, the Forest Service would not know the kinds of mitigative and
preventive measures to take in authorizing noncommercial group uses. As
a result, these uses could pose a substantial risk of danger to
National Forest System lands and resources.
Authorization of noncommercial group uses will not be less likely
than authorization of other uses. On the contrary, the Department
intends to authorize noncommercial group uses to the full extent
allowed under this rule. The Department also intends to apply this rule
consistently and fairly as required by law to all noncommercial group
uses.
It would be inconsistent with this intent to authorize a shorter
time than requested for the purpose of finding anyone at the site
before or after that time in violation of the authorization. However,
there could be a compelling need to adjust the requested time period.
For example, the agency might suggest an alternate date or site for a
school-sponsored camping event if the requested date and site would
place students in jeopardy on the opening day of deer hunting season.
Comment. Section 251.54(e)(2)(i)(E) of the proposed rule required
applicants to provide the name of the person or persons 21 years of age
or older who will sign a special use authorization on behalf of the
applicant.
Four respondents recommended dropping the age limitation in this
provision. These respondents believed that the age limitation prevents
persons under the age of 21 from exercising their First Amendment
rights, and that the agency should lower the age limit to 18 or drop it
altogether; that those under the age of 21 would not be able to gather
unless the ideas they espouse have been adopted by someone 21 years of
age or older; that the provision discriminates against citizens under
the age of 21, who will not be able to gather in groups of 25 or more;
that this provision establishes a restriction on First Amendment
activity that does not apply to other activities, since younger people
can still go camping in small groups without a permit, which could
present equal or greater risks to the resource; and that although each
Rainbow Family member could get his or her own permit, then no one
under the age of 21 could attend the Gathering.
[[Page 45274]]
Approximately 19 respondents indicated that it is not appropriate
to make one individual responsible for an entire group. Specifically,
these respondents stated that individual group members will no longer
be responsible for themselves; that individuals should accept
responsibility only for themselves; that it is reasonable for a group
to give a person's name in the spirit of cooperation, but that it is
not reasonable to require one person to assume responsibility for
others; that a group should take responsibility for itself, and that if
one person signs a permit, the group's solidarity will be broken; that
this requirement is unreasonable if a group is not a legal entity and
acts by consensus rather than by hierarchy; that if no representative
from the group will sign because the group has no leader and because
decisions are made by consensus, the Forest Service could find anyone
21 years of age or older or a representative from a different group to
sign the permit, thus circumventing the process of decisionmaking by
consensus; that individuals in the group will lose their autonomy; that
those individuals who are responsible for any damage could make
restitution with the aid of the whole group; that this requirement is
particularly inappropriate where a group hesitates on philosophical
grounds to appoint agents or representatives to speak on its behalf,
and that the agency has said that it is unreasonable and impracticable
to deal separately with each member of a large group, but that there is
no reason for such a group to alter its philosophical grounds unless
the agency shows that it has had to deal separately with each group
member; that certain religious practices do not recognize a leader who
takes responsibility for the group; that making one individual
responsible for a permit makes the activity seem like a commercial
venture.
Two respondents commented that this provision is unenforceable
against the Rainbow Family because they have no leader. One of these
respondents stated that no member of the Rainbow Family can speak for,
sign for, or be held responsible for another.
Response. The Department believes that the age limitation in
Sec. 251.54(e)(2)(i)(E) of the final rule is a reasonable time, place,
and manner restriction. The restriction is necessary to ensure that
those who are designated to sign and who do sign a special use
authorization on behalf of a group are of the age of legal majority.
The signature gives the authorization legal effect. If the person or
persons who sign the authorization are not of the age of legal
majority, the authorization is not legally enforceable. Since the age
of legal majority is not the same in every state but in no state
exceeds the age of 21, the final rule requires that the person or
persons who are designated to sign and who do sign a special use
authorization be at least 21 years of age.
The Department does not believe that this age limitation imposes an
undue burden on the exercise of First Amendment rights by those under
the age of 21. The final rule does not prohibit groups of 75 or more
people under the age of 21 from gathering in the national forests, nor
does the final rule require that these groups include a person 21 years
of age or older. Rather, the final rule requires that a person or
persons 21 years of age or older be designated to sign a special use
authorization and that that designated person sign an authorization on
behalf of the group.
It is not appropriate or necessary for each member of a group to
sign a special use authorization. It is also not appropriate or
necessary for one member or a few members of a group to assume personal
responsibility for the actions of other group members. Individual group
members are personally responsible for their own actions. A person who
signs a special use authorization for a noncommercial group use acts as
an agent for the group, but does not assume personal responsibility for
the group's actions.
However, it is appropriate and necessary to ensure that a group
will be responsible for the actions of its members as a whole that
relate to the use and occupancy of National Forest System lands by
requiring a person or persons to sign a special use authorization as an
agent or representative of the group. Requiring that a person or
persons sign the special use authorization on behalf of the group will
not weaken the group's solidarity; on the contrary, this requirement
can serve to enhance the group's solidarity by ensuring that the group
will take responsibility for its actions. By signing a special use
authorization on behalf of the group, the agent or representative gives
the authorization legal effect and subjects the group to the
authorization's terms and conditions.
In addition, the Forest Service needs to have someone to contact
for purposes of special use administration. The authorized officer may
have questions about the application or may need to notify the
applicant in the event of an emergency. If the application does not
identify a contact person, the Forest Service cannot make the
appropriate notifications.
As shown by the reports on the 1991 and 1992 Rainbow Family
Gatherings, if a group does not designate a representative or
representatives, the Forest Service has to deal separately with various
individual members and subgroups. Informal agreements made with one
individual member or sub-group are not always respected by other group
members, which makes it difficult for the agency to obtain commitments
from the group as a whole. The special use authorization process will
allow the agency to obtain commitments from the Rainbow Family that
apply to the group as a whole.
Non-members of a group cannot sign a special use authorization on
behalf of a group unless they are designated by the group to act as its
agents or representatives and are authorized to make the group
responsible for the actions of its members as a whole. Requiring a
group to designate a person or persons who will sign a special use
authorization on behalf of the group does not make a group use a
commercial venture under this rule. Under the final rule, a group use
is a commercial use or activity if an entry or participation fee is
charged or if the primary purpose of the activity is the sale of a good
or service, and in either case, regardless of whether the use or
activity is intended to produce a profit. All groups, both commercial
and noncommercial, should be responsible for the actions of their
members as a whole that relate to the use and occupancy of National
Forest System lands.
The Department believes that it is both fair and appropriate to
apply this provision to all applicants, including groups like the
Rainbow Family that make decisions by consensus. The group can, for
example, designate a representative or representatives who can sign a
special use authorization on behalf of the group. Groups that make
decisions by consensus could select a representative through that
decisionmaking process.
As one respondent noted, the court in United States v. Rainbow
Family held that the Rainbow Family is an unincorporated association
that can sue and be sued. 695 F. Supp. at 298. The court also held that
service upon the Rainbow Family was properly effected in that case by
service upon several individuals who acted as agents or representatives
of the Rainbow Family. Id. Moreoover, in 1987, representatives of the
Rainbow Family signed a consent judgment in a suit brought by the
Health Director of the State of North Carolina against the Rainbow
Family for failure to obtain a permit under the State's mass gathering
statute. It is therefore
[[Page 45275]]
reasonable to believe that the Rainbow Family could designate a person
or persons to sign a special use authorization on behalf of the group
as provided in Sec. 251.54(e)(2)(i)(E).
Having considered the comments received, the Department has
retained without change Sec. 251.54(e)(2)(i)(E) in the final rule.
Comment. Section 251.54(e)(2)(ii)(D) of the existing rule
enumerates certain information that might have to be provided by a
private corporation applying for a special use authorization. The
proposed rule redesignated this provision but did not offer any
substantive change.
One respondent commented that the minimum amount of information
required from a private corporation applying for a special use
authorization is much greater than what is required from any other
category of applicant and that the only information needed from private
corporations is evidence of incorporation and good standing.
Response. This provision was not subject to substantive amendment
under the proposed rule, is not being amended by the final rule, and
has no bearing on the subject matter of this rule. Therefore, this
provision is beyond the scope of this rulemaking. However, the
Department believes that it may be appropriate to require private
corporations applying for a special use authorization to provide more
than evidence of incorporation and good standing.
Comment. A provision in Sec. 251.54(e)(1) of the existing rule
requiring the Forest Service to give due deference to the findings of
another agency, such as a public utility commission, the Federal Energy
Regulatory Commission, or the Interstate Commerce Commission, in lieu
of another detailed finding, was proposed to be moved to a new
Sec. 251.54(f)(4) of the proposed rule, since this provision relates to
the processing of applications rather than to their content. This was a
technical rather than a substantive amendment.
Two respondents commented on this provision. One respondent stated
that if the Forest Service defers to the findings of another agency, an
application for a special use authorization could be subjected to the
agenda of any part of government. The other respondent commented that
this provision applies a large body of administrative law to the review
of applications for a special use authorization, subject to the
discretion of the authorized officer, and places the burden of
documenting the findings of other agencies on the applicant.
Response. This provision was not subject to substantive amendment
under the proposed rule, is not being amended by the final rule, and
has no bearing on the subject matter of this rule. Therefore, this
provision is beyond the scope of this rulemaking. Nevertheless, the
Department believes that this provision makes the application process
more efficient by allowing the Forest Service to defer to relevant
findings of other agencies, rather than making another detailed
finding, in evaluating applications for commercial special use
authorizations.
Comment. Section 251.54(f)(5) of the proposed rule provided that
the agency would grant or deny an application for noncommercial group
uses without unreasonable delay. On the one hand, First Amendment due
process considerations require a specific timeframe for granting or
denying an application for noncommercial group uses. On the other hand,
a decision to issue a special use authorization triggers extensive
statutory and regulatory requirements such as those imposed by the ESA
and NEPA. Section 251.54(f)(5) of the proposed rule reflected the
agency's effort to balance the competing concerns of complying with
these First Amendment due process considerations and the statutory and
regulatory requirements triggered by a decision to issue a special use
authorization.
Approximately 65 respondents commented that this proposed provision
is too vague and would allow for too much discretion because it fails
to provide a definite timeframe for granting or denying an application.
Four respondents cited United States v. Rainbow Family in support of
their position. One respondent cited footnote 5 in United States
v.Abney, 534 F.2d 984 (D.C. Cir. 1976), for the proposition that
applications for First Amendment activities must be handled on an
expedited basis to avoid de facto censorship of certain points of view.
Several respondents recommended an expeditious procedure for
reviewing applications. Four respondents stated that the National Park
Service has a specific timeframe for evaluating permit applications for
First Amendment activities. One respondent cited 36 CFR 7.96(g)(3),
which provides that National Park Service permit applications for
demonstrations in the National Capital Region are deemed granted if not
acted upon within 24 hours of receipt.
Two respondents commented that the need to comply with statutory
and regulatory requirements could not justify the agency's position and
that the Forest Service should set a short timeframe and deny an
application within that timeframe if the agency needed more time to
complete an environmental impact statement.
One respondent suggested that permits should be issued immediately
where the forest plan identifies the proposed activity as appropriate
for the requested area and where the proposed activity meets applicable
standards and guidelines. Another respondent commented that if the
group threshold remains at 25, the decision should be made almost
immediately where the requested stay is three days and two nights or
less, where the activity is to be held in an area designed for a large
group, such as a developed campground, and where the forest plan
recognizes the activity as appropriate for the desired area. The same
respondent added that if the group threshold was raised to 50, the
decision should be made within 15 days.
One respondent suggested that the agency grant or deny applications
within three working days. Another respondent recommended a timeframe
of six weeks for evaluating applications. One respondent suggested that
an application should be granted or denied 30 to 60 days after
completion of the necessary NEPA analysis, which could range from
categorically excluding the proposed activity from documentation in an
environmental impact statement or an environmental assessment to
preparation of an environmental impact statement, depending on the
intensity, scope, duration, and location of the activity.
Others stated that the agency could take as long as it liked to
review applications, which could wreck a group's plan; that because the
agency could take a long time to evaluate applications, proponents
would have to apply far in advance; that this provision could allow
denial by slow response; that applicants would have to go to court to
expedite the process; that the lack of a specific timeframe undercuts
the due process protection of immediate judicial review since access to
the courts would be denied until a decision was made; that it is
unclear why it is infeasible to specify a timeframe; that there is no
evidence that NEPA, the ESA, and the NHPA apply to applications for
noncommercial group uses or noncommercial distribution of printed
material and that even if these statutes did apply, the Forest Service
could survey the land and as part of the planning process either
identify sensitive areas that need protective or designate areas suited
for the activities in question; that the proposed rule does not define
``unreasonable''; that this provision injects too much uncertainty
[[Page 45276]]
into the application process and that while the need to comply with
NEPA, ESA, and other statutes might in rare instances justify an
indefinite timeframe for extremely large groups, such a need does not
justify an indefinite timeframe for groups of 25 to 500 engaging in
activities such as educational field trips, company picnics, and family
reunions.
Response. Upon consideration of the comments received, the
Department agrees that a short, specific timeframe for processing
applications is needed to meet First Amendment requirements. See, e.g.,
Shuttlesworth, 394 U.S. at 162-64 (Harlan, J., concurring)
(applications for First Amendment activities must be handled on an
expedited basis to avoid de facto censorship of certain points of
view); A Quaker Action Group, 516 F.2d at 735 (a permit system must
have a fixed deadline for administrative action on a permit application
for First Amendment activities; suggests that 24 hours be the maximum
time for processing an application, and that applications be deemed
granted if not acted upon within that time limit); Rainbow Family, 695
F. Supp, at 311 (1984 Forrest Service regulations are invalid for
failure to specify a deadline for submitting an application and for
granting or denying an authorization for First Amendment activities);
see also Rainbow Family, 695 F. Supp. at 325 (although NEPA is
unquestionably constitutional, even an otherwise valid statute cannot
be applied in a manner designed to suppress First Amendment activity)
(citing CCNV, 468 U.S. at 293; Police Dep't of Chicago v. Mosley, 408
U.S. 92 (1972)).
However, as the court noted in the Rainbow Family case, 695 F.
Supp. at 323-24, the agency must comply with certain statutory and
regulatory requirements under NEPA before issuing a special use
authorization. NEPA mandates that federal agencies undertake an
environmental analysis on proposals for major Federal actions
significantly affecting the quality of the human environment (42 U.S.C.
4332(2)(C)). The Council on Environmental Quality (CEQ) has developed
regulations implementing NEPA (40 U.S.C. part 1500).
In general, under the CEQ regulations, an agency must conduct an
environmental analysis to determine whether a proposed action may
constitute a major federal action significantly affecting the quality
of the human environment (40 CFR 1501.4, 1508.9, 1508.13). If a
proposed action may significantly affect the quality of the human
environment, an environmental impact statement (EIS) must be prepared
(40 CFR 1501.4, 1502.4). As one of the example of a major federal
action, the CEQ regulations list approval of specific projects, such as
actions approved by permit (40 CFR 1508.18(b)(4)).
Thus, as a general matter, the issuance of Forest Service special
use authorizations constitutes a federal action for NEPA purposes which
may require documentation in a categorical exclusion (CE),
environmental analysis (EA), or an EIS. Proposed actions implementing
forest plans for which an EA or an EIS is prepared are subject to the
Forest Service's appeal regulations for project decisions (36 CFR
215.3(a) (58 FR 58911), which add substantially to the processing time
(36 CFR part 215 (58 FR 58904)).
