[Federal Register Volume 60, Number 168 (Wednesday, August 30, 1995)]
[Rules and Regulations]
[Pages 45258-45295]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-21225]




[[Page 45257]]

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Part III





Department of Agriculture





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Forest Service



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36 CFR Parts 251 and 261



Land Uses and Prohibitions; Final Rule

  Federal Register / Vol. 60, No. 168 / Wednesday, August 30, 1995 / 
Rules and Regulations  

[[Page 45258]]


DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Parts 251 and 261

[RIN 0596-AA80]


Land Uses and Prohibitions

AGENCY: Forest Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule revises the existing rules governing 
noncommercial group uses and noncommercial distribution of printed 
material within the National Forest System. These revisions ensure that 
the authorization procedures for these activities comply with First 
Amendment requirements of freedom of speech, assembly, and religion, 
while providing a reasonable administrative system for allocating space 
among scheduled and existing uses and activities, addressing concerns 
of public health and safety, and controlling or preventing adverse 
impacts on forest resources.

EFFECTIVE DATE: This rule is effective September 29, 1995.

FOR FURTHER INFORMATION CONTACT: John Shilling, telephone number (202) 
205-1426, or Sharon Prell, telephone number (202) 205-1414, Recreation, 
Heritage, and Wilderness Resources Management Staff (2340), Forest 
Service, USDA, PO Box 96090, Washington, DC 20090-6090, or Ellen R. 
Hornstein, telephone number (202) 720-9616, Natural Resources Division, 
Office of the General Counsel, USDA.

SUPPLEMENTARY INFORMATION: 

Statutory and Regulatory Background

    The First Amendment of the United States Constitution provides in 
part that the government may not abridge the freedom of speech or the 
right to assemble peaceably and that the government may not pass laws 
prohibiting the free exercise of religion (U.S. Const., amend. I). 
Freedom of speech means the right to disseminate ideas freely, both 
orally or in writing. Free exercise of religion means the right to 
practice one's religion freely.
    It is well established that the government may enforce reasonable 
time, place, and manner restrictions on First Amendment activities. 
Such restrictions are constitutional when justified without regard to 
the content of the regulated speech, when narrowly tailored to further 
a significant governmental interest, and when they leave open ample 
alternative channels for communication of information. Clark v. 
Community for Creative Non-Violence, 468 U.S. 288, 293 (1984). Permits 
have been recognized as constitutional restrictions of time, place, and 
manner for activities involving the expression of views, including 
religious gatherings, when specific and objective standards guide the 
licensing authority. Shuttlesworth v. City of Birmingham, 394 U.S. 147, 
150-51, 153 (1969); Cantwell v. Connecticut, 310 U.S. 296, 304-05 
(1940).
    On March 3, 1891, Congress authorized the President to set aside 
federal lands as public forest reservations (16 U.S.C. 471). On June 4, 
1897, Congress directed the Secretary of the Interior to protect the 
forests within those reservations and to regulate their occupancy and 
use (16 U.S.C. 551). On February 1, 1905, Congress transferred the 
authority to manage the national forest from the Secretary of the 
Interior to the Secretary of Agriculture (16 U.S.C. 472).
    Today there is 155 national forests comprising approximately 191 
million acres in 42 States, the Virgin Islands, and Puerto Rico. These 
forests, together with 20 national grasslands, land utilization 
projects, purchase units, and other lands, constitute the National 
Forest System.
    The Forest Service, an agency of the United States Department of 
Agriculture, is charged with managing the resources of the National 
Forest System for multiple uses as well as for the provision of goods, 
services, and other amenities for current and future generations. The 
Multiple-Use Sustained-Yield Act of 1960 (MUSY) (16 U.S.C. 528-531) 
authorizes the Forest Service to manage diverse public, private, 
governmental, and commercial uses of National Forest System lands. 
These uses are collectively known as special uses.
    The Forest Service regulates activity on National Forest System 
lands by issuing special use authorizations. Issuing special use 
authorizations allows the Forest Service to protect resources and 
improvements on National Forest System lands, to allocate space among 
potential or existing uses and activities, and to address concerns of 
public health and safety. The rules at 36 CFR part 251, subpart B, 
govern the issuance of special use authorizations for all uses of 
National Forest System lands, improvements, and resources, except for 
the disposal of timber (part 223) and minerals (part 228) and the 
grazing of livestock (part 222).
     The Forest Service administers approximately 65,000 special use 
authorizations annually. Examples of authorized uses include ski 
resorts and marinas, campground concessions, pipelines, communication 
sites, and commercial outfitting and guiding services. Competition for 
available sites for these uses and activities has increased as more 
legal restrictions, such as the Endangered Species Act (ESA) (16 U.S.C. 
531 et seq.) and the National Historic Preservation Act (NHPA) (16 
U.S.C. 470 et seq.), have been placed on the use of National Forest 
System lands.
    The Forest Service hosts many types of group activities, both 
commercial and noncommercial, on National Forest System lands. Examples 
of these activities include fishing contests, mountain bicycle and 
motorcycle races, group camping, hikes, and horseback rides, and 
demonstrations and assemblies.
    Large group gatherings in the national forests have significant 
adverse impacts on forest resources, public health and safety, and the 
agency's ability to allocate space in the face of increasing 
constraints on the use of National Forest System lands. These adverse 
impacts include the spread of disease, pollution from inadequate site 
cleanup, soil compaction from inadequate site restoration, damage to 
archaeological sites, and traffic congestion.
    On June 21, 1984, the Secretary of Agriculture promulgated a 
revision to 36 CFR part 251, subpart B. The purpose of the rule was to 
allow the Forest Service to protect forest resources, to address 
concerns of public health and safety, and to allocate space among uses 
and activities by regulating all types of noncommercial group uses. The 
rule required a special use authorization for two types of 
noncommercial group uses, recreation events and special events, both of 
which involved ten or more participants or spectators. As defined, 
recreation events included activities involving competition, 
entertainment, or training, and special events included meetings, 
assemblies, demonstrations, parades, or other activities involving the 
expression of views. Noncommercial groups that did not fall into either 
of these categories did not require a special use authorization. 
Moreover, the rule contained different standards for denying a special 
use authorization for each type of group use (49 FR 25449).
    Subsequently, a federal district court held that it is 
unconstitutional to require a group to obtain a special use 
authorization simply because its members gather to exercise their 
constitutional right of free speech. The court explained that the 
Forest Service has the right to regulate large group activities on 
government land, but only if the regulation is content-neutral and 

[[Page 45259]]
applies to all large groups. United States v. Israel, No. CR-86-027-
TUC-RMB (D. Ariz. May 10, 1986).
    On May 10, 1988, the Forest Service published an interim rule 
amending 36 CFR 251.50 through 251.54 to comport with First Amendment 
rights of assembly and free speech within the National Forest System 
(53 FR 16548). Upon challenge of this rule, a federal district court 
held that the Forest Service had failed to show good cause for adopting 
the interim rule without prior notice as required by the Administrative 
Procedure Act (APA) under 5 U.S.C. 553. United States v. Rainbow 
Family, 695 F. Supp. 294, 302-06 (E.D. Tex. 1988). In addition, the 
court invalidated the classification established by the 1984 rule, 
which on its face singled out group uses involving expressive 
activities and required that they be treated differently from other 
types of group uses. The court held that the 1984 rule lacked clear and 
objective standards for determining when a group activity is a 
``recreation event'' and when it is a ``special event'' involving the 
exercise of free speech. Rainbow Family, 695 F. Supp. at 309, 312. The 
court further held that the standards for evaluating an application for 
an authorization for expressive conduct were unconstitutionally vague 
as they vested too much discretion in the authorized officer. Id. at 
309-12. The court also ruled that the 1984 regulations were invalid for 
failure to impose a timeframe for filing and acting on an application 
and that the absence of any requirement in the 1984 regulations that a 
reason be stated for denial of a special use authorization made it 
impossible to discern the grounds for an authorized officer's decision. 
Id. at 311-12. Finally, the court held that the 1984 rule was invalid 
for failure to provide for judicial review of the administrative 
determination. Id. at 311.
    As a result of these court rulings, on May 6, 1993, the Forest 
Service published a proposed rule to regulate noncommercial group uses 
and noncommercial distribution of printed material on National Forest 
System lands in compliance with First Amendment requirements of 
assembly and free speech (58 FR 26940). To achieve this goal, the 
proposed rule contained specific, content-neutral criteria for 
evaluating applications for noncommercial group uses and noncommercial 
distribution of printed material and required that the same criteria be 
applied to those activities regardless of whether they involve the 
exercise of First Amendment rights. The proposed rule also required an 
authorized officer to notify an applicant in writing of the reasons for 
denial of a special use authorization and provided for immediate 
judicial review of a decision denying an authorization.
    In addition to publishing the proposed rule in the Federal 
Register, the Forest Service gave direct notice of the proposed rule to 
numerous interested parties and invited their comments. The comment 
period for the proposed rule lasted 90 days, closing August 4, 1993.

Summary of Comments and Responses

    A total of 603 comments were received during the comment period. Of 
these, 590 comments were received from individuals, two from elected 
officials, one from a State department of health, and ten from 
organizations, including two chapters of the American Civil Liberties 
Union. Most comments were individually written letters or postcards; 
several comments were form letters and some were petitions containing 
20,451 signatures. All comments have been given full consideration in 
adoption of this final rule.

General Comments

    Comment. Freedom of Assembly. Approximately 175 respondents stated 
that requiring permits for expressive activities violates the 
constitutional right of assembly. Most of these respondents indicated 
that the First Amendment right of assembly is absolute and that any 
attempt to regulate assemblies on public land is invalid per se. 
Specific and recurrent comments from these respondents were as follows:

--That the special use authorization requirement in the proposed rule 
is generally illegal;
--That no possible governmental interest can justify restrictions on 
free speech;
--That any regulation of First Amendment activities is content-based 
per se;
--That there are no acceptable criteria by which to judge an 
application for authorization of First Amendment activities;
--That Clark v. Community for Creative Non-Violence, 468 U.S. 288 
(1984), a case cited in the preamble in support of the proposed rule, 
violates both the letter and spirit of the Bill of Rights;
--That the significant governmental interest standard should not apply 
because it is too low to justify abridgment of constitutional rights, 
and that the standards of compelling governmental interest and clear 
and present danger should apply instead;
--That Clark v. Community for Creative Non-Violence, 468 U.S. 288 
(1984), and Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969), 
cases cited in the preamble in support of the proposed rule, are too 
recent and untested;
--That although courts may allow reasonable time, place, and manner 
restrictions on First Amendment activities, the United States 
Constitution is still the highest law of the land;
--That the United States Constitution is a permit;
--That humanity is a permit;
--That Americans do not need authorization to exercise basic 
constitutional rights;
--That the proposed rule imposes a prior restraint and is an undue 
burden on the public;
--That the Rainbow Family cannot comply with the permit requirement;
--That rights cannot be extinguished by decree of an executive agency;
--That one person should not be able to tell another person what to do;
--That everyone should be able to choose when and where they want to 
gather on public land and distribute noncommercial printed material;
--That in exercising their First Amendment right of assembly, people 
should be able to act as they please;
--That national forests should remain open to all;
--That national forests are supported by tax dollars and that taxpayers 
have a right to gather on public lands;
--That public land belongs to the people and that they should be able 
to use it without a permit;
--That the proposed rule discriminates against humans, who are given 
fewer rights than animals to gather in the national forests;
--That assemblies on the national forests provide thousands of people 
with a fine vacation; and
--That if a similar rule were applied in cities or towns, the rule 
would amount to imposition of martial law.

    Response. The United States Supreme Court, the highest court in the 
country, is the ultimate arbiter of the United States Constitution. 
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177-78 (1803). As noted in 
the preamble to the proposed rule and the preamble to this final rule, 
the Supreme Court has repeatedly held that the government may enforce 
reasonable time, place, and manner restrictions on First Amendment 
activities. Such restrictions are appropriate where they are content-
neutral, where they are narrowly tailored to further a significant 

[[Page 45260]]
governmental interest, and where they leave open ample alternative 
channels for communication of information. Clark v. CCNV, 468 U.S. at 
293. Permits have been recognized as constitutional restrictions of 
time, place, and manner for expressive activities when specific and 
objective standards guide the licensing authority. Shuttlesworth, 394 
U.S. at 150-51, 153. Both Clark v. CCNV and Shuttlesworth involve time, 
place, and manner restrictions on demonstrations in urban areas. Clark 
v. CCNV has been cited nearly 400 times by numerous courts, including 
over 40 times by the Supreme Court. Shuttlesworth has been cited over 
600 times by numerous courts, including over 50 times by the Supreme 
Court. These cases have been extensively tested.
    The final rule meets the constitutional requirements of Clark v. 
CCNV and Shuttlesworth. The final rule does not restrict, and is not 
intended to restrict, freedom of thought or expression, nor does the 
final rule prohibit expressive activities. Rather, the final rule 
establishes a permit system with specific and objective standards that 
further the significant governmental interests of resource protection, 
allocation of space in the face of greater restrictions on the use of 
public land, and promotion of public health and safety. The final rule 
presumes that a special use authorization will be granted and restricts 
the content of an application to information concerning time, place, 
and manner for activities subject to the rule. Under the final rule, if 
an application is denied and an alternative time, place, or manner will 
allow the applicant to meet the evaluation criteria, the authorized 
officer must offer that alternative.
    Comment: Free Exercise of Religion. Forty-eight respondents 
commented that the proposed rule infringes on the free exercise of 
religion. Specifically, these respondents stated that permits are 
unconstitutional as applied to religious activity, citing Shuttlesworth 
and Cantwell; that Rainbow Family Gatherings are protected under the 
free exercise clause of the United States Constitution; that Rainbow 
Family Gatherings involve the exercise of religion; that Rainbow Family 
Gatherings are a religious experience; that Rainbow Gatherings provide 
spiritual growth; that the woods are the Rainbow Family's church; that 
people choose to gather with those of similar religious beliefs in the 
cathedral of nature; that the proposed rule would restrict gatherings 
for the purpose of spiritual expression; that the proposed rule targets 
those who go to the forest to worship; and that, to many, particularly 
Native Americans, public land includes sacred ground.
    Response. The final rule does not infringe and is not intended to 
infringe upon the free exercise of religion. Under Shuttlesworth and 
Cantwell, permits have been recognized as constitutional restrictions 
of time, place, and manner for activities involving the expression of 
views, including religious gatherings, when specific and objective 
standards guide the licensing authority. 394 U.S. at 150-51, 153; 310 
U.S. at 304-05. In Cantwell, the Supreme Court stated that the 
regulation of solicitation generally in the public interest is 
constitutional where the regulation does not involve any religious test 
and does not unreasonably obstruct or delay the collection of funds, 
even if the collection is for a religious purpose. The Court held that 
this type of regulation does not constitute a prohibited prior 
restraint or impose an impermissible burden on the free exercise of 
religion. Id. at 305.
    Similarly, this final rule is a general regulation in the public 
interest, does not involve any religious test, and does not 
unreasonably obstruct or delay activities subject to the rule. 
Therefore, the final rule is not open to any constitutional objection 
under the Free Exercise Clause of the First Amendment, even if some of 
the activities subject to the rule are for a religious purpose.
    Requiring a special use authorization for all group uses of 
National Forest System lands does not substantially burden the free 
exercise of religion and therefore does not trigger the compelling 
interest standard under the Religious Freedom Restoration Act of 1993 
(42 U.S.C. 2000bb note).
    The Supreme Court has held that the nature of the burden is 
relevant to the standard the government must meet to justify the 
burden. Bowen, Secretary of Health and Human Serv. v. Roy, 476 U.S. 
693, 707 (1986). In cases in which the Supreme Court has invalidated a 
governmental action that interfered with an individual's practice of 
religion, the Court has relied directly or indirectly on the coercive 
nature of the governmental action or regulation and the imposition of 
penalties on the free exercise of religion. See, e.g., Thomas v. Review 
Bd. of Indiana Employment Sec. Div., 450 U.S. 707, 716-17 (1991) 
(denial of unemployment benefits to applicant whose religion forbade 
him to fabricate weapons); Wisconsin v. Yoder, 406 U.S. 205, 218-19 
(1972) (enforcement of compulsory high school attendance law against 
Amish, in violation of their religion and way of life); Sherbert v. 
Verner, 374 U.S. 398, 403-06 (1963) (denial of unemployment 
compensation benefits to applicant who refused to accept work requiring 
her to violate the Sabbath). In these cases, the governmental action or 
legislation criminalized religiously inspired activity or inescapably 
compelled conduct that some find objectionable for religious reasons.
    In contrast, the Supreme Court has upheld governmental action or 
regulation that indirectly and incidentally imposes a burden on the 
practice of religious beliefs or calls for a choice between securing a 
governmental benefit and adherence to religious beliefs. See, e.g., 
Roy, 476 U.S. at 707-08 (federal statute requiring states in 
administering certain welfare programs to use Social Security numbers, 
where use of these numbers violated Native American applicants' 
religious beliefs); Hamilton v. Regents of University of California, 
293 U.S. 245, 262-65 (1934) (curriculum in state university requiring 
all students to take military courses, where some students sought 
exclusion from those courses on grounds of their religious beliefs and 
conscientious objections to war). In these cases, the challenged 
governmental action interfered significantly with the ability of 
private persons to pursue spiritual fulfillment according to their own 
religious beliefs. In none of these cases, however, were the affected 
individuals coerced by the government's action into violating their 
religious beliefs, nor did the governmental action penalize religious 
activity by denying any person an equal share of the rights, benefits, 
and privileges enjoyed by other citizens. Roy, 476 U.S. at 703. Under 
these cases, absent proof of an intent to discriminate against 
particular religious beliefs or against religion in general, the 
government meets its burden when it demonstrates that a challenged 
requirement for governmental benefits, neutral and uniform in its 
application, is a reasonable means of promoting a legitimate public 
interest. Id. at 707-08.
    Like the governmental action in Hamilton and Roy, this final rule 
has no direct or indirect tendency to coerce individuals into acting 
contrary to their religious beliefs. Nothing in the final rule suggests 
antagonism by the Department towards religion generally or towards any 
particular religious beliefs. The special use authorization requirement 
for group uses is facially neutral and applies to all types of these 
activities. The Department has made no provisions for individual 
exemptions to this requirement. Moreover, the requirement is a 
reasonable means of 

[[Page 45261]]
promoting the legitimate public interests of resource protection, 
allocation of space in the face of increasing competition for the use 
of National Forest System lands, and promotion of public health and 
safety.
    Comment: Noncommercial Distribution of Printed Material. Several 
respondents commented on some issues pertaining to the requirement to 
obtain a special use authorization for noncommercial distribution of 
printed material. Approximately 19 respondents stated that the agency's 
concerns about adverse impacts associated with noncommercial 
distribution of printed material are hypothetical or inadequate to 
justify the regulation. One respondent stated that the Bible or other 
religious tracts could be banned under the proposed rule. Four 
respondents stated that the special use authorization requirement for 
noncommercial distribution would allow the agency to censor printed 
material. Six respondents stated that the proposed rule singles out 
expressive conduct in regulating noncommercial distribution of printed 
material. Three respondents stated that the agency can address resource 
problems associated with noncommercial distribution by establishing a 
specific and objective policy on posting, fixing, or erecting printed 
material and on maintaining safe traffic conditions, rather than 
deciding on a case-by-case basis where and when the activity will be 
allowed.
    One respondent, citing United States v. Picciotto, 875 F.2d 345 
(D.C. Cir. 1989), argued that resource problems associated with 
posting, affixing, or erecting printed material cannot be addressed by 
adding unpublished conditions to special use authorizations, and that 
any desired restrictions must be published in a rule. Another 
respondent advised the agency to promulgate regulations making each 
group responsible for its own discarded printed material. Three 
respondents commented that regulations already exist for dealing with 
resource impacts associated with distribution of printed material. 
Seven respondents questioned where they could distribute noncommercial 
printed material if they could not do it on public lands. One 
respondent stated that distribution is defined too broadly in the 
proposed rule to allow for ample alternative channels of communication. 
Five respondents stated that the special use authorization requirement 
for noncommercial distribution of printed material could have the 
effect of stifling legitimate public protests of Forest Service 
activities. One respondent commented that a permit for noncommercial 
distribution of printed material could be denied for any reason.
    Response. The Department has carefully examined the special use 
authorization requirement for noncommercial distribution of printed 
material. Based on the comments received on resource impacts and on the 
Department's review of resource impacts associated with noncommercial 
distribution of printed material, the Department has determined that 
these impacts are not significant enough to warrant regulation at this 
time. Therefore, the Department has removed from the final rule the 
special use authorization requirement for noncommercial distribution of 
printed material.
    Comment: Significant Governmental Interests. Approximately 75 
respondents commented that the Forest Service had not established a 
significant interest in promulgating the rule. Specifically, these 
respondents stated that there is no significant governmental interest 
in protecting the nation's public lands; that the Forest Service's 
mandate to protect the national forests under 16 U.S.C. 551 is not at 
issue; that there is no beneficial reason for the regulation; that the 
proposed rule fails the significant governmental interest test in Clark 
v. CCNV; that time, place, and manner restrictions are being imposed 
without an initial finding that they are required; and that 
restrictions on group uses should exist only when there is a clear 
environmental reason.
    Respondents also stated that the agency's concerns about resource 
impacts are hypothetical or vague and insignificant; that the agency 
needs proof of resource damage in order to justify the proposed rule; 
that the agency has not cited evidence that 25 or more people have a 
greater impact on forest resources and facilities than fewer than 25 
people; that 25 or even several hundreds of people gathered for 
peaceful purposes cannot be a threat to public safety or the 
environment; that the collective impact on forest resources by a group 
is equal to or less than the cumulative impact of an identical number 
of individuals; that it is easier to monitor large group gatherings 
than small bands of individuals; that individuals in aware groups can 
monitor each other; that the respondent takes care of the land; that 
the respondents are not harming the land; that unlike off-road 
motorcycle races, activities involving the expression of views do not 
harm forest resources; that group uses cannot cause irreparable damage; 
that the proposed regulation would take the national forests away from 
people who gather there at no one else's expense; that large group 
gatherings do not cost the government a lot of money; and that there 
have not been any public health problems associated with group uses.
    Approximately 30 respondents recognized the Forest Service's 
significant interest in protection of forest resources. In particular, 
these respondents stated the following:

--That requiring a special use authorization is appropriate if the size 
of a group exceeds the capacity of a given area, including campgrounds 
and parking and staging areas;
--That to protect natural resources, it may be necessary for the Forest 
Service to regulate activity on National Forest System lands through 
issuance of special use authorizations;
--That to further the public interest, there is sometimes a need for 
the government to require a special use authorization for some First 
Amendment activities;
--That the concerns associated with large numbers of people gathering 
on unspoiled land are a challenge and that the people's right to 
assemble needs to be balanced against the custodial responsibility of 
the Forest Service;
--That any reasonable rules that would protect and preserve the 
integrity of the National Forest System are appropriate, that the 
National Forest is an invaluable asset that must be accessible to 
responsible public use, and that the Forest Service is charged with 
balancing these concerns;
--That the Forest Service has a mandate to manage National Forest 
System lands;
--That gatherings on public lands should be subject to guidelines 
established by the Forest Service;
--That some rules and regulations are essential;
--That regulations protecting natural resources are warranted, provided 
the rules do not infringe upon constitutional rights and provided they 
target only those who damage natural resources;
--That any rule that helps preserve the national forests is 
appropriate;
--That restricting access to National Forest System lands is 
permissible where human impact would harm native wildlife;
--That sanitation and site clean-up are important;
--That the agency's concern for the safety and integrity of the 
national forests is appropriate;
--That Forest Service employees are to be commended for dedicating 
their lives to protecting the national forests so that all can enjoy 
them;

[[Page 45262]]

--That the Forest Service gets paid to protect the national forests and 
the safety of forest visitors;
--That the agency should be concerned about the well-being of the 
national forests and those who use them;
--That more people have a greater impact on forests;
--That 25 or more people would definitely have a greater impact on 
resources and facilities than a smaller group of people.

