Land Uses and Prohibitions

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 of

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