However, the CEQ regulations encourage agencies to reduce paperwork
and delay by categorically excluding certain types of proposed actions
from documentation in an EA or an EIS which do not individually or
cumulatively have a significant effect on the human environment (40 CFR
1500.4(p), 1500.5(k), 1507.3, 1508.4)). The Forest Service NEPA
procedures categorically exclude certain types of proposed actions from
documentation in an EA or an EIS, including proposed actions that fall
within a category listed in Sec. 31.1b of Forest Service Handbook
1909.15 (57 FR 43180), if no extraordinary circumstances are related to
or affected by the proposed action.
One of the categories listed in Sec. 31.1b is:
8. Approval . . . of minor, short-term (one year or less)
special uses of National Forest System lands. Examples include but
are not limited to:
a. Approving, on an annual basis, the intermittent use and
occupancy by a State-licensed outfitter or guide.
b. Approving the use of National Forest System land for
apiaries.
c. Approving the gathering of forest products for personal use.
As explained in section 30.3(2) of the Handbook, extraordinary
circumstances include, but are not limited to, the presence of:
a. Steep slopes or highly erosive soils.
b. Threatened and endangered species or their critical habitat.
c. Flood plains, wetlands, or municipal watersheds.
d. Congressionally designated areas, such as wilderness,
wilderness study areas, or National Recreation Areas.
e. Inventoried roadless areas.
f. Research Natural Areas.
g. Native American religious or cultural sites, archaeological
sites, or historic properties or areas.
The Department does not intend to preclude reliance on a categorical
exclusion because of the mere presence of or a de minimis impact on one
or more extraordinary circumstances. Rather, the Department intends to
preclude reliance on a categorical exclusion if the proposed action
materially impacts the characteristics or functions of one or more
extraordinary circumstances.
The Department believes it essential to reconcile the First
Amendment requirement for a short, specific timeframe with the need to
comply with NEPA procedures. Thus, in response to the comments
received, the Department gives notice that the Forest Service will
categorically exclude authorization of noncommerical group uses from
documentation in an EA or EIS under Sec. 31.1b(8) of Forest Service
Handbook 1909.15, provided there are no extraordinary circumstances
related to or affected by the proposed activity.
The Department believes that authorization of noncommercial group
uses qualifies for categorical exclusion under Sec. 31.1b(8) because
noncommercial group uses are short-term, typically for only a few days
or weeks, and because they are minor in that they entail readily
mitigable environmental disturbance.
This determination is further supported by the reports on the 1991
and 1992 Rainbow Family Gatherings and by the Rainbow Family case. In
the context of an extensive analysis of NEPA requirements, the court in
the Rainbow Family case concluded that it is questionable whether the
annual Rainbow Family Gatherings would have any significant impact on
the environment for NEPA purposes. The court stated that environmental
impacts associated with these activities, such as the temporary
contamination of streams, are likely to be short-term. 695 F. Supp. at
324.
The Department's determination is also supported by the approach
taken by the National Park Service: The National Park Service
categorically excludes from documentation in an EA or an EIS ``the
issuance of permits for demonstrations, gatherings, ceremonies,
concerts, arts and crafts shows, etc., entailing only short-term or
readily mitigable environmental disturbance'' provided extraordinary
circumstances are not adversely impacted by these activities
(Department of the Interior NEPA Procedures, 516 DM 6, Appendix 7, sec.
7.4(D)(5); 516 DM 2, Appendix 2, sec. 2.1 through 2.10). By
categorically excluding these types of activities from documentation in
an EA or an EIS if they do not adversely affect any extraordinary
circumstances, the National Park Service is able to process
[[Page 45277]]
applications for these activities within the 24-hour timeframe imposed
by 36 CFR 7.96(g)(3).
In addition to having determined that noncommercial group uses
conform to the categorical exclusion in Sec. 31.1b(8) of Forest Service
Handbook 1909.15, the Department has incorporated the extraordinary
circumstances exception to categorical exclusions into the evaluation
process as an additional criterion at Sec. 251.54(h)(1)(iii) of the
final rule. If an authorized officer determines that all the evaluation
criteria are met, including the criterion concerning the extraordinary
circumstances exception, the application will be granted. With this
assurance that the most sensitive environmental lands and resources
will be protected, an extensive NEPA analysis is not required.
Categorically excluding noncommercial group uses from documentation
in an EA or an EIS under Sec. 31.1b(8) of Forest Service Handbook
1909.15 allows the Forest Service to expedite the processing of
applications for these activities in compliance with both NEPA and the
First Amendment. Moreover, proposed actions that are categorically
excluded from documentation in an EA or an EIS under Sec. 31.1b are
exempt from the potentially lengthy notice and comment procedures in
the Forest Service's appeal regulations for project decisions (36 CFR
215.4(b) (58 FR 58911)).
Finally, like the National Park Service regulation at 36 CFR
7.96(g)(3), Sec. 251.54(f)(5) of the final rule specifies a short
timeframe both for submitting and processing applications for
noncommercial group uses. Section 251.54(f)(5) provides that
applications for noncommercial group uses may be submitted up to 72
hours before the activity and that applications for noncommercial group
uses are deemed granted and that an authorization will be issued for
those uses unless the applications are denied within 48 hours of
receipt.
The 48-hour and 24-hour timeframes for submission and processing of
applications under the National Park Service's regulation apply only to
activities in the National Capital Region, which is a fairly
concentrated and developed park area. This final rule applies to the
entire National Forest System. The Department believes that the
additional 24 hours both for submitting and processing applications
under this rule are warranted given the sizable amounts of undeveloped
land and the wide variety of uses and activities that are subject to
this regulation.
As provided in 36 CFR 7.96(g)(3), where an application for a
special use authorization has been granted or has been deemed granted
under Sec. 251.54(f)(5) and an authorization has been issued, an
authorized officer may revoke the authorization under the limited
circumstances provided in Sec. 251.60(a)(1) of the final rule.
Under Sec. 251.54(f)(5), as under 36 CFR 7.96(g)(4), applications
for noncommercial group uses will be processed in order of receipt, and
the use of a particular area will be allocated in order of receipt of a
fully executed application, subject to any relevant limitations set
forth in Sec. 251.54.
Comment. Section 251.54(h) of the proposed rule specified the
procedures and criteria for evaluating applications for noncommercial
group uses. Section 251.54(h)(1) of the proposed rule established a
presumption in favor of granting an application for a special use
authorization for all noncommercial group uses. Under Sec. 251.54(h)(1)
of the proposed rule, an authorized officer had to grant an application
for a special use authorization for any noncommercial group use upon a
determination that seven specific, content-neutral evaluation criteria
were met.
Approximately 70 respondents argued that the proposed rule gives
the Forest Service too much discretionary power. These respondents
stated that an application for a special use authorization could be
granted or denied at will; that the proposed rule results in too much
governmental control; that the proposed rule does not meet the
stringent standards of Forsyth County v. Nationalist Movement, 505 U.S.
123 (1992), because the evaluation criteria are not ``narrowly drawn,
reasonable and definite'' and vest ``unbridled discretion in a
government official''; that the Forest Service could deny a permit to
any group, and that simply restricting conditions under which permits
can be denied does not erase a violation of constitutional rights; that
the regulation is intentionally vague and was drafted to fail, thereby
inviting harsher legal remedies; that a permit could be approved or
denied based on an authorized officer's personal interpretation of the
public interest; that an authorized officer cannot decide on a whim how
many people should gather or what may be discussed at the gathering;
that the proposed rule allows an authorized officer to grant or deny an
application on the basis of what might happen; that an application
could be denied on the basis of prejudice and that if one gives others
an opportunity to abuse one's rights, they will; that the agency's
intent may not be carried out by subsequent administrators; that the
agency may make it difficult to find out where to obtain a permit; and
that the agency may add reasons for denying a permit and may start
requiring permits for individuals.
Response. The Department disagrees with these comments. Under the
proposed and final rules, applications for noncommercial group uses
cannot be granted or denied at will, on the basis of prejudice, on the
basis of what might happen, or on the basis of a personal
interpretation of the public interest. Rather, these applications must
be granted or denied on the basis of the specific, content-neutral
evaluation criteria at Sec. 251.54(h)(1) that vest little or no
discretion in the authorized officer. These criteria merely regulate
time, place, and manner with respect to a proposed activity.
The Department drafted the criteria this way to ensure that the
rule complies with constitutional requirements. The Department intends
that the evaluation criteria be applied consistently and fairly as
required by law to all noncommercial groups. After this rule goes into
effect, the Department may not change it in any material way without
publishing another proposed rule for notice and comment (5 U.S.C. 553).
Application forms for special use authorizations subject to this
rule may be obtained from the Forest Service office responsible for
management of the affected land. That office will evaluate applications
received and decide whether to issue a special use authorization on the
basis of those applications.
This rule meets the stringent standards of Forsyth. In that case,
the Supreme Court held that a permit fee requirement was not narrowly
drawn to provide reasonable and definite standards for fee
determinations and that the ordinance at issue was content-based rather
than content-neutral because the determination of the amount of the fee
turned on a review of the content of the message conveyed. 112 S. Ct.
at 2403-04. In contrast, the evaluation criteria in this final rule are
narrowly tailored to minimize resource damage, to ensure compliance
with federal, state, and local law, and to address specific concerns of
public health and safety. None of these considerations has any
connection with the content of any message that may be conveyed by a
proposed activity.
Accordingly, the Department has retained without change the
introductory text in Sec. 251.54(h)(1) in the final rule.
[[Page 45278]]
Comment. Seventeen additional respondents commented on the
evaluation criteria in general. These respondents stated that the
criteria are an undue burden; that the criteria impose unreasonable
restrictions on freedom of assembly by restricting where, when, and how
citizens gather, and what types of activities can occur at a gathering;
that denial of a permit for constitutionally protected activities goes
beyond a regulation of time, place, and manner; that these criteria are
unnecessary, unlawful, redundant, and waste money; that the criteria
are unnecessary since most applicants would meet them anyway; that none
of the criteria addresses conduct that may have adverse impacts on
forest resources; that the issues addressed in the criteria are never a
problem at Rainbow Family Gatherings; that with the exception of the
criterion on halting, delaying, or preventing other uses and
activities, the issues addressed in the seven criteria are either dealt
with in other law or are common sense health and safety measures; that
applicants have to show cause before a permit is issued; that the
proposed rule would shift the burden of proof from the government to
its citizens in requiring them to show, through the application
process, that they deserve a permit; and that the burden should be on
the agency to establish a basis for denial of a permit.
Response. The Department disagrees with these comments. The final
rule is a constitutional restriction of time, place, and manner because
the standards in the rule, including the evaluation criteria, are
content-neutral, are narrowly tailored to further significant
governmental interests, and leave open ample alternative channels for
communication of information.
As noted earlier in this preamble, the Forest Service has
encountered a variety of problems in connection with noncommercial
group use of National Forest System lands. These problems have arisen
in the context of many different types of noncommercial group uses,
including Rainbow Family Gatherings. Some of these problems have
included the spread of disease, pollution from inadequate site clean-
up, and resource damage in critical salmon habitat. In view of these
problems, the Department has established three significant interests in
promulgating this rule: Protection of forest resources and facilities;
promotion of public health and safety; and allocation of space within
the National Forest System.
The Department believes that the eight evaluation criteria in this
rule are narrowly tailored to address these issues. The first criterion
addresses compliance with laws in general and compliance with laws in
particular that relate to protection of forest resources, such as the
ESA. The second criterion addresses consistency with standards and
guidelines for environmental protection in the applicable forest plan.
The third criterion deals with allocation of space for administrative
use by the Forest Service and for other authorized uses and activities
on National Forest System lands. The fourth and fifth criteria address
specific concerns of public health and safety. The sixth criterion
makes the rule consistent with existing Forest Service policy on
military and paramilitary training or exercises on National Forest
System lands. The seventh criterion, which requires a representative of
the group to sign a special use authorization, allows the Forest
Service to administer special use authorizations and enables
noncommercial groups to take responsibility for the actions of their
members as a whole that relate to the use and occupancy of National
Forest System lands. The eighth additional criterion in the final rule
on extraordinary circumstances allows the Forest Service to ensure that
the most sensitive environmental lands and resources will be protected
while expediting the processing of applications as required by the
First Amendment.
Whether other laws address the issues dealt with in the evaluation
criteria in this rule is immaterial because less restrictive
alternatives are not part of the test for constitutionality of time,
place, and manner regulations. Even though less restrictive
alternatives are not part of the test for constitutionality, the
Department believes that the special use authorization requirement is
the least restrictive means to achieve the government's interests.
Other laws and regulations do not provide the framework necessary for
applying standards for resource protection and public health and safety
to noncommercial group uses. Special use authorizations are needed to
allow the Forest Service to limit or prevent adverse impacts on forest
resources from noncommercial group uses, to address concerns of public
health and safety associated with noncommercial group uses, and to
allocate space for noncommercial group uses and other uses and
activities.
Applicants for noncommercial group uses do not have to show cause
before a special use authorization is issued. Applicants for
noncommercial group uses merely have to provide the information
enumerated in Secs. 251.54(e)(2)(i) (A)-(E), which the Forest Service
needs in order to apply the evaluation criteria in the rule. Section
251.54(h)(1) establishes a presumption in favor of issuance of a
special use authorization. The burden is on the authorized officer to
establish a factual and legal basis for denial of a special use
authorization.
A summary of comments received on each evaluation criterion and the
Department's response to them follows.
Comment. Section 251.54(h)(1)(i) of the proposed rule required an
authorized officer to determine that a proposed activity was not
prohibited by the rules at 36 CFR part 261, subpart A, or by an order
issued pursuant to 36 CFR part 261, subpart B, or by federal, state, or
local law.
Twenty-one respondents commented on this provision. Six respondents
stated that the provision is too vague and broad. These respondents
commented that the provision could always provide a basis for denial of
a permit; that a permit could be denied if anyone in a group might
violate the law or if a state law, such as an anti-mass gathering law,
prohibited the activity; that the perceived risk that a law might be
broken or a habitat disturbed would suffice for denial of a permit, and
that the test is speculative, biased, and arbitrary; and that the
evaluation criteria apply a double standard, in that a substantial risk
is required to trigger health and safety concerns, but that any risk of
a take of an endangered species could result in denial of a permit,
that the rule should provide that there must be a substantial
probability of causing a take during the proposed activity, that
``substantial probability'' should be defined as 50 percent or greater,
and that a permit should not be denied because the proposed activity
violates state law, such as a state endangered species act, which could
be broader than federal law.
Three respondents believed that it is a general prohibition that
has no bearing on time, place, or manner. One of these respondents
commented that specific regulations exist for ensuring compliance with
the Wilderness Act and the ESA. Another commented that the agency
should regulate sensitive areas, not numbers.
Two respondents stated that the legality of proposed activities is
addressed by other laws, such as the ESA, that requiring people to
apply for permits so that these laws can be upheld is unjustified, and
that if someone intended to take an endangered species, these
regulations would not stop them.
Another respondent stated that this provision places an undue
burden on
[[Page 45279]]
the public in that applicants have to apply in advance and worry about
whether a permit will be granted or not, that people should decide
where they want to go, and that if they choose a place that they should
not use, it is the agency's responsibility to inform them of the
problem.
Six respondents commented that there is no need to protect the
public by closing a site due to bad weather and that individuals or
groups can decide for themselves whether to use a particular site at a
particular time. One of these respondents wrote that people would not
request a site hit by a major flood or a hurricane. One respondent
stated that the provision is unjustified because there has never been a
problem with extreme fire danger or inclement weather in the history of
Rainbow Family Gatherings.