    Response. As numerous respondents noted, the Forest Service has a 
mandate to protect the 155 national forests and regulate their 
occupancy and use for all members of the public (16 U.S.C. 472, 551). 
Under that mandate, the Department has established three significant 
interests in promulgating this rule: (1) Protection of forest resources 
and facilities; (2) promotion of public health and safety; and (3) 
allocation of space in the face of greater competition for the use of 
National Forest System lands. While noncommercial group use is an 
appropriate use of National Forest System lands and exercise of First 
Amendment rights is extremely important, it is vital to address these 
significant interests. Numerous respondents have also recognized that 
these interests are significant. In addition, the Supreme Court has 
specifically held that protection of public lands for current and 
future generations is a significant governmental interest. See Clark v. 
CCNV, 468 U.S. at 296.
    The Forest Service has encountered a variety of problems in 
connection with noncommercial group use of National Forest System 
lands. These problems, which are attributable to the size of groups, 
the concentration of people in a given area, and the physical intensity 
of the use, have arisen in connection with many different types of 
noncommercial group uses, both those involving and those not involving 
the expression of views. These problems have included the spread of 
disease, pollution from inadequate site clean-up, soil compaction from 
inadequate site restoration, resource damage in critical salmon 
habitat, resource damage in riparian zones and meadows, damage to 
archaeological sites, and traffic congestion.
    Although one individual could cause much damage, for example, by 
setting a forest fire, and a series of individuals could perhaps over 
time have a significant impact on forest resources, in the Forest 
Service's experience large groups typically have more impact on a given 
area than individuals and, with limited exceptions, a special use 
authorization is not needed for individual uses. Regardless of whether 
the damage caused by these problems is irreparable, the Department 
believes that it would further the public interest to control or 
prevent the damage through a special use authorization system for 
noncommercial group uses. The authorization system also will allow the 
Forest Service to allocate space among noncommercial group uses and 
scheduled and existing uses and activities, including protection of 
habitat for endangered, threatened, or other plant and animal species.
    Comment. Adverse Impacts of Group Uses. Approximately 64 
respondents argued that other activities, such as off-road 
motorcycling, clear-cutting, mining, and grazing, have a greater impact 
on forest resources than noncommercial group uses. Specifically, these 
respondents stated:

--That the agency's resource impacts rationale seems inadequate, given 
that the disposal of timber and minerals and the grazing of livestock 
are exempted from regulation;
--That noncommercial uses and activities are regulated more stringently 
than other uses that have greater impacts;
--That noncommercial uses and activities should not be included in the 
same regulatory framework as other special uses, such as the disposal 
of timber and minerals and the grazing of livestock, that have greater 
impacts;
--That under the proposed rule, exploitation of the forest for monetary 
gain would take precedence over the right to assemble;
--That the Forest Service has done more damage to public lands than 
noncommercial group uses;
--That commercial uses of the national forests should be banned; and
--That clear-cutting authorized by the agency was responsible for the 
listing as an endangered species of a fresh water mussel in a creek at 
the site of the 1993 Alabama Rainbow Family Gathering.

    Response. The Department disagrees with these comments. The 
disposal of timber and minerals and the grazing of livestock are not 
exempted from regulation. As noted in the preamble to the proposed and 
final rules, the disposal of timber is regulated in 36 CFR part 223; 
the disposal of minerals is regulated in 36 CFR part 228; and the 
grazing of livestock is regulated in 36 CFR part 222. The disposal of 
timber and minerals and the grazing of livestock are thus subject to 
separate regulations from noncommercial uses and activities. The 
regulation of timber and mineral disposal and livestock grazing has no 
bearing on the regulation of noncommercial uses and activities, 
including activities involving the expression of views. All other 
commercial uses and activities of National Forest System land require a 
special use authorization under 36 CFR part 251, subpart B. All 
commercial uses of National Forest System lands undergo environmental 
and other reviews prior to approval of any on-the-ground activities.
    Commercial use of the National Forest System is appropriate. MUSY 
authorizes the Forest Service to manage National Forest System lands 
for both commercial and noncommercial uses (16 U.S.C. 528-531). The 
agency's regulation of the disposal of timber and minerals and the 
grazing of livestock is beyond the scope of this rulemaking. The 
relative impacts of commercial uses and noncommercial group uses are 
not relevant to this rulemaking. What is relevant are the impacts of 
noncommercial group uses and whether controlling and preventing those 
impacts warrant regulation of noncommercial group uses. This Department 
believes that mitigation and prevention of the impacts associated with 
noncommercial group uses are significant interests that justify the 
special use authorization requirement.
    Noncommercial group uses will not be regulated more stringently 
under the final rule than other uses and activities that have greater 
impacts. The final rule restricts the content of an application to 
information concerning time, place, and manner for noncommercial group 
uses and establishes very limited circumstances under which an 
authorized officer can deny or revoke a special use authorization for 
noncommercial group uses. In contrast, commercial uses and activities 
subject to 36 CFR parts 222, 223, 228, and 251 are governed by complex 
regulations that give the authorized officer broad discretion 
administering the applicable authorization.
    Comment. Significant Governmental Interests With Respect to Rainbow 
Family Gatherings. The Rainbow Family of Living Light organizes regular 
gatherings in the national forests to celebrate life, worship, express 
ideas and values, and associate with others who share their beliefs. 
The largest of these meetings is the annual Rainbow Family Gathering. 
The annual Gathering is held at an undeveloped site in a different 
national forest each summer and attracts as many as 20,000 people from 
across the Nation and around the world.

[[Page 45263]]

    Approximately 130 respondents wrote that the Forest Service has not 
established a significant interest in requiring a special use 
authorization for Rainbow Family Gatherings. These respondents stated 
that concerns associated with Rainbow Family Gatherings have not 
materialized; that there has been no significant damage in 20 years of 
Rainbow Family Gatherings; that the Rainbow Family has had gatherings 
of up to a few thousand people for over a two-week period without major 
impact to the land or input from the Forest Service; that there is no 
reason to believe that any similar group would behave differently; and 
that reports of Rainbow Family Gatherings do not describe any adverse 
impacts associated with the Gatherings, which have less impact on 
forest resources than twelve Boy Scouts.
    These respondents further stated that there is no hazardous 
situation, taking of an endangered species, or out of the ordinary 
resource damage associated with Rainbow Family Gatherings; that the 
forest is left in better condition after Rainbow Family Gatherings, 
unlike the way most campers and hunters leave public lands; that at the 
1993 Rainbow Family Gathering in Alabama, campsites were carefully 
planned, garbage was neatly collected and recyclables separated, signs 
were posted so as to ensure no significant impact on trees, latrines 
were strategically placed and plainly marked, and an effort was made to 
notify all Rainbow Family members of the presence of endangered fresh 
water mussels in a creek at the site; that there has never been a 
serious illness or public health problem at a Rainbow Family gathering; 
that Rainbow Family Gatherings usually occur without adverse impact to 
public health, safety, land, or property; that the Rainbow Family does 
not need to be regulated by the Forest Service because it has an 
internal consensus process for regulating itself; that the Rainbow 
Family takes care of parking; water supply, kitchen hygiene, latrines, 
and camp safety; that the agency's concern for public health and safety 
is specious; and that considerations of public health are not related 
to the purposes of the rule.
    Four respondents acknowledged that the annual Rainbow Family 
Gatherings have a significant impact on the national forests. One 
respondent stated that camping by any group the size of the annual 
Rainbow Family Gathering will necessarily have some noticeable impact 
on the land. Another commented that national forests should be 
protected and that Rainbow Family Gatherings have a detrimental effect 
on the plants and animals in the forests. A third acknowledged that 
Rainbow Family Gatherings take their toll on the ecosystem, and a 
fourth noted that the annual Rainbow Family Gatherings have a 
considerable impact on the undeveloped sites chosen for the Gatherings. 
One respondent noted that many Rainbow Family members required 
emergency room care during the 1993 Gathering and suggested that the 
Rainbow Family should arrange for community liaisons prior to the 
annual Gathering. Two respondents commented that water pollution is 
evident in the National Forest System: one respondent stated that all 
water on National Forest System lands should be tested; the other 
stated that Rainbow Family Gatherings must address the sufficiency of 
potable drinking water before the Gatherings take place.
    Response. Forest Service experience is that the Rainbow Family has 
encouraged gatherers to pick up trash, recycle, compost, protect water 
sources by not camping or washing near them, naturalize campsites and 
trails, use latrines, and bury waste. The Rainbow Family also has shown 
a concern for sanitation at the Gatherings. Nevertheless, the annual 
Gatherings have a considerable impact on the national forest sites 
selected by the Rainbow Family and in some instances on public health 
and safety as well. Controlling or preventing adverse impacts on forest 
resources and addressing concerns of public health and safety are two 
purposes of this rule.
    Typically, the Rainbow Family chooses an undeveloped site with open 
fields or meadows. Access to the site is limited. Backcountry eating, 
sleeping, and cooking facilities are set up for as many as 20,000 
people. Parking must be available for their vehicles, which range from 
cars to double decker buses.
    At the 1987 Gathering in North Carolina, for example, impacts 
included soil compaction and loss of vegetation in the paths to various 
camps and in the surrounding fields. At the end of the Gathering, there 
were four acres of fields and about eight miles of paths 12 to 25 feet 
wide with compacted soil and complete loss of vegetation. Only the 
latrines near the fields where activities took place were covered; 
latrines in outlying camps were left open with human waste exposed. The 
Forest Service had to complete rehabilitation of the site because the 
Rainbow Family had failed to rehabilitate it adequately. Garbage and 
trash were not always removed promptly from collection points and piled 
up. Although the garbage and trash were separated, they were mixed 
together in receptacles provided by the county. At the end of the 
Gathering, the Forest Service had to remove a dump truck load and a 
pickup truck load of garbage that had been left along the sides of the 
main road through the site.
    A serious public health threat arose at the 1987 Gathering. At the 
site of this Gathering, many Rainbow Family members did not boil water 
from springs that were high in fecal coliform bacteria. During the week 
of July 1-4, many people had diarrhea and fever. As people at the 
Gathering became sick, they used the latrines less and less. Uncovered 
human wastes were scattered where people traveled and camped. Many 
people went barefoot and their stepping in uncovered human wastes 
helped transmit the disease. Hospitals in two states notified the 
Centers for Disease Control (CDC, now called the Centers for Disease 
Control and Prevention) in Atlanta that cases of confirmed shigellosis 
had been detected among people who had attended the Gathering. 
Shigellosis is a highly contagious form of dysentery, caused by 
shigellae bacteria. The disease is transmitted by direct or indirect 
fecal-oral contact from one person to another or by contaminated food 
or water. Individuals primarily responsible are those who fail to clean 
adequately their fecally contaminated hands. Transmission by water, 
milk, or flies may occur as a result of direct fecal contamination. One 
need ingest only a small number of organisms to contract the disease, 
and symptoms normally appear within seven days.
    Two CDC doctors visited the site of the Gathering the week after 
July 4 and interviewed a large percentage of the Rainbow Family members 
remaining at the site. The doctors estimated that 65 percent of those 
people had shingellosis. At the doctors' suggestion, the Forest Service 
closed the site to other members of the public from July 15 to 29 for 
health reasons. By the middle of August, 25 states reported outbreaks 
of shigellosis traced to people who had attended the Gathering. In 
early October, cases of the disease were still being reported in 25 
states.
    Forest Service reports of Rainbow Family Gatherings document 
adverse impacts associated with the Gatherings. Two of these reports, 
on the 1991 and 1992 annual Gatherings, were submitted by a respondent 
along with comments on this rulemaking.
    The report on the 1991 Gathering in Vermont documents that site 
clean-up and rehabilitation were inadequate after the 1990 Gathering in 
Minnesota. Gatherers left cigarette butts and plastic twist ties on the 
ground, dumped glass 

[[Page 45264]]
bottles and metal spoons in compost pits, abandoned a 200-gallon water 
tank, and left latrines uncovered.
    The report on the 1991 Gathering documents that while conducting 
site clean-up and rehabilitation inspections after the 1991 Gathering, 
agency officials found a large amount of human waste scattered 
throughout the woods, even though a sufficient number of well-
constructed latrines were distributed throughout the Gathering site.
    In addition, the 1991 report notes resource damage that resulted 
from the impact of large numbers of people using the area. Soil 
compaction occurred wherever human use was concentrated, that is, at 
the main meadow, kitchens, camps, and heavily used trails. Vegetation 
and duff layers in these areas were worn away. New trails made during 
the Gathering showed varying amounts of erosion. Soil was dug up and 
sloughed downhill, leaving tree roots exposed. Gatherers made trails 
down to brooks, often on steep slopes. Eroding soils from these trails 
threatened the stability and integrity of stream banks and water 
quality. In several places trails crossed historic rock walls. Heavy 
pedestrian traffic over the walls caused them to crumble and flatten. 
An archaeological site located on the trail from the front gate to the 
main meadow of the Gathering was damaged.
    At the 1992 Gathering in Colorado, an insufficient number of 
latrines were dug at two areas with large concentrations of people 
(approximately 4200 total). Latrines that were dug at these areas were 
not placed at flagged locations, and some were too near open water. In 
general, latrine locations were not adequately marked, particularly at 
the beginning of the Gathering, which resulted in some surface 
deposition. Many latrines were not properly covered. No sanitation lime 
was available until one county health department worker donated 150 
pounds to the Rainbow Family.
    During the clean-up effort, however, all evidence of surface 
deposition was removed and all but a few latrines in remote locations 
were filled in correctly. Clean-up was reasonably orderly, but not 
timely. While all physical evidence of the Gathering was removed or 
rearranged to present a natural appearance, the quality of 
scarification and seeding of exposed soil was variable.
    Twenty-seven acres of National Forest System lands in Colorado used 
for the 1992 Gathering were affected. Soil compaction and loss of 
vegetation occurred in areas of concentrated use. There were also 
several traffic and parking problems at the 1992 Gathering. Most of the 
access routes were steep, winding, single-lane gravel roads. The 
increased traffic and unfamiliarity of gatherers with these types of 
road conditions created a safety hazard.
    CALM (Center for Alternative Living Medicine) is the group in the 
Rainbow Family entrusted with the medical care of Family members. At 
annual Gatherings, CALM sets up health units to treat gatherers' 
ailments and injuries. CALM represented that they could furnish more 
than basic first aid at the 1992 Gathering. Visits to CALM units by 
health department officials and local hospital staff revealed that CALM 
was equipped to provide only first aid. Many of the bandages at the 
units were old surplus military issue. Other supplies were limited. No 
protocol was established to deal with emergency situations. Because 
CALM was not equipped to deal with emergencies or injuries requiring 
more than basic first aid, 46 people attending the Gathering had to be 
treated at a local hospital.
    The Department believes that it would be more effective and 
efficient for the Rainbow Family to address these types of medical and 
sanitation issues prior to the annual Gathering through the special use 
authorization process and through enhanced coordination with state and 
local authorities than on a spontaneous or post hoc basis.
    Comment. Need for Law Enforcement at Rainbow Family Gatherings. 
Approximately 25 respondents commented that law enforcement at Rainbow 
Family Gatherings is unnecessary. These respondents stated that there 
are no threatening incidents at Rainbow Family Gatherings; that Rainbow 
Family members police themselves; that Rainbow Family members always 
comply with Forest Service regulations; that all serious problems and 
violent individuals are brought to the attention of local law 
enforcement; that Rainbow Family Gatherings have posed fewer security 
problems than other gatherings of equivalent size; that there are a 
smaller number of incidents each year; that no drug use was observed at 
the 1993 Gathering in Alabama; and that unlike uses of public streets 
or public property in a city, which have impacts on traffic, parking, 
and neighborhoods and require law enforcement services, group uses of 
National Forest System lands have no impacts on public facilities and 
do not require law enforcement services.
    In contrast, one respondent acknowledged that Rainbow Family 
Gatherings attract some people who are not responsible. Several 
respondents noted that there has been public nudity at the Gatherings. 
Citing use of marijuana and psychedelics, one respondent noted that the 
actions of many Rainbow Family members are illegal under present drug 
laws. Two others noted the use of drugs by some members of the Rainbow 
Family. One respondent also noted the use of alcohol at Rainbow Family 
Gatherings.
    Response. The Department disagrees that law enforcement at Rainbow 
Family Gatherings is unnecessary. Most Rainbow Family members who 
gather on national forests are peaceful and law-abiding. As several 
respondents noted, however, the annual Gatherings attract some who are 
not.
    Consumption of alcoholic beverages is not condoned by the Rainbow 
Family and is discouraged within the main Gathering. A separate camp, 
known as ``A'' Camp, is usually set up along the access route to the 
main Gathering for those who drink alcoholic beverages. ``A'' camp has 
been a problem at several Rainbow Family Gatherings because of its 
location. ``A'' Camp gatherers have panhandled, extorted money, and 
confiscated liquor from people entering the Gathering. Gatherers at 
``A'' Camp also have harassed law enforcement officers and Forest 
Service personnel.
    Forest Service and local law enforcement officers issue a sizeable 
number of citations for various violations of federal and local law at 
Rainbow Family Gatherings. For instance, at the 1987 Gathering, there 
were 311 violations, including citations for driving violations, 
resource violations, public nudity, impeding traffic, public nuisance, 
and interfering with an officer. After the Gathering, marijuana plants 
sprouted where the soil had been dug up by members of the Rainbow 
Family to plant flowers. Within three weeks after the Gathering, the 
Forest Service found seventeen marijuana plants approximately one to 
two feet tall growing from seeds scattered from the handling of 
marijuana. Possession of marijuana is a violation of federal law. See 
21 U.S.C. 844.
    At the 1991 Gathering, the Forest Service issued 69 notices for ten 
different violations, including camping in a restricted area, public 
nudity, parking in violation of instructions, operating a vehicle 
recklessly, failing to stop for an officer, operating off road 
carelessly, occupying a day use area, parking in other than designated 
areas, operating a vehicle off road, and giving false information. Two 
Rainbow Family members were arrested on drug charges, one for 
possession and the other for sale of LSD. 

[[Page 45265]]

    The Forest Service's non-environmental concerns were met with 
resistance at the 1992 Gathering. For example, 20 to 30 Rainbow Family 
members staged a civil disobedience protest of a Forest Service order 
closing an area to camping and parking because of safety risks (the 
area was located on a timber haul route) and commitments made to other 
users (livestock was scheduled to use the area). Gatherers gradually 
removed vehicles from the area, but the agency had to tow five from the 
site.
    During the 1992 Gathering, there were 43 arrests of Rainbow Family 
members on nine different charges, including use of a controlled 
substance, child abuse, traffic violations, theft, disorderly conduct 
and harassment, disorderly conduct and possession of a concealed 
weapon, motor vehicle theft, a wildlife violation, and existence of 
outstanding warrants.
    By comparison, there were 82 arrests of non-Rainbow Family members 
during the period of the Gathering in the county where the Gathering 
was held, and 81 during that same period in the previous year. Thus, 
there was more than a 50 percent increase in the number of arrests in 
the county during that period, due solely to the presence of the 
Rainbow Family.
    Comment: Government's Intent With Respect to the Rainbow Family. 
Approximately 50 respondents commented that Rainbow Family Gatherings 
contribute to world peace and love. Many of these respondents asked the 
agency not to break up the Gatherings.
    Seventy-two respondents stated that the proposed rule is a direct 
attack on the Rainbow Family or is written with the Rainbow Family in 
mind. Specifically, these respondents believed that the Rainbow Family 
is the group most affected by the proposed rule; that no other group is 
mentioned in showing a need for the regulations; that in United States 
v. Israel and United States v. Rainbow Family, the agency tried to stop 
Rainbow Family Gatherings; that the agency imposes less stringent 
standards for site clean-up on more mainstream groups; that the 
proposed rule is a vehicle for spying on Rainbow Family members; that 
Forest Service and state and local law enforcement officers have 
selectively enforced laws to harass and intimidate people attending 
Rainbow Family Gatherings; that law enforcement officers have looked 
for activity that could be construed as illegal; that the Forest 
Service has been unreasonable and hostile at Rainbow Family Gatherings; 
that the number of law enforcement officers at Rainbow Family 
Gatherings is excessive and a waste of money; that law enforcement 
officers have established checkpoints at the entrance to Rainbow Family 
Gatherings to search cars and to verify car registration, car 
insurance, and driver's licenses; that at the 1993 Gathering in 
Alabama, a few people without car registration or insurance were held 
in chains and beaten; that state police at the 1993 Gathering conducted 
regular armed patrols and random searches; and that some Rainbow Family 
members have been taken into custody and forced to pay a fine for their 
release.
    In contrast, one respondent stated that the proposed rule is 
clearly aimed at more than just one type of gathering. Another 
respondent noted that to comply with cases on point, the regulation has 
been modified to treat all group uses the same, regardless of whether 
they involve the expression of views. One respondent commented that the 
Forest Service was hospitable and kept order and did a remarkable job 
handling the crowd at the 1993 Gathering. Another respondent stated 
that the Forest Service did an excellent job helping the Rainbow Family 
have a safe and healthy gathering in 1993 and added that the Forest 
Service was friendly and helpful.
    Response. The intent of this rule is not to break up or prohibit 
any group uses, including Rainbow Family Gatherings. Rather, the intent 
of this rule is to control or prevent harm to forest resources, address 
concerns of public health and safety, and allocate space. In United 
States v. Israel and United States v. Rainbow Family, the Forest 
Service was not attempting to prohibit the Rainbow Family Gathering, 
but rather to enforce existing group use regulations where the Rainbow 
Family had failed to obtain a special use authorization.
    The Forest Service hosts many types of noncommercial group uses on 
National Forest System lands, such as company picnics, weddings, group 
hikes and horseback rides, demonstrations, and group gatherings. This 
final rule does not single out any particular group or type of event. 
As two respondents noted, this rule applies to all noncommercial group 
uses, both those involving and those not involving the expression of 
views. The Department intends to apply this rule consistently and 
fairly as required by law to all noncommercial group uses.
    The Forest Service makes every effort to be friendly and hospitable 
and to help every group have a safe and healthy visit to the national 
forests. The agency's law enforcement approach at large group 
gatherings reinforces this effort. As shown by the reports on the 1991 
and 1992 Rainbow Family Gatherings, agency law enforcement officers 
endeavor to act as good hosts to prevent potential problems; to provide 
for public safety; to maintain close coordination with other involved 
agencies, such as the local highway patrol, sheriff's office, and 
health department; and to ensure in a courteous, professional manner 
compliance with federal, state, and local law and agency regulations.
    To meet these objectives, enhanced law enforcement is needed for 
group uses. Perimeter patrols by local and federal law enforcement 
agencies during the 1991 Rainbow Family Gathering, for example, focused 
on protecting local residents and their property, facilitating traffic 
flows, maintaining safety on all state and local roads, and responding 
to visitors' needs or calls for help.
    The Forest Service has endeavored to enforce its regulations not 
only fully but fairly. Some Rainbow Family members who have committed 
violations at the annual Gatherings have been taken into custody and/or 
have had to pay a fine. For example, after coordinating with a local 
United States Magistrate and Assistant United States Attorney, Forest 
Service law enforcement officers adopted a procedure at the early 
stages of the 1992 Rainbow Family Gathering to allow prosecution of 
violators who were temporarily residing in the area. This procedure 
required violators either to pay a fine upon issuance of a violation 
notice or to be taken into custody and brought before a magistrate. By 
paying the fine, the violator did not forego the right to appear in 
court and contest the violation.
    Shortly after receiving complaints about the procedure from Rainbow 
Family members, the United States Attorney's office recommended that 
the procedure be altered. The new procedure required that a violation 
notice for an optional appearance be issued if the violator could 
present sufficient identification (driver's license, vehicle 
registration, and proof of insurance in the driver's name). If adequate 
identification could not be presented, the violator would have to pay 
the fine upon issuance of the violation notice or be detained. This 
change in procedure illustrates the agency's effort to balance its law 
enforcement obligations against its concern for due process.
    The Department acknowledges that the level of law enforcement 
activities may not always have been appropriate for group uses. For 
example, while it may be appropriate to post Forest 