One respondent stated that the rule should be clarified to show
that the referenced prohibitions do not include content-based
restrictions in state or local laws. Another respondent commented that
the Wilderness Act and the ESA are valid restrictions of time, place,
and manner.
Response. The Department agrees that this provision should indicate
that the referenced prohibitions do not include content-based
restrictions in federal, state, or local law. The reference to
Sec. 251.54(h)(1)(i) in the preamble to the proposed rule contained
this qualification, but it was inadvertently omitted from the proposed
rule. Therefore, as intended, the phrase ``unrelated to the content of
expressive activity'' has been added to Sec. 251.54(h)(1)(i) of the
final rule.
The Department believes that the criterion at Sec. 251.54(h)(1)(i)
is narrowly tailored and specific and that it constitutes a valid
restriction on time, place, and manner. The Forest Service must comply
with applicable federal law and regulations in managing the National
Forest System. For example, the Wilderness Act requires the Forest
Service to protect and manage wilderness areas so as to preserve their
natural condition and to ensure that the imprint of human activity
remains substantially unnoticeable (16 U.S.C. 1131(c)). The ESA
requires federal agencies to consult with the Fish and Wildlife Service
or National Marine Fisheries Service to ensure that any agency action
is not likely to jeopardize the continued existence of any threatened
or endangered species (16 U.S.C. 1536). In addition, the ESA prohibits
a taking of an endangered species and, by discretion of the listing
agency, a taking of a threatened species (16 U.S.C. 1538).
For example, if a noncommercial group of 75 or more requested to
camp in grizzly bear habitat during early spring, when the grizzly
bear, a species listed as threatened and protected under the ESA, comes
out of hibernation, an authorized officer could deny the application
and offer another site or time pursuant to Sec. 251.54(h)(2). As one
respondent noted, statutes like the ESA and the Wilderness Act are
valid time, place, and manner restrictions, and this regulation is
needed to provide a framework for applying that type of restriction to
noncommercial group use of National Forest System lands. The special
use authorization process will give the Forest Service notice of
potential problems posed by these restrictions, as well as the ability
to prevent or mitigate them.
Section 251.54(h)(1)(i) is severely limited. Under this criterion,
a special use authorization can be denied only if authorization of the
proposed activity is prohibited by Forest Service regulations at 36 CFR
part 261, Forest Service orders issued under 36 CFR part 261, or by
laws that are unrelated to the content of expressive activity. The
standard in this provision is not speculative, biased, or arbitrary. A
special use authorization cannot be denied if authorization of the
proposed activity might be prohibited by the law; a special use
authorization can be denied only if authorization of the proposed
activity is prohibited by the law as it is applied to the specific
facts of a given application. To clarify this intent, the Department
has added ``authorization of'' before ``the proposed activity'' in
Sec. 251.54(h)(1)(i) of the final rule.
This regulation is intended to preempt all state and local laws and
regulations that conflict with this regulation or that impede its full
implementation. As long as state and local laws and regulations are
content-neutral and do not conflict with this final rule or impede its
implementation, the Department intends to comply fully with them in
authorizing noncommercial group uses under this rule.
This criterion also will allow the Forest Service to enforce its
prohibitions and orders consistently and fairly as required by law. For
example, an authorized officer may deny an application and offer
another site if the requested site is closed or restricted due to the
outbreak of disease under an order issued under 36 CFR part 261. A site
also might be closed due to extreme fire danger or inaccessibility
because of flooding or heavy snowfall or to protect critical threatened
or endangered species habitat.
Comment. Section 251.54(h)(1)(ii) of the proposed rule required an
authorized officer to determine that a proposed activity was consistent
or could be made consistent with the applicable forest plan required
pursuant to 36 CFR part 219.
Nine respondents commented on this provision. One respondent stated
that this provision should be dropped because there is no connection
between the applicable forest plan and activities covered by the
proposed rule and because forest plans are too inflexible to
accommodate short-term uses. Another stated that the provision is vague
and has no bearing on time, place, and manner and that when a proposed
activity is not compatible with the applicable forest plan, the agency
should change the plan. One respondent stated that the Forest Service
should not adhere to the applicable forest plan when a group wishes to
gather on a logging road or unreclaimed clear-cut to protest the
agency's logging practices. One respondent commented that the proposed
rule did not mention that the agency is having problems upholding
standards and guidelines in forest plans. One respondent stated that
this provision would restrict what type of activities could occur at
gatherings. Another commented that a group could be denied use of an
area because of past abuse by other groups.
One respondent noted that forest plans do not expressly limit or
prohibit group uses but merely set overall guidelines for applying
specific environmental and performance standards, with which group uses
must conform. This respondent stated that it is the agency's duty to
inform applicants of all relevant forest plan provisions and to ensure
consistency of proposed activities with standards and guidelines in
forest plans.
One respondent stated that this provision does not contain specific
and objective standards for ensuring consistency with forest plans.
Another respondent commented that this provision as written could
indirectly allow restrictions on use based on the content of expressive
activity. This respondent suggested that the agency clarify the
provision to require consistency of the proposed activity with the
management restrictions for the proposed area under the applicable
forest plan.
Response. The Department agrees that forest plans do not prohibit
authorization of noncommercial group uses. Rather, forest plans set
standards and guidelines with which all uses of National Forest System
lands, including authorization of noncommercial group
[[Page 45280]]
uses, must conform. Thus, requiring that authorization of noncommercial
group uses be consistent or can be made consistent with the standards
and guidelines in forest plans for the national forests is a valid
time, place, and manner restriction.
The National Forest Management Act (NFMA) requires that ``permits *
* * and other instruments for the use and occupancy of National Forest
System lands shall be consistent with the land management plans'' (16
U.S.C. 1604(i)). This provision is content-neutral. A proposed activity
is consistent with a forest plan if it adheres to a plan's standards
and guidelines that are forest-wide or that are included in management
prescriptions for the specific management areas where the activity will
occur. Standards and guidelines in forest plans describe any activities
that are not permitted to occur in a specified area or prescribe how
activities must be implemented for environmental protection or other
purposes.
Forest plans are developed in accordance with the rules at 36 CFR
part 219 and adopted following extensive public participation and
comment. It is not practicable to write a forest plan that can
accommodate every conceivable use at every conceivable site at every
conceivable time of the year. The standards and guidelines in forest
plans apply to all instruments for the use and occupancy of National
Forest System lands, from timber sale contracts to grazing permits,
regardless of whether the activity involves the expression of views. In
reviewing an application for a noncommercial group use, an authorized
officer will determine whether authorization of the proposed activity
at the time and place requested is consistent or can be made consistent
with the applicable forest plan based on the information provided under
Secs. 251.54(e)(2)(i) (A) through (e)(2)(i)(E).
NFMA requires that permits and other instruments for use and
occupancy of National Forest System lands be consistent with the
applicable Forest plan (16 U.S.C. 1604(i)). The Department has added
``authorization of'' before ``the proposed activity'' in
Sec. 251.54(h)(1)(ii) of the final rule to reflect the requirement in
NFMA that authorization of the proposed activity, rather than the
authorized activity itself, be consistent with the applicable forest
plan.
Comment. Section 251.54(h)(1)(iii) of the proposed rule required an
authorized officer to determine that a proposed activity would not
delay, halt, or prevent administrative use of an area by the Forest
Service or other scheduled or existing uses or activities on National
Forest System lands, including but not limited to uses and activities
authorized pursuant to parts 222, 223, 228, and 251 of this chapter.
Approximately 35 respondents commented on this provision. Eight
respondents commented that this provision is vague generally and gives
an authorized officer too much discretion. Specifically, these
respondents stated that denying a permit because it conflicts with
another use or because it cannot reasonably be accommodated at the time
and place requested allows for two much discretion on the part of the
authorized officer; that the provision should be dropped because it is
no better than a similar criterion that was struck down by the court in
the Rainbow Family case; that under United States v. Rainbow Family,
695 F. Supp. at 312 n.6, this provision vests too much discretion in
the authorized officer to propose an alternate time or place; that the
agency could ensure that administrative uses are always scheduled at
the same time as any proposed activity or deem existing or scheduled
uses to be incompatible with the proposed activity, even if they are
not; that this provision would allow the Forest Service to deny a
permit if the agency thinks that a proposed activity, such as a group
protest or distribution of literature at or near a recreation, logging,
or mining site, might interfere with any other uses or activities; that
it is unclear how a determination could be made without regard to the
content of expressive activity; that under a worst-case scenario, this
provision could induce an authorized officer to deny access to a site;
and that the examples given in the preamble of the proposed rule of how
this criterion would be applied are insufficient to remove the
vagueness in its wording.
One respondent stated that statutes and other regulations exist to
deal with conflicts among users, such as 18 U.S.C. 1863, which allows
the agency to restrict access to areas of the national forests, 36 CFR
part 261, which allows the agency to issue orders restricting certain
types of conduct, and 36 CFR 251.54(i)(1), which allows the agency to
avoid conflicts among commercial uses and activities.
Six respondents commented that often minor changes can be made to
scheduled and existing uses to avoid conflicts with proposed
activities. Two respondents commented that minor, temporary
arrangements are easily made and have been made many times by prior
informal agreement to address the question of allocation of space. One
of these respondents stated that forest plans are built on the concept
of balancing interests in an ongoing multiple-use scenario, but that
the regulations blurs the fundamental difference between permanent or
consumptive uses and transitory group uses, which by their nature do
not compete with other uses and activities for use of National Forest
System lands.
Six respondents commented that the exercise of constitutionally
protected rights should have priority over all other uses. One of these
respondents felt that the interests of thousands of people should take
precedence over the grazing of cattle. Four others stated that
gatherings have proceeded after negotiation and development of
operating plans, but that if these plans fail, a court order might be
appropriate.
Twelve respondents stated that other uses are given priority over
the exercise of constitutionally protected rights. One of these
respondents stated that a permit for a gathering could be denied if a
timber sale or grazing were scheduled for the same time and place.
Another noted that cattle were moved to accommodate the 1984 Rainbow
Family Gathering.
One respondent commented that this provision is unnecessary because
there are no conflicts among Rainbow Family members. Another stated
that no group, including the Rainbow Family, would camp in areas where
logging activities are in progress. One respondent commented that the
rationale of avoiding traffic congestion is inadequate because there
are no traffic jams in the national forests.
Three respondents stated that those who gather should be respectful
of others.
Response. The Department believes that this criterion is narrowly
tailored and specific and that it constitutes a valid restriction on
time, place, and manner. In contrast, the rule struck down in United
States v. Rainbow Family provided that an application for a First
Amendment activity could be denied if the activity conflicted with a
previously approved use or if it would be of such nature or duration
that it could not reasonably be accommodated at the place and time
requested (49 FR 25449).
To address the court's concern, the Department has abandoned the
unconstitutionally vague criterion that allowed an authorized officer
to deny an application for a noncommercial group use on the grounds
that it cannot reasonably be accommodated in the time and place
requested or that the proposed use might interfere or be
[[Page 45281]]
incompatible with scheduled or existing uses.
In contrast to the earlier rule, under Sec. 251.54(h)(1)(iv) of the
final rule, an application may be denied only if the proposed activity
would delay, halt, or prevent administrative use of an area by the
Forest Service or other scheduled or existing uses or activities on
National Forest System lands. This narrow, specific, content-neutral
criterion is intended to allow the Forest Service to allocate space in
a manner that is both fair and consistent with the agency's multiple-
use mission. The intent is not to prevent demonstrations; the intent is
to ensure that demonstrations can coexist with other authorized uses
and activities on National Forest System lands, including endangered,
threatened, or other plant and animal species.
Moreover, under this rule the Forest Service cannot manipulate
administrative use of an area to ensure that this use coincides with a
proposed activity to which some might object. Administrative use of an
area by the Forest Service is based on actual need.
In the proposed rule, the agency provided specific examples of how
a proposed activity could delay, halt, or prevent scheduled or existing
uses and activities for purposes of this criterion. Specifically, under
Sec. 251.54(h)(1)(iv) of the final rule, an authorized officer might
require a large group to alter arrival and departure times or to use an
alternative access route to avoid congestion. On the opening day of
fishing season, an authorized officer might suggest a site removed from
popular fishing areas for the same reason. This criterion also allows
the Forest Service to ensure that a group is not authorized to use a
site that is already being used as pastureland under a grazing permit
or that is currently being logged under a timber sale contract.
The Forest Service has had difficulty in allocating space among
noncommercial group uses and other uses and activities on National
Forest System lands. While the Forest Service has generally resolved
these types of conflicts successfully, the agency has had to expend
considerable time and resources in the effort. The Department believes
that these types of problems can be solved more efficiently, more
effectively, and more fairly through the issuance of special use
authorizations for all special uses, including noncommercial group
uses.
One example of this type of allocation problem occurred at the 1992
Rainbow Family Gathering. One of the main access roads to the site of
the 1992 gathering was scheduled to be used as a timber hauling route
during the gathering. Because of the amount of traffic associated with
the gathering, the Forest Service believed that the safety hazard was
too high to allow logging trucks to use the access road. Consequently,
the agency required the timber purchaser to use an alternate haul
route, which resulted in higher costs to the timber purchaser and
potentially higher costs to the government. As shown by the reports on
the 1991 and 1992 Rainbow Family Gatherings, parking and traffic
congestion are additional transportation issues associated with large
group gatherings at sites with limited access.
At the 1992 Rainbow Family Gathering, the Forest Service specified
that parking would not be allowed at a particular site because of
safety risks (the site was located on a timber haul route) and prior
agency commitments made to other users (livestock was scheduled to use
the site). Ample alternative parking closer to the gathering was
available. Nevertheless, the Rainbow Family directed gatherers to the
site. By the time the Forest Service issued an order closing the site
to parking and camping, 91 vehicles were parked at the site. Forest
Service officials explained the agency's reasons for issuing the
closure order at a council meeting of approximately 50 members of the
Rainbow Family. Although more than half the vehicles were removed by
the next day, 20 to 30 Rainbow Family members staged a civil
disobedience protest of the closure order. Gatherers continued to
remove vehicles from the area gradually, but the agency had to tow five
vehicles from the site. The Department believes that this type of
problem could be prevented or more quickly resolved through the special
use authorization process.
In addition to this parking problem, in July 1993, a group called
``We The People'' selected for a gathering a site that had been
authorized since 1955 for use by the Mississippi National Guard for
military training purposes. Within the permitted area of 45,000 acres
were significant amounts of unexploded ordnance. ``We The People''
chose to camp near an area where the National Guard was performing tank
maneuvers. The group selected the site in order to protest use of the
national forests for military training and exercises. The management
challenge faced by the Forest Service was how to allow the group to
conduct its protest without sustaining serious injury and without
preventing the National Guard from exercising its privileges under its
special use authorization. After several days of negotiations and
coordination among all concerned parties, the gathering and protest
occurred without conflict with the National Guard or injuries to either
group.
These examples illustrate the kind of conflicts that can occur
among uses and the need for a special use authorization process for
noncommercial group uses to resolve those conflicts more quickly and
effectively. Making minor changes or entering into informal agreements
is an inadequate or inefficient way to resolve issues pertaining to
allocation of space for all uses and activities on National Forest
System lands. Other laws and regulations, particularly regulations such
as 36 CFR 251.54(i)(1), which do not apply to noncommercial activities,
do not give the Forest Service notice of the issues addressed in
Sec. 251.54(h)(1)(iv) of the final rule and thus do not allow the
agency to allocate space fairly among competing uses and activities. A
special use authorization process gives the agency a managerial tool to
address these problems more expeditiously, more effectively, and more
equitably.