[[Page 45266]]
Service officials at the entrance to a Rainbow Family Gathering to 
deter illegal activity and to provide helpful information on the 
national forests and resource protection, it is not necessary or 
appropriate to search cars entering the Gathering or to verify the 
driver's car registration, insurance, and license. This practice was 
curtailed at a gathering in Mississippi in July 1993 as soon as it came 
to the attention of responsible Forest Service officials. Promulgation 
of this rule will help the Department ensure a consistent, nationwide 
approach to law enforcement for group uses.
    Comment: Government's Intent Generally. Approximately 40 
respondents believed that the intent of the proposed rule is to allow 
the Forest Service to deny the use of public lands to groups the agency 
finds undesirable. These respondents stated that the history of the 
rule shows that the agency's intent is to restrict speech and that by 
regulating all noncommercial activities under the same standards, the 
agency is in effect still attempting to restrict First Amendment 
rights. These respondents felt that if the agency really supported the 
rights of free speech and assembly, it would be apparent from the 
proposed rule and there would be no need to state it in the preamble.
    Other respondents stated that the proposed rule masks an agenda 
that has nothing to do with protecting resources and addressing public 
health and safety; that the Forest Service has invoked public health 
concerns rigidly and arbitrarily to discourage gatherings and has used 
these concerns as a pretext for taking other enforcement action, such 
as dealing with the use of illegal drugs; and that given the proposed 
rule is written like a legal brief, with a provision for immediate 
judicial review, and the agency's past attempts to regulate 
noncommercial group use, it is reasonable to view this regulation as an 
attempt to restrict assemblies via court order.
    Other respondents stated that the agency should specify what will 
be done to ensure that enforcement of the rule will not result in acts 
of terrorism against those who like to gather in the national forests; 
that the proposed rule targets those who go to the forests to worship; 
that the proposed rule is a direct attack on naturists; that the agency 
doesn't need a regulation to ensure equal treatment for all groups 
because equal treatment is already guaranteed by the Constitution; that 
the proposed rule can be selectively enforced and is therefore 
discriminatory in nature; that the proposed rule is discriminatory in 
nature, particularly in view of the severe restrictions on Native 
Americans' access to tribal lands and the intimidation of Native 
Americans by law enforcement; and that those responsible for the 
inception and formulation of the proposed rule are enemies of the 
people of this country.
    Response. The intent of this rule is not to deny the use of 
National Forest System lands to any group, nor is the intent of this 
rule to restrict speech. Rather, the intent of this rule is to 
implement reasonable time, place, and manner restrictions on group uses 
of National Forest System lands.
    In addition to the need to mitigate adverse impacts on forest 
resources and to address concerns of public health and safety, there is 
a need to allocate space in the face of increasing legal constraints on 
the use of National Forest System lands, including the need to protect 
endangered, threatened, or other plant and animal species. The 
competition for available sites in the national forests among animals, 
plants, and humans has increased as more demands and restrictions have 
been placed on use of the national forests. Requiring a special use 
authorization allows the agency to act as a kind of ``reservation 
desk'' for proposed uses and activities, including noncommercial group 
uses.
    The Department believes that its support for the rights of free 
speech and assembly is not only stated in the preamble, but is apparent 
from the language and structure of the rule. The rule does not single 
out any group. On the contrary, the final rule establishes one category 
called ``noncommercial group uses''; restricts the content of an 
application for noncommercial group uses to information concerning 
time, place, and manner; applies the same evaluation criteria to all 
applications for noncommercial group uses regardless of whether they 
involve the expression of views; establishes specific, content-neutral 
evaluation criteria for noncommercial group uses; provides that 
applications for noncommercial group uses will be granted or denied 
within a short, specific timeframe; provides that if an application is 
denied and an alternative time, place, or manner will allow the 
applicant to meet all the evaluation criteria, the authorized officer 
will offer that alternative; provides that the authorized officer will 
explain in writing the reason for denial of applications for 
noncommercial group uses; and provides that such a denial is 
immediately subject to judicial review. These provisions have been 
included to meet the constitutional requirements of a valid time, 
place, and manner restriction identified in case law, including United 
States v. Israel and United States v. Rainbow Family.
    This rule is needed to ensure equal treatment for all groups. 
Various members of the public and state and local governments have 
criticized the Forest Service for applying a double standard in not 
requiring all large groups to obtain a special use authorization. This 
rule ensures that all noncommercial groups are treated equally under 
the law.
    It is the Department's intent that this rule will be applied 
consistently to all noncommercial groups as required by law. Moreover, 
it is essential, both as a matter of fairness and as a matter of 
constitutional law, that this rule be applied uniformly. The Forest 
Service intends to provide training to its personnel to ensure that the 
rule is implemented consistently.
    Comment: Least Restrictive Means To Further the Government's 
Interests. Approximately 95 respondents indicated that the Forest 
Service has not employed the least restrictive means to achieve its 
interests. These respondents stated that the proposed rule is 
unnecessary because, as the court in the Rainbow Family case held, 
there are other laws and regulations that address the agency's 
interests in promulgating the proposed rule; that the agency should 
deal with violations of other regulations as they occur; that there is 
no need for a permit requirement because encouraging groups to contact 
the agency prior to their proposed activities is sufficient to address 
the agency's concerns; that the agency does not need to require a 
permit because requiring notice of a proposed activity is sufficient; 
that mid-sized groups of 50 to 100 people should only have to notify 
the Forest Service of their activity, rather than obtain a permit; that 
there is no need for an application and permitting system and that the 
agency should allow a group to gather if they meet all other parts of 
the proposed rule; and that the proposed rule should not apply at 
developed campgrounds or areas set aside for group uses.
    Additionally, these respondents stated that given that impacts vary 
depending upon the type of activity, the Forest Service should issue 
specific and objective standards for those activities that are 
problematic, and that the agency could also intensify education 
programs for specific groups that cause problems; that a special use 
authorization should not be required for church, club, or family 
gatherings; that a simple assessment, roping off of high-risk areas, 
and site-specific camping requirements have sufficed for 

[[Page 45267]]
gatherings of over 20,000; and that with respect to the Rainbow Family, 
the Forest Service has been able through informal cooperation to 
achieve its objectives concerning resource protection, promotion of 
public health and safety, and space allocation.
    Response. Less restrictive alternatives are not part of the test 
for the validity of a time, place, and manner regulation like this 
final rule. Rather, the test is limited to whether the regulation is 
content-neutral, whether it is narrowly tailored to further a 
significant governmental interest, and whether it leaves open ample 
alternative channels for communication. Clark v. CCNV, 468 U.S. at 293.
    In Clark v. CCNV, where the Court upheld a National Park Service 
regulation that prohibited camping in certain parks in Washington, 
D.C., the Supreme Court rejected the Court of Appeals' view that the 
challenged regulation was unnecessary, and hence invalid, because there 
were less speech-restrictive alternatives that could have satisfied the 
governmental interest in preserving national park lands. The Supreme 
Court held that the less-restrictive alternatives proposed by the Court 
of Appeals represented no more than a disagreement with the National 
Park Service over how much protection the core parks require or how an 
acceptable level of preservation is to be attained. 468 U.S. at 299.
    Thus, it is immaterial if there are less restrictive alternatives 
to the special use authorization requirement for noncommercial group 
uses, as long as the final rule meets the test for constitutionality 
enunciated in Clark v. CCNV. Under Clark v. CCNV, the federal land 
management agencies, rather than the courts, have the authority to 
manage federal lands and the competence to judge how much protection of 
those lands is wise and how that level of conservation is to be 
attained. 468 U.S. at 299.
    Even though less restrictive alternatives are not part of the test 
for constitutionality for time, place, and manner regulations, the 
Department believes that the special use authorization requirement is 
the least restrictive means to accomplish the government's interests. 
Other laws and regulations, such as the Endangered Species Act and 
rules providing for the issuance of closure orders, address resource 
protection and public health and safety in general. Other laws and 
regulations do not, however, provide the framework necessary for 
applying those standards for resource protection and public health and 
safety to noncommercial group uses. Other laws and regulations do not 
allow the Forest Service to control or prevent adverse impacts on 
forest resources from noncommercial group uses, to address concerns of 
public health and safety associated with noncommercial group uses, or 
to allocate space for noncommercial group uses and other uses and 
activities.
    In United States v. Rainbow Family, the court denied the 
government's motion for a preliminary injunction to enforce the group 
use regulation on the grounds that the regulation was unconstitutional 
and not validly implemented. The court stated in dicta that the 
government had an adequate remedy at law which would also preclude 
granting the motion, in that there were other laws and regulations to 
address the government's concerns in seeking the injunction. 695 F. 
Supp. at 314. The court never ruled on the existence of an adequate 
remedy at law for purposes of obtaining a preliminary injunction. Even 
if the court had ruled on this issue, it would have been immaterial to 
the assessment of the constitutional validity of this final rule.
    Requiring notice of a proposed activity is also insufficient to 
address the concerns underlying the final rule because the agency still 
lacks the ability to regulate the activity. Without the application and 
permitting system, the authorized officer cannot determine whether the 
evaluation criteria in the final rule are satisfied. This final rule 
will not apply at developed recreation sites where use is allocated 
under a formal reservation system and where the agency has the 
authority to manage and to charge a user fee to the public under the 
Land and Water Conservation Fund Act (16 U.S.C. 4601-6a).
    The Department has determined that it has sufficient interests in 
regulating noncommercial group uses. Regulating only those activities 
or groups that have caused problems in the past would be difficult to 
defend. The courts in United States v. Israel and United States v. 
Rainbow Family held that in regulating noncommercial group uses the 
agency cannot single out expressive conduct and treat it differently 
from other activities, and that the regulation must have clear and 
objective standards. Regulating only certain groups or activities based 
on a judgment of which ones have caused problems sufficient to warrant 
regulation could be viewed as singling out expressive conduct on the 
basis of a subjective standard. The same concern would apply if the 
Department exempted certain types of noncommercial group uses, like 
church, club, or family gatherings, from the special use authorization 
requirement.
    Finally, as shown by the reports on the 1991 and 1992 Rainbow 
Family Gatherings, the Forest Service has not always been able to 
achieve its objectives concerning resource protection and space 
allocation through informal cooperation with the Rainbow Family. In 
particular, agency personnel have been frustrated in dealings with 
Rainbow Family members because informal agreements made with one 
individual or subgroup have not been respected by other group members. 
It has thus been difficult for the agency to obtain commitments from 
the Rainbow Family on issues pertaining to the Gatherings. On a number 
of issues, the agency has had to recommence discussions at each 
encounter with Rainbow Family members. The special use authorization 
process will enhance the agency's ability to achieve its objectives by 
allowing the agency to obtain commitments from the Rainbow Family that 
apply to the group as a whole.
    Comment: Ample Alternative Channels for Communication. 
Approximately 27 respondents felt that the proposed regulation does not 
leave open ample alternative channels of communication. These 
respondents stated that there is no adequate substitute for peaceable 
assembly as a form of communication; without a permit, a proposed 
activity could not occur on National Forest System lands; and that the 
Rainbow Family is not an organized group and has no other place to go.
    Response. The Department disagrees with these comments. The final 
rule leaves open ample alternative channels of communication. The final 
rule does not restrict, and is not intended to restrict, freedom of 
thought or expression. Nor does the final rule prohibit any expressive 
activities. Rather, the final rule requires a special use authorization 
for noncommercial group uses on the national forests. Moreover, 
Sec. 251.54(h)(2) of the final rule provides that if an application is 
denied and an alternative time, place, or manner will allow the 
applicant to meet all the evaluation criteria, the authorized officer 
shall offer that alternative.
    Comment: Enforceability. Approximately 28 respondents commented on 
the enforceability of the proposed rule. Specifically, six respondents 
stated that enforcement of the rule would be provocative and 
confrontational because the rule would be ignored and the agency would 
have to make mass arrests, disperse large crowds, or obtain a 
restraining order to enforce it. Thirty respondents stated 

[[Page 45268]]
that the cost to administer or enforce the rule either would exceed 
income, would be a waste of taxpayer dollars, or would overburden the 
Forest Service and the court system.
    Response. The Forest Service currently works to the extent possible 
with organizers of group uses before, during, and after the activities 
take place to try to prevent problems. Adoption of this final rule will 
not change the agency's efforts to work cooperatively with groups who 
wish to use National Forest System lands, nor does the agency foresee 
any problem with implementation of the final rule. If a group fails to 
obtain a special use authorization that is required by the rule, the 
agency can take other action short of making mass arrests or obtaining 
a restraining order. For example, in most federal judicial districts, 
the agency may impose a fine for failure to obtain a special use 
authorization required for use and occupancy of National Forest System 
lands.
    No income to the U.S. Treasury is generated under the final rule. 
There are always costs to the taxpayer when large groups use the 
national forests. As the reports on the 1991 an 1992 Rainbow Family 
Gathering indicate, the agency incurs substantial costs in connection 
with group uses in order to protect the resource, address concerns of 
public health and safety, and allocate space. For example, some of the 
costs cover water quality testing, road maintenance, personnel, 
scarification, and law enforcement. Requiring a special use 
authorization should decrease rather than increase these costs by 
enhancing the agency's ability to prevent or minimize resource damage.
    Comment: Efficacy of the Rulemaking. Approximately 23 respondents 
commented that promulgating this regulation is a waste of time and 
money because it will be struck down by the federal courts, like the 
two prior attempts before it.
    Response. The final rule ensures that the authorization procedures 
for noncommercial group uses comply with First Amendment requirements 
while providing a reasonable administrative framework for addressing 
the significant governmental interests identified in the rule. The 
Department has structured this rule very differently from the 1984 rule 
that was struck down in United States v. Israel and United States v. 
Rainbow Family. Those courts held that the 1984 rule on its face 
singled out expressive conduct and required that it be treated 
differently from other activity; lacked clear and objective standards 
for evaluating applications for expressive activities; and lacked 
procedural safeguards required by constitutional law. The court in 
United States v. Rainbow Family invalidated the 1988 version because 
the agency had failed to show good cause under the APA for adopting an 
interim rule without prior notice and comment.
    In contrast, this final rule establishes a single regulatory 
category that includes expressive and non-expressive activities; 
applies the same specific, content-neutral evaluation criteria to all 
applications in that category; and contains all the procedural 
safeguards required by case law. Rather than publish an interim rule 
that goes into effect upon publication but before comments are received 
and analyzed, the agency published a proposed rule for notice and 
comment, and the Department is publishing a final rule incorporating 
the analysis of timely received comments. The final rule does not go 
into effect until 30 days after it is published. In promulgating this 
rule, the Department has meticulously complied with all requirements of 
the APA.
    Comment: Consequences of Noncompliance. Nine respondents stated 
that the penalty for violating the rule is excessive. One of these 
respondents commented that the proposed rule could make too many things 
a crime and could provide for excessive penalties for the pettiest 
infractions. One respondent commented that the agency gave insufficient 
notice of the penalty.
    Response. The penalty for violating any prohibition in 36 CFR part 
261, including use and occupancy of National Forest System lands 
without a special use authorization when an authorization is required, 
is a fine of up to $5,000 or imprisonment for up to six months, or both 
(see 16 U.S.C. 551; 18 U.S.C. 3559, 3571). This penalty is authorized 
by statute and is not subject to amendment by regulation. Consequently, 
the penalty was not discussed in the proposed rule.
    In the context of this rule, the penalty would apply only if a 
noncommercial group failed to obtain a special use authorization for a 
group use of National Forest System lands. In such a case, 
noncommercial groups would be subject to the same penalty imposed on 
other forest users for violation of the prohibitions found at 36 CFR 
part 261.
Summary of Comments by Section of the Proposed Rule

    The vast majority of respondents opposed the rule. Many did not 
state the reason for their opposition. Most opposed the rule in the 
belief that the rule would infringe upon their First Amendment rights 
to gather and to disseminate information.
    The following is a section-by-section summary of timely received 
comments and the Department's responses to those comments in the final 
rule.

Amendments to Part 251

Section 251.51--Definitions

    The definitions in the rule are important because they determine 
applicability of the rule. The following terms were defined in the 
proposed rule: Commercial use or activity, Distribution of printed 
material, Group event, Noncommercial use or activity, and Printed 
material. Approximately 47 respondents commented on the definitions in 
the proposed rule. Eleven respondents commented on the definition of 
Commercial use or activity. Thirty-one respondents commented on the 
definition of Group event. Other definitions addressed were 
Distribution of printed material and Printed material. One respondent 
commented that the definitions are generally illegal.
    Comment: ``Commercial use or activity.'' Respondents commented that 
the definition for commercial use or activity is too vague and broad 
and could include activities that are considered to be noncommercial. 
For example, respondents felt that the following could be considered a 
commercial activity under this definition:

--A scout troop sharing food;
--A school troop pooling meal and travel expenses;
--An activity involving the exchange of clean-up chores;
--An exchange of pocket knives;
--Bartering;
--Children trading beads or baseball cards; or
--A hug, smile, or handshake.

    Respondents felt that bonding could be required if the costs of the 
activity were supported in part by donations; that the term 
``commercial'' should apply to business activities that generate a 
profit, rather than to the exchange of gifts or barter; and that a 
better definition of ``commercial use or activity'' would include the 
phrase ``having profit as the primary aim.''
    Response. The Department agrees that the definition for commercial 
use or activity in the proposed rule was ambiguous and could be 
construed to include some activities that are noncommercial. However, 
the Department believes that uses or activities that do not have profit 
as the primary aim may still be considered commercial and that the 
phrase ``having 

[[Page 45269]]
profit as the primary aim'' is too vague and too difficult to apply to 
all the uses and activities on National Forest System lands.
    Instead, the Department has clarified the definition for commercial 
use or activity in the final rule to include only those uses or 
activities (1) where an entry or participation fee is charged, or (2) 
where the primary purpose is the sale of a good or service.
    Under this definition, uses or activities involving the exchange of 
a product or service, such as trading pocket knives or clean-up chores, 
will not be considered commercial. Uses or activities where the sale of 
a good or service is merely secondary, such as a gathering where the 
primary purpose is to worship and exchange views, but where some arts 
and crafts may be sold incidentally to the gathering, will not be 
considered commercial.
    Comment: ``Group event.'' One respondent commented that the 
definition for group event would now include special events, recreation 
events, and all other noncommercial groups, and that this equal 
treatment of all groups is an outrageous misuse of power which allows 
for complete disregard for the intent of the group.
    Two respondents commented that the threshold of 25 or more in the 
definition for group event is arbitrary and irrelevant, and that other 
than with extremely large groups, it is not the size of a group but the 
actions of a group and the site selected that determine the amount of 
impact. One of these respondents stated that an orderly church group of 
200 can do less damage than a group of 50 demonstrators; the other 
commented that one person who is careless with a match can do more 
damage than 50 people swimming in a stream.
    One respondent commented that the public has not had an opportunity 
to read, analyze, and comment on the agency's review of potential 
impacts that led to the definition of a group as 25 or more people. Two 
respondents commented that the agency should set different thresholds 
for a group according to the duration of the proposed activity and its 
impact on the land, and that the 25-person threshold is arbitrary and 
may be too large or small depending on special local conditions.
    Another respondent voiced strong support for a 25-person cutoff, 
while eleven other respondents stated that 25 people is too low a 
threshold for a group event. One suggested 50 or 50 to 100 people. One 
suggested 50 people, which the respondent stated is the number used by 
the Bureau of Land Management. Another respondent who suggested 50 
people felt that the 25-person threshold would create an undue burden 
by including many school camping groups and groups gathering only to 
secure academic credentials, and that the agency does not need to 
regulate these groups because group leaders with college and graduate-
level degrees will always choose sites for their groups where the seven 
evaluation criteria will be met. One respondent suggested 95 people. 
One respondent stated that with the 25-person threshold, every family 
reunion and church picnic would require a permit. Another respondent 
suggested 250 people in order to allow most ``average'' group 
activities, such as family reunions and church or company picnics, to 
use National Forest System lands without an undue paperwork burden.
    One respondent stated that the number of people for a group event 
should be as large as possible and that there are areas of National 
Forest System lands that can accommodate far more than 25 people. This 
respondent suggested that like the National Park Service, the Forest 
Service should designate such areas by regulation and establish a 
higher number for these areas, so that large groups can gather on short 
or no notice. In support, this respondent cited the National Park 
Service's regulations for the National Capital Region at 36 CFR 
7.96(g)(2)(ii).
    Four respondents were unclear about how the rule would be applied 
if more than 25 people unexpectedly end up using the same site. One of 
these respondents stated that it would also be unclear how the rule 
would be applied if several score people were camping in a large area, 
but far apart.
    Two respondents stated that there is no way to tell how many people 
will appear at a group event, and that 23 people could be anticipated, 
but two more could show up, for example, for Rainbow Family site 
scouting parties. Two respondents stated that the phrase ``and/or 
attracts'' should be deleted. Specifically, one of these respondents 
stated that it is reasonable to hold a group responsible for predicting 
the size of its own turnout, but not for predicting how many unrelated 
and uninvited outsiders may be attracted to an event. This respondent 
noted that it is appropriate to require a group that anticipates 
attracting 25 or more uninvited people to notify the agency in advance.
    Three respondents commented that spontaneous gatherings would be 
eliminated. Two of these respondents commented that large families and 
church groups that spontaneously camp or conduct other activities on 
the national forests would not have time to get a permit.
    Response. The Department has substituted the term ``group use'' for 
``group event'' in the definitions section and elsewhere in the final 
rule because use of the term ``group event'' in this rule could be 
confused with use of the term ``recreation event'' in the Forest 
Service Manual. In section 2721.49 of the Forest Service Manual, 
``recreation event'' refers to commercial group uses where an entry or 
participation fee is charged, such as certain motorcycle races or 
fishing contests. This final rule applies only to noncommercial, not 
commercial, group uses.
    The definition for group use includes all noncommercial group uses, 
regardless of whether they involve the expression of views, because the 
courts have held that it is unconstitutional for the regulation to 
single out expressive activity and treat it differently from other 
activity.
    The Department agrees that the duration of the activity and the 
site selected have some effect on the amount of resource impacts and 
that one individual could cause a lot of damage, for example, by 
starting a forest fire. However, in the Forest Service's experience, 
the size of a group has a significant effect on the potential for 
resource damage: Typically, large groups have more impact on a given 
area than individuals. A numerical threshold is a purely objective, 
non-discretionary way to determine applicability of the regulation. In 
contrast, an assessment based on the type of activity could be 
subjective and discretionary and therefore unconstitutional.
    The Department has carefully reviewed the comments concerning the 
appropriate numerical threshold for a group use and has carefully 
reviewed the Forest Service's experience with all types of 
noncommercial group uses on National Forest System lands, particularly 
with respect to resource impacts associated with these uses. The 
Department's review of impacts associated with noncommercial group uses 
is not based on a study, but on the Forest Service's experience in the 
field. Parts of this review were discussed in the response to comments 
on the Department's significant interests in promulgating this rule.
    Based on its review of the comments on the numerical cutoff for a 
group and of the adverse impacts associated with group uses, the 
Department has determined that a 25-person threshold is too low and 
that 75 people would be a 