Section 251.54(h)(1)(iv) of the final rule does not give the
authorized officer too much discretion to propose an alternate time and
place. The criterion in the 1984 rule struck down by the court in the
Rainbow Family case was unconstitutionally vague and overbroad in that
it allowed an authorized officer to deny an application if it could not
reasonably be accommodated at the time and place requested. In footnote
6 of the opinion, the court's point was that providing for an
alternative site or time if an application was denied under this
criterion could not cure its constitutional infirmity. 695 F. Supp. at
312 n.6. The court quoted Schneider v. State, 308 U.S. 147 (1939), for
the proposition that ``[o]ne is not to have the exercise of his liberty
of expression in appropriate places abridged on the plea that it may be
exercised in some other place.'' Id. at 163 (emphasis added). If the
provision in question is, like Sec. 251.54(h)(1)(iv) of the final rule,
a valid time, place, and manner restriction and the site requested does
not meet that restriction, providing that an alternative site or time
will be offered enhances rather than diminishes the constitutionality
of the rule. Providing for alternative sites and times ensures that
ample alternative channels will be available for communication of
information, as required by Clark v. CCNV.
The Forest Service is charged with managing the resources of the
National Forest System for multiple uses. MUSY authorizes the Forest
Service to manage
[[Page 45282]]
commercial and noncommercial uses of National Forest System lands (16
U.S.C. 528-531). The Department believes that all special uses,
commercial and noncommercial, both involving and not involving the
expression of views, should be treated consistently and fairly.
The Department does not intend to give priority to any use or
activity in processing applications under this rule. Applications for
special use authorizations will be processed in order of receipt under
Sec. 251.54(f)(5) of the final rule, and the use of a particular area
will be allocated in order of receipt of fully executed applications,
subject to any relevant limitations in Sec. 251.54.
Comment. Section 251.54(h)(1)(iv) of the proposed rule required an
authorized officer to determine that a proposed activity would not pose
a substantial danger to public health. Considerations of public health
were limited to the following with respect to the proposed site:
(a) The sufficiency of sanitation facilities;
(b) The adequacy of waste-disposal facilities;
(c) The availability of sufficient potable drinking water, in view
of the expected number of users and the duration of use;
(d) The risk of disease from the physical characteristics of the
proposed site or natural conditions associated with the proposed site;
(e) The risk of contamination of the water supply; and
(f) The sufficiency of a plan for safe handling of food.
Approximately 45 respondents commented on this provision. Seven
respondents commented that the public health concerns addressed in this
provision are beyond the responsibility or competence of the Forest
Service (although one noted that contamination of the water supply is a
legitimate agency concern). Another respondent stated that this
provision is unnecessary because the local health department handles
public health issues.
Eight respondents commented that this provision is too
paternalistic, that individuals should be responsible for their own
health, and that the agency should leave it up to individuals to decide
what kind of health risks they want to take when they use National
Forest System lands. One of these respondents commented that forest
visitors know what they need to survive and that if a site cannot
provide it, they will go elsewhere. Another one of these respondents
stated that this provision could be used to deny the application of a
group that has different sanitary requirements from what would be
considered acceptable in mainstream American society.
One respondent noted that while the public health concerns
addressed in this provision are typically under the jurisdiction of
local health departments, they are also, depending on the
circumstances, under the jurisdiction of local Forest Service
personnel. This respondent stated that this provision is directly
applicable to the protective mandate of the agency and contains
important and legitimate standards of performance.
Another respondent stated that the water supply should not be
contaminated by noncommercial group uses and that waste disposal
facilities should be adequate for these activities.
One respondent felt that activities that pose a substantial danger
to public health are a concern of government, that the risk of disease
is an important matter, that contamination of the water supply should
be a major focus of government agencies, and that food should be
handled in a safe way, but that a permit process is not required to
address these concerns. Three respondents commented that other laws,
regulations, and standards exist to deal with public health problems,
such as 36 CFR 251.54(h)(2) of the current rules, which allows the
agency to deny a special use authorization if the proposed activity
would present a clear and present danger to public health, 16 U.S.C.
551a, which allows the agency to cooperate with state and local law
enforcement authorities, and forest plans and public health codes,
which address the risk of disease.
One respondent stated that this criterion is unnecessary because
the Forest Service adequately notifies forest visitors of the
potability of water in the national forests. Two respondents stated
that only minimal assurances are necessary for safe sanitation
facilities, availability of safe drinking water, and safe food handling
procedures, such as assurances to bury human waste away from the water
supply, to truck in water from a nearby town, and to wash hands before
eating or preparing meals. One of these respondents stated that
satisfaction of these requirements would be so easy that they should be
omitted as burdensome and unnecessary. One respondent stated that
proper food handling is a matter of common sense.
Sixteen respondents stated that this provision is too vague and
leaves too much discretion to the authorized officer. These respondents
commented that this provision is no better than a similar provision
struck down by the court in the Rainbow Family case; that objective
standards are not specified, leaving too much room for interpretation,
and that it is unclear how a determination could be made without regard
to content; that ``substantial danger,'' ``sufficiency of sanitation,''
``adequacy of waste disposal,'' ``availability of sufficient potable
drinking water,'' ``risk of disease,'' ``risk of contamination,'' and
``sufficiency of a plan for safe handling'' are too vague and that the
agency should use concrete numerical requirements for facilities based
on the size of the group, the length of stay, and the characteristics
of the site; that this provision is so broad as to provide a basis for
denial of any permit; that this provision could unreasonably require
portable toilets for waste disposal, which are more expensive than
covered slit-trench latrines and which some groups might not be able to
afford; that the risk of disease could be construed unjustifiably to
prohibit a large group from using a meadow littered with cow dung from
grazing; that a plan for safe handling of food could require
unnecessary detail or prohibit individual food preparation; that a
group should not need a plan for making peanut butter sandwiches or
popcorn; that no church picnic would be authorized if the requirement
for a plan for safe handling of food were applied indiscriminately, and
that in reality, this provision would be selectively enforced to
prevent counterculture groups from distributing food to the needy; and
that it is impossible to ensure compliance with these standards prior
to a noncommercial group use.
One respondent stated that this provision would require all groups
to have an attorney, licensed food handler, trained medical staff, and
environmental specialist. One respondent suggested that the agency
specify who will review plans for the safe handling of food, who will
assess the risk of disease, and who will disseminate assessments of
these public health concerns, as well as how the agency's
recommendations on these issues will be enforced. This respondent also
suggested that the agency specify the ratio of people per latrine
required under this provision.
Two respondents suggested that the agency key this provision to
specific standards by requiring adherence of the proposed activity with
applicable state and local health regulations.
Response. The Department agrees that the public health
considerations addressed in Sec. 251.54(h)(1)(v) of the final rule are
important and that it is appropriate to address these concerns in this
rulemaking. The Forest Service has
[[Page 45283]]
a general mandate to address concerns of public health in regulating
use and occupancy of National Forest System lands (16 U.S.C. 551; 36
CFR 251.55(d)(3), 251.56(a)(1)(iv), 251.56(a)(2)(iv),
251.56(a)(2)(vii)).
Moreover, as the court held in the Rainbow Family case, it is a
reasonable time, place, and manner restriction to require that
noncommercial group use of the national forests not threaten the public
health or welfare. 695 F. Supp. at 329 (citing Grayned v. City of
Rockford, 408 U.S. 104, 113-16 (1972); Kovacs v. Cooper, 336 U.S. 77,
83, 86-87 (1949); De Jonge v. Oregon, 299 U.S. 364-65 (1937); Schenck
v. United States, 249 U.S. 47, 52 (1919)). In United States v. Rainbow
Family, the court required compliance with discrete health and
sanitation provisions that addressed the same public health concerns
enumerated in Sec. 251.54(h)(1)(v) of the final rule. 695 F. Supp. at
330-52.
As shown by the reports on the 1991 and 1992 Rainbow Family
Gatherings, the Forest Service works with local health department
officials to address concerns of public health that arise in connection
with large group gatherings on National Forest System lands. The
Department believes that a special use authorization process is needed
to handle public health issues associated with large group use of the
national forests. Other regulations, particularly 36 CFR 251.54(h)(2)
of the current rules, which the court in the Rainbow Family case struck
down for vagueness, do not provide the framework necessary for applying
public health standards to noncommercial group uses.
The shigellosis outbreak at the 1987 Rainbow Family Gathering is
one example of the type of problem that could be prevented or more
effectively controlled through a special use authorization process.
Although the Forest Service posted water sources and bulletin boards at
the site with notices to boil water for at least 30 minutes, many
people drank the water without boiling it. The Department believes that
by allowing the Forest Service to address this type of public health
issue before a noncommercial group use takes place, the application and
permitting process will enhance the agency's ability to communicate
concerns about this type of issue to groups and thus prevent serious
health risks.
The 1984 group uses rule allowed an authorized officer to deny an
application for a noncommercial group use if it presented a clear and
present danger to public health (49 FR 25449). The court in the Rainbow
Family case struck down this language because it was too vague and
allowed for too much discretion on the part of the authorized officer.
695 F. Supp. at 311.
Section 251.54(h)(1)(v) of the final rule corrects this deficiency
by restricting the authorized officer's review to concrete, content-
neutral considerations of public health associated with the site
proposed by the applicant. The Department intends to apply this
provision uniformly and fairly as required by law, based on an
objective assessment of each application.
The Department agrees that the considerations of public health in
this provision should be keyed to specific standards by requiring
adherence of the proposed activity with applicable state and local
public health laws and regulations. Consequently, the Department has
revised this criterion to provide that an authorized officer must
determine that the proposed activity does not violate state and local
public health laws and regulations as applied to the proposed site.
Issues addressed by state and local public health laws and regulations
as applied to the proposed site included but are not limited to the
specific considerations of public health in Sec. 251.54(h)(1)(v) of the
final rule.
Section 251.54(h)(1)(v) of the final rule does not require that
applicants retain experts on public health issues or make a
determination with respect to the public health considerations listed
in that provision. Applicants merely have to submit an application that
provides the basic information required in Secs. 251.54(e)(2)(i)(A)
through (e)(2)(i)(E). An authorized officer will then evaluate whether
the proposed activity violates state and local public health laws and
regulations as applied to the site identified in the application. To
clarify intent, the Department has removed Sec. 251.54(h)(1)(iv)(F) of
the proposed rule, which listed the sufficiency of a plan for safe
handling of food as one consideration of public health, because it is
not clear that an authorized officer could apply state and local law on
this subject solely on the basis of the information provided in an
application.
The Department has substituted ``sufficiency'' for ``adequacy'' in
Sec. 251.54(h)(1)(v)(B) of the final rule to make that provision
consistent with the terms used in Secs. 251.54(h)(1)(v) (A) and (C). In
Sec. 251.54(h)(1)(v)(C) of the final rule, the Department has deleted
the phrase ``in view of the expected number of users and duration of
use.'' The Department believes that this phrase is redundant because of
use of the word ``sufficient'' in Sec. 251.54(h)(1)(v)(C).
Comment. Section 251.54(h)(1)(v) of the proposed rule required an
authorized officer to determine that the proposed activity would not
pose a substantial danger to public safety. Considerations of public
safety did not include concerns about possible reaction to the users'
identity or beliefs from non-members of the group that is seeking
authorization and were limited to the following:
(a) The potential for physical injury to other forest users from
the proposed activity;
(b) The potential for physical injury to users from the physical
characteristics of the proposed site or natural conditions associated
with the proposed site;
(c) The potential for physical injury to users from scheduled or
existing uses or activities on National Forest System lands; and
(d) The adequacy of ingress and egress in case of an emergency.
Approximately 33 respondents commented on this provision. One
respondent commented that the agency lacks the ability to make an
informed decision on this criterion. Another respondent stated that
although the agency may have knowledge of problems pertaining to public
safety that applicants do not possess, that knowledge should not be the
basis for denying a permit to use the national forests. This respondent
added that it is not common sense to plan an activity that is intended
to cause physical injury to others or to oneself and that a horse race
or water skiing planned for a site selected for a gathering could pose
a problem, but that this type of conflict does not occur. One
respondent noted that it is appropriate to consider the potential for
injury to other forest users from a proposed activity.
Three respondents believe that this provision is too paternalistic.
One of these respondents commented that it could be used to deny a
permit to a group that has different safety requirements from what
would be considered acceptable in mainstream American society,
particularly with respect to the potential for injury to forest users
from characteristics or conditions of the site. Another one of these
respondents commented that some groups want inaccessible, secluded
areas. Another stated that people should be able to make their own
decisions about safety issues.
Three respondents stated that this provision is unnecessary because
the national forests are a known environment. Specifically, these
respondents stated that ensuring adequacy of ingress and egress is
[[Page 45284]]
unnecessary since individuals participating in group uses are generally
aware of the rugged conditions in the national forests and the
challenges they present; and that forest users heed safety concerns in
selecting sites and planning activities and that forest users have the
requisite wilderness experience to know about potential dangers in the
national forests.
Seven other respondents believe that this provision is unnecessary.
Six of these respondents stated that there have not been any safety
problems associated with group uses; that large groups would have a
better sense than individuals of safety hazards in the national
forests; that the Rainbow Family handles safety issues themselves; that
the Rainbow Family Gatherings are safer each year; and that it is
unclear why adequacy of ingress and egress is more of an issue with 25
or more people than it is with fewer than 25 people.
One of these six acknowledged that while the agency incurs costs
associated with accidents occurring on National Forest System lands,
these costs are within the scope of the agency's normal operations, and
the threat of an accident on National Forest System lands imposes no
legal or financial liability on the Forest Service. Therefore, this
respondent concluded that the agency has no need to issue permits based
on that threat. This respondent also commented that issuance of a
permit would carry an implicit guarantee of health and safety, thereby
imposing liability on the agency for any accidents that occur during a
group activity and forcing the agency to carry liability insurance at
considerable public cost.
Approximately 19 respondents feel that this provision is too vague,
broad, and subjective and would give the authorized officer too much
discretion in determining the nature of the substantial danger
associated with the proposed site. These respondents stated that
determinations of the substantial danger to public safety would be
completely arbitrary because the criteria are undefined and because
there is no indication of the type of site that would be unsafe; that
this provision is so broad as to provide a basis for denial of any
permit; that this provision fails to take into account the basic
attributes of National Forest System lands, which are primarily
undeveloped and natural; that virtually every location in the National
Forest System could be construed as posing some risk to public safety;
that it is unclear how a determination could be made under this
provision without regard to content; that the use of the word
``potential'' gives the authorized officer too much discretion; that
the broad use of the word ``potential'' allows the agency to use petty
discrepancies in activities as a pretext to establish a substantial
danger to public safety; that the provision is silent on the degree of
potential danger that would warrant denial of a permit; that it is
unclear how the potential for physical injury to other users is
measured and what that injury might be; that ``potential for physical
injury'' and ``adequacy of ingress and egress in case of an emergency''
are too vague and allow for too much discretion; that the provision on
adequacy of ingress and egress could be used to bar users from remote
sites; that consideration of the potential for injury from the physical
characteristics of the proposed site or natural conditions associated
with the proposed site could justify denial of a permit if there are
cliffs that one person might fall from or a lake that one person might
drown in; that consideration of the potential for injury to users from
scheduled or existing activities is too vague and not a problem in the
case of mining or logging because no one would want to gather where
those activities were occurring and if they did, other regulations
would address any safety concerns that might arise; that it is unclear
how merely regulating where an activity takes place restricts the
agency's discretion in reviewing applications; and that a determination
of what makes a site dangerous or unsafe for a gathering should be
published with the rule.
Response. The Department believes that it is appropriate to address
issues of public safety in this rulemaking. The Forest Service has a
general mandate to address concerns of public safety in regulating use
and occupancy of National Forest System lands (16 U.S.C. 551; 36 CFR
251.55(d)(3), 251.56(a)(1)(iv), 251.56(a)(2)(iv), 251.56(a)(2)(vii)).
Moreover, as the court in the Rainbow Family case held, it is a
reasonable time, place, and manner restriction to require that
noncommercial group use of the national forests not threaten the public
welfare. 695 F. Supp. at 329 (citing Grayned v. City of Rockford, 408
U.S. 104, 113-16 (1972); Kovacs v. Cooper, 336 U.S. 77, 83, 86-87
(1949); De Jonge v. Oregon, 299 U.S. 364-65 (1937); Schenck v. United
States, 249 U.S. 47, 52 (1919)).
The Department believes that this public safety provision is needed
because proposed activities may pose a substantial danger to public
safety, depending on the nature of the activity, its proximity to other
uses and activities, the physical characteristics of the proposed site,
and natural conditions associated with the proposed site.
For example, the Forest Service might deny an application and
suggest another site if a group wanted an authorization to conduct a
riflery contest near a heavily used campsite or picnic area. If a group
wanted an authorization to ignite a fireworks display, the agency might
deny the application because of the risk of a forest fire. These
examples illustrate the types of activities that would constitute a
substantial danger to public safety based on the likelihood of physical
injury to other forest users from these activities.
The Forest Service might deny an application and suggest another
site if a group selected an area near a major highway or an area
scheduled to be logged under a timber sale contract. The agency might
deny an application and suggest another site if a group chose an area
accessed only by the same narrow, winding road with blind curves used
by trucks hauling timber from a timber sale or talcum from an active
mine. This issue, in fact, arose in connection with the 1992 Rainbow
Family Gathering, where one of the sites selected was unsafe because it
was located on a timber haul route. These examples illustrate the types
of activities that would constitute a substantial danger to public
safety based on the likelihood of physical injury to users from the
physical characteristics of the proposed site or natural conditions
associated with the proposed site.
The Forest Service also might deny an application and suggest an
alternate site if a group selected an area being used for tank
maneuvers or an area riddled with unexploded ordnance. This concern
arose in connection with the gathering held by ``We The People'' on
National Forest System land in Mississippi in July 1993. These examples
illustrate the types of activities that would constitute a substantial
danger to public safety based on the potential for physical injury to
users from scheduled or existing uses or activities on National Forest
System lands.
The agency might deny an application and suggest another site if
roads accessing the site were inadequate to evacuate a large group in
case of an emergency, such as a forest fire or a flash flood. This
example illustrates the type of activity that would constitute a
substantial danger to public safety based on the inadequacy of ingress
and egress in case of an emergency.
The Department's intent is not to prevent use of remote areas or to
prevent gatherings and demonstrations.
[[Page 45285]]
Rather, the Department's intent, as specified in the final rule, is to
allow noncommercial groups to coexist with other authorized uses and
activities on National Forest System lands without posing a substantial
danger to public safety.
The Forest Service's handling of the gathering and protest held by
``We The People'' in July 1993 demonstrates the agency's ability to
carry out this intent. After several days of negotiations and
coordination among all concerned parties, ``We The People'' was able to
conduct its gathering and protest without sustaining injury from the
unexploded ordnance in the vicinity or from the tank maneuvers being
conducted by the National Guard nearby.
Although the Forest System successfully resolved the conflicts
among these users, the agency had to expend considerable time and
resources in the effort. The Department believes that these types of
problems can be solved more efficiently, more effectively, and more
fairly through the issuance of special use authorizations for all
special uses, including noncommercial group uses.
The Department believes that an application and permitting process
will enhance the Forest Service's ability to allow noncommercial groups
and other authorized uses on National Forest System lands to coexist
without posing a substantial danger to public safety. Other regulations
do not provide the framework necessary for applying the specific
considerations of public safety contained in this rule to noncommercial
group uses. In particular, other regulations do not ensure that the
Forest Service will have notice of noncommercial group uses and
therefore do not allow the agency to address these considerations as
expeditiously, effectively, and equitably.
The Forest Service does not ensure public health and safety on
National Forest System lands, either explicitly or implicitly, through
issuance of a special use authorization or otherwise. The agency does,
however, address public health and safety issues as part of its
statutory and regulatory mandate in administering use and occupancy of
National Forest System lands. Since the United States is self-insured,
the Forest Service's issuance of special use authorizations does not
impose additional insurance costs on the agency.
The Department believes that Sec. 251.54(h)(1)(vi) of the final
rule is narrowly tailored and specific and that it constitutes a valid
restriction on time, place, and manner. In contrast, the 1984 rule
struck down in United States v. Rainbow Family provided that an
application for a First Amendment activity could be denied if the
activity presented a clear and present danger to the public health or
safety (49 FR 25449). To address the court's concern, the Department
has abandoned the unconstitutionally vague criterion that allowed an
authorized officer to deny an application for a noncommercial group use
on the ground that it presented a clear and present danger to the
public health or safety. Thus, under Sec. 251.54(h)(1)(vi) of the final
rule, an application may not be denied merely because of the
possibility of personal injury at a proposed site or in connection with
a proposed activity. An application for a company picnic near a lake
cannot be denied, for example, merely because an authorized officer
thinks that someone at the picnic might drown in the lake.
In contrast to the earlier rule, under Sec. 251.54(h)(1)(vi) of the
final rule an application may be denied only if the proposed activity
poses a substantial danger to public safety. Considerations of public
safety are limited in the final rule to specific, content-neutral
criteria concerning the nature of the proposed activity, its proximity
to other use and activities, the physical characteristics of the
proposed site, and natural conditions associated with the proposed
site. Considerations of public safety in the final rule do not include
concerns about possible reaction to the users' identity or beliefs from
non-members of the group that is seeking an authorization.
The Department believes that it is not practicable to make a
determination in this rule as to how these factors would apply to every
conceivable noncommercial group uses and every conceivable site
suitable for a noncommercial group use at any conceivable time of the
year. Instead, the Department has given specific examples of how each
of these factors will be applied to applications for noncommercial
group uses. The Department believes that the Forest Service's
experience in managing the national forests and its knowledge of
National Forest System lands enable the agency to apply these specific,
content-neutral criteria based on the information submitted in
applications for noncommercial group uses.
Having considered the comments received, the Department has
retained without substantive change in the final rule
Sec. 251.54(h)(1)(v) from the proposed rule.
Comment. Section 251.54(h)(1)(vi) of the proposed rule required an
authorized officer to determine that a proposed activity did not
involve military or paramilitary training or exercises by private
organizations or individuals unless such training or exercises were
federally funded.
Eight respondents commented on this provision. One respondent
stated that if this type of military or paramilitary activity is
already prohibited, then it does not have to be prohibited again. One
respondent commented that this provision is a general prohibition with
no bearing on the regulation of time, place, or manner.
Two respondents stated that the federal government should not
exempt itself from its own regulations. One of these respondents stated
that this provision gives official military activities a preemptive or
exclusive right of access to the national forests. Three respondents
commented that there should be no military or paramilitary training on
national forests. One of these respondents stated that this provision
authorizes exercises by police S.W.A.T. units and by the Drug
Enforcement Administration and training of counterinsurgents for
political terrorism. Another stated that the Forest Service could deny
a permit for government troops to train in the national forests.
One respondent commented that this provision is too vague and broad
and could be used to bar such paramilitary groups as football teams,
the Salvation Army, Rainbow Hug Patrols, or the Boy Scouts of America
or to bar such activities as aikido, tai chi, or nonviolence training
for civil disobedience.
Response. The Forest Service Manual prohibits non-federally funded
military or paramilitary training or exercises by private organizations
or individuals because this type of use is often potentially damaging
to forest resources and may endanger other users of National Forest
System lands. The agency authorizes military or paramilitary training
or exercises by governmental entities and federally funded military or
paramilitary training or exercises by private organizations or
individuals because when conducted under such auspices, this type of
use is justified for national security purposes and is not as dangerous
to other users of National Forest System lands.
Section 251.54(h)(1)(vii) of the final rule incorporates
longstanding agency policy and gives it the force and effect of law.
Section 251.54(h)(1)(vii) of the final rule provides the framework
[[Page 45286]]
necessary for applying this policy to noncommercial group uses.
The rule does not apply to official U.S. military activities, nor
does it grant a preemptive or exclusive right of access for
paramilitary uses of the national forests. Under Sec. 251.54(f)(5) of
the final rule, applications will be processed in order of receipt, and
the use of a particular area will be allocated in order of receipt of
fully executed applications, subject to any relevant limitations in
Sec. 251.54.
The Department believes that this is a narrowly tailored
restriction that has no bearing on the content of expressive activity.
``Military'' means ``of, relating to, or typical of soldiers or the
armed forces,'' ``performed or supported by the armed forces,'' or ``of
or relating to war.'' Webster's II New Riverside University Dictionary
752 (1984). ``Paramilitary'' means ``of, pertaining to, or designating
forces organized after a military pattern, esp. as a potential
auxiliary military force.'' Id. at 852. The Department believes that
the terms ``military'' and ``paramilitary'' do not apply to groups such
as football teams, the Salvation Army, Rainbow Hug Patrols, or the Boy
Scouts of America, or to activities such as aikido, tai chi, or
nonviolence training for civil disobedience, nor does the Department
intend to apply these terms to these types of groups or activities for
purposes of Sec. 251.54(h)(1)(vii) of the final rule. Under current
policy, for example, adventure games (sometimes called survival or war
games) are not considered military or paramilitary activities and may
be authorized [FSM 2724.31].
Having considered the comments received, the Department has
retained without substantive change in the final rule
Sec. 251.54(h)(1)(vi) from the proposed rule.
Comment. Section 251.54(h)(1)(vii) of the proposed rule required an
authorized officer to determine that a person or persons 21 years of
age or older had been designated to sign and did sign a special use
authorization on behalf of the applicant.
Approximately 25 respondents commented on this provision. Seven
respondents stated that no individual could sign a permit on behalf of
a noncommercial group because each person in a noncommercial group is
responsible solely for his or her own actions. These respondents stated
that each person should accept responsibility for his or her use of
public land; that only commercial activities are organized by an
individual or entity that can take responsibility for liability and
mitigation of resource impacts; that most noncommercial groups that use
the national forests are not structured or legally empowered and that
any person in those groups who signs a special use authorization
represents only himself or herself; that it is unfair to hold the
person who signs a permit accountable for all others in the group and
that in the case of demonstrations, no one would sign, and the
requirement would have a chilling effect on speech; and that the agency
lacks the authority to require that noncommercial groups be constituted
as legal entities or internally structured to allow compliance with the
agency's rules, and that a group that operates by consensus is not a
legal entity, but is merely an assemblage of individuals who are
entirely seft-responsible under the law.
Fourteen respondents commented specifically that the Rainbow Family
cannot comply with the signature requirement because no individual
member speaks for the group and because each person is responsible for
his or her own actions. These respondents stated that the signature
requirement violates Rainbow Tribal Council traditions; that the
signature requirement forces the Rainbow Family to choose between
upholding its philosophy or maintaining its existence in that if the
group complies with the requirement, it violates its principles, and if
the group ignores the requirement, the agency can break up the
gathering; that the Forest Service has never had any problem contacting
the Rainbow Family; that the Rainbow Family is peaceful and cooperative
and poses no threat to the Forest Service; that the Rainbow Family has
met with local authorities in advance, helped prepare operating plans,
and left sites in a clean and natural state; that the agency has always
had reliable contacts at Rainbow Family Gatherings and that questions
have been answered, reasonable requests have been met, and problems
solved with the cooperation of the Rainbow Family and that the real
intent of this provision is to isolate leaders from the consensus, make
them culpable for real or imagined actions of the group, and expose
them to penalties under the full weight of the law.
One respondent commented that in view of the history of the rule,
the agency intends to use this provision to single out individuals for
harassment.
One respondent commented that the responsibilities and privileges
of citizenship are assumed at the age of 18 in most states. Another
respondent commented that requiring those who sign to be 21 years of
age or older could prevent persons under the age of 21 from exercising
their First Amendment rights and suggested lowering the age limit to 18
or dropping it altogether.
One respondent stated that this provision is a general prohibition
with no bearing on time, place, or manner.
Response. The Department believes that the age limitation in
Sec. 251.54(h)(1)(viii) of the final rule is a reasonable time, place,
and manner restriction. The restriction is necessary to ensure that
those who are designated to sign and who do sign a special use
authorization on behalf of a group are of the age of legal majority.
The signature gives the authorization legal effect. If the person or
persons who sign the authorization are not of the age of legal
majority, the authorization is not legally enforceable. Since the age
of legal majority is not the same in every state but in no state
exceeds the age of 21, the final rule requires that the person or
persons who are designated to sign and who do sign a special use
authorization be at least 21 years of age.
The Department does not believe that this age limitation imposes an
undue burden on the exercise of First Amendment rights by those under
the age of 21. The final rule does not prohibit groups of 75 or more
people under the age of 21 from gathering in the national forests, nor
does the final rule require that these groups include a person 21 years
of age or older. Rather, the final rule requires that a person or
persons 21 years of age or older be designated to sign a special use
authorization and that that designated person or persons sign an
authorization on behalf of the group.
It is not appropriate or necessary for one member or a few members
of a group to assume personal responsibility for the actions of other
group members. Individual group members are personally responsible for
their own actions. A person who signs a special use authorization for a
noncommercial group use acts as an agent for the group, but does not
assume personal responsibility for the group's actions.
However, it is appropriate and necessary to ensure that a group
will be responsible for the actions of its members as a whole that
relate to the use and occupancy of National Forest System lands by
requiring a person or persons to sign a special use authorization as an
agent or representative of the group. By signing a special use
authorization on behalf of the group, the agent or representative gives
the authorization legal effect and subjects the group to the
authorization's terms and conditions.
The Forest Service needs to have someone to contact for purposes of
[[Page 45287]]
special use administration. The authorized officer may have questions
about the application or may need to notify the applicant in the event
of an emergency. If the application does not identify a contact person,
the agency cannot make the appropriate notifications.
As shown by the reports on the 1991 and 1992 Rainbow Family
Gatherings, if a group does not designate a representative or
representatives, the Forest Service has to deal separately with various
individual members and sub-groups. Informal agreements made with one
individual member or sub-group are not always respected by other group
members which makes it difficult for the agency to obtain commitments
concerning an activity from the group as a whole.
All groups, both commercial and noncommercial, can and should be
responsible for the actions of their members as a whole that relate to
the use and occupancy of National Forest System lands. The Department
believes that it is both fair and appropriate to apply this provision
to all applicants, including groups like the Rainbow Family that have
no leader and that make decisions by consensus. Even if a group has no
leader, the group can still designate a representative or
representatives who can sign a special use authorization on behalf of
the group. (Groups that make decisions by consensus could select a
representative through that decisionmaking process.)
As one respondent noted, the court in United States v. Rainbow
Family held that the Rainbow Family is an unincorporated association
that can sue and be sued. 695 F. Supp. at 298. The court also held that
service of process upon the Rainbow Family was properly effected in
that case by service upon several individuals who acted as agents or
representatives of the Rainbow Family. Id. Moreover, in 1987,
representatives of the Rainbow Family signed a consent judgment in a
suit brought by the Health Director of the State of North Carolina
against the Rainbow Family for failure to obtain a permit under the
State's mass gathering statute. It is therefore reasonable to believe
that the Rainbow Family could designate a person or persons to sign and
that that person or those persons could sign a special use
authorization on behalf of the group as provided in
Sec. 251.54(h)(1)(viii) of the final rule.