[[Page 45270]]
more appropriate threshold for applicability of the rule.
    The Department recognizes that any numerical threshold is arbitrary 
in that a group of 74 people could have as much impact on forest 
resources as a group of 75, and that 25 people could have more impact 
than 100, depending on the type of activity and the characteristics of 
the site. Nevertheless, the Department believes that a numerical 
threshold is the fairest and most objective standard for applicability 
of the rule and that groups with 75 or more people tend to have a 
greater impact on National Forest System lands than smaller groups.
    The National Park Service designates sites that are available for 
public assemblies in the National Capital Region and other park areas. 
These regulations can be found at 36 CFR 2.51, 7.96(g)(2)(ii). The 
Department does not believe it is practicable or necessary to require 
designation of sites that are available for noncommercial group uses of 
National Forest System lands. In general, the National Park Service and 
the Forest Service administer different amounts and types of land and 
different varieties of uses and activities on the land and therefore 
cannot take exactly the same approach to land management.
    In the contiguous 48 states the National Park Service manages 
approximately 25.5 million acres of land with many fairly developed 
sites and an extensive reservation system. To a significant degree, 
public use of National Park Service land is concentrated. In contrast, 
in the contiguous 48 states the Forest Service manages approximately 
169 million acres of land with primarily expansive, undeveloped 
resources. Management units in the National Forest System are generally 
not subject to the same level of regulation as National Park Service 
management units, and the Forest Service oversees a broader variety of 
uses and activities than the National Park Service. Generally, whereas 
the National Park Service has a preservation mission, the Forest 
Service has a multiple-use mission.
    Finally, the Department does not need to designate specific sites 
because this final rule allows noncommercial groups to gather on very 
short notice without designation of specific sites. Section 
251.54(f)(5) of the final rule provides for submission of applications 
up to 72 hours before a proposed activity and provides for a very 
short, specific timeframe for granting or denying applications.
    This rule is intended to apply to noncommercial uses that involve 
groups of 75 or more people. The rule is not intended to apply to 75 or 
more individuals who do not arrive as part of a particular group or in 
connection with an organized activity, such as 75 or more people who 
reserve campsites individually rather than as a group at a popular 
developed recreation area on a holiday weekend. To clarify this intent, 
the Department is adding the words ``a group of'' to the definition for 
group use.
    The rule is intended to apply to groups of 75 or more people that 
have requested use of a certain area for a noncommercial activity. The 
rule will apply to a group of 75 or more people that request to camp in 
the same area, even if they intend to camp far apart from each other.
    The Department believes that it is reasonable for groups to 
estimate the expected number of participants and spectators at their 
activities. For example, groups could base their estimate on past 
experience and/or how many have expressed interest or have committed to 
participate in an activity. The Department agrees, however, that the 
phrase ``and/or attracts'' should be deleted from the definition for 
group use because it is not reasonable for groups to predict how many 
unrelated and uninvited outsiders may be attracted to an activity. 
Accordingly, the Department has deleted the phrase ``and/or attracts,'' 
but has added the phrase ``either as participants or spectators,'' to 
make it clear that an activity involving a group of 75 or more people, 
regardless of whether they are participants or spectators, requires a 
special use authorization.
    The Department believes that in order to meet its objectives of 
ensuring resource protection, addressing public health and safety 
concerns, and allocating space in the face of greater legal constraints 
on the use of the land, it is both fair and necessary to require 
noncommercial groups of 75 or more people to obtain a special use 
authorization prior to their activity. Under the final rule, 
noncommercial group uses can be very close to spontaneous because 
applications for a special use authorization may be submitted up to 72 
hours prior to the activity.
    Comment. ``Distribution of printed material.'' One respondent 
stated that including the solicitation of views or signatures in the 
definition for distribution of printed material violates the First 
Amendment. Another respondent stated that this definition is broadly 
defined to include soliciting information in conjunction with the 
distribution of printed material. Another stated that the definition 
for distribution of printed material is too broad and that any 
distribution of printed material would be regulated, not just 
distribution associated with a group use.
    Response. The definition for ``distribution of printed material'' 
has not been included in the amendments to part 251 in the final rule, 
as the Department has decided not to require a special use 
authorization for noncommercial distribution of printed material in the 
final rule.
    Comment. ``Printed material.'' Two respondents commented that 
including photographs in the definition for printed material is 
unjustified because the rule could be construed to cover one person 
showing a photograph to another. One respondent stated that the 
definition for printed material is too broad and that any distribution 
of printed material would be regulated, not just distribution 
associated with a group use.
    Response. As previously noted, the Department has removed the 
special use authorization requirement for noncommercial distribution of 
printed material from the final rule. Therefore, the definition for 
``printed material'' has been removed from the amendments to part 251 
in the final rule.
    The Department believes that the changes noted in response to 
comments received make the definitions clear and help ensure that the 
final rule is constitutional, both as written and as applied.
    Section 251.54--Special Use Applications. This section of the 
existing rule prescribes procedures and requirements for processing 
applications for special use authorizations.
    Comment. Section 251.54(a) of the existing rule encourages all 
proponents to contact an authorized officer as early as possible so 
that potential constraints may be identified, the proposal can be 
considered in forest land and resource management plans (forest plans) 
if necessary, and processing of an application can be tentatively 
scheduled. The proposed rule offered a technical amendment to 
Sec. 251.54(a) to make clear that the proponent will be given guidance 
and information about the items listed in Secs. 251.54(a)(1) through 
(a)(8) only to the extent applicable to the proposed use and occupancy.
    Three respondents commented on this provision. One respondent 
commented that the word ``encourage'' in Sec. 251.54(a) is too vague. 
Another respondent commented that Sec. 251.54(a) is too vague and 
allows the Forest Service to delay processing of an application by 
asking for more information. Another 

[[Page 45271]]
respondent noted that ``providing for consideration of proposals in 
forest plans if necessary'' allows the agency either to move existing 
uses or activities that conflict with a proposal or to deny a permit 
for the proposal.
    Response. These comments address a provision in the existing rule 
that was not proposed for amendment and which is therefore beyond the 
scope of this rulemaking. However, the Department wishes to assure 
those who commented that the intent of Sec. 251.54(a) is to encourage 
proponents to talk to the Forest Service about proposed uses and 
activities as early as possible and even before an application is 
submitted so as to facilitate, not delay, the processing of 
applications.
    The rules in subpart B of part 251 apply to all special uses, both 
commercial and noncommercial. The amendment proposed to Sec. 251.54(a) 
was in the last sentence and was necessary to ensure that applicants 
for noncommercial group uses receive relevant information. For example, 
as noted in the preamble of the proposed rule, fees and bonding 
requirements listed in Sec. 251.54(a)(4) do not apply to applications 
for noncommercial group uses.
    Comment. Section 251.54(e) of the existing rule specifies the 
information that must be contained in an application for a special use 
authorization. The proposed rule amended Sec. 251.54(e)(1) to specify 
applicant identification requirements applicable to all special uses. 
Specifically, Sec. 251.54(e)(1) of the proposed rule required an 
applicant for any type of special use authorization to provide his or 
her name and mailing address, and, if the applicant is not an 
individual, the name and address of the applicant's agent who is 
authorized to receive notice of actions pertaining to the application.
    Two respondents noted that it makes sense to require applicants to 
provide their names and mailing addresses so that the Forest Service 
will be able to contact applicants and send them their permits. One of 
these respondents also stated that there would be no need for this 
provision if a permit were not required. The other commented that 
providing a name in a cooperative spirit and signing a permit are two 
different matters.
    One respondent stated that the requirement for an applicant's 
address discriminates against the homeless.
    Approximately 25 respondents commented that the Rainbow Family has 
no leader who can act as agent for the group. These respondents stated 
that Rainbow Family Gatherings are often spontaneous and that the group 
lacks the requisite hierarchy; that this provision infringes on freedom 
of speech by requiring the Rainbow Family to retreat from one of its 
fundamental principles--i.e., lack of hierarchy--in order to gather in 
practice of that principle; and that this provision violates the 
Rainbow Family's tribal sovereignty and spiritual integrity and is 
equivalent to asking the Catholic Church to submit an application to 
have a Mass.
    Response. The proposed rule amended Sec. 251.54(e)(1) for clarity 
by reorganizing its contents. No amendment in substance was made. These 
comments address a provision in existing Sec. 251.54(e)(1) that was not 
proposed for amendment and which is therefore beyond the scope of this 
rulemaking.
    For administrative purposes, it is necessary to require an 
applicant for any kind of special use authorization to provide his or 
her name and mailing address, and, if the applicant is not an 
individual, the name and address of the applicant's agent. Without that 
information, the Department has no way of contacting the applicant 
concerning the content or disposition of the application. This 
provision does not discriminate against anyone because it applies to 
any applicant for any type of special use authorization.
    As discussed in response to comments on Sec. 251.50(c), this 
regulation also does not impose an undue burden on free exercise of 
religion. Religious groups, including the Catholic Church, have applied 
for and obtained permits in order to hold services on public lands. See 
e.g., O'Hair v. Andrus, 613 F.2d 931 (D.C. Cir. 1979) (National Park 
Service permit authorizing outdoor Mass conducted by Pope John Paul II 
on National Mall).
    The Department believes it is both fair and appropriate to apply 
this provision to all applicants, including the Raimbow Family. Even if 
the Rainbow Family has no leader, members of the group can still 
designate a representative who can receive notice of actions pertaining 
to an application for a special use authorization. For example, several 
respondents commented that the Rainbow Family engages in decisionmaking 
by consensus and that councils meet to make decisions that affect the 
group. Thus, one of these councils could select a representative for 
the purpose of Sec. 251.54(e)(1).
    The court in United States v. Rainbow Family held that the Rainbow 
Family is an unincorporated association that can sue and be sued. 695 
F. Supp. at 298. The court also held that service of process upon the 
Rainbow Family was properly effected in that case by service upon 
several individuals who acted as agents or representatives of the 
Rainbow Family. Id. Moreover, in 1987, representatives of the Rainbow 
Family signed a consent judgment in a suit brought by the Health 
Director of the State of North Carolina against the Rainbow Family for 
failure to obtain a permit under the State's mass gathering statute. It 
is therefore reasonable to believe that the Rainbow Family could 
designate a person or persons to receive notice of actions pertaining 
to an application for a special use authorization.
    Comment. Under the heading ``Minimum information,'' 
Sec. 251.54(e)(2)(i) of the proposed rule required applicants for 
noncommercial group uses to provide a description of the proposed 
activity, a description of the National Forest System lands and 
facilities the applicant would like to use, the estimated number of 
participants and spectators, and date and time of the proposed 
activity, and the name of the person or persons 21 years of age or 
older who will sign a special use authorization on behalf of the 
applicant.
    Four respondents commented on Sec. 251.54(e)(2)(i). One respondent 
stated that this requirement is generally illegal. Another respondent 
stated that the agency should only require a group's name, address, and 
a description and the date of the proposed activity. A third respondent 
commented that it is reasonable for the agency to require information 
about proposed activities on National Forest System lands, including 
their location, the number of participants, and the date and time of 
the proposed activity. However, this respondent stated that requiring 
applicants to submit minimum information subjects them to arbitrary 
standards of accuracy and demands for further information--especially 
where the activity is diverse and organic, exact participation is 
unknown, and set-up and clean-up times are imprecise--and that an 
authorized officer could delay or deny an application because the 
information provided is deemed incomplete or inaccurate. Two other 
respondents stated that the agency could deny a permit if an 
application was not filled out correctly or completely.
    Response. The Department believes that requiring minimal 
information about proposed noncommercial group uses is both reasonable 
and necessary for administrative purposes and is in no way illegal. 
Failure to require this information before these activities occur 

[[Page 45272]]
would defeat the Department's purposes of resource protection, 
promotion of public health and safety, and allocation of space within 
the National Forest System. Without this information, for example, the 
Forest Service would not know the kinds of mitigative and preventive 
measures to take in authorizing noncommercial group uses. As a result, 
these uses could pose a substantial risk of damage to National Forest 
System lands and resources.
    The Department's intent is to limit the information required to 
those items contained in Secs. 251.54(e)(2)(i)(A)-(E), which address 
only the time, place, and manner of the proposed activity. To clarify 
that intent, the heading for Sec. 251.54(e)(2) has been changed from 
``Minimum information'' to ``Required information.'' In addition, a 
sentence has been added to Sec. 251.54(e)(2)(i) to make explicit that 
the additional requirements enumerated in Secs. 251.54(e)(3) through 
(e)(6) of the final rule do not apply to applications for noncommercial 
group uses.
    While the Department intends that information be provided for each 
of the five categories as accurately and completely as possible, Forest 
Service officers will not hold applicants to standards of accuracy or 
completeness that are impracticable to attain. For example, 
Sec. 251.54(e)(2)(i)(C) requires an estimate, not an exact number, of 
participants and spectators. Under Sec. 251.54(e)(2)(i)(B), the 
Department is not requiring a legal description of the land proposed 
for the activity, but rather a description that is accurate and 
complete enough to allow the authorized officer to determine where the 
activity will occur.
    Finally, the Forest Service cannot delay an application because the 
information provided is incomplete or inaccurate. Section 251.54(f)(5) 
of the final rule provides that an application for noncommercial group 
uses must be granted or denied within 48 hours of receipt.
    For the reasons stated, the final rule retains the requirement in 
Sec. 251.54(e)(2)(i) without change from the proposed rule.
    Comment. Section 251.54(e)(2)(i)(A) of the proposed rule required 
applicants to provide a description of the proposed activity.
    Three respondents commented on this provision. One respondent felt 
that it is reasonable for the Forest Service to want an idea of what 
people are going to do on public lands, but that if authorized officers 
already know, then this issue is addressed. This respondent stated that 
this information should be provided when authorized officers ask for 
it, but that requiring it to be provided in advance places an undue 
burden on the public.
    Two respondents commented that the requirement for a description of 
the proposed activity is very ambiguous and that it is not clear how 
much detail is required. One of these respondents stated that the 
agency could increase the chances of revocation of a permit by 
requiring strict compliance with a condition that would be very 
difficult to meet and that the actions of one person could put everyone 
at a legal risk.
    Response. It is both reasonable and necessary to require proponents 
to provide in advance a description of the proposed activity. Failure 
to provide prior notice of proposed activities would defeat the 
Department's purposes of resource protection, promotion of public 
health and safety, and allocation of space within the National Forest 
System. Without this information, for example, the Forest Service would 
not know the kinds of mitigative and preventive measures to take in 
authorizing noncommercial group uses. As a result, these uses could 
pose a substantial risk of damage to National Forest System lands and 
resources.
    The Department believes that Sec. 251.54(e)(2)(i)(A) is 
unambiguous. Under this provision the Department is requiring a 
description of the proposed activity that is accurate and complete 
enough to allow the authorized officer to determine the nature of the 
proposed activity, for example, whether it is a wedding reception or a 
group ride. Moreover, a lack of detail in describing the proposed 
activity is not a basis for revocation under Sec. 251.60(a)(1) of the 
final rule.
    Revocation will not be more likely for special use authorizations 
issued for noncommercial group uses than for other types of uses. The 
Forest Service endeavors and will continue to endeavor to ensure 
compliance with all the terms and conditions of all special use 
authorizations. Requiring a description of the proposed activity has no 
bearing on the legal risk assumed by individual group members or the 
group as a whole in connection with the proposed activity. Under this 
rule, individual group members will be personally responsible for their 
own actions, while the group will be responsible for the actions of its 
members as a whole that relate to compliance with the special use 
authorization.
    Having considered the comments received, the Department has 
retained without change Sec. 251.54(e)(2)(i)(A) in the final rule.
    Comment. Section 251.54(e)(2)(i)(B) of the proposed rule required 
applicants to provide a description of the National Forest System lands 
and any facilities the applicant would like to use.
    Four respondents commented on this provision. One respondent 
commented that it is reasonable for the Forest Service to request a 
description of the National Forest System lands a proponent would like 
to use, but that requiring this information prior to the proposed 
activity places an undue burden on the public. This respondent stated 
that if the land selected by a proponent is not available at the time 
requested, the agency should address the problem at the time of the 
activity, not before.
    One respondent stated that this provision would require a church 
group to tell the agency where it wants to pray, which would violate 
religious freedom. Another respondent commented that the agency could 
authorize a smaller area than requested and that if 25 or more people 
spilled over the permit boundary, use of that area would not be 
authorized by the permit. One respondent stated that a group would have 
to commit to a site early on, given the amount of time needed to 
process an application.
    Response. The Department has amended Sec. 251.54(e)(2)(i)(B) in the 
final rule to require an applicant to provide the location as well as a 
description of the National Forest System lands and facilities the 
applicant would like to use. It is both reasonable and necessary to 
require proponents to provide this information in advance. Failure to 
provide prior notice of the location and a description of the proposed 
activity would defeat the Department's purposes of resource protection, 
promotion of public health and safety, and allocation of space within 
the National Forest System. Without this information, for example, the 
Forest Service would not know the kinds of mitigative and preventive 
measures to take in authorizing noncommercial group uses. As a result, 
these uses could pose a substantial risk of damage to National Forest 
System lands and resources.
    In addition, the National Environmental Policy Act (NEPA) mandates 
that federal agencies prepare an environmental analysis on proposals 
for major federal actions significantly affecting the quality of the 
human environment (42 U.S.C. 4332(2)(C)). As one of the examples of a 
major federal action, NEPA's implementing regulations include actions 
approved by federal permit (40 CFR 1508.18(b)(4)). In order to comply 
with NEPA, the Forest Service needs to know which National 

[[Page 45273]]
Forest System lands may be impacted by a proposed activity.
    Requiring religious groups to provide a description of the National 
Forest System lands and facilities they would like to use does not 
impose an undue burden on free exercise of religion. Religious groups 
have applied for and have obtained permits to hold services at specific 
sites on public lands. See, e.g., O'Hair v. Andrus, 613 F.2d 931 (D.C. 
Cir. 1979) (National Park Service permit authorizing outdoor Catholic 
Mass on National Mall).
    Authorization of noncommercial group uses will not be less likely 
than authorization of other uses. On the contrary, the Department 
intends to authorize noncommercial group uses to the full extent 
allowed under this rule. The Department also intends to apply this rule 
consistently and fairly as required by law to all noncommercial group 
uses. While the agency retains the discretion to determine the size of 
an area needed to support an activity, drawing an authorization 
boundary smaller than required would not be environmentally defensible 
as that approach would increase rather than reduce risks to forest 
resources.
    The amount of time needed to process an application will not 
require a group to commit to a site early. Under Sec. 251.54(f)(5) of 
the final rule, applications will be granted or denied within 48 hours 
of receipt. However, a group may still find it necessary to commit to a 
site early due to factors that are beyond the control of the Forest 
Service, such as the popularity of the site.
    Comment. Section 251.54(e)(2)(i)(C) of the proposed rule required 
the applicant to provide the estimated number of participants and 
spectators.
    Three respondents commented on this provision. One respondent 
commented that it is reasonable for the Forest Service to request an 
estimate of the number of participants and spectators, but that 
requiring that estimate prior to an activity places an undue burden on 
the public. Another respondent stated that this provision could be used 
to limit attendance at an activity on the pretext of mitigating 
environmental impact. One respondent commented that regulating the 
number of participants and spectators is not a valid time, place, and 
manner restriction.
    Response. The Department believes that it is both reasonable and 
necessary to require proponents to provide in advance an estimate of 
the number of participants and spectators. Failure to require prior 
notice of the anticipated attendance would defeat the Department's 
purposes of resource protection, promotion of public health and safety, 
and allocation of space within the national Forest System. Without this 
information, for example, the Forest Service would not know the kinds 
of mitigative and preventive measures to take in authorizing 
noncommercial group uses. As a result, these uses could pose a 
substantial risk of damage to National Forest System lands and 
resources.
    This provision is a necessary component of a valid time, place, and 
manner restriction. For example, the applicable forest plan might limit 
the number of people that can be accommodated at a proposed site. The 
Forest Service would need an estimate of the number of participants and 
spectators to determine whether that number fell within the limit 
established by the forest plan. In addition, the agency would need to 
know the anticipated attendance in order to determine the number of 
toilets or latrines needed or the sufficiency of potable drinking water 
at the proposed site. Finally, while numbers of people can have varying 
degrees of environmental impact on a site, the agency cannot under this 
rule limit the number of people attending an activity. The agency can 
only accommodate that number.
    Having considered the comments received, the Department has 
retained without change Sec. 251.54(e)(2)(i)(C) in the final rule.
    Comment. Section 251.54(e)(2)(i)(D) of the proposed rule required 
applicants to provide the date and time of the proposed activity.
    Two respondents commented on this provision. One respondent stated 
that it is reasonable for the Forest Service to request the date and 
time of a proposed activity, but that requiring that information before 
an activity places an undue burden on the public. Another respondent 
commented that the agency could authorize a shorter time than 
requested, so that anyone at the site before or after that time would 
be in violation of the permit.
    Response. The proposed rule merely required the date and time of 
the proposed activity. Thus, the proposed rule required applicants to 
specify when but not how long a proposed activity would occur. 
Accordingly, the Department has amended Sec. 251.54(e)(2)(i)(D) in the 
final rule to require applicants to provide the starting and ending 
date and time of a proposed activity.
    The Department believes that it is both reasonable and necessary to 
require applicants to indicate in advance both when and how long a 
proposed activity will occur. Failure to require prior notice of this 
information would defeat the Department's purposes of resource 
protection, promotion of public health and safety, and allocation of 
space within the National Forest System. Without this information, for 
example, the Forest Service would not know the kinds of mitigative and 
preventive measures to take in authorizing noncommercial group uses. As 
a result, these uses could pose a substantial risk of danger to 
National Forest System lands and resources.
    Authorization of noncommercial group uses will not be less likely 
than authorization of other uses. On the contrary, the Department 
intends to authorize noncommercial group uses to the full extent 
allowed under this rule. The Department also intends to apply this rule 
consistently and fairly as required by law to all noncommercial group 
uses.
    It would be inconsistent with this intent to authorize a shorter 
time than requested for the purpose of finding anyone at the site 
before or after that time in violation of the authorization. However, 
there could be a compelling need to adjust the requested time period. 
For example, the agency might suggest an alternate date or site for a 
school-sponsored camping event if the requested date and site would 
place students in jeopardy on the opening day of deer hunting season.
    Comment. Section 251.54(e)(2)(i)(E) of the proposed rule required 
applicants to provide the name of the person or persons 21 years of age 
or older who will sign a special use authorization on behalf of the 
applicant.
    Four respondents recommended dropping the age limitation in this 
provision. These respondents believed that the age limitation prevents 
persons under the age of 21 from exercising their First Amendment 
rights, and that the agency should lower the age limit to 18 or drop it 
altogether; that those under the age of 21 would not be able to gather 
unless the ideas they espouse have been adopted by someone 21 years of 
age or older; that the provision discriminates against citizens under 
the age of 21, who will not be able to gather in groups of 25 or more; 
that this provision establishes a restriction on First Amendment 
activity that does not apply to other activities, since younger people 
can still go camping in small groups without a permit, which could 
present equal or greater risks to the resource; and that although each 
Rainbow Family member could get his or her own permit, then no one 
under the age of 21 could attend the Gathering.