The Department believes that this provision is a narrowly tailored
restriction that has no bearing on the content of expressive activity.
The Department intends to apply this requirement consistently and
fairly as required by law to all applications for noncommercial group
uses.
Having considered the comments received, the Department has
retained without substantive change in the final rule
Sec. 251.54(h)(1)(vii) from the proposed rule.
Comment. Section 251.54(h)(2) of the proposed rule provided that an
authorized officer could deny an application if it did not meet the
seven evaluation criteria. Under Sec. 251.54(h)(2) of the proposed
rule, and authorized officer had to notify an applicant in writing of
the reasons for denial of an application, and denial of an application
constituted final agency action that was immediately subject to
judicial review.
Eight respondents commented on this provision. One respondent
stated that the ability to deny an application for a noncommercial
group use gives an authorized officer too much discretion.
One respondent commented that a denial of an application is not
appealable. Another respondent stated that access to the courts is
denied until administrative remedies are exhausted. Two respondents
stated that this provision is inadequate because it fails to provide
for administrative review. Two respondents stated that judicial review
is too expensive for many to pursue. One of these respondents also
cited the holding in United States v. Rainbow Family that the rule must
provide for judicial review of the agency's determination. One
respondent commented that the agency should consider providing for
alternative dispute resolution instead of judicial review.
Three respondents stated that an authorized officer can deny an
application without providing for an alternative time, place, or
manner. Specifically, these respondents stated that the agency is not
required to provide ``ample alternative channels'' for the applicant's
use of public land; that this provision gives the agency authority to
prevent an activity from taking place; and that ``reasons for the
denial'' should be replaced with ``reasons to modify the time, place,
or manner'' of the proposed activity.
One respondent approved of requiring an authorized officer to
notify an applicant in writing of the reasons for denial of an
application.
Response. Section 251.54(h)(2) of the final rule contains the
following procedural safeguards:
(1) an authorized officer must notify an applicant in writing of
the reasons for denial of an authorization;
(2) if an application is denied and an alternative time, place, or
manner will allow the applicant to meet the evaluation criteria, an
authorized officer must offer that alternative;
(3) if an application is denied solely because extraordinary
circumstances do not permit the categorical exclusion to apply to the
proposed activity and the alternatives suggested are unacceptable, an
authorized officer must offer to have the requisite environmental
analysis (EA or EIS) conducted for the activity; if an EA or EIS is
prepared, the analysis will not be subject to the 48-hour timeframe for
reviewing applications for noncommercial group uses that do not require
preparation of an EA or EIS; if an EA or EIS is prepared, the decision
to grant or deny the application will be subject to the administrative
appeal process for planning and project decisions at 36 CFR 215 and
will be made within 48 hours after the decision becomes final under
that appeal process; and
(4) a decision to deny an authorization for a noncommercial group
use is immediately subject to judicial review.
The Forest Service's ability to deny applications for noncommercial
group uses is strictly constrained by the narrow, specific, content-
neutral evaluation criteria in Secs. 251.54(h)(1)(i) through
(h)(1)(viii) and by the limitations in Sec. 251.54(h)(2) of the final
rule. Under Sec. 251.54(h)(2) of the final rule, if an application is
denied and an alternative time, place, or manner will allow the
applicant to meet the evaluation criteria, an authorized officer must
offer that alternative. Moreover, if an application is denied solely
because extraordinary circumstances do not permit the categorical
exclusion to apply to the proposed activity and the alternatives
suggested are unacceptable to the applicant, an authorized officer must
offer to have the requisite environmental analysis completed for the
site. Thus, the final rule leaves open ample alternative channels for
communication of information.
The Department does not believe that ``reasons for denial'' should
be replaced with ``reasons to modify the time, place, or manner'' of
the proposed activity because it is conceivable that for some proposed
activities, such as igniting a fireworks display in a national forest,
an alternative time, place, or manner will not allow the applicant to
meet the evaluation criteria in the final rule.
The court in the Rainbow Family case held that the regulation must
provide for expeditious judicial review of the agency's decision to
deny an application. 695 F. Supp. at 311. This rule meets that
requirement by providing that denial of an application
[[Page 45288]]
under Sec. 251.54(h)(1) constitutes final agency action that is
immediately subject to judicial review. Exhaustion of administrative
remedies is not required before seeking redress in the courts.
Section 251.56--Terms and Conditions
Section 251.56(e) of the proposed rule provided that no bond was
required for activities subject to the rule.
Comment. One respondent stated that those who use the national
forests should be required to furnish a copy of their insurance
policies. Another respondent stated that a performance bond should be
required when necessary to ensure compliance with the terms and
conditions of special use authorizations, regardless of whether the
holder is exercising a constitutional right.
Several respondents objected generally to requiring insurance and
bonding for activities subject to the proposed rule. Ten specifically
objected to requiring a bond on the ground that it is unnecessary and
discriminates against those who do not have a lot of money. One
objected that requiring a bond discriminates against those who do not
share the majority viewpoint of the Forest Service. Three respondents
stated that bonding should not be required for noncommercial uses. One
respondent stated that bonding could still be required for
noncommercial uses, given the vagueness of the definition of
``commercial use or activity'' and probably would be required given the
history and apparent intent of the regulation.
Response. The special use regulations do not contain any provisions
on insurance (see 36 CFR part 251, subpart B), and the Department as a
matter of policy will not require insurance for activities subject to
the final rule. This policy demonstrates the Department's intent to
ensure that no undue burdens are imposed on the exercise of First
Amendment rights.
Under the final rule, an authorized officer may not require bonding
for activities subject to the rule. As discussed in response to
comments on Sec. 251.51, the Department has clarified and narrowed the
definition of ``commercial use or activity'' so that it cannot be
construed to include noncommercial activities. It is not the
Department's intent to require bonding for noncommercial group uses.
The Department's intent is to ensure that no undue burdens are imposed
on the exercise of First Amendment rights.
Having considered the comments received, the Department has
retained without change Sec. 251.56(e) in the final rule.
Section 251.57--Rental Fees
Section 251.57(d) of the proposed rule provided that no permit fees
would be charged for activities subject to the rule.
Comment. Two respondents stated that all persons or organizations
subject to the requirement for a special use authorization should be
required to pay reasonable application, processing, and land use fees.
Several respondents objected generally to charging permit fees for
activities subject to the proposed rule. Three respondents stated that
permit fees should not be charged for noncommercial uses. One
respondent stated that authorized officers might start charging ever-
increasing permit fees. One respondent stated that permit fees could
still be charged for noncommercial uses, given the vagueness of the
definition of ``commercial use or activity'' and probably would be
charged, given the history and apparent intent of the regulation.
Response. Under the final rule, an authorized officer may not
charge a permit fee for activities subject to the rule. As discussed in
response to comments on Sec. 251.51, the Department has clarified and
narrowed the definition of ``commercial use or activity'' so that it
cannot be construed to include noncommercial activities. It is not the
Department's intent to charge permit fees for noncommercial group uses.
As stated above, the Department's intent is to ensure that no undue
burdens are imposed on the exercise of First Amendment rights.
Having considered the comments received, the Department has
retained without change Sec. 251.57(d) in the final rule.
Section 251.60--Termination, Revocation, and Suspension
Under the proposed rule, special use authorizations for activities
subject to the rule were exempted from 36 CFR 251.60(b), which provides
that a special use authorization may be suspended, revoked or
terminated at the discretion of an authorized officer for ``reasons in
the public interest.'' This proposed exemption made clear the agency's
intent to ensure that an authorized officer does not have unbridled
discretion with respect to administration of activities subject to the
rule.
Under the proposed rule, an authorized officer could still
terminate, revoke, or suspend an authorization for these activities for
noncompliance with applicable statutes, regulations, or terms and
conditions of the authorization; for failure of the holder to exercise
the rights and privileges granted; with the consent of the holder; or
when, by its terms, a fixed or agreed-upon condition, event, or time
occurs.
Comment. Nine respondents commented on this provision. Seven
respondents commented that this provision gives the authorized officer
too much discretion. These respondents stated that the agency could
revoke a permit in the middle of a gathering; that the agency could
make revocation of a permit likely by requiring strict compliance with
a condition that would be difficult to meet or that would inevitably
occur; that actions of one person could put everyone at legal risk;
that the agency could arbitrarily change a prior determination, for
example, a designation of noncommercial to commercial, in order to
revoke a permit; and that it is good that one basis for termination,
revocation, and suspension was removed, but that reasons to stop an
activity will still be determined by the Forest Service, and that there
is no reason to stop a gathering unless people do something wrong, such
as dumping tons of garbage or burning trees.
Two respondents objected to allowing an authorized officer to
revoke a special use authorization if the holder fails to exercise the
privileges granted by the authorization. One of these respondents
commented that this basis for revocation is unclear and duplicates the
basis for revocation for noncompliance with the terms and conditions of
the authorization.
Another respondent objected to allowing an authorized officer to
terminate a special use authorization with the consent of the holder on
the ground that an individual could relinquish privileges on behalf of
the group.
One respondent stated that the same criteria for termination,
revocation, and suspension should apply to all permit holders,
regardless of whether the holder is exercising constitutional rights.
One respondent commented that the rule should require an authorized
officer to go before a judge and produce evidence before a permit is
revoked.
Response. The Department disagrees that the same criteria for
termination, revocation, and suspension should apply to both commercial
and noncommercial special use authorizations. Different standards apply
to categories of activities like noncommercial group uses, which may
include activities involving noncommercial speech.
The courts have held that this regulation cannot single out
[[Page 45289]]
noncommercial expression and treat it differently from other similar
types of activities. Israel, No. CR-86-027-TUC-RMB (D. Ariz. May 10,
1986); Rainbow Family, 695 F. Supp. at 309, 312. The courts have also
held that the administrative standards that govern special use
authorizations for noncommercial expression must be specific and
objective and must not leave too much discretion to the authorized
officer. Shuttlesworth, 394 U.S. at 150-51, 153; Rainbow Family, 695 F.
Supp. at 309-12.
Therefore, the Department must ensure that the same criteria for
termination, revocation, and suspension of special use authorizations
for noncommercial group uses apply to all authorizations in that
category, regardless of whether they involve the expression of views.
The Department also must ensure that these criteria are specific and
objective and do not leave unbridled discretion to the authorized
officer.
The Department agrees that allowing an authorized officer to
terminate, revoke, or suspend a special use authorization for a
noncommercial group use when, by its terms, a fixed or agreed upon
condition, event, or time occurs could undercut the Department's intent
to ensure that the authorized officer does not have unbridled
discretion in administering noncommercial group uses. Consequently,
Sec. 251.60(a)(1)(i) in the final rule limits the grounds for
revocation or suspension of a special use authorization for a
noncommercial group use to (a) the criteria under which the
authorization may be denied under Sec. 251.54(h)(1) of the final rule,
(b) noncompliance with applicable statutes, regulations, or the terms
and conditions of the authorization, (c) failure of the holder to
exercise the privileges granted by the authorization, and (d) with the
holder's consent.
In keeping with the courts' requirement for expeditious review of
decisions affecting authorization of expressive activities, decisions
to revoke or suspend a special use authorization for noncommercial
group uses are immediately subject to judicial review under
Sec. 251.60(a)(1)(ii) of the final rule. Thus, Sec. 251.101, which
requires exhaustion of administrative remedies under the agency's
administrative appeals process for special uses, does not apply.
Section 251.60(a)(1)(iii) of the final rule clarifies that a
special use authorization for a noncommercial group use terminates when
it expires by its own terms. No agency action is involved.
Consequently, Sec. 251.60(a)(1)(iii) of the final rule makes clear that
termination of a special use authorization for a noncommercial group
use does not constitute agency action that is subject to administrative
or judicial review.
Section 251.60(b) of the final rule exempts special use
authorizations for noncommercial group uses from the authority to
suspend, revoke, or terminate, at the discretion of an authorized
officer, for reasons in the public interest.
Revocation will not be more likely for special use authorizations
for noncommercial group uses than for other types of uses. The Forest
Service endeavors and will continue to endeavor to help all holders
comply with applicable statutes, regulations, and the terms and
conditions of their special use authorizations and will endeavor to
ensure compliance with the new evaluation criteria in Sec. 251.54(h)(1)
of the final rule. Under this rule, individual group members will be
personally responsible for their own actions, while the group will be
responsible for the actions of its members as a whole that have a
bearing on compliance with the special use authorization and applicable
law.
Revocation or suspension on the basis of the holder's failure to
exercise the privileges granted by the authorization allows an
authorized officer to give the site authorized for use by the holder to
another applicant if the holder decides not to use the site. The
Department believes that this basis for revocation or suspension is
clear and distinguishable from revocation or suspension on the basis of
the holder's noncompliance with the terms and conditions of the
authorization.
In the case of a special use authorization for a noncommercial
group use, the person or persons who have been designated to sign and
have signed the authorization on behalf of the group under
Secs. 251.54(e)(2)(i)(E) and 251.54(h)(1)(viii) of the final rule would
be expected to have the authority to consent to revocation or
suspension of the authorization for purposes of Sec. 251.60(a)(1)(i)(D)
of the final rule.
Amendments to Part 261
In addition to the changes to 36 CFR part 251, subpart B, the
proposed rule incorporated corollary changes to the rules at 36 CFR
part 261, subpart A, which contain general prohibitions in effect for
the National Forest System.
The proposed rule changed the authority citation for part 261 to
consolidate the references. The proposed rule also changed the
definitions and prohibitions in part 261, subpart A, governing
occupancy and use to make them consistent with the provisions in part
251, subpart B, that require a special use authorization for
commercial, but not noncommercial, distribution of printed material.
Comments on these provisions of the proposed rule and the
Department's response to them follow.
Section 261.2--Definitions
The proposed rule added definitions for ``Distribution of printed
material'' and ``Printed material.'' Since the Department has limited
the prohibitions in Secs. 261.10 (g) and (h) and 261.14 to commercial
distribution of printed material, the Department has added to
Sec. 261.2 the same definition for ``Commercial use or activity'' as
has been added to Sec. 251.51 of the final rule.
Section 261.10--Occupancy and Use
Comment. Section 261.10(g) of the proposed rule prohibited
distribution of any printed material without a special use
authorization.
Five respondents commented on this provision. Three respondents
commented hat the reasons cited for this provision are inadequate. One
of these respondents stated that posting, affixing, or erecting printed
material does not have the same significant impact on forest resources
as clear-cutting. Another stated that there have not been any traffic
jams from Rainbow Family members distributing leaflets, that the amount
of printed material posted on trees would undoubtedly be small, and
that these concerns can be addressed in a rule regulating traffic and
posting, affixing, or erecting written materials on trees. One
respondent stated that affixing printed material in the national
forests might cause resource damage, but that this concern is addressed
by existing laws, as are the concerns about traffic and danger to the
person distributing the material.
Two respondents advised the agency to remove this provision and
address resource damage as it occurs.
One respondent advised that this prohibition should apply only to
commercial distribution of printed material.
Response. The Department has carefully examined the special use
authorization requirement for noncommercial distribution of printed
material. Based on the comments received on resource impacts and on the
Department's review of resource impacts associated with noncommercial
distribution of printed material, the Department has determined that
these impacts are not significant enough to warrant regulation at this
time.
[[Page 45290]]
Therefore, the Department has limited the prohibition in Sec. 261.10(g)
of the final rule to commercial distribution of printed material
without a special use authorization.
Comment. Section 261.10(h) of the proposed rule prohibited certain
conduct when distributing printed material, including delaying,
halting, or preventing administrative use of an area by the Forest
Service or other scheduled or existing uses or activities on National
Forest System lands, misrepresenting the purposes or affiliations of
those selling or distributing the material, and misrepresenting the
availability of the material without cost or donation.
Eleven respondents commented on this provision. One respondent
objected generally to this provision as a violation of First Amendment
rights. Another commented that this provision prohibits distribution of
printed material and solicitation of donations for printed material.
One respondent stated that distrubtion of printed material could
not significantly delay, halt, or prevent administrative use of an area
by the Forest Service or other scheduled or existing uses or
activities.
Two respondents stated that there is no need for this provision
because the agency's concerns about fraud and conflicts with other uses
are addressed by other laws.
Five respondents commented that this provision gives the agency too
much discretion. One of these respondents commented that the phrase,
``administrative use of an area by the Forest Service or other
scheduled or existing uses for activities on National Forest System
land,'' is too vague. Another stated that virtually any human presence
on National Forest System lands could be determined to impede other
uses or to conflict with the forest plan. One respondent commented that
an applicant's omission of a purpose or affiliation in applying for a
permit could be construed as a misrepresentation that would justify
denial of a permit and thereby have a chilling effect on speech. One
respondent stated that under this provision, distribution of printed
material for no charge while requesting donations could be considered a
prohibited misrepresentation, that this provision would prohibit
distribution of printed material in exchange for purely voluntary
contributions, and that no such rule applies to commercial distribution
of printed material.
One respondent stated that no individual at a consensual gathering
can assume liability for the proposes or affiliations of other members
and that the intent of the prohibition on misrepresentation is to
impose liability and to provide a pretext for enforcement action.
One respondent commented that prohibiting misrepresentation when
distributing printed material constitutes regulation of the content of
speech. Another respondent advised deleting ``misrepresenting the
purposes or affiliations of those selling or distributing the
material,'' because although commercial speech may be regulated for
truthfulness, political speech may not be.
Response. The Department has carefully examined the special use
authorization requirement for noncommercial distribution of printed
material. Based on the comments received on resource impacts and on the
Department's review of resource impacts associated with noncommercial
distribution of printed material, the Department has determined that
these impacts are not significant enough to warrant regulation at this
time. Therefore, the Department has limited the prohibition contained
in Sec. 261.10(h) to commercial distribution of printed material. In so
doing, the Department has removed the reference to donations in
Sec. 261.10(h) of the final rule, as donations generally do not occur
in connection with commercial activities.
Section 261.10(h) of the final rule does prohibit and is not
intended to prohibit commercial distribution of printed material.
Rather, this provision is intended to ensure that commercial
distribution of printed material does not delay, halt, or prevent other
authorized uses and activities on National Forest System lands. Section
261.10(h) of the final rule is also intended to protect the public from
fraud by prohibiting specific types of misrepresentation in the context
of commercial distribution of printed material. Thus, this provision of
the final rule regulates the time, place, and manner of commercial
distribution of printed material, rather than the content of the
commercial printed material.
As discussed in response to comments on Sec. 251.54(h)(1)(iii) of
the proposed rule, the Forest Service has had difficulty allocating
space among uses and activities, both commercial and noncommercial, on
National Forest System lands. Section 261.10(h) of the final rule
provides the framework necessary for ensuring that authorized uses and
activities can coexist in the national forests and for ensuring that
certain specific types of misrepresentation do not occur in the context
of commercial distribution of printed material.
Section 261.14--Developed Recreation Sites
Comment. The proposed rule removed Sec. 261.14(p) of the current
rule, which prohibited distribution of printed material without a
special use authorization at developed recreation sites. This
prohibition was subsumed in the prohibition of distribution of printed
material without a special use authorization contained in
Sec. 261.10(g) of the proposed rule, which applied throughout the
National Forest System.
Two respondents commented on this provision. One respondent stated
that this prohibition should apply only to commercial distribution of
printed material. The other stated that it is unclear what the removal
of this provision from the rule means that it is acceptable if it means
that there is no longer a permit requirement for distribution of
printed material at developed recreation sites.
Response. The Department has removed Sec. 261.14(p) of the current
rule, which prohibits distribution of printed material without a
special use authorization at developed recreation sites, because it is
redundant. Section 261.10(g) of the current rule prohibits distribution
of printed material without a special use authorization throughout the
National Forest System, including at developed recreation sites.
In addition, the prohibition contained in Sec. 261.14(p) of the
current rule is too broad. The Department has carefully examined the
special use authorization requirement for noncommercial distribution of
printed material. Based on the comments received on resource impacts
and on the Department's review of resource impacts associated with
noncommercial distribution of printed material, the Department has
determined that these impacts are not significant enough to warrant
regulation at this time. Therefore, in Sec. 261.10(g) of the final
rule, the Department has limited the prohibition currently found at
Sec. 261.14(p) to commercial distribution of printed material without a
special use authorization.
Procedural Comments
A number of comments were received on various procedural aspects of
this rulemaking. These comments and the Department's response to them
follow.
Comment: Requests for Administrative Hearing. Approximately 79
respondents requested an administrative hearing on the proposed rule.
Specifically, one respondent commented that the average person who
might be affected by the rulemaking might not otherwise know about it
or
[[Page 45291]]
feel comfortable commenting. Another respondent cited Hagar v.
Reclamation Dist. No. 108, 111 U.S. 701 (1884), for the proposition
that due process requires a judicial proceeding when life, liberty, or
property are at stake.
One respondent stated that the agency had failed to give timely
notice of the proposed rule to those who had notified the agency of
their interest. Another respondent stated that Forest Service
correspondence about the status of the proposed rule sent before it was
published constitutes an ad hoc, unpublished decision issued at the
same time as the proposed rule in violation of the APA.
Response. When a rule is promulgated under the notice and comment
provisions of the APA at 5 U.S.C. 553(c), an administrative hearing is
not required and is seldom provided. By publishing the proposed rule in
the Federal Register, by accepting comments on the proposed rule for 90
days, and by analyzing and addressing the comments received during that
period in the preamble to this final rule, the Department has fully
complied with the notice and comment provisions of 5 U.S.C. 553(c).
For informal rulemaking, an agency satisfies the APA's notice
requirement by publishing in the Federal Register. The Forest Service
published the proposed rule in the Federal Register on May 6, 1993. In
addition, the agency gave direct notice to numerous interested parties
and invited their comments. The timeliness of the agency's notice is in
fact supported by the actions of the respondent who stated that the
agency had failed to give timely notice. That respondent submitted a
comment on the proposed rule dated June 24, 1993, which was received on
July 7, 1993, nearly a month before the end of the comment period.
Correspondence sent by the agency concerning the status of the proposed
rule before it was published has no legal bearing on this rulemaking
and does not violate the APA.
Comment: Requests for Extension of the Comment Period. Fifteen
respondents requested that the comment period be extended. One of these
respondents requested an extension to 100 days after publication of the
proposed rule, until August 14, to allow the Rainbow Family Council,
which meets July 1, through 7, to submit a comment.
Response. The APA does not specify the number of days for a comment
period for informal rulemaking (5 U.S.C. 553(c)). The comment period
for a proposed rule is often 60 days. The comment period for this
rulemaking was 90 days and closed August 4, 1993, nearly a month after
the time identified for the meeting of the Rainbow Family Council. The
Forest Service received 603 comments on the proposed rule, including 12
petitions with 20,451 signatures. The Department believes that the 90-
day comment period was sufficient to give all members of the public an
opportunity to comment on the proposed rule.
Comment: Compliance With the Paperwork Reduction Act. Five
respondents commented that the proposed rule violates the Paperwork
Reduction Act on the grounds that an application for noncommercial
group uses would take more than one to four hours to complete; that
preparation time of up to four hours for applications governed by the
rule indicates that these applications unreasonably restrict
recreational use of national forests; that it is unreasonable to spend
an hour or more on something that currently does not have to be done;
and that the proposed rule would generate paperwork through litigation.
Response. The Department disagrees with these comments, which are
irrelevant to compliance with the Paperwork Reduction Act. The
Paperwork Reduction Act requires approval by the Office of Management
and Budget (OMB) of any collection of information required by an agency
that affects ten or more persons (44 U.S.C. 3502(4)(A), 3507(a)).
``Collection of information'' includes obtaining information through
the use of application forms (44 U.S.C. 3502(4)(A)). An agency must
estimate the time needed to comply with the collection of information
requirement (44 U.S.C. 3507(a)).
The Department has fully complied with the Paperwork Reduction Act.
The information that an applicant must provide the Forest Service in an
application for a noncommercial group use constitutes a collection of
information requirement under the Paperwork Reduction Act. The
Department has obtained approval from OMB of a standard application
form that can be used for all special uses. Because of the very limited
information required in applications subject to this rule, however, the
Department has developed a special application form for noncommercial
group uses. The Department has submitted a request for approval of this
form to OMB and will obtain approval of this form from OMB before using
it in conjunction with this rule.
Since this rule applies to all noncommercial group uses on National
Forest System lands, the Department has estimated the average amount of
time an applicant will spend to prepare an application. The amount of
time will vary depending on the scope and complexity of the proposed
activity.
The Department believes that it has not underestimated the
preparation time for an application. Under Secs. 251.54(e)(2)(i)(A)
through (e)(2)(i)(E) of the final rule, information required from
applicants for noncommercial group uses is limited to five very basic
elements; (1) A description of the proposed activity; (2) a description
of the National Forest System lands and any facilities the applicant
would like to use; (3) the estimated number of participants and
spectators; (4) the date and time of the proposed activity; and (5) the
name of the person or persons who will sign a special use authorization
on behalf of the applicant. Moreover, the application requirement is an
essential component of the special use authorization process, which in
turn furthers several significant governmental interests.
Comment. Compliance with Executive Order 12291. Five respondents
commented that the proposed rule violates or triggers additional
analysis under Executive Order 12291. Specifically, these respondents
stated that the regulation is a major rule; that any rule that violates
rights is a major rule; that in these economically difficult times, the
regulatory impact could exceed $100 million, and that interested
parties might incur more court costs as a result of promulgation of the
rule; that the proposed rule would have an effect of more than $100
million on the economy, given that the agency spent almost $400,000 at
the 1992 Rainbow Family Gathering, and that if the agency made similar
expenditures on noncommercial group uses throughout the year, the
agency would be spending more than $20 million a year, and that if five
activities occurred continuously, the agency would be spending $100
million a year; that the proposed rule would increase costs for state
and local governments; that it is unclear where the agency derives the
unilateral authority to make a determination on the issues covered by
the Order; that the standard cited in the proposed rule is purely
economic and fails to acknowledge other standards required by law,
which would easily be met; that the proposed rule violates section 2(a)
of the Order, which requires that agency decisions be based on adequate
information concerning the need for and consequences of the proposed
rule, given that other regulations address the agency's concerns in
promulgating the rule; that the benefits to society from the
[[Page 45292]]
proposed rule do not outweigh the costs as required by section 2(b) of
the Order, given that the rule is unconstitutional and that the
agency's concerns in promulgating the rule are addressed by other
regulations; and that being set apart from a totalitarian regime and
the value of freedom as contemplated in Terminiello v. Chicago, 337
U.S. 4 (1948), should be considered ``beneficial effects that cannot be
quantified in monetary terms'' under section 3(d) of the Order.
One respondent commented that the proposed regulation would have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) because the
proposed rule would impose additional recordkeeping requirements on
them.
Response. Executive Order 12291 was revoked on September 30, 1993,
by section 11 of Executive Order 12866. Thus, Executive Order 12291
does not apply to the final rule. Nevertheless, as Executive Order
12291 was in effect when the proposed rule was published, the
Department will address comments pertaining to that Order.
Section 1(b) of Executive Order 12291 required agencies to
determine whether each regulation they promulgated qualified as a major
rule. Under section 1(b), a regulation was deemed a major rule if it
was likely to result in: (1) An annual effect on the economy of $100
million or more; (2) a major increase in costs or prices for consumers,
individual industries, federal, state, or local government agencies, or
geographic regions; or (3) significant adverse effects on competition,
employment, investment, productivity, innovation, or on the ability of
United States-based enterprises to compete with foreign-based
enterprises in domestic or export markets.
The Department determined that the proposed regulation was not a
major rule because it would have little or no impact on the national
economy. The proposed rule required a special use authorization for
noncommercial group uses on National Forest System lands. The proposed
rule consisted primarily of technical and administrative changes for
authorization and use of National Forest System lands.
The fact that interested parties could incur court costs in
challenging the rule and that the Forest Service and state and local
governments incur costs in hosting noncommercial group uses does not
affect the determination that the proposed regulation was not a major
rule. The Forest Service and state and local governments have incurred
costs in connection with noncommercial group uses without the special
use authorization requirement and would continue to incur certain
costs, such as personnel costs, after the proposed rule became
effective. The Department believes that costs associated with
noncommercial group uses would decrease, not increase, after the
proposed rule went into effect because the rule would enhance the
Forest Service's ability to manage these uses and minimize adverse
impacts.
The proposed rule did not violate sections 2(a) and 2(b) of
Executive Order 12291. The proposed rule was based on adequate
information concerning the need for and consequences of the regulation,
and the benefits outweighed any costs of the rulemaking. The Department
articulated several significant interests in promulgating the proposed
rule and determined that requiring a special use authorization for
noncommercial group uses does not impose a substantial burden on the
public. Other regulations do not adequately address the Department's
concerns associated with managing noncommercial group uses of National
Forest System lands. The Department believes that the proposed rule is
constitutional. Section 3(d) of Executive Order 12291 applied only to
major rules. Section 3(d) did not apply to the proposed regulation
because it was not a major rule.
The final rule will not have a significant impact on a substantial
number of small entities under the Regulatory Flexibility Act in part
because the rule will not impose additional recordkeeping requirements
on them.
Comment: Environmental Documentation Required for Rulemaking. Three
respondents commented that the proposed rule requires documentation in
an environmental assessment or environmental impact statement. These
respondents stated that the rule has environmental impacts from
anticipated litigation with large groups like the Rainbow Family; that
the rule must affect the environment because otherwise the agency would
not have issued it; and that the rule might keep people out of the
national forests and thereby have a significant effect on the human
environment.
Response. Section 31.1b of Forest Service Handbook 1909.15
categorically excludes from documentation in an EA or an EIS ``rules,
regulations, or policies to establish Service-wide administrative
procedures, program processes or instructions.'' This regulation falls
into this category of actions because the rule establishes agency-wide
administrative procedures for authorization and use of National Forest
System lands and because no extraordinary circumstances exist which
would require preparation of an EA or an EIS.
Summary
Having fully considered the comments on the proposed rule received
during the comment period, the Department is adopting this final rule
with the modifications previously described in response to comments
received. This rule is effective 30 days after the date of publication
in the Federal Register.
Regulatory Impact
This final rule was received under USDA procedures and determined
to be a significant rule under Executive Order 12866 on Regulatory
Planning and Review because of the strong public interest expressed in
the proposed rule. Accordingly, this final rule was subject to OMB
review.
Moreover, this final rule has been considered in light of the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). It has been
determined that this action will not have a significant economic impact
on a substantial number of small entities because it will not impose
recordkeeping requirements on them; it will not affect their
competitive position in relation to large entities; and it will not
affect their cash flow, liquidity, or ability to remain in the market.