[[Page 45274]]

    Approximately 19 respondents indicated that it is not appropriate 
to make one individual responsible for an entire group. Specifically, 
these respondents stated that individual group members will no longer 
be responsible for themselves; that individuals should accept 
responsibility only for themselves; that it is reasonable for a group 
to give a person's name in the spirit of cooperation, but that it is 
not reasonable to require one person to assume responsibility for 
others; that a group should take responsibility for itself, and that if 
one person signs a permit, the group's solidarity will be broken; that 
this requirement is unreasonable if a group is not a legal entity and 
acts by consensus rather than by hierarchy; that if no representative 
from the group will sign because the group has no leader and because 
decisions are made by consensus, the Forest Service could find anyone 
21 years of age or older or a representative from a different group to 
sign the permit, thus circumventing the process of decisionmaking by 
consensus; that individuals in the group will lose their autonomy; that 
those individuals who are responsible for any damage could make 
restitution with the aid of the whole group; that this requirement is 
particularly inappropriate where a group hesitates on philosophical 
grounds to appoint agents or representatives to speak on its behalf, 
and that the agency has said that it is unreasonable and impracticable 
to deal separately with each member of a large group, but that there is 
no reason for such a group to alter its philosophical grounds unless 
the agency shows that it has had to deal separately with each group 
member; that certain religious practices do not recognize a leader who 
takes responsibility for the group; that making one individual 
responsible for a permit makes the activity seem like a commercial 
venture.
    Two respondents commented that this provision is unenforceable 
against the Rainbow Family because they have no leader. One of these 
respondents stated that no member of the Rainbow Family can speak for, 
sign for, or be held responsible for another.
    Response. The Department believes that the age limitation in 
Sec. 251.54(e)(2)(i)(E) of the final rule is a reasonable time, place, 
and manner restriction. The restriction is necessary to ensure that 
those who are designated to sign and who do sign a special use 
authorization on behalf of a group are of the age of legal majority. 
The signature gives the authorization legal effect. If the person or 
persons who sign the authorization are not of the age of legal 
majority, the authorization is not legally enforceable. Since the age 
of legal majority is not the same in every state but in no state 
exceeds the age of 21, the final rule requires that the person or 
persons who are designated to sign and who do sign a special use 
authorization be at least 21 years of age.
    The Department does not believe that this age limitation imposes an 
undue burden on the exercise of First Amendment rights by those under 
the age of 21. The final rule does not prohibit groups of 75 or more 
people under the age of 21 from gathering in the national forests, nor 
does the final rule require that these groups include a person 21 years 
of age or older. Rather, the final rule requires that a person or 
persons 21 years of age or older be designated to sign a special use 
authorization and that that designated person sign an authorization on 
behalf of the group.
    It is not appropriate or necessary for each member of a group to 
sign a special use authorization. It is also not appropriate or 
necessary for one member or a few members of a group to assume personal 
responsibility for the actions of other group members. Individual group 
members are personally responsible for their own actions. A person who 
signs a special use authorization for a noncommercial group use acts as 
an agent for the group, but does not assume personal responsibility for 
the group's actions.
    However, it is appropriate and necessary to ensure that a group 
will be responsible for the actions of its members as a whole that 
relate to the use and occupancy of National Forest System lands by 
requiring a person or persons to sign a special use authorization as an 
agent or representative of the group. Requiring that a person or 
persons sign the special use authorization on behalf of the group will 
not weaken the group's solidarity; on the contrary, this requirement 
can serve to enhance the group's solidarity by ensuring that the group 
will take responsibility for its actions. By signing a special use 
authorization on behalf of the group, the agent or representative gives 
the authorization legal effect and subjects the group to the 
authorization's terms and conditions.
    In addition, the Forest Service needs to have someone to contact 
for purposes of special use administration. The authorized officer may 
have questions about the application or may need to notify the 
applicant in the event of an emergency. If the application does not 
identify a contact person, the Forest Service cannot make the 
appropriate notifications.
    As shown by the reports on the 1991 and 1992 Rainbow Family 
Gatherings, if a group does not designate a representative or 
representatives, the Forest Service has to deal separately with various 
individual members and subgroups. Informal agreements made with one 
individual member or sub-group are not always respected by other group 
members, which makes it difficult for the agency to obtain commitments 
from the group as a whole. The special use authorization process will 
allow the agency to obtain commitments from the Rainbow Family that 
apply to the group as a whole.
    Non-members of a group cannot sign a special use authorization on 
behalf of a group unless they are designated by the group to act as its 
agents or representatives and are authorized to make the group 
responsible for the actions of its members as a whole. Requiring a 
group to designate a person or persons who will sign a special use 
authorization on behalf of the group does not make a group use a 
commercial venture under this rule. Under the final rule, a group use 
is a commercial use or activity if an entry or participation fee is 
charged or if the primary purpose of the activity is the sale of a good 
or service, and in either case, regardless of whether the use or 
activity is intended to produce a profit. All groups, both commercial 
and noncommercial, should be responsible for the actions of their 
members as a whole that relate to the use and occupancy of National 
Forest System lands.
    The Department believes that it is both fair and appropriate to 
apply this provision to all applicants, including groups like the 
Rainbow Family that make decisions by consensus. The group can, for 
example, designate a representative or representatives who can sign a 
special use authorization on behalf of the group. Groups that make 
decisions by consensus could select a representative through that 
decisionmaking process.
    As one respondent noted, the court in United States v. Rainbow 
Family held that the Rainbow Family is an unincorporated association 
that can sue and be sued. 695 F. Supp. at 298. The court also held that 
service upon the Rainbow Family was properly effected in that case by 
service upon several individuals who acted as agents or representatives 
of the Rainbow Family. Id. Moreoover, in 1987, representatives of the 
Rainbow Family signed a consent judgment in a suit brought by the 
Health Director of the State of North Carolina against the Rainbow 
Family for failure to obtain a permit under the State's mass gathering 
statute. It is therefore 

[[Page 45275]]
reasonable to believe that the Rainbow Family could designate a person 
or persons to sign a special use authorization on behalf of the group 
as provided in Sec. 251.54(e)(2)(i)(E).
    Having considered the comments received, the Department has 
retained without change Sec. 251.54(e)(2)(i)(E) in the final rule.
    Comment. Section 251.54(e)(2)(ii)(D) of the existing rule 
enumerates certain information that might have to be provided by a 
private corporation applying for a special use authorization. The 
proposed rule redesignated this provision but did not offer any 
substantive change.
    One respondent commented that the minimum amount of information 
required from a private corporation applying for a special use 
authorization is much greater than what is required from any other 
category of applicant and that the only information needed from private 
corporations is evidence of incorporation and good standing.
    Response. This provision was not subject to substantive amendment 
under the proposed rule, is not being amended by the final rule, and 
has no bearing on the subject matter of this rule. Therefore, this 
provision is beyond the scope of this rulemaking. However, the 
Department believes that it may be appropriate to require private 
corporations applying for a special use authorization to provide more 
than evidence of incorporation and good standing.
    Comment. A provision in Sec. 251.54(e)(1) of the existing rule 
requiring the Forest Service to give due deference to the findings of 
another agency, such as a public utility commission, the Federal Energy 
Regulatory Commission, or the Interstate Commerce Commission, in lieu 
of another detailed finding, was proposed to be moved to a new 
Sec. 251.54(f)(4) of the proposed rule, since this provision relates to 
the processing of applications rather than to their content. This was a 
technical rather than a substantive amendment.
    Two respondents commented on this provision. One respondent stated 
that if the Forest Service defers to the findings of another agency, an 
application for a special use authorization could be subjected to the 
agenda of any part of government. The other respondent commented that 
this provision applies a large body of administrative law to the review 
of applications for a special use authorization, subject to the 
discretion of the authorized officer, and places the burden of 
documenting the findings of other agencies on the applicant.
    Response. This provision was not subject to substantive amendment 
under the proposed rule, is not being amended by the final rule, and 
has no bearing on the subject matter of this rule. Therefore, this 
provision is beyond the scope of this rulemaking. Nevertheless, the 
Department believes that this provision makes the application process 
more efficient by allowing the Forest Service to defer to relevant 
findings of other agencies, rather than making another detailed 
finding, in evaluating applications for commercial special use 
authorizations.
    Comment. Section 251.54(f)(5) of the proposed rule provided that 
the agency would grant or deny an application for noncommercial group 
uses without unreasonable delay. On the one hand, First Amendment due 
process considerations require a specific timeframe for granting or 
denying an application for noncommercial group uses. On the other hand, 
a decision to issue a special use authorization triggers extensive 
statutory and regulatory requirements such as those imposed by the ESA 
and NEPA. Section 251.54(f)(5) of the proposed rule reflected the 
agency's effort to balance the competing concerns of complying with 
these First Amendment due process considerations and the statutory and 
regulatory requirements triggered by a decision to issue a special use 
authorization.
    Approximately 65 respondents commented that this proposed provision 
is too vague and would allow for too much discretion because it fails 
to provide a definite timeframe for granting or denying an application. 
Four respondents cited United States v. Rainbow Family in support of 
their position. One respondent cited footnote 5 in United States 
v.Abney, 534 F.2d 984 (D.C. Cir. 1976), for the proposition that 
applications for First Amendment activities must be handled on an 
expedited basis to avoid de facto censorship of certain points of view.
    Several respondents recommended an expeditious procedure for 
reviewing applications. Four respondents stated that the National Park 
Service has a specific timeframe for evaluating permit applications for 
First Amendment activities. One respondent cited 36 CFR 7.96(g)(3), 
which provides that National Park Service permit applications for 
demonstrations in the National Capital Region are deemed granted if not 
acted upon within 24 hours of receipt.
    Two respondents commented that the need to comply with statutory 
and regulatory requirements could not justify the agency's position and 
that the Forest Service should set a short timeframe and deny an 
application within that timeframe if the agency needed more time to 
complete an environmental impact statement.
    One respondent suggested that permits should be issued immediately 
where the forest plan identifies the proposed activity as appropriate 
for the requested area and where the proposed activity meets applicable 
standards and guidelines. Another respondent commented that if the 
group threshold remains at 25, the decision should be made almost 
immediately where the requested stay is three days and two nights or 
less, where the activity is to be held in an area designed for a large 
group, such as a developed campground, and where the forest plan 
recognizes the activity as appropriate for the desired area. The same 
respondent added that if the group threshold was raised to 50, the 
decision should be made within 15 days.
    One respondent suggested that the agency grant or deny applications 
within three working days. Another respondent recommended a timeframe 
of six weeks for evaluating applications. One respondent suggested that 
an application should be granted or denied 30 to 60 days after 
completion of the necessary NEPA analysis, which could range from 
categorically excluding the proposed activity from documentation in an 
environmental impact statement or an environmental assessment to 
preparation of an environmental impact statement, depending on the 
intensity, scope, duration, and location of the activity.
    Others stated that the agency could take as long as it liked to 
review applications, which could wreck a group's plan; that because the 
agency could take a long time to evaluate applications, proponents 
would have to apply far in advance; that this provision could allow 
denial by slow response; that applicants would have to go to court to 
expedite the process; that the lack of a specific timeframe undercuts 
the due process protection of immediate judicial review since access to 
the courts would be denied until a decision was made; that it is 
unclear why it is infeasible to specify a timeframe; that there is no 
evidence that NEPA, the ESA, and the NHPA apply to applications for 
noncommercial group uses or noncommercial distribution of printed 
material and that even if these statutes did apply, the Forest Service 
could survey the land and as part of the planning process either 
identify sensitive areas that need protective or designate areas suited 
for the activities in question; that the proposed rule does not define 
``unreasonable''; that this provision injects too much uncertainty 

[[Page 45276]]
into the application process and that while the need to comply with 
NEPA, ESA, and other statutes might in rare instances justify an 
indefinite timeframe for extremely large groups, such a need does not 
justify an indefinite timeframe for groups of 25 to 500 engaging in 
activities such as educational field trips, company picnics, and family 
reunions.
    Response. Upon consideration of the comments received, the 
Department agrees that a short, specific timeframe for processing 
applications is needed to meet First Amendment requirements. See, e.g., 
Shuttlesworth, 394 U.S. at 162-64 (Harlan, J., concurring) 
(applications for First Amendment activities must be handled on an 
expedited basis to avoid de facto censorship of certain points of 
view); A Quaker Action Group, 516 F.2d at 735 (a permit system must 
have a fixed deadline for administrative action on a permit application 
for First Amendment activities; suggests that 24 hours be the maximum 
time for processing an application, and that applications be deemed 
granted if not acted upon within that time limit); Rainbow Family, 695 
F. Supp, at 311 (1984 Forrest Service regulations are invalid for 
failure to specify a deadline for submitting an application and for 
granting or denying an authorization for First Amendment activities); 
see also Rainbow Family, 695 F. Supp. at 325 (although NEPA is 
unquestionably constitutional, even an otherwise valid statute cannot 
be applied in a manner designed to suppress First Amendment activity) 
(citing CCNV, 468 U.S. at 293; Police Dep't of Chicago v. Mosley, 408 
U.S. 92 (1972)).
    However, as the court noted in the Rainbow Family case, 695 F. 
Supp. at 323-24, the agency must comply with certain statutory and 
regulatory requirements under NEPA before issuing a special use 
authorization. NEPA mandates that federal agencies undertake an 
environmental analysis on proposals for major Federal actions 
significantly affecting the quality of the human environment (42 U.S.C. 
4332(2)(C)). The Council on Environmental Quality (CEQ) has developed 
regulations implementing NEPA (40 U.S.C. part 1500).
    In general, under the CEQ regulations, an agency must conduct an 
environmental analysis to determine whether a proposed action may 
constitute a major federal action significantly affecting the quality 
of the human environment (40 CFR 1501.4, 1508.9, 1508.13). If a 
proposed action may significantly affect the quality of the human 
environment, an environmental impact statement (EIS) must be prepared 
(40 CFR 1501.4, 1502.4). As one of the example of a major federal 
action, the CEQ regulations list approval of specific projects, such as 
actions approved by permit (40 CFR 1508.18(b)(4)).
    Thus, as a general matter, the issuance of Forest Service special 
use authorizations constitutes a federal action for NEPA purposes which 
may require documentation in a categorical exclusion (CE), 
environmental analysis (EA), or an EIS. Proposed actions implementing 
forest plans for which an EA or an EIS is prepared are subject to the 
Forest Service's appeal regulations for project decisions (36 CFR 
215.3(a) (58 FR 58911), which add substantially to the processing time 
(36 CFR part 215 (58 FR 58904)).
    However, the CEQ regulations encourage agencies to reduce paperwork 
and delay by categorically excluding certain types of proposed actions 
from documentation in an EA or an EIS which do not individually or 
cumulatively have a significant effect on the human environment (40 CFR 
1500.4(p), 1500.5(k), 1507.3, 1508.4)). The Forest Service NEPA 
procedures categorically exclude certain types of proposed actions from 
documentation in an EA or an EIS, including proposed actions that fall 
within a category listed in Sec. 31.1b of Forest Service Handbook 
1909.15 (57 FR 43180), if no extraordinary circumstances are related to 
or affected by the proposed action.
    One of the categories listed in Sec. 31.1b is:

    8. Approval . . . of minor, short-term (one year or less) 
special uses of National Forest System lands. Examples include but 
are not limited to:
    a. Approving, on an annual basis, the intermittent use and 
occupancy by a State-licensed outfitter or guide.
    b. Approving the use of National Forest System land for 
apiaries.
    c. Approving the gathering of forest products for personal use.

As explained in section 30.3(2) of the Handbook, extraordinary 
circumstances include, but are not limited to, the presence of:

    a. Steep slopes or highly erosive soils.
    b. Threatened and endangered species or their critical habitat.
    c. Flood plains, wetlands, or municipal watersheds.
    d. Congressionally designated areas, such as wilderness, 
wilderness study areas, or National Recreation Areas.
    e. Inventoried roadless areas.
    f. Research Natural Areas.
    g. Native American religious or cultural sites, archaeological 
sites, or historic properties or areas.

The Department does not intend to preclude reliance on a categorical 
exclusion because of the mere presence of or a de minimis impact on one 
or more extraordinary circumstances. Rather, the Department intends to 
preclude reliance on a categorical exclusion if the proposed action 
materially impacts the characteristics or functions of one or more 
extraordinary circumstances.
    The Department believes it essential to reconcile the First 
Amendment requirement for a short, specific timeframe with the need to 
comply with NEPA procedures. Thus, in response to the comments 
received, the Department gives notice that the Forest Service will 
categorically exclude authorization of noncommerical group uses from 
documentation in an EA or EIS under Sec. 31.1b(8) of Forest Service 
Handbook 1909.15, provided there are no extraordinary circumstances 
related to or affected by the proposed activity.
    The Department believes that authorization of noncommercial group 
uses qualifies for categorical exclusion under Sec. 31.1b(8) because 
noncommercial group uses are short-term, typically for only a few days 
or weeks, and because they are minor in that they entail readily 
mitigable environmental disturbance.
    This determination is further supported by the reports on the 1991 
and 1992 Rainbow Family Gatherings and by the Rainbow Family case. In 
the context of an extensive analysis of NEPA requirements, the court in 
the Rainbow Family case concluded that it is questionable whether the 
annual Rainbow Family Gatherings would have any significant impact on 
the environment for NEPA purposes. The court stated that environmental 
impacts associated with these activities, such as the temporary 
contamination of streams, are likely to be short-term. 695 F. Supp. at 
324.
    The Department's determination is also supported by the approach 
taken by the National Park Service: The National Park Service 
categorically excludes from documentation in an EA or an EIS ``the 
issuance of permits for demonstrations, gatherings, ceremonies, 
concerts, arts and crafts shows, etc., entailing only short-term or 
readily mitigable environmental disturbance'' provided extraordinary 
circumstances are not adversely impacted by these activities 
(Department of the Interior NEPA Procedures, 516 DM 6, Appendix 7, sec. 
7.4(D)(5); 516 DM 2, Appendix 2, sec. 2.1 through 2.10). By 
categorically excluding these types of activities from documentation in 
an EA or an EIS if they do not adversely affect any extraordinary 
circumstances, the National Park Service is able to process 

[[Page 45277]]
applications for these activities within the 24-hour timeframe imposed 
by 36 CFR 7.96(g)(3).
    In addition to having determined that noncommercial group uses 
conform to the categorical exclusion in Sec. 31.1b(8) of Forest Service 
Handbook 1909.15, the Department has incorporated the extraordinary 
circumstances exception to categorical exclusions into the evaluation 
process as an additional criterion at Sec. 251.54(h)(1)(iii) of the 
final rule. If an authorized officer determines that all the evaluation 
criteria are met, including the criterion concerning the extraordinary 
circumstances exception, the application will be granted. With this 
assurance that the most sensitive environmental lands and resources 
will be protected, an extensive NEPA analysis is not required.
    Categorically excluding noncommercial group uses from documentation 
in an EA or an EIS under Sec. 31.1b(8) of Forest Service Handbook 
1909.15 allows the Forest Service to expedite the processing of 
applications for these activities in compliance with both NEPA and the 
First Amendment. Moreover, proposed actions that are categorically 
excluded from documentation in an EA or an EIS under Sec. 31.1b are 
exempt from the potentially lengthy notice and comment procedures in 
the Forest Service's appeal regulations for project decisions (36 CFR 
215.4(b) (58 FR 58911)).
    Finally, like the National Park Service regulation at 36 CFR 
7.96(g)(3), Sec. 251.54(f)(5) of the final rule specifies a short 
timeframe both for submitting and processing applications for 
noncommercial group uses. Section 251.54(f)(5) provides that 
applications for noncommercial group uses may be submitted up to 72 
hours before the activity and that applications for noncommercial group 
uses are deemed granted and that an authorization will be issued for 
those uses unless the applications are denied within 48 hours of 
receipt.
    The 48-hour and 24-hour timeframes for submission and processing of 
applications under the National Park Service's regulation apply only to 
activities in the National Capital Region, which is a fairly 
concentrated and developed park area. This final rule applies to the 
entire National Forest System. The Department believes that the 
additional 24 hours both for submitting and processing applications 
under this rule are warranted given the sizable amounts of undeveloped 
land and the wide variety of uses and activities that are subject to 
this regulation.
    As provided in 36 CFR 7.96(g)(3), where an application for a 
special use authorization has been granted or has been deemed granted 
under Sec. 251.54(f)(5) and an authorization has been issued, an 
authorized officer may revoke the authorization under the limited 
circumstances provided in Sec. 251.60(a)(1) of the final rule.
    Under Sec. 251.54(f)(5), as under 36 CFR 7.96(g)(4), applications 
for noncommercial group uses will be processed in order of receipt, and 
the use of a particular area will be allocated in order of receipt of a 
fully executed application, subject to any relevant limitations set 
forth in Sec. 251.54.
    Comment. Section 251.54(h) of the proposed rule specified the 
procedures and criteria for evaluating applications for noncommercial 
group uses. Section 251.54(h)(1) of the proposed rule established a 
presumption in favor of granting an application for a special use 
authorization for all noncommercial group uses. Under Sec. 251.54(h)(1) 
of the proposed rule, an authorized officer had to grant an application 
for a special use authorization for any noncommercial group use upon a 
determination that seven specific, content-neutral evaluation criteria 
were met.
    Approximately 70 respondents argued that the proposed rule gives 
the Forest Service too much discretionary power. These respondents 
stated that an application for a special use authorization could be 
granted or denied at will; that the proposed rule results in too much 
governmental control; that the proposed rule does not meet the 
stringent standards of Forsyth County v. Nationalist Movement, 505 U.S. 
123 (1992), because the evaluation criteria are not ``narrowly drawn, 
reasonable and definite'' and vest ``unbridled discretion in a 
government official''; that the Forest Service could deny a permit to 
any group, and that simply restricting conditions under which permits 
can be denied does not erase a violation of constitutional rights; that 
the regulation is intentionally vague and was drafted to fail, thereby 
inviting harsher legal remedies; that a permit could be approved or 
denied based on an authorized officer's personal interpretation of the 
public interest; that an authorized officer cannot decide on a whim how 
many people should gather or what may be discussed at the gathering; 
that the proposed rule allows an authorized officer to grant or deny an 
application on the basis of what might happen; that an application 
could be denied on the basis of prejudice and that if one gives others 
an opportunity to abuse one's rights, they will; that the agency's 
intent may not be carried out by subsequent administrators; that the 
agency may make it difficult to find out where to obtain a permit; and 
that the agency may add reasons for denying a permit and may start 
requiring permits for individuals.
    Response. The Department disagrees with these comments. Under the 
proposed and final rules, applications for noncommercial group uses 
cannot be granted or denied at will, on the basis of prejudice, on the 
basis of what might happen, or on the basis of a personal 
interpretation of the public interest. Rather, these applications must 
be granted or denied on the basis of the specific, content-neutral 
evaluation criteria at Sec. 251.54(h)(1) that vest little or no 
discretion in the authorized officer. These criteria merely regulate 
time, place, and manner with respect to a proposed activity.
    The Department drafted the criteria this way to ensure that the 
rule complies with constitutional requirements. The Department intends 
that the evaluation criteria be applied consistently and fairly as 
required by law to all noncommercial groups. After this rule goes into 
effect, the Department may not change it in any material way without 
publishing another proposed rule for notice and comment (5 U.S.C. 553).
    Application forms for special use authorizations subject to this 
rule may be obtained from the Forest Service office responsible for 
management of the affected land. That office will evaluate applications 
received and decide whether to issue a special use authorization on the 
basis of those applications.
    This rule meets the stringent standards of Forsyth. In that case, 
the Supreme Court held that a permit fee requirement was not narrowly 
drawn to provide reasonable and definite standards for fee 
determinations and that the ordinance at issue was content-based rather 
than content-neutral because the determination of the amount of the fee 
turned on a review of the content of the message conveyed. 112 S. Ct. 
at 2403-04. In contrast, the evaluation criteria in this final rule are 
narrowly tailored to minimize resource damage, to ensure compliance 
with federal, state, and local law, and to address specific concerns of 
public health and safety. None of these considerations has any 
connection with the content of any message that may be conveyed by a 
proposed activity.
    Accordingly, the Department has retained without change the 
introductory text in Sec. 251.54(h)(1) in the final rule.

[[Page 45278]]

    Comment. Seventeen additional respondents commented on the 
evaluation criteria in general. These respondents stated that the 
criteria are an undue burden; that the criteria impose unreasonable 
restrictions on freedom of assembly by restricting where, when, and how 
citizens gather, and what types of activities can occur at a gathering; 
that denial of a permit for constitutionally protected activities goes 
beyond a regulation of time, place, and manner; that these criteria are 
unnecessary, unlawful, redundant, and waste money; that the criteria 
are unnecessary since most applicants would meet them anyway; that none 
of the criteria addresses conduct that may have adverse impacts on 
forest resources; that the issues addressed in the criteria are never a 
problem at Rainbow Family Gatherings; that with the exception of the 
criterion on halting, delaying, or preventing other uses and 
activities, the issues addressed in the seven criteria are either dealt 
with in other law or are common sense health and safety measures; that 
applicants have to show cause before a permit is issued; that the 
proposed rule would shift the burden of proof from the government to 
its citizens in requiring them to show, through the application 
process, that they deserve a permit; and that the burden should be on 
the agency to establish a basis for denial of a permit.
    Response. The Department disagrees with these comments. The final 
rule is a constitutional restriction of time, place, and manner because 
the standards in the rule, including the evaluation criteria, are 
content-neutral, are narrowly tailored to further significant 
governmental interests, and leave open ample alternative channels for 
communication of information.
    As noted earlier in this preamble, the Forest Service has 
encountered a variety of problems in connection with noncommercial 
group use of National Forest System lands. These problems have arisen 
in the context of many different types of noncommercial group uses, 
including Rainbow Family Gatherings. Some of these problems have 
included the spread of disease, pollution from inadequate site clean-
up, and resource damage in critical salmon habitat. In view of these 
problems, the Department has established three significant interests in 
promulgating this rule: Protection of forest resources and facilities; 
promotion of public health and safety; and allocation of space within 
the National Forest System.
    The Department believes that the eight evaluation criteria in this 
rule are narrowly tailored to address these issues. The first criterion 
addresses compliance with laws in general and compliance with laws in 
particular that relate to protection of forest resources, such as the 
ESA. The second criterion addresses consistency with standards and 
guidelines for environmental protection in the applicable forest plan. 
The third criterion deals with allocation of space for administrative 
use by the Forest Service and for other authorized uses and activities 
on National Forest System lands. The fourth and fifth criteria address 
specific concerns of public health and safety. The sixth criterion 
makes the rule consistent with existing Forest Service policy on 
military and paramilitary training or exercises on National Forest 
System lands. The seventh criterion, which requires a representative of 
the group to sign a special use authorization, allows the Forest 
Service to administer special use authorizations and enables 
noncommercial groups to take responsibility for the actions of their 
members as a whole that relate to the use and occupancy of National 
Forest System lands. The eighth additional criterion in the final rule 
on extraordinary circumstances allows the Forest Service to ensure that 
the most sensitive environmental lands and resources will be protected 
while expediting the processing of applications as required by the 
First Amendment.
    Whether other laws address the issues dealt with in the evaluation 
criteria in this rule is immaterial because less restrictive 
alternatives are not part of the test for constitutionality of time, 
place, and manner regulations. Even though less restrictive 
alternatives are not part of the test for constitutionality, the 
Department believes that the special use authorization requirement is 
the least restrictive means to achieve the government's interests. 
Other laws and regulations do not provide the framework necessary for 
applying standards for resource protection and public health and safety 
to noncommercial group uses. Special use authorizations are needed to 
allow the Forest Service to limit or prevent adverse impacts on forest 
resources from noncommercial group uses, to address concerns of public 
health and safety associated with noncommercial group uses, and to 
allocate space for noncommercial group uses and other uses and 
activities.
    Applicants for noncommercial group uses do not have to show cause 
before a special use authorization is issued. Applicants for 
noncommercial group uses merely have to provide the information 
enumerated in Secs. 251.54(e)(2)(i) (A)-(E), which the Forest Service 
needs in order to apply the evaluation criteria in the rule. Section 
251.54(h)(1) establishes a presumption in favor of issuance of a 
special use authorization. The burden is on the authorized officer to 
establish a factual and legal basis for denial of a special use 
authorization.
    A summary of comments received on each evaluation criterion and the 
Department's response to them follows.
    Comment. Section 251.54(h)(1)(i) of the proposed rule required an 
authorized officer to determine that a proposed activity was not 
prohibited by the rules at 36 CFR part 261, subpart A, or by an order 
issued pursuant to 36 CFR part 261, subpart B, or by federal, state, or 
local law.
    Twenty-one respondents commented on this provision. Six respondents 
stated that the provision is too vague and broad. These respondents 
commented that the provision could always provide a basis for denial of 
a permit; that a permit could be denied if anyone in a group might 
violate the law or if a state law, such as an anti-mass gathering law, 
prohibited the activity; that the perceived risk that a law might be 
broken or a habitat disturbed would suffice for denial of a permit, and 
that the test is speculative, biased, and arbitrary; and that the 
evaluation criteria apply a double standard, in that a substantial risk 
is required to trigger health and safety concerns, but that any risk of 
a take of an endangered species could result in denial of a permit, 
that the rule should provide that there must be a substantial 
probability of causing a take during the proposed activity, that 
``substantial probability'' should be defined as 50 percent or greater, 
and that a permit should not be denied because the proposed activity 
violates state law, such as a state endangered species act, which could 
be broader than federal law.
    Three respondents believed that it is a general prohibition that 
has no bearing on time, place, or manner. One of these respondents 
commented that specific regulations exist for ensuring compliance with 
the Wilderness Act and the ESA. Another commented that the agency 
should regulate sensitive areas, not numbers.
    Two respondents stated that the legality of proposed activities is 
addressed by other laws, such as the ESA, that requiring people to 
apply for permits so that these laws can be upheld is unjustified, and 
that if someone intended to take an endangered species, these 
regulations would not stop them.
    Another respondent stated that this provision places an undue 
burden on 

[[Page 45279]]
the public in that applicants have to apply in advance and worry about 
whether a permit will be granted or not, that people should decide 
where they want to go, and that if they choose a place that they should 
not use, it is the agency's responsibility to inform them of the 
problem.
    Six respondents commented that there is no need to protect the 
public by closing a site due to bad weather and that individuals or 
groups can decide for themselves whether to use a particular site at a 
particular time. One of these respondents wrote that people would not 
request a site hit by a major flood or a hurricane. One respondent 
stated that the provision is unjustified because there has never been a 
problem with extreme fire danger or inclement weather in the history of 
Rainbow Family Gatherings.
    One respondent stated that the rule should be clarified to show 
that the referenced prohibitions do not include content-based 
restrictions in state or local laws. Another respondent commented that 
the Wilderness Act and the ESA are valid restrictions of time, place, 
and manner.
    Response. The Department agrees that this provision should indicate 
that the referenced prohibitions do not include content-based 
restrictions in federal, state, or local law. The reference to 
Sec. 251.54(h)(1)(i) in the preamble to the proposed rule contained 
this qualification, but it was inadvertently omitted from the proposed 
rule. Therefore, as intended, the phrase ``unrelated to the content of 
expressive activity'' has been added to Sec. 251.54(h)(1)(i) of the 
final rule.
    The Department believes that the criterion at Sec. 251.54(h)(1)(i) 
is narrowly tailored and specific and that it constitutes a valid 
restriction on time, place, and manner. The Forest Service must comply 
with applicable federal law and regulations in managing the National 
Forest System. For example, the Wilderness Act requires the Forest 
Service to protect and manage wilderness areas so as to preserve their 
natural condition and to ensure that the imprint of human activity 
remains substantially unnoticeable (16 U.S.C. 1131(c)). The ESA 
requires federal agencies to consult with the Fish and Wildlife Service 
or National Marine Fisheries Service to ensure that any agency action 
is not likely to jeopardize the continued existence of any threatened 
or endangered species (16 U.S.C. 1536). In addition, the ESA prohibits 
a taking of an endangered species and, by discretion of the listing 
agency, a taking of a threatened species (16 U.S.C. 1538).
    For example, if a noncommercial group of 75 or more requested to 
camp in grizzly bear habitat during early spring, when the grizzly 
bear, a species listed as threatened and protected under the ESA, comes 
out of hibernation, an authorized officer could deny the application 
and offer another site or time pursuant to Sec. 251.54(h)(2). As one 
respondent noted, statutes like the ESA and the Wilderness Act are 
valid time, place, and manner restrictions, and this regulation is 
needed to provide a framework for applying that type of restriction to 
noncommercial group use of National Forest System lands. The special 
use authorization process will give the Forest Service notice of 
potential problems posed by these restrictions, as well as the ability 
to prevent or mitigate them.
    Section 251.54(h)(1)(i) is severely limited. Under this criterion, 
a special use authorization can be denied only if authorization of the 
proposed activity is prohibited by Forest Service regulations at 36 CFR 
part 261, Forest Service orders issued under 36 CFR part 261, or by 
laws that are unrelated to the content of expressive activity. The 
standard in this provision is not speculative, biased, or arbitrary. A 
special use authorization cannot be denied if authorization of the 
proposed activity might be prohibited by the law; a special use 
authorization can be denied only if authorization of the proposed 
activity is prohibited by the law as it is applied to the specific 
facts of a given application. To clarify this intent, the Department 
has added ``authorization of'' before ``the proposed activity'' in 
Sec. 251.54(h)(1)(i) of the final rule.
    This regulation is intended to preempt all state and local laws and 
regulations that conflict with this regulation or that impede its full 
implementation. As long as state and local laws and regulations are 
content-neutral and do not conflict with this final rule or impede its 
implementation, the Department intends to comply fully with them in 
authorizing noncommercial group uses under this rule.
    This criterion also will allow the Forest Service to enforce its 
prohibitions and orders consistently and fairly as required by law. For 
example, an authorized officer may deny an application and offer 
another site if the requested site is closed or restricted due to the 
outbreak of disease under an order issued under 36 CFR part 261. A site 
also might be closed due to extreme fire danger or inaccessibility 
because of flooding or heavy snowfall or to protect critical threatened 
or endangered species habitat.
    Comment. Section 251.54(h)(1)(ii) of the proposed rule required an 
authorized officer to determine that a proposed activity was consistent 
or could be made consistent with the applicable forest plan required 
pursuant to 36 CFR part 219.
    Nine respondents commented on this provision. One respondent stated 
that this provision should be dropped because there is no connection 
between the applicable forest plan and activities covered by the 
proposed rule and because forest plans are too inflexible to 
accommodate short-term uses. Another stated that the provision is vague 
and has no bearing on time, place, and manner and that when a proposed 
activity is not compatible with the applicable forest plan, the agency 
should change the plan. One respondent stated that the Forest Service 
should not adhere to the applicable forest plan when a group wishes to 
gather on a logging road or unreclaimed clear-cut to protest the 
agency's logging practices. One respondent commented that the proposed 
rule did not mention that the agency is having problems upholding 
standards and guidelines in forest plans. One respondent stated that 
this provision would restrict what type of activities could occur at 
gatherings. Another commented that a group could be denied use of an 
area because of past abuse by other groups.
    One respondent noted that forest plans do not expressly limit or 
prohibit group uses but merely set overall guidelines for applying 
specific environmental and performance standards, with which group uses 
must conform. This respondent stated that it is the agency's duty to 
inform applicants of all relevant forest plan provisions and to ensure 
consistency of proposed activities with standards and guidelines in 
forest plans.
    One respondent stated that this provision does not contain specific 
and objective standards for ensuring consistency with forest plans. 
Another respondent commented that this provision as written could 
indirectly allow restrictions on use based on the content of expressive 
activity. This respondent suggested that the agency clarify the 
provision to require consistency of the proposed activity with the 
management restrictions for the proposed area under the applicable 
forest plan.
    Response. The Department agrees that forest plans do not prohibit 
authorization of noncommercial group uses. Rather, forest plans set 
standards and guidelines with which all uses of National Forest System 
lands, including authorization of noncommercial group 

[[Page 45280]]
uses, must conform. Thus, requiring that authorization of noncommercial 
group uses be consistent or can be made consistent with the standards 
and guidelines in forest plans for the national forests is a valid 
time, place, and manner restriction.
    The National Forest Management Act (NFMA) requires that ``permits * 
* * and other instruments for the use and occupancy of National Forest 
System lands shall be consistent with the land management plans'' (16 
U.S.C. 1604(i)). This provision is content-neutral. A proposed activity 
is consistent with a forest plan if it adheres to a plan's standards 
and guidelines that are forest-wide or that are included in management 
prescriptions for the specific management areas where the activity will 
occur. Standards and guidelines in forest plans describe any activities 
that are not permitted to occur in a specified area or prescribe how 
activities must be implemented for environmental protection or other 
purposes.
    Forest plans are developed in accordance with the rules at 36 CFR 
part 219 and adopted following extensive public participation and 
comment. It is not practicable to write a forest plan that can 
accommodate every conceivable use at every conceivable site at every 
conceivable time of the year. The standards and guidelines in forest 
plans apply to all instruments for the use and occupancy of National 
Forest System lands, from timber sale contracts to grazing permits, 
regardless of whether the activity involves the expression of views. In 
reviewing an application for a noncommercial group use, an authorized 
officer will determine whether authorization of the proposed activity 
at the time and place requested is consistent or can be made consistent 
with the applicable forest plan based on the information provided under 
Secs. 251.54(e)(2)(i) (A) through (e)(2)(i)(E).
    NFMA requires that permits and other instruments for use and 
occupancy of National Forest System lands be consistent with the 
applicable Forest plan (16 U.S.C. 1604(i)). The Department has added 
``authorization of'' before ``the proposed activity'' in 
Sec. 251.54(h)(1)(ii) of the final rule to reflect the requirement in 
NFMA that authorization of the proposed activity, rather than the 
authorized activity itself, be consistent with the applicable forest 
plan.
    Comment. Section 251.54(h)(1)(iii) of the proposed rule required an 
authorized officer to determine that a proposed activity would not 
delay, halt, or prevent administrative use of an area by the Forest 
Service or other scheduled or existing uses or activities on National 
Forest System lands, including but not limited to uses and activities 
authorized pursuant to parts 222, 223, 228, and 251 of this chapter.
    Approximately 35 respondents commented on this provision. Eight 
respondents commented that this provision is vague generally and gives 
an authorized officer too much discretion. Specifically, these 
respondents stated that denying a permit because it conflicts with 
another use or because it cannot reasonably be accommodated at the time 
and place requested allows for two much discretion on the part of the 
authorized officer; that the provision should be dropped because it is 
no better than a similar criterion that was struck down by the court in 
the Rainbow Family case; that under United States v. Rainbow Family, 
695 F. Supp. at 312 n.6, this provision vests too much discretion in 
the authorized officer to propose an alternate time or place; that the 
agency could ensure that administrative uses are always scheduled at 
the same time as any proposed activity or deem existing or scheduled 
uses to be incompatible with the proposed activity, even if they are 
not; that this provision would allow the Forest Service to deny a 
permit if the agency thinks that a proposed activity, such as a group 
protest or distribution of literature at or near a recreation, logging, 
or mining site, might interfere with any other uses or activities; that 
it is unclear how a determination could be made without regard to the 
content of expressive activity; that under a worst-case scenario, this 
provision could induce an authorized officer to deny access to a site; 
and that the examples given in the preamble of the proposed rule of how 
this criterion would be applied are insufficient to remove the 
vagueness in its wording.
    One respondent stated that statutes and other regulations exist to 
deal with conflicts among users, such as 18 U.S.C. 1863, which allows 
the agency to restrict access to areas of the national forests, 36 CFR 
part 261, which allows the agency to issue orders restricting certain 
types of conduct, and 36 CFR 251.54(i)(1), which allows the agency to 
avoid conflicts among commercial uses and activities.
    Six respondents commented that often minor changes can be made to 
scheduled and existing uses to avoid conflicts with proposed 
activities. Two respondents commented that minor, temporary 
arrangements are easily made and have been made many times by prior 
informal agreement to address the question of allocation of space. One 
of these respondents stated that forest plans are built on the concept 
of balancing interests in an ongoing multiple-use scenario, but that 
the regulations blurs the fundamental difference between permanent or 
consumptive uses and transitory group uses, which by their nature do 
not compete with other uses and activities for use of National Forest 
System lands.
    Six respondents commented that the exercise of constitutionally 
protected rights should have priority over all other uses. One of these 
respondents felt that the interests of thousands of people should take 
precedence over the grazing of cattle. Four others stated that 
gatherings have proceeded after negotiation and development of 
operating plans, but that if these plans fail, a court order might be 
appropriate.
    Twelve respondents stated that other uses are given priority over 
the exercise of constitutionally protected rights. One of these 
respondents stated that a permit for a gathering could be denied if a 
timber sale or grazing were scheduled for the same time and place. 
Another noted that cattle were moved to accommodate the 1984 Rainbow 
Family Gathering.
    One respondent commented that this provision is unnecessary because 
there are no conflicts among Rainbow Family members. Another stated 
that no group, including the Rainbow Family, would camp in areas where 
logging activities are in progress. One respondent commented that the 
rationale of avoiding traffic congestion is inadequate because there 
are no traffic jams in the national forests.
    Three respondents stated that those who gather should be respectful 
of others.
    Response. The Department believes that this criterion is narrowly 
tailored and specific and that it constitutes a valid restriction on 
time, place, and manner. In contrast, the rule struck down in United 
States v. Rainbow Family provided that an application for a First 
Amendment activity could be denied if the activity conflicted with a 
previously approved use or if it would be of such nature or duration 
that it could not reasonably be accommodated at the place and time 
requested (49 FR 25449).
    To address the court's concern, the Department has abandoned the 
unconstitutionally vague criterion that allowed an authorized officer 
to deny an application for a noncommercial group use on the grounds 
that it cannot reasonably be accommodated in the time and place 
requested or that the proposed use might interfere or be 

[[Page 45281]]
incompatible with scheduled or existing uses.
    In contrast to the earlier rule, under Sec. 251.54(h)(1)(iv) of the 
final rule, an application may be denied only if the proposed activity 
would delay, halt, or prevent administrative use of an area by the 
Forest Service or other scheduled or existing uses or activities on 
National Forest System lands. This narrow, specific, content-neutral 
criterion is intended to allow the Forest Service to allocate space in 
a manner that is both fair and consistent with the agency's multiple-
use mission. The intent is not to prevent demonstrations; the intent is 
to ensure that demonstrations can coexist with other authorized uses 
and activities on National Forest System lands, including endangered, 
threatened, or other plant and animal species.
    Moreover, under this rule the Forest Service cannot manipulate 
administrative use of an area to ensure that this use coincides with a 
proposed activity to which some might object. Administrative use of an 
area by the Forest Service is based on actual need.
    In the proposed rule, the agency provided specific examples of how 
a proposed activity could delay, halt, or prevent scheduled or existing 
uses and activities for purposes of this criterion. Specifically, under 
Sec. 251.54(h)(1)(iv) of the final rule, an authorized officer might 
require a large group to alter arrival and departure times or to use an 
alternative access route to avoid congestion. On the opening day of 
fishing season, an authorized officer might suggest a site removed from 
popular fishing areas for the same reason. This criterion also allows 
the Forest Service to ensure that a group is not authorized to use a 
site that is already being used as pastureland under a grazing permit 
or that is currently being logged under a timber sale contract.
    The Forest Service has had difficulty in allocating space among 
noncommercial group uses and other uses and activities on National 
Forest System lands. While the Forest Service has generally resolved 
these types of conflicts successfully, the agency has had to expend 
considerable time and resources in the effort. The Department believes 
that these types of problems can be solved more efficiently, more 
effectively, and more fairly through the issuance of special use 
authorizations for all special uses, including noncommercial group 
uses.
    One example of this type of allocation problem occurred at the 1992 
Rainbow Family Gathering. One of the main access roads to the site of 
the 1992 gathering was scheduled to be used as a timber hauling route 
during the gathering. Because of the amount of traffic associated with 
the gathering, the Forest Service believed that the safety hazard was 
too high to allow logging trucks to use the access road. Consequently, 
the agency required the timber purchaser to use an alternate haul 
route, which resulted in higher costs to the timber purchaser and 
potentially higher costs to the government. As shown by the reports on 
the 1991 and 1992 Rainbow Family Gatherings, parking and traffic 
congestion are additional transportation issues associated with large 
group gatherings at sites with limited access.
    At the 1992 Rainbow Family Gathering, the Forest Service specified 
that parking would not be allowed at a particular site because of 
safety risks (the site was located on a timber haul route) and prior 
agency commitments made to other users (livestock was scheduled to use 
the site). Ample alternative parking closer to the gathering was 
available. Nevertheless, the Rainbow Family directed gatherers to the 
site. By the time the Forest Service issued an order closing the site 
to parking and camping, 91 vehicles were parked at the site. Forest 
Service officials explained the agency's reasons for issuing the 
closure order at a council meeting of approximately 50 members of the 
Rainbow Family. Although more than half the vehicles were removed by 
the next day, 20 to 30 Rainbow Family members staged a civil 
disobedience protest of the closure order. Gatherers continued to 
remove vehicles from the area gradually, but the agency had to tow five 
vehicles from the site. The Department believes that this type of 
problem could be prevented or more quickly resolved through the special 
use authorization process.
    In addition to this parking problem, in July 1993, a group called 
``We The People'' selected for a gathering a site that had been 
authorized since 1955 for use by the Mississippi National Guard for 
military training purposes. Within the permitted area of 45,000 acres 
were significant amounts of unexploded ordnance. ``We The People'' 
chose to camp near an area where the National Guard was performing tank 
maneuvers. The group selected the site in order to protest use of the 
national forests for military training and exercises. The management 
challenge faced by the Forest Service was how to allow the group to 
conduct its protest without sustaining serious injury and without 
preventing the National Guard from exercising its privileges under its 
special use authorization. After several days of negotiations and 
coordination among all concerned parties, the gathering and protest 
occurred without conflict with the National Guard or injuries to either 
group.
    These examples illustrate the kind of conflicts that can occur 
among uses and the need for a special use authorization process for 
noncommercial group uses to resolve those conflicts more quickly and 
effectively. Making minor changes or entering into informal agreements 
is an inadequate or inefficient way to resolve issues pertaining to 
allocation of space for all uses and activities on National Forest 
System lands. Other laws and regulations, particularly regulations such 
as 36 CFR 251.54(i)(1), which do not apply to noncommercial activities, 
do not give the Forest Service notice of the issues addressed in 
Sec. 251.54(h)(1)(iv) of the final rule and thus do not allow the 
agency to allocate space fairly among competing uses and activities. A 
special use authorization process gives the agency a managerial tool to 
address these problems more expeditiously, more effectively, and more 
equitably.
    Section 251.54(h)(1)(iv) of the final rule does not give the 
authorized officer too much discretion to propose an alternate time and 
place. The criterion in the 1984 rule struck down by the court in the 
Rainbow Family case was unconstitutionally vague and overbroad in that 
it allowed an authorized officer to deny an application if it could not 
reasonably be accommodated at the time and place requested. In footnote 
6 of the opinion, the court's point was that providing for an 
alternative site or time if an application was denied under this 
criterion could not cure its constitutional infirmity. 695 F. Supp. at 
312 n.6. The court quoted Schneider v. State, 308 U.S. 147 (1939), for 
the proposition that ``[o]ne is not to have the exercise of his liberty 
of expression in appropriate places abridged on the plea that it may be 
exercised in some other place.'' Id. at 163 (emphasis added). If the 
provision in question is, like Sec. 251.54(h)(1)(iv) of the final rule, 
a valid time, place, and manner restriction and the site requested does 
not meet that restriction, providing that an alternative site or time 
will be offered enhances rather than diminishes the constitutionality 
of the rule. Providing for alternative sites and times ensures that 
ample alternative channels will be available for communication of 
information, as required by Clark v. CCNV.
    The Forest Service is charged with managing the resources of the 
National Forest System for multiple uses. MUSY authorizes the Forest 
Service to manage 

[[Page 45282]]
commercial and noncommercial uses of National Forest System lands (16 
U.S.C. 528-531). The Department believes that all special uses, 
commercial and noncommercial, both involving and not involving the 
expression of views, should be treated consistently and fairly.
    The Department does not intend to give priority to any use or 
activity in processing applications under this rule. Applications for 
special use authorizations will be processed in order of receipt under 
Sec. 251.54(f)(5) of the final rule, and the use of a particular area 
will be allocated in order of receipt of fully executed applications, 
subject to any relevant limitations in Sec. 251.54.
    Comment. Section 251.54(h)(1)(iv) of the proposed rule required an 
authorized officer to determine that a proposed activity would not pose 
a substantial danger to public health. Considerations of public health 
were limited to the following with respect to the proposed site:
    (a) The sufficiency of sanitation facilities;
    (b) The adequacy of waste-disposal facilities;
    (c) The availability of sufficient potable drinking water, in view 
of the expected number of users and the duration of use;
    (d) The risk of disease from the physical characteristics of the 
proposed site or natural conditions associated with the proposed site;
    (e) The risk of contamination of the water supply; and
    (f) The sufficiency of a plan for safe handling of food.
    Approximately 45 respondents commented on this provision. Seven 
respondents commented that the public health concerns addressed in this 
provision are beyond the responsibility or competence of the Forest 
Service (although one noted that contamination of the water supply is a 
legitimate agency concern). Another respondent stated that this 
provision is unnecessary because the local health department handles 
public health issues.
    Eight respondents commented that this provision is too 
paternalistic, that individuals should be responsible for their own 
health, and that the agency should leave it up to individuals to decide 
what kind of health risks they want to take when they use National 
Forest System lands. One of these respondents commented that forest 
visitors know what they need to survive and that if a site cannot 
provide it, they will go elsewhere. Another one of these respondents 
stated that this provision could be used to deny the application of a 
group that has different sanitary requirements from what would be 
considered acceptable in mainstream American society.
    One respondent noted that while the public health concerns 
addressed in this provision are typically under the jurisdiction of 
local health departments, they are also, depending on the 
circumstances, under the jurisdiction of local Forest Service 
personnel. This respondent stated that this provision is directly 
applicable to the protective mandate of the agency and contains 
important and legitimate standards of performance.
    Another respondent stated that the water supply should not be 
contaminated by noncommercial group uses and that waste disposal 
facilities should be adequate for these activities.
    One respondent felt that activities that pose a substantial danger 
to public health are a concern of government, that the risk of disease 
is an important matter, that contamination of the water supply should 
be a major focus of government agencies, and that food should be 
handled in a safe way, but that a permit process is not required to 
address these concerns. Three respondents commented that other laws, 
regulations, and standards exist to deal with public health problems, 
such as 36 CFR 251.54(h)(2) of the current rules, which allows the 
agency to deny a special use authorization if the proposed activity 
would present a clear and present danger to public health, 16 U.S.C. 
551a, which allows the agency to cooperate with state and local law 
enforcement authorities, and forest plans and public health codes, 
which address the risk of disease.
    One respondent stated that this criterion is unnecessary because 
the Forest Service adequately notifies forest visitors of the 
potability of water in the national forests. Two respondents stated 
that only minimal assurances are necessary for safe sanitation 
facilities, availability of safe drinking water, and safe food handling 
procedures, such as assurances to bury human waste away from the water 
supply, to truck in water from a nearby town, and to wash hands before 
eating or preparing meals. One of these respondents stated that 
satisfaction of these requirements would be so easy that they should be 
omitted as burdensome and unnecessary. One respondent stated that 
proper food handling is a matter of common sense.
    Sixteen respondents stated that this provision is too vague and 
leaves too much discretion to the authorized officer. These respondents 
commented that this provision is no better than a similar provision 
struck down by the court in the Rainbow Family case; that objective 
standards are not specified, leaving too much room for interpretation, 
and that it is unclear how a determination could be made without regard 
to content; that ``substantial danger,'' ``sufficiency of sanitation,'' 
``adequacy of waste disposal,'' ``availability of sufficient potable 
drinking water,'' ``risk of disease,'' ``risk of contamination,'' and 
``sufficiency of a plan for safe handling'' are too vague and that the 
agency should use concrete numerical requirements for facilities based 
on the size of the group, the length of stay, and the characteristics 
of the site; that this provision is so broad as to provide a basis for 
denial of any permit; that this provision could unreasonably require 
portable toilets for waste disposal, which are more expensive than 
covered slit-trench latrines and which some groups might not be able to 
afford; that the risk of disease could be construed unjustifiably to 
prohibit a large group from using a meadow littered with cow dung from 
grazing; that a plan for safe handling of food could require 
unnecessary detail or prohibit individual food preparation; that a 
group should not need a plan for making peanut butter sandwiches or 
popcorn; that no church picnic would be authorized if the requirement 
for a plan for safe handling of food were applied indiscriminately, and 
that in reality, this provision would be selectively enforced to 
prevent counterculture groups from distributing food to the needy; and 
that it is impossible to ensure compliance with these standards prior 
to a noncommercial group use.
    One respondent stated that this provision would require all groups 
to have an attorney, licensed food handler, trained medical staff, and 
environmental specialist. One respondent suggested that the agency 
specify who will review plans for the safe handling of food, who will 
assess the risk of disease, and who will disseminate assessments of 
these public health concerns, as well as how the agency's 
recommendations on these issues will be enforced. This respondent also 
suggested that the agency specify the ratio of people per latrine 
required under this provision.
    Two respondents suggested that the agency key this provision to 
specific standards by requiring adherence of the proposed activity with 
applicable state and local health regulations.
    Response. The Department agrees that the public health 
considerations addressed in Sec. 251.54(h)(1)(v) of the final rule are 
important and that it is appropriate to address these concerns in this 
rulemaking. The Forest Service has 