This rule has been reviewed for its impact on private property
rights under Executive Order 12630 of March 15, 1988, as implemented by
the United States Attorney General's Guidelines for the Evaluation of
Risk and Avoidance of Unanticipated Takings. Executive Order 12630 does
not apply to this rule because it consists primarily of technical and
administrative changes governing application procedures for
authorization of occupancy and use of National Forest System lands.
Application for a special use authorization does not grant any right,
title, or interest in or to lands or resources held by the United
States.
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. After adoption of this final rule, (1) all state and
local laws and regulations that conflict with this rule or that impede
its full implementation will be preempted; (2) no retroactive effect
will be given to this final rule; and (3) it will not require
administrative proceedings before parties may file suite in court
challenging its provisions.
[[Page 45293]]
Paperwork Reduction Act
The information an applicant must provide the Forest Service under
Secs. 251.54 (e)(2)(i)(A) through (e)(2)(i)(E) to obtain an
authorization for a noncommercial group use constitutes an information
requirement as defined by the Paperwork Reduction Act and OMB
implementing rules at 5 CFR part 1320 and thus requires OMB approval
before adoption of the final rule. The Department has developed an
application form for noncommercial group uses and is in the process of
obtaining approval of this form from OMB. The Department will obtain
approval of this form before using it in conjunction with this rule.
The Department estimates that each applicant would spend an average of
one to four hours preparing an application, depending on the scope and
complexity of the proposed activity.
Environmental Impact
Section 31.1b of Forest Service Handbook 1909.15 (57 FR 43180,
September 18, 1992) categorically excludes from documentation in an EA
or an EIS ``rules, regulations, or policies to establish Service-wide
administrative procedures, program processes or instructions.'' Based
on consideration of the comments received and the nature and scope of
this rulemaking, the Department has determined that this rule falls
within this category of actions and that no extraordinary circumstances
exist which would require preparation of an EA or an EIS.
List of Subjects
36 CFR Part 251
Electric power, Mineral resources, National forests, Rights-of-way,
Water resources.
36 CFR Part 261
Law enforcement, National forests.
Therefore, for the reasons set forth in the preamble, part 251,
subpart B, and part 261, subpart A, of Chapter II of Title 36 of the
Code of Federal Regulations are hereby amended as follows:
PART 251--LAND USES [AMENDED]
Subpart B--Special Uses
1. The authority citation for subpart B continues to read:
Authority: 16 U.S.C. 472, 551, 1134, 3210; 30 U.S.C. 185; 43
U.S.C. 1740, 1761-1771.
2. Amend Sec. 251.50 by revising the section heading, paragraph
(a), the introductory text for paragraph (c), and paragraph (c)(3) to
read as follows:
Sec. 251.50 Scope.
(a) All uses of National Forest System lands, improvements, and
resources, except those provided for in the regulations governing the
disposal of timber (part 223) and minerals (part 228) and the grazing
of livestock (part 222), are designated ``special uses.'' Before
engaging in a special use, persons or entities must submit an
application to an authorized officer and must obtain a special use
authorization from the authorized officer unless that requirement is
waived by paragraph (c) of this section.
* * * * *
(c) A special use authorization is not required for noncommercial
recreational activities such as camping, picnicking, hiking, fishing,
hunting, horseback riding, and boating, as well as noncommercial
activities involving the expression of views such as assemblies,
meetings, demonstrations, and parades, except for:
(1) * * *
(2) * * *
(3) Noncommercial group uses as defined in Sec. 251.51 of this
subpart.
* * * * *
3. Amend Sec. 251.51 by removing the terms and definitions for
``Group event,'' ``Distributing noncommercial printed material,'' and
``Noncommercial printed material,'' and adding the following new terms
and definitions in alphabetical order to read as follows:
Sec. 251.51 Definitions.
* * * * *
Commercial use of activity--any use or activity on National Forest
System lands (a) where an entry or participation fee is charged, or (b)
where the primary purpose is the sale of a good or service, and in
either case, regardless of whether the use or activity is intended to
produce a profit.
Group use--an activity conducted on National Forest System lands
that involves a group of 75 or more people, either as participants or
spectators.
Noncommercial use or activity--any use or activity that does not
involve a commercial use or activity as defined in this section.
* * * * *
4. Amend Sec. 251.54 by revising the introductory text for
paragraph (a); removing the introductory text for paragraph (e);
revising paragraph (e)(1); redesignating paragraphs (e)(2) through
(e)(5) as paragraphs (e)(3) through (e)(6); adding a new paragraph
(e)(2); redesignating paragraphs (f)(1) and (f)(2) as (f)(2) and (f)(3)
and designating the first sentence of paragraph (f) introductory text,
as paragraph (f)(1); adding new paragraphs (f)(4) and (f)(5); and
revising paragraph (h) to read as follows:
Sec. 251.54 Special use applications.
(a) Preapplication activity. When occupancy or use of National
Forest System lands is desired, a proponent is encouraged to contact
the Forest Service office(s) responsible for management of the affected
land as early as possible so that potential constraints may be
identified, the proposal can be considered in forest land and resource
management plans if necessary, and processing of an application can be
tentatively scheduled. To the extent applicable to the proposed use and
occupancy, the proponent will be given guidance and information about:
* * * * *
(e) Application content--(1) Applicant identification. Any
applicant for a special use authorization shall provide the applicant's
name and mailing address, and, if the applicant is not an individual,
the name and address of the applicant's agent who is authorized to
receive notice of actions pertaining to the application.
(2) Required Information--(i) Noncommercial group uses. An
applicant for noncommercial group uses shall provide the following:
(A) A description of the proposed activity;
(B) The location and a description of the National Forest System
lands and facilities the applicant would like to use;
(C) The estimated number of participants and spectators;
(D) The starting and ending time and date of the proposed activity;
and
(E) The name of the person or persons 21 years of age or older who
will sign a special use authorization on behalf of the applicant.
Paragraphs (e)(3) through (e)(6) of this section shall not apply to
applications for noncommercial group uses.
(ii) All other special uses. At a minimum, applications for special
uses other than noncommercial group uses shall include the information
contained in paragraphs (e)(3) through (e)(6) of this section. In
addition, if requested by an authorized officer, an applicant in one of
the following categories shall furnish the information specified for
that category:
(A) A State and local government agency: a copy of the
authorization under which the application is made;
(B) A public corporation: the statute or other authority under
which it was organized;
[[Page 45294]]
(C) A federal government agency: the title of the agency official
delegated the authority to file the application;
(D) A private corporation:
(1) Evidence of incorporation and its current good standing;
(2) if reasonably obtainable by the applicant, the name and address
of each shareholder owning three percent or more of the shares.
Together with the number and percentage of any class of voting shares
of the entity which such shareholder is authorized to vote;
(3) the name and address of each affiliate of the entity;
(4) in the case of an affiliate which is controlled by the entity,
the number of shares and the percentage of any class of voting stock of
the affiliate that the entity owns either directly or indirectly; or
(5) in the case of an affiliate which controls that entity, the
number of shares and the percentage of any class of voting stock of
that entity owned, either directly or indirectly by the affiliate; or
(E) A partnership, association or other unincorporated entity: a
certified copy of the partnership agreement or other similar document,
if any, creating the entity, or a certificate of good standing under
the laws of the State.
* * * * *
(f) Processing applications. (1) * * *
(4) The authorized officer shall give due deference to the findings
of another agency such as the Public Utility Commission, the Federal
Energy Regulatory Commission, or the Interstate Commerce Commission in
lieu of another detailed finding. If this information is already on
file with the Forest Service, it need not be refiled if reference is
made to the previous filing date, place, and case number.
(5) Applications for noncommercial group uses must be received at
least 72 hours in advance of the proposed activity. Applications for
noncommercial group uses shall be processed in order of receipt, and
the use of a particular area shall be allocated in order of receipt of
fully executed applications, subject to any relevant limitations set
forth in this section. All applications for noncommercial group uses
shall be deemed granted and an authorization shall be issued for those
uses unless the applications are denied within 48 hours of receipt.
Where an application for a noncommercial group use has been granted or
is deemed to have been granted and an authorization has been issued
under this paragraph, an authorized officer may revoke that
authorization only as provided under Sec. 251.60(a)(1)(i).
* * * * *
(h) Response to applications for noncommercial group uses. (1) An
authorized officer shall grant an application for a special use
authorization for a noncommercial group use upon a determination that:
(i) Authorization of the proposed activity is not prohibited by the
rules at 36 CFR part 261, subpart A, or by orders issued under 36 CFR
part 261, subpart B, or by Federal, State, or local law unrelated to
the content of expressive activity;
(ii) Authorization of the proposed activity is consistent or can be
made consistent with standards and guidelines in the applicable forest
land and resource management plan required under the National Forest
Management Act and 36 CFR part 219;
(iii) The proposed activity does not materially impact the
characteristics or functions of the environmentally sensitive resources
or lands identified in Forest Service Handbook 1909.15, chapter 30.
(iv) The proposed activity will not delay, halt, or prevent
administrative use of an area by the Forest Service or other scheduled
or existing uses or activities on National Forest System lands,
including but not limited to uses and activities authorized under parts
222, 223, 228, and 251 of this chapter;
(v) The proposed activity does not violate state and local public
health laws and regulations as applied to the proposed site. Issues
addressed by state and local public health laws and regulations as
applied to the proposed site include but are not limited to:
(A) The sufficiency of sanitation facilities;
(B) The sufficiency of waste-disposal facilities;
(C) The availability of sufficient potable drinking water;
(D) The risk of disease from the physical characteristics of the
proposed site or natural conditions associated with the proposed site;
and
(E) The risk of contamination of the water supply;
(vi) The proposed activity will not pose a substantial danger to
public safety. Considerations of public safety shall not include
concerns about possible reaction to the users' identity or beliefs from
non-members of the group that is seeking an authorization and shall be
limited to the following;
(A) The potential for physical injury to other forest users from
the proposed activity;
(B) The potential for physical injury to users from the physical
characteristics of the proposed site or natural conditions associated
with the proposed site;
(C) The potential for physical injury to users from scheduled or
existing uses or activities on National Forest System lands; and
(D) The adequacy of ingress and egress in case of an emergency;
(vii) The proposed activity does not involve military or
paramilitary training or exercises by private organizations or
individuals, unless such training or exercises are federally funded;
and
(viii) A person or persons 21 years of age or older have been
designated to sign and do sign a special use authorization on behalf of
the applicant.
(2) If an authorized officer denies an application because it does
not meet the criteria in paragraphs (h)(1)(i) through (h)(1)(viii) of
this section, the authorized officer shall notify the applicant in
writing of the reasons for the denial. If an alternative time, place,
or manner will allow the applicant to meet the eight evaluation
criteria, an authorized officer shall offer that alternative. If an
application is denied solely under paragraph (h)(1)(iii) of this
section and all alternatives suggested are unacceptable to the
applicant, the authorized officer shall offer to have completed the
requisite environmental and other analysis for the requested site. A
decision to grant or deny the application for which an environmental
assessment or an environmental impact statement is prepared shall be
subject to the notice and appeal procedures at 36 CFR part 215 and
shall be made within 48 hours after the decision becomes final under
that appeal process. A denial of an application under paragraphs
(h)(1)(i) through (h)(1)(viii) of this section constitutes final agency
action and is immediately subject to judicial review.
5. Amend Sec. 251.56 by revising paragraph (e) to read as follows:
Sec. 251.56 Terms and conditions.
* * * * *
(e) Bonding. An authorized officer may require the holder of a
special use authorization for other than a noncommercial group use to
furnish a bond or other security to secure all or any of the
obligations imposed by the terms of the authorization or by any
applicable law, regulation or order.
* * * * *
6. Amend Sec. 251.57 by redesignating paragraphs (d) through (h) as
(e) through (i) and adding a new paragraph (d) to read as follows:
Sec. 251.57 Rental fees.
* * * * *
[[Page 45295]]
(d) No fee shall be charged when the authorization is for a
noncommercial group use as defined in Sec. 251.51 of this subpart.
* * * * *
7. Amend Sec. 251.60 by revising paragraphs (a) and (b) to read as
follows:
Sec. 251.60 Termination, revocation, and suspension.
(a) Grounds for termination, revocation, and suspension. (1)
Noncommercial group uses.
(i) Revocation or suspension. An authorized officer may revoke or
suspend a special use authorization for a noncommercial group use only
under one of the following circumstances:
(A) Under the criteria for which an application for a special use
authorization may be denied under Sec. 251.54(h)(1);
(B) for noncompliance with applicable statutes or regulations or
the terms and conditions of the authorization;
(C) for failure of the holder to exercise the rights or privileges
granted; or
(D) with the consent of the holder.
(ii) Administrative or judicial review. Revocation or suspension of
a special use authorization under this paragraph constitutes final
agency action and is immediately subject to judicial review.
(iii) Termination. A special use authorization for a noncommercial
group use terminates when it expires by its own terms. Termination of a
special use authorization under this paragraph does not involve agency
action and is not subject to administrative or judicial review.
(2) All other special uses. An authorized officer may terminate,
suspend, or revoke a special use authorization for all other special
uses except an easement issued pursuant to Sec. 251.53(e) and (l):
(i) For noncompliance with applicable statutes, regulations, or the
terms and conditions of the authorization;
(ii) for failure of the holder to exercise the rights or privileges
granted;
(iii) with the consent of the holder; or
(iv) when, by its terms, a fixed or agreed upon condition, event,
or time occurs. Termination, revocation, or suspension of a special use
authorization under this paragraph is subject to administrative and
judicial review in accordance with 36 CFR part 251, subpart C.
(b) A special use authorization may be suspended, revoked, or
terminated at the discretion of the authorized officer for reasons in
the public interest, except that this provision shall not apply to a
special use authorization for a noncommercial group use.
* * * * *
PART 261--PROHIBITIONS
8. Revise the authority citation for part 261 to read as follows:
Authority: 7 U.S.C. 1011(f); 16 U.S.C. 472, 551, 1133(c)-(d)(1),
1246(i).
Subpart A--General Prohibitions
9. Amend Sec. 261.2 by adding the following new terms and
definitions in alphabetical order to read as follows:
Sec. 261.2 Definitions.
* * * * *
Commercial use or activity--any use or activity on National Forest
System lands (a) where an entry or participation fee is charged, or (b)
where the primary purpose is the sale of a good or service, and in
either case, regardless of whether the use or activity is intended to
produce a profit.
Distribution of printed material--disseminating, posting, affixing,
or erecting printed material as defined in this section.
Printed material--any written and/or graphic material including but
not limited to pamphlets, brochures, photographs, graphics, signs, and
posters.
* * * * *
10. Amend Sec. 261.10 by redesignating paragraphs (h) through (n)
as paragraphs (i) through (o), revising paragraph (g), and adding a new
paragraph (h) to read as follows:
Sec. 261.10 Occupancy and use.
* * * * *
(g) Commercial distribution of printed material without a special
use authorization.
(h) When commercially distributing printed material, delaying,
halting, or preventing administrative use of an area by the Forest
Service or other scheduled or existing uses or activities on National
Forest System lands; misrepresenting the purposes or affiliations of
those selling or distributing the material; or misrepresenting the
availability of the material without cost.
* * * * *
Sec. 261.14 Developed recreation sites.
11. Amend Sec. 261.14 by removing paragraph (p) and redesignating
paragraph (q) as paragraph (p).
Dated: August 14, 1995.
Mark Gaede,
Acting Deputy Under Secretary, Natural Resources and Environment.
[FR Doc. 95-21225 Filed 8-29-95; 8:45 am]
BILLING CODE 3410-11-M