[[Page 45283]]
a general mandate to address concerns of public health in regulating 
use and occupancy of National Forest System lands (16 U.S.C. 551; 36 
CFR 251.55(d)(3), 251.56(a)(1)(iv), 251.56(a)(2)(iv), 
251.56(a)(2)(vii)).
    Moreover, as the court held in the Rainbow Family case, it is a 
reasonable time, place, and manner restriction to require that 
noncommercial group use of the national forests not threaten the public 
health or welfare. 695 F. Supp. at 329 (citing Grayned v. City of 
Rockford, 408 U.S. 104, 113-16 (1972); Kovacs v. Cooper, 336 U.S. 77, 
83, 86-87 (1949); De Jonge v. Oregon, 299 U.S. 364-65 (1937); Schenck 
v. United States, 249 U.S. 47, 52 (1919)). In United States v. Rainbow 
Family, the court required compliance with discrete health and 
sanitation provisions that addressed the same public health concerns 
enumerated in Sec. 251.54(h)(1)(v) of the final rule. 695 F. Supp. at 
330-52.
    As shown by the reports on the 1991 and 1992 Rainbow Family 
Gatherings, the Forest Service works with local health department 
officials to address concerns of public health that arise in connection 
with large group gatherings on National Forest System lands. The 
Department believes that a special use authorization process is needed 
to handle public health issues associated with large group use of the 
national forests. Other regulations, particularly 36 CFR 251.54(h)(2) 
of the current rules, which the court in the Rainbow Family case struck 
down for vagueness, do not provide the framework necessary for applying 
public health standards to noncommercial group uses.
    The shigellosis outbreak at the 1987 Rainbow Family Gathering is 
one example of the type of problem that could be prevented or more 
effectively controlled through a special use authorization process. 
Although the Forest Service posted water sources and bulletin boards at 
the site with notices to boil water for at least 30 minutes, many 
people drank the water without boiling it. The Department believes that 
by allowing the Forest Service to address this type of public health 
issue before a noncommercial group use takes place, the application and 
permitting process will enhance the agency's ability to communicate 
concerns about this type of issue to groups and thus prevent serious 
health risks.
    The 1984 group uses rule allowed an authorized officer to deny an 
application for a noncommercial group use if it presented a clear and 
present danger to public health (49 FR 25449). The court in the Rainbow 
Family case struck down this language because it was too vague and 
allowed for too much discretion on the part of the authorized officer. 
695 F. Supp. at 311.
    Section 251.54(h)(1)(v) of the final rule corrects this deficiency 
by restricting the authorized officer's review to concrete, content-
neutral considerations of public health associated with the site 
proposed by the applicant. The Department intends to apply this 
provision uniformly and fairly as required by law, based on an 
objective assessment of each application.
    The Department agrees that the considerations of public health in 
this provision should be keyed to specific standards by requiring 
adherence of the proposed activity with applicable state and local 
public health laws and regulations. Consequently, the Department has 
revised this criterion to provide that an authorized officer must 
determine that the proposed activity does not violate state and local 
public health laws and regulations as applied to the proposed site. 
Issues addressed by state and local public health laws and regulations 
as applied to the proposed site included but are not limited to the 
specific considerations of public health in Sec. 251.54(h)(1)(v) of the 
final rule.
    Section 251.54(h)(1)(v) of the final rule does not require that 
applicants retain experts on public health issues or make a 
determination with respect to the public health considerations listed 
in that provision. Applicants merely have to submit an application that 
provides the basic information required in Secs. 251.54(e)(2)(i)(A) 
through (e)(2)(i)(E). An authorized officer will then evaluate whether 
the proposed activity violates state and local public health laws and 
regulations as applied to the site identified in the application. To 
clarify intent, the Department has removed Sec. 251.54(h)(1)(iv)(F) of 
the proposed rule, which listed the sufficiency of a plan for safe 
handling of food as one consideration of public health, because it is 
not clear that an authorized officer could apply state and local law on 
this subject solely on the basis of the information provided in an 
application.
    The Department has substituted ``sufficiency'' for ``adequacy'' in 
Sec. 251.54(h)(1)(v)(B) of the final rule to make that provision 
consistent with the terms used in Secs. 251.54(h)(1)(v) (A) and (C). In 
Sec. 251.54(h)(1)(v)(C) of the final rule, the Department has deleted 
the phrase ``in view of the expected number of users and duration of 
use.'' The Department believes that this phrase is redundant because of 
use of the word ``sufficient'' in Sec. 251.54(h)(1)(v)(C).
    Comment. Section 251.54(h)(1)(v) of the proposed rule required an 
authorized officer to determine that the proposed activity would not 
pose a substantial danger to public safety. Considerations of public 
safety did not include concerns about possible reaction to the users' 
identity or beliefs from non-members of the group that is seeking 
authorization and were limited to the following:
    (a) The potential for physical injury to other forest users from 
the proposed activity;
    (b) The potential for physical injury to users from the physical 
characteristics of the proposed site or natural conditions associated 
with the proposed site;
    (c) The potential for physical injury to users from scheduled or 
existing uses or activities on National Forest System lands; and
    (d) The adequacy of ingress and egress in case of an emergency.
    Approximately 33 respondents commented on this provision. One 
respondent commented that the agency lacks the ability to make an 
informed decision on this criterion. Another respondent stated that 
although the agency may have knowledge of problems pertaining to public 
safety that applicants do not possess, that knowledge should not be the 
basis for denying a permit to use the national forests. This respondent 
added that it is not common sense to plan an activity that is intended 
to cause physical injury to others or to oneself and that a horse race 
or water skiing planned for a site selected for a gathering could pose 
a problem, but that this type of conflict does not occur. One 
respondent noted that it is appropriate to consider the potential for 
injury to other forest users from a proposed activity.
    Three respondents believe that this provision is too paternalistic. 
One of these respondents commented that it could be used to deny a 
permit to a group that has different safety requirements from what 
would be considered acceptable in mainstream American society, 
particularly with respect to the potential for injury to forest users 
from characteristics or conditions of the site. Another one of these 
respondents commented that some groups want inaccessible, secluded 
areas. Another stated that people should be able to make their own 
decisions about safety issues.
    Three respondents stated that this provision is unnecessary because 
the national forests are a known environment. Specifically, these 
respondents stated that ensuring adequacy of ingress and egress is 

[[Page 45284]]
unnecessary since individuals participating in group uses are generally 
aware of the rugged conditions in the national forests and the 
challenges they present; and that forest users heed safety concerns in 
selecting sites and planning activities and that forest users have the 
requisite wilderness experience to know about potential dangers in the 
national forests.
    Seven other respondents believe that this provision is unnecessary. 
Six of these respondents stated that there have not been any safety 
problems associated with group uses; that large groups would have a 
better sense than individuals of safety hazards in the national 
forests; that the Rainbow Family handles safety issues themselves; that 
the Rainbow Family Gatherings are safer each year; and that it is 
unclear why adequacy of ingress and egress is more of an issue with 25 
or more people than it is with fewer than 25 people.
    One of these six acknowledged that while the agency incurs costs 
associated with accidents occurring on National Forest System lands, 
these costs are within the scope of the agency's normal operations, and 
the threat of an accident on National Forest System lands imposes no 
legal or financial liability on the Forest Service. Therefore, this 
respondent concluded that the agency has no need to issue permits based 
on that threat. This respondent also commented that issuance of a 
permit would carry an implicit guarantee of health and safety, thereby 
imposing liability on the agency for any accidents that occur during a 
group activity and forcing the agency to carry liability insurance at 
considerable public cost.
    Approximately 19 respondents feel that this provision is too vague, 
broad, and subjective and would give the authorized officer too much 
discretion in determining the nature of the substantial danger 
associated with the proposed site. These respondents stated that 
determinations of the substantial danger to public safety would be 
completely arbitrary because the criteria are undefined and because 
there is no indication of the type of site that would be unsafe; that 
this provision is so broad as to provide a basis for denial of any 
permit; that this provision fails to take into account the basic 
attributes of National Forest System lands, which are primarily 
undeveloped and natural; that virtually every location in the National 
Forest System could be construed as posing some risk to public safety; 
that it is unclear how a determination could be made under this 
provision without regard to content; that the use of the word 
``potential'' gives the authorized officer too much discretion; that 
the broad use of the word ``potential'' allows the agency to use petty 
discrepancies in activities as a pretext to establish a substantial 
danger to public safety; that the provision is silent on the degree of 
potential danger that would warrant denial of a permit; that it is 
unclear how the potential for physical injury to other users is 
measured and what that injury might be; that ``potential for physical 
injury'' and ``adequacy of ingress and egress in case of an emergency'' 
are too vague and allow for too much discretion; that the provision on 
adequacy of ingress and egress could be used to bar users from remote 
sites; that consideration of the potential for injury from the physical 
characteristics of the proposed site or natural conditions associated 
with the proposed site could justify denial of a permit if there are 
cliffs that one person might fall from or a lake that one person might 
drown in; that consideration of the potential for injury to users from 
scheduled or existing activities is too vague and not a problem in the 
case of mining or logging because no one would want to gather where 
those activities were occurring and if they did, other regulations 
would address any safety concerns that might arise; that it is unclear 
how merely regulating where an activity takes place restricts the 
agency's discretion in reviewing applications; and that a determination 
of what makes a site dangerous or unsafe for a gathering should be 
published with the rule.
    Response. The Department believes that it is appropriate to address 
issues of public safety in this rulemaking. The Forest Service has a 
general mandate to address concerns of public safety in regulating use 
and occupancy of National Forest System lands (16 U.S.C. 551; 36 CFR 
251.55(d)(3), 251.56(a)(1)(iv), 251.56(a)(2)(iv), 251.56(a)(2)(vii)).
    Moreover, as the court in the Rainbow Family case held, it is a 
reasonable time, place, and manner restriction to require that 
noncommercial group use of the national forests not threaten the public 
welfare. 695 F. Supp. at 329 (citing Grayned v. City of Rockford, 408 
U.S. 104, 113-16 (1972); Kovacs v. Cooper, 336 U.S. 77, 83, 86-87 
(1949); De Jonge v. Oregon, 299 U.S. 364-65 (1937); Schenck v. United 
States, 249 U.S. 47, 52 (1919)).
    The Department believes that this public safety provision is needed 
because proposed activities may pose a substantial danger to public 
safety, depending on the nature of the activity, its proximity to other 
uses and activities, the physical characteristics of the proposed site, 
and natural conditions associated with the proposed site.
    For example, the Forest Service might deny an application and 
suggest another site if a group wanted an authorization to conduct a 
riflery contest near a heavily used campsite or picnic area. If a group 
wanted an authorization to ignite a fireworks display, the agency might 
deny the application because of the risk of a forest fire. These 
examples illustrate the types of activities that would constitute a 
substantial danger to public safety based on the likelihood of physical 
injury to other forest users from these activities.
    The Forest Service might deny an application and suggest another 
site if a group selected an area near a major highway or an area 
scheduled to be logged under a timber sale contract. The agency might 
deny an application and suggest another site if a group chose an area 
accessed only by the same narrow, winding road with blind curves used 
by trucks hauling timber from a timber sale or talcum from an active 
mine. This issue, in fact, arose in connection with the 1992 Rainbow 
Family Gathering, where one of the sites selected was unsafe because it 
was located on a timber haul route. These examples illustrate the types 
of activities that would constitute a substantial danger to public 
safety based on the likelihood of physical injury to users from the 
physical characteristics of the proposed site or natural conditions 
associated with the proposed site.
    The Forest Service also might deny an application and suggest an 
alternate site if a group selected an area being used for tank 
maneuvers or an area riddled with unexploded ordnance. This concern 
arose in connection with the gathering held by ``We The People'' on 
National Forest System land in Mississippi in July 1993. These examples 
illustrate the types of activities that would constitute a substantial 
danger to public safety based on the potential for physical injury to 
users from scheduled or existing uses or activities on National Forest 
System lands.
    The agency might deny an application and suggest another site if 
roads accessing the site were inadequate to evacuate a large group in 
case of an emergency, such as a forest fire or a flash flood. This 
example illustrates the type of activity that would constitute a 
substantial danger to public safety based on the inadequacy of ingress 
and egress in case of an emergency.
    The Department's intent is not to prevent use of remote areas or to 
prevent gatherings and demonstrations. 

[[Page 45285]]
Rather, the Department's intent, as specified in the final rule, is to 
allow noncommercial groups to coexist with other authorized uses and 
activities on National Forest System lands without posing a substantial 
danger to public safety.
    The Forest Service's handling of the gathering and protest held by 
``We The People'' in July 1993 demonstrates the agency's ability to 
carry out this intent. After several days of negotiations and 
coordination among all concerned parties, ``We The People'' was able to 
conduct its gathering and protest without sustaining injury from the 
unexploded ordnance in the vicinity or from the tank maneuvers being 
conducted by the National Guard nearby.
    Although the Forest System successfully resolved the conflicts 
among these users, the agency had to expend considerable time and 
resources in the effort. The Department believes that these types of 
problems can be solved more efficiently, more effectively, and more 
fairly through the issuance of special use authorizations for all 
special uses, including noncommercial group uses.
    The Department believes that an application and permitting process 
will enhance the Forest Service's ability to allow noncommercial groups 
and other authorized uses on National Forest System lands to coexist 
without posing a substantial danger to public safety. Other regulations 
do not provide the framework necessary for applying the specific 
considerations of public safety contained in this rule to noncommercial 
group uses. In particular, other regulations do not ensure that the 
Forest Service will have notice of noncommercial group uses and 
therefore do not allow the agency to address these considerations as 
expeditiously, effectively, and equitably.
    The Forest Service does not ensure public health and safety on 
National Forest System lands, either explicitly or implicitly, through 
issuance of a special use authorization or otherwise. The agency does, 
however, address public health and safety issues as part of its 
statutory and regulatory mandate in administering use and occupancy of 
National Forest System lands. Since the United States is self-insured, 
the Forest Service's issuance of special use authorizations does not 
impose additional insurance costs on the agency.
    The Department believes that Sec. 251.54(h)(1)(vi) of the final 
rule is narrowly tailored and specific and that it constitutes a valid 
restriction on time, place, and manner. In contrast, the 1984 rule 
struck down in United States v. Rainbow Family provided that an 
application for a First Amendment activity could be denied if the 
activity presented a clear and present danger to the public health or 
safety (49 FR 25449). To address the court's concern, the Department 
has abandoned the unconstitutionally vague criterion that allowed an 
authorized officer to deny an application for a noncommercial group use 
on the ground that it presented a clear and present danger to the 
public health or safety. Thus, under Sec. 251.54(h)(1)(vi) of the final 
rule, an application may not be denied merely because of the 
possibility of personal injury at a proposed site or in connection with 
a proposed activity. An application for a company picnic near a lake 
cannot be denied, for example, merely because an authorized officer 
thinks that someone at the picnic might drown in the lake.
    In contrast to the earlier rule, under Sec. 251.54(h)(1)(vi) of the 
final rule an application may be denied only if the proposed activity 
poses a substantial danger to public safety. Considerations of public 
safety are limited in the final rule to specific, content-neutral 
criteria concerning the nature of the proposed activity, its proximity 
to other use and activities, the physical characteristics of the 
proposed site, and natural conditions associated with the proposed 
site. Considerations of public safety in the final rule do not include 
concerns about possible reaction to the users' identity or beliefs from 
non-members of the group that is seeking an authorization.
    The Department believes that it is not practicable to make a 
determination in this rule as to how these factors would apply to every 
conceivable noncommercial group uses and every conceivable site 
suitable for a noncommercial group use at any conceivable time of the 
year. Instead, the Department has given specific examples of how each 
of these factors will be applied to applications for noncommercial 
group uses. The Department believes that the Forest Service's 
experience in managing the national forests and its knowledge of 
National Forest System lands enable the agency to apply these specific, 
content-neutral criteria based on the information submitted in 
applications for noncommercial group uses.
    Having considered the comments received, the Department has 
retained without substantive change in the final rule 
Sec. 251.54(h)(1)(v) from the proposed rule.
    Comment. Section 251.54(h)(1)(vi) of the proposed rule required an 
authorized officer to determine that a proposed activity did not 
involve military or paramilitary training or exercises by private 
organizations or individuals unless such training or exercises were 
federally funded.
    Eight respondents commented on this provision. One respondent 
stated that if this type of military or paramilitary activity is 
already prohibited, then it does not have to be prohibited again. One 
respondent commented that this provision is a general prohibition with 
no bearing on the regulation of time, place, or manner.
    Two respondents stated that the federal government should not 
exempt itself from its own regulations. One of these respondents stated 
that this provision gives official military activities a preemptive or 
exclusive right of access to the national forests. Three respondents 
commented that there should be no military or paramilitary training on 
national forests. One of these respondents stated that this provision 
authorizes exercises by police S.W.A.T. units and by the Drug 
Enforcement Administration and training of counterinsurgents for 
political terrorism. Another stated that the Forest Service could deny 
a permit for government troops to train in the national forests.
    One respondent commented that this provision is too vague and broad 
and could be used to bar such paramilitary groups as football teams, 
the Salvation Army, Rainbow Hug Patrols, or the Boy Scouts of America 
or to bar such activities as aikido, tai chi, or nonviolence training 
for civil disobedience.
    Response. The Forest Service Manual prohibits non-federally funded 
military or paramilitary training or exercises by private organizations 
or individuals because this type of use is often potentially damaging 
to forest resources and may endanger other users of National Forest 
System lands. The agency authorizes military or paramilitary training 
or exercises by governmental entities and federally funded military or 
paramilitary training or exercises by private organizations or 
individuals because when conducted under such auspices, this type of 
use is justified for national security purposes and is not as dangerous 
to other users of National Forest System lands.
    Section 251.54(h)(1)(vii) of the final rule incorporates 
longstanding agency policy and gives it the force and effect of law. 
Section 251.54(h)(1)(vii) of the final rule provides the framework 

[[Page 45286]]
necessary for applying this policy to noncommercial group uses.
    The rule does not apply to official U.S. military activities, nor 
does it grant a preemptive or exclusive right of access for 
paramilitary uses of the national forests. Under Sec. 251.54(f)(5) of 
the final rule, applications will be processed in order of receipt, and 
the use of a particular area will be allocated in order of receipt of 
fully executed applications, subject to any relevant limitations in 
Sec. 251.54.
    The Department believes that this is a narrowly tailored 
restriction that has no bearing on the content of expressive activity. 
``Military'' means ``of, relating to, or typical of soldiers or the 
armed forces,'' ``performed or supported by the armed forces,'' or ``of 
or relating to war.'' Webster's II New Riverside University Dictionary 
752 (1984). ``Paramilitary'' means ``of, pertaining to, or designating 
forces organized after a military pattern, esp. as a potential 
auxiliary military force.'' Id. at 852. The Department believes that 
the terms ``military'' and ``paramilitary'' do not apply to groups such 
as football teams, the Salvation Army, Rainbow Hug Patrols, or the Boy 
Scouts of America, or to activities such as aikido, tai chi, or 
nonviolence training for civil disobedience, nor does the Department 
intend to apply these terms to these types of groups or activities for 
purposes of Sec. 251.54(h)(1)(vii) of the final rule. Under current 
policy, for example, adventure games (sometimes called survival or war 
games) are not considered military or paramilitary activities and may 
be authorized [FSM 2724.31].
    Having considered the comments received, the Department has 
retained without substantive change in the final rule 
Sec. 251.54(h)(1)(vi) from the proposed rule.
    Comment. Section 251.54(h)(1)(vii) of the proposed rule required an 
authorized officer to determine that a person or persons 21 years of 
age or older had been designated to sign and did sign a special use 
authorization on behalf of the applicant.
    Approximately 25 respondents commented on this provision. Seven 
respondents stated that no individual could sign a permit on behalf of 
a noncommercial group because each person in a noncommercial group is 
responsible solely for his or her own actions. These respondents stated 
that each person should accept responsibility for his or her use of 
public land; that only commercial activities are organized by an 
individual or entity that can take responsibility for liability and 
mitigation of resource impacts; that most noncommercial groups that use 
the national forests are not structured or legally empowered and that 
any person in those groups who signs a special use authorization 
represents only himself or herself; that it is unfair to hold the 
person who signs a permit accountable for all others in the group and 
that in the case of demonstrations, no one would sign, and the 
requirement would have a chilling effect on speech; and that the agency 
lacks the authority to require that noncommercial groups be constituted 
as legal entities or internally structured to allow compliance with the 
agency's rules, and that a group that operates by consensus is not a 
legal entity, but is merely an assemblage of individuals who are 
entirely seft-responsible under the law.
    Fourteen respondents commented specifically that the Rainbow Family 
cannot comply with the signature requirement because no individual 
member speaks for the group and because each person is responsible for 
his or her own actions. These respondents stated that the signature 
requirement violates Rainbow Tribal Council traditions; that the 
signature requirement forces the Rainbow Family to choose between 
upholding its philosophy or maintaining its existence in that if the 
group complies with the requirement, it violates its principles, and if 
the group ignores the requirement, the agency can break up the 
gathering; that the Forest Service has never had any problem contacting 
the Rainbow Family; that the Rainbow Family is peaceful and cooperative 
and poses no threat to the Forest Service; that the Rainbow Family has 
met with local authorities in advance, helped prepare operating plans, 
and left sites in a clean and natural state; that the agency has always 
had reliable contacts at Rainbow Family Gatherings and that questions 
have been answered, reasonable requests have been met, and problems 
solved with the cooperation of the Rainbow Family and that the real 
intent of this provision is to isolate leaders from the consensus, make 
them culpable for real or imagined actions of the group, and expose 
them to penalties under the full weight of the law.
    One respondent commented that in view of the history of the rule, 
the agency intends to use this provision to single out individuals for 
harassment.
    One respondent commented that the responsibilities and privileges 
of citizenship are assumed at the age of 18 in most states. Another 
respondent commented that requiring those who sign to be 21 years of 
age or older could prevent persons under the age of 21 from exercising 
their First Amendment rights and suggested lowering the age limit to 18 
or dropping it altogether.
    One respondent stated that this provision is a general prohibition 
with no bearing on time, place, or manner.
    Response. The Department believes that the age limitation in 
Sec. 251.54(h)(1)(viii) of the final rule is a reasonable time, place, 
and manner restriction. The restriction is necessary to ensure that 
those who are designated to sign and who do sign a special use 
authorization on behalf of a group are of the age of legal majority. 
The signature gives the authorization legal effect. If the person or 
persons who sign the authorization are not of the age of legal 
majority, the authorization is not legally enforceable. Since the age 
of legal majority is not the same in every state but in no state 
exceeds the age of 21, the final rule requires that the person or 
persons who are designated to sign and who do sign a special use 
authorization be at least 21 years of age.
    The Department does not believe that this age limitation imposes an 
undue burden on the exercise of First Amendment rights by those under 
the age of 21. The final rule does not prohibit groups of 75 or more 
people under the age of 21 from gathering in the national forests, nor 
does the final rule require that these groups include a person 21 years 
of age or older. Rather, the final rule requires that a person or 
persons 21 years of age or older be designated to sign a special use 
authorization and that that designated person or persons sign an 
authorization on behalf of the group.
    It is not appropriate or necessary for one member or a few members 
of a group to assume personal responsibility for the actions of other 
group members. Individual group members are personally responsible for 
their own actions. A person who signs a special use authorization for a 
noncommercial group use acts as an agent for the group, but does not 
assume personal responsibility for the group's actions.
    However, it is appropriate and necessary to ensure that a group 
will be responsible for the actions of its members as a whole that 
relate to the use and occupancy of National Forest System lands by 
requiring a person or persons to sign a special use authorization as an 
agent or representative of the group. By signing a special use 
authorization on behalf of the group, the agent or representative gives 
the authorization legal effect and subjects the group to the 
authorization's terms and conditions.
    The Forest Service needs to have someone to contact for purposes of 


[[Page 45287]]
special use administration. The authorized officer may have questions 
about the application or may need to notify the applicant in the event 
of an emergency. If the application does not identify a contact person, 
the agency cannot make the appropriate notifications.
    As shown by the reports on the 1991 and 1992 Rainbow Family 
Gatherings, if a group does not designate a representative or 
representatives, the Forest Service has to deal separately with various 
individual members and sub-groups. Informal agreements made with one 
individual member or sub-group are not always respected by other group 
members which makes it difficult for the agency to obtain commitments 
concerning an activity from the group as a whole.
    All groups, both commercial and noncommercial, can and should be 
responsible for the actions of their members as a whole that relate to 
the use and occupancy of National Forest System lands. The Department 
believes that it is both fair and appropriate to apply this provision 
to all applicants, including groups like the Rainbow Family that have 
no leader and that make decisions by consensus. Even if a group has no 
leader, the group can still designate a representative or 
representatives who can sign a special use authorization on behalf of 
the group. (Groups that make decisions by consensus could select a 
representative through that decisionmaking process.)
    As one respondent noted, the court in United States v. Rainbow 
Family held that the Rainbow Family is an unincorporated association 
that can sue and be sued. 695 F. Supp. at 298. The court also held that 
service of process upon the Rainbow Family was properly effected in 
that case by service upon several individuals who acted as agents or 
representatives of the Rainbow Family. Id. Moreover, in 1987, 
representatives of the Rainbow Family signed a consent judgment in a 
suit brought by the Health Director of the State of North Carolina 
against the Rainbow Family for failure to obtain a permit under the 
State's mass gathering statute. It is therefore reasonable to believe 
that the Rainbow Family could designate a person or persons to sign and 
that that person or those persons could sign a special use 
authorization on behalf of the group as provided in 
Sec. 251.54(h)(1)(viii) of the final rule.
    The Department believes that this provision is a narrowly tailored 
restriction that has no bearing on the content of expressive activity. 
The Department intends to apply this requirement consistently and 
fairly as required by law to all applications for noncommercial group 
uses.
    Having considered the comments received, the Department has 
retained without substantive change in the final rule 
Sec. 251.54(h)(1)(vii) from the proposed rule.
    Comment. Section 251.54(h)(2) of the proposed rule provided that an 
authorized officer could deny an application if it did not meet the 
seven evaluation criteria. Under Sec. 251.54(h)(2) of the proposed 
rule, and authorized officer had to notify an applicant in writing of 
the reasons for denial of an application, and denial of an application 
constituted final agency action that was immediately subject to 
judicial review.
    Eight respondents commented on this provision. One respondent 
stated that the ability to deny an application for a noncommercial 
group use gives an authorized officer too much discretion.
    One respondent commented that a denial of an application is not 
appealable. Another respondent stated that access to the courts is 
denied until administrative remedies are exhausted. Two respondents 
stated that this provision is inadequate because it fails to provide 
for administrative review. Two respondents stated that judicial review 
is too expensive for many to pursue. One of these respondents also 
cited the holding in United States v. Rainbow Family that the rule must 
provide for judicial review of the agency's determination. One 
respondent commented that the agency should consider providing for 
alternative dispute resolution instead of judicial review.
    Three respondents stated that an authorized officer can deny an 
application without providing for an alternative time, place, or 
manner. Specifically, these respondents stated that the agency is not 
required to provide ``ample alternative channels'' for the applicant's 
use of public land; that this provision gives the agency authority to 
prevent an activity from taking place; and that ``reasons for the 
denial'' should be replaced with ``reasons to modify the time, place, 
or manner'' of the proposed activity.
    One respondent approved of requiring an authorized officer to 
notify an applicant in writing of the reasons for denial of an 
application.
    Response. Section 251.54(h)(2) of the final rule contains the 
following procedural safeguards:
    (1) an authorized officer must notify an applicant in writing of 
the reasons for denial of an authorization;
    (2) if an application is denied and an alternative time, place, or 
manner will allow the applicant to meet the evaluation criteria, an 
authorized officer must offer that alternative;
    (3) if an application is denied solely because extraordinary 
circumstances do not permit the categorical exclusion to apply to the 
proposed activity and the alternatives suggested are unacceptable, an 
authorized officer must offer to have the requisite environmental 
analysis (EA or EIS) conducted for the activity; if an EA or EIS is 
prepared, the analysis will not be subject to the 48-hour timeframe for 
reviewing applications for noncommercial group uses that do not require 
preparation of an EA or EIS; if an EA or EIS is prepared, the decision 
to grant or deny the application will be subject to the administrative 
appeal process for planning and project decisions at 36 CFR 215 and 
will be made within 48 hours after the decision becomes final under 
that appeal process; and
    (4) a decision to deny an authorization for a noncommercial group 
use is immediately subject to judicial review.
    The Forest Service's ability to deny applications for noncommercial 
group uses is strictly constrained by the narrow, specific, content-
neutral evaluation criteria in Secs. 251.54(h)(1)(i) through 
(h)(1)(viii) and by the limitations in Sec. 251.54(h)(2) of the final 
rule. Under Sec. 251.54(h)(2) of the final rule, if an application is 
denied and an alternative time, place, or manner will allow the 
applicant to meet the evaluation criteria, an authorized officer must 
offer that alternative. Moreover, if an application is denied solely 
because extraordinary circumstances do not permit the categorical 
exclusion to apply to the proposed activity and the alternatives 
suggested are unacceptable to the applicant, an authorized officer must 
offer to have the requisite environmental analysis completed for the 
site. Thus, the final rule leaves open ample alternative channels for 
communication of information.
    The Department does not believe that ``reasons for denial'' should 
be replaced with ``reasons to modify the time, place, or manner'' of 
the proposed activity because it is conceivable that for some proposed 
activities, such as igniting a fireworks display in a national forest, 
an alternative time, place, or manner will not allow the applicant to 
meet the evaluation criteria in the final rule.
    The court in the Rainbow Family case held that the regulation must 
provide for expeditious judicial review of the agency's decision to 
deny an application. 695 F. Supp. at 311. This rule meets that 
requirement by providing that denial of an application 

[[Page 45288]]
under Sec. 251.54(h)(1) constitutes final agency action that is 
immediately subject to judicial review. Exhaustion of administrative 
remedies is not required before seeking redress in the courts.

Section 251.56--Terms and Conditions

    Section 251.56(e) of the proposed rule provided that no bond was 
required for activities subject to the rule.
    Comment. One respondent stated that those who use the national 
forests should be required to furnish a copy of their insurance 
policies. Another respondent stated that a performance bond should be 
required when necessary to ensure compliance with the terms and 
conditions of special use authorizations, regardless of whether the 
holder is exercising a constitutional right.
    Several respondents objected generally to requiring insurance and 
bonding for activities subject to the proposed rule. Ten specifically 
objected to requiring a bond on the ground that it is unnecessary and 
discriminates against those who do not have a lot of money. One 
objected that requiring a bond discriminates against those who do not 
share the majority viewpoint of the Forest Service. Three respondents 
stated that bonding should not be required for noncommercial uses. One 
respondent stated that bonding could still be required for 
noncommercial uses, given the vagueness of the definition of 
``commercial use or activity'' and probably would be required given the 
history and apparent intent of the regulation.
    Response. The special use regulations do not contain any provisions 
on insurance (see 36 CFR part 251, subpart B), and the Department as a 
matter of policy will not require insurance for activities subject to 
the final rule. This policy demonstrates the Department's intent to 
ensure that no undue burdens are imposed on the exercise of First 
Amendment rights.
    Under the final rule, an authorized officer may not require bonding 
for activities subject to the rule. As discussed in response to 
comments on Sec. 251.51, the Department has clarified and narrowed the 
definition of ``commercial use or activity'' so that it cannot be 
construed to include noncommercial activities. It is not the 
Department's intent to require bonding for noncommercial group uses. 
The Department's intent is to ensure that no undue burdens are imposed 
on the exercise of First Amendment rights.
    Having considered the comments received, the Department has 
retained without change Sec. 251.56(e) in the final rule.

Section 251.57--Rental Fees

    Section 251.57(d) of the proposed rule provided that no permit fees 
would be charged for activities subject to the rule.
    Comment. Two respondents stated that all persons or organizations 
subject to the requirement for a special use authorization should be 
required to pay reasonable application, processing, and land use fees.
    Several respondents objected generally to charging permit fees for 
activities subject to the proposed rule. Three respondents stated that 
permit fees should not be charged for noncommercial uses. One 
respondent stated that authorized officers might start charging ever-
increasing permit fees. One respondent stated that permit fees could 
still be charged for noncommercial uses, given the vagueness of the 
definition of ``commercial use or activity'' and probably would be 
charged, given the history and apparent intent of the regulation.
    Response. Under the final rule, an authorized officer may not 
charge a permit fee for activities subject to the rule. As discussed in 
response to comments on Sec. 251.51, the Department has clarified and 
narrowed the definition of ``commercial use or activity'' so that it 
cannot be construed to include noncommercial activities. It is not the 
Department's intent to charge permit fees for noncommercial group uses. 
As stated above, the Department's intent is to ensure that no undue 
burdens are imposed on the exercise of First Amendment rights.
    Having considered the comments received, the Department has 
retained without change Sec. 251.57(d) in the final rule.

Section 251.60--Termination, Revocation, and Suspension

    Under the proposed rule, special use authorizations for activities 
subject to the rule were exempted from 36 CFR 251.60(b), which provides 
that a special use authorization may be suspended, revoked or 
terminated at the discretion of an authorized officer for ``reasons in 
the public interest.'' This proposed exemption made clear the agency's 
intent to ensure that an authorized officer does not have unbridled 
discretion with respect to administration of activities subject to the 
rule.
    Under the proposed rule, an authorized officer could still 
terminate, revoke, or suspend an authorization for these activities for 
noncompliance with applicable statutes, regulations, or terms and 
conditions of the authorization; for failure of the holder to exercise 
the rights and privileges granted; with the consent of the holder; or 
when, by its terms, a fixed or agreed-upon condition, event, or time 
occurs.
    Comment. Nine respondents commented on this provision. Seven 
respondents commented that this provision gives the authorized officer 
too much discretion. These respondents stated that the agency could 
revoke a permit in the middle of a gathering; that the agency could 
make revocation of a permit likely by requiring strict compliance with 
a condition that would be difficult to meet or that would inevitably 
occur; that actions of one person could put everyone at legal risk; 
that the agency could arbitrarily change a prior determination, for 
example, a designation of noncommercial to commercial, in order to 
revoke a permit; and that it is good that one basis for termination, 
revocation, and suspension was removed, but that reasons to stop an 
activity will still be determined by the Forest Service, and that there 
is no reason to stop a gathering unless people do something wrong, such 
as dumping tons of garbage or burning trees.
    Two respondents objected to allowing an authorized officer to 
revoke a special use authorization if the holder fails to exercise the 
privileges granted by the authorization. One of these respondents 
commented that this basis for revocation is unclear and duplicates the 
basis for revocation for noncompliance with the terms and conditions of 
the authorization.
    Another respondent objected to allowing an authorized officer to 
terminate a special use authorization with the consent of the holder on 
the ground that an individual could relinquish privileges on behalf of 
the group.
    One respondent stated that the same criteria for termination, 
revocation, and suspension should apply to all permit holders, 
regardless of whether the holder is exercising constitutional rights.
    One respondent commented that the rule should require an authorized 
officer to go before a judge and produce evidence before a permit is 
revoked.
    Response. The Department disagrees that the same criteria for 
termination, revocation, and suspension should apply to both commercial 
and noncommercial special use authorizations. Different standards apply 
to categories of activities like noncommercial group uses, which may 
include activities involving noncommercial speech.
    The courts have held that this regulation cannot single out 

[[Page 45289]]
    noncommercial expression and treat it differently from other similar 
types of activities. Israel, No. CR-86-027-TUC-RMB (D. Ariz. May 10, 
1986); Rainbow Family, 695 F. Supp. at 309, 312. The courts have also 
held that the administrative standards that govern special use 
authorizations for noncommercial expression must be specific and 
objective and must not leave too much discretion to the authorized 
officer. Shuttlesworth, 394 U.S. at 150-51, 153; Rainbow Family, 695 F. 
Supp. at 309-12.
    Therefore, the Department must ensure that the same criteria for 
termination, revocation, and suspension of special use authorizations 
for noncommercial group uses apply to all authorizations in that 
category, regardless of whether they involve the expression of views. 
The Department also must ensure that these criteria are specific and 
objective and do not leave unbridled discretion to the authorized 
officer.
    The Department agrees that allowing an authorized officer to 
terminate, revoke, or suspend a special use authorization for a 
noncommercial group use when, by its terms, a fixed or agreed upon 
condition, event, or time occurs could undercut the Department's intent 
to ensure that the authorized officer does not have unbridled 
discretion in administering noncommercial group uses. Consequently, 
Sec. 251.60(a)(1)(i) in the final rule limits the grounds for 
revocation or suspension of a special use authorization for a 
noncommercial group use to (a) the criteria under which the 
authorization may be denied under Sec. 251.54(h)(1) of the final rule, 
(b) noncompliance with applicable statutes, regulations, or the terms 
and conditions of the authorization, (c) failure of the holder to 
exercise the privileges granted by the authorization, and (d) with the 
holder's consent.
    In keeping with the courts' requirement for expeditious review of 
decisions affecting authorization of expressive activities, decisions 
to revoke or suspend a special use authorization for noncommercial 
group uses are immediately subject to judicial review under 
Sec. 251.60(a)(1)(ii) of the final rule. Thus, Sec. 251.101, which 
requires exhaustion of administrative remedies under the agency's 
administrative appeals process for special uses, does not apply.
    Section 251.60(a)(1)(iii) of the final rule clarifies that a 
special use authorization for a noncommercial group use terminates when 
it expires by its own terms. No agency action is involved. 
Consequently, Sec. 251.60(a)(1)(iii) of the final rule makes clear that 
termination of a special use authorization for a noncommercial group 
use does not constitute agency action that is subject to administrative 
or judicial review.
    Section 251.60(b) of the final rule exempts special use 
authorizations for noncommercial group uses from the authority to 
suspend, revoke, or terminate, at the discretion of an authorized 
officer, for reasons in the public interest.
    Revocation will not be more likely for special use authorizations 
for noncommercial group uses than for other types of uses. The Forest 
Service endeavors and will continue to endeavor to help all holders 
comply with applicable statutes, regulations, and the terms and 
conditions of their special use authorizations and will endeavor to 
ensure compliance with the new evaluation criteria in Sec. 251.54(h)(1) 
of the final rule. Under this rule, individual group members will be 
personally responsible for their own actions, while the group will be 
responsible for the actions of its members as a whole that have a 
bearing on compliance with the special use authorization and applicable 
law.
    Revocation or suspension on the basis of the holder's failure to 
exercise the privileges granted by the authorization allows an 
authorized officer to give the site authorized for use by the holder to 
another applicant if the holder decides not to use the site. The 
Department believes that this basis for revocation or suspension is 
clear and distinguishable from revocation or suspension on the basis of 
the holder's noncompliance with the terms and conditions of the 
authorization.
    In the case of a special use authorization for a noncommercial 
group use, the person or persons who have been designated to sign and 
have signed the authorization on behalf of the group under 
Secs. 251.54(e)(2)(i)(E) and 251.54(h)(1)(viii) of the final rule would 
be expected to have the authority to consent to revocation or 
suspension of the authorization for purposes of Sec. 251.60(a)(1)(i)(D) 
of the final rule.

Amendments to Part 261

    In addition to the changes to 36 CFR part 251, subpart B, the 
proposed rule incorporated corollary changes to the rules at 36 CFR 
part 261, subpart A, which contain general prohibitions in effect for 
the National Forest System.
    The proposed rule changed the authority citation for part 261 to 
consolidate the references. The proposed rule also changed the 
definitions and prohibitions in part 261, subpart A, governing 
occupancy and use to make them consistent with the provisions in part 
251, subpart B, that require a special use authorization for 
commercial, but not noncommercial, distribution of printed material.
    Comments on these provisions of the proposed rule and the 
Department's response to them follow.

Section 261.2--Definitions

    The proposed rule added definitions for ``Distribution of printed 
material'' and ``Printed material.'' Since the Department has limited 
the prohibitions in Secs. 261.10 (g) and (h) and 261.14 to commercial 
distribution of printed material, the Department has added to 
Sec. 261.2 the same definition for ``Commercial use or activity'' as 
has been added to Sec. 251.51 of the final rule.

Section 261.10--Occupancy and Use

    Comment. Section 261.10(g) of the proposed rule prohibited 
distribution of any printed material without a special use 
authorization.
    Five respondents commented on this provision. Three respondents 
commented hat the reasons cited for this provision are inadequate. One 
of these respondents stated that posting, affixing, or erecting printed 
material does not have the same significant impact on forest resources 
as clear-cutting. Another stated that there have not been any traffic 
jams from Rainbow Family members distributing leaflets, that the amount 
of printed material posted on trees would undoubtedly be small, and 
that these concerns can be addressed in a rule regulating traffic and 
posting, affixing, or erecting written materials on trees. One 
respondent stated that affixing printed material in the national 
forests might cause resource damage, but that this concern is addressed 
by existing laws, as are the concerns about traffic and danger to the 
person distributing the material.
    Two respondents advised the agency to remove this provision and 
address resource damage as it occurs.
    One respondent advised that this prohibition should apply only to 
commercial distribution of printed material.
    Response. The Department has carefully examined the special use 
authorization requirement for noncommercial distribution of printed 
material. Based on the comments received on resource impacts and on the 
Department's review of resource impacts associated with noncommercial 
distribution of printed material, the Department has determined that 
these impacts are not significant enough to warrant regulation at this 
time. 

[[Page 45290]]
Therefore, the Department has limited the prohibition in Sec. 261.10(g) 
of the final rule to commercial distribution of printed material 
without a special use authorization.
    Comment. Section 261.10(h) of the proposed rule prohibited certain 
conduct when distributing printed material, including delaying, 
halting, or preventing administrative use of an area by the Forest 
Service or other scheduled or existing uses or activities on National 
Forest System lands, misrepresenting the purposes or affiliations of 
those selling or distributing the material, and misrepresenting the 
availability of the material without cost or donation.
    Eleven respondents commented on this provision. One respondent 
objected generally to this provision as a violation of First Amendment 
rights. Another commented that this provision prohibits distribution of 
printed material and solicitation of donations for printed material.
    One respondent stated that distrubtion of printed material could 
not significantly delay, halt, or prevent administrative use of an area 
by the Forest Service or other scheduled or existing uses or 
activities.
    Two respondents stated that there is no need for this provision 
because the agency's concerns about fraud and conflicts with other uses 
are addressed by other laws.
    Five respondents commented that this provision gives the agency too 
much discretion. One of these respondents commented that the phrase, 
``administrative use of an area by the Forest Service or other 
scheduled or existing uses for activities on National Forest System 
land,'' is too vague. Another stated that virtually any human presence 
on National Forest System lands could be determined to impede other 
uses or to conflict with the forest plan. One respondent commented that 
an applicant's omission of a purpose or affiliation in applying for a 
permit could be construed as a misrepresentation that would justify 
denial of a permit and thereby have a chilling effect on speech. One 
respondent stated that under this provision, distribution of printed 
material for no charge while requesting donations could be considered a 
prohibited misrepresentation, that this provision would prohibit 
distribution of printed material in exchange for purely voluntary 
contributions, and that no such rule applies to commercial distribution 
of printed material.
    One respondent stated that no individual at a consensual gathering 
can assume liability for the proposes or affiliations of other members 
and that the intent of the prohibition on misrepresentation is to 
impose liability and to provide a pretext for enforcement action.
    One respondent commented that prohibiting misrepresentation when 
distributing printed material constitutes regulation of the content of 
speech. Another respondent advised deleting ``misrepresenting the 
purposes or affiliations of those selling or distributing the 
material,'' because although commercial speech may be regulated for 
truthfulness, political speech may not be.
    Response. The Department has carefully examined the special use 
authorization requirement for noncommercial distribution of printed 
material. Based on the comments received on resource impacts and on the 
Department's review of resource impacts associated with noncommercial 
distribution of printed material, the Department has determined that 
these impacts are not significant enough to warrant regulation at this 
time. Therefore, the Department has limited the prohibition contained 
in Sec. 261.10(h) to commercial distribution of printed material. In so 
doing, the Department has removed the reference to donations in 
Sec. 261.10(h) of the final rule, as donations generally do not occur 
in connection with commercial activities.
    Section 261.10(h) of the final rule does prohibit and is not 
intended to prohibit commercial distribution of printed material. 
Rather, this provision is intended to ensure that commercial 
distribution of printed material does not delay, halt, or prevent other 
authorized uses and activities on National Forest System lands. Section 
261.10(h) of the final rule is also intended to protect the public from 
fraud by prohibiting specific types of misrepresentation in the context 
of commercial distribution of printed material. Thus, this provision of 
the final rule regulates the time, place, and manner of commercial 
distribution of printed material, rather than the content of the 
commercial printed material.
    As discussed in response to comments on Sec. 251.54(h)(1)(iii) of 
the proposed rule, the Forest Service has had difficulty allocating 
space among uses and activities, both commercial and noncommercial, on 
National Forest System lands. Section 261.10(h) of the final rule 
provides the framework necessary for ensuring that authorized uses and 
activities can coexist in the national forests and for ensuring that 
certain specific types of misrepresentation do not occur in the context 
of commercial distribution of printed material.

Section 261.14--Developed Recreation Sites

    Comment. The proposed rule removed Sec. 261.14(p) of the current 
rule, which prohibited distribution of printed material without a 
special use authorization at developed recreation sites. This 
prohibition was subsumed in the prohibition of distribution of printed 
material without a special use authorization contained in 
Sec. 261.10(g) of the proposed rule, which applied throughout the 
National Forest System.
    Two respondents commented on this provision. One respondent stated 
that this prohibition should apply only to commercial distribution of 
printed material. The other stated that it is unclear what the removal 
of this provision from the rule means that it is acceptable if it means 
that there is no longer a permit requirement for distribution of 
printed material at developed recreation sites.
    Response. The Department has removed Sec. 261.14(p) of the current 
rule, which prohibits distribution of printed material without a 
special use authorization at developed recreation sites, because it is 
redundant. Section 261.10(g) of the current rule prohibits distribution 
of printed material without a special use authorization throughout the 
National Forest System, including at developed recreation sites.
    In addition, the prohibition contained in Sec. 261.14(p) of the 
current rule is too broad. The Department has carefully examined the 
special use authorization requirement for noncommercial distribution of 
printed material. Based on the comments received on resource impacts 
and on the Department's review of resource impacts associated with 
noncommercial distribution of printed material, the Department has 
determined that these impacts are not significant enough to warrant 
regulation at this time. Therefore, in Sec. 261.10(g) of the final 
rule, the Department has limited the prohibition currently found at 
Sec. 261.14(p) to commercial distribution of printed material without a 
special use authorization.

Procedural Comments

    A number of comments were received on various procedural aspects of 
this rulemaking. These comments and the Department's response to them 
follow.
    Comment: Requests for Administrative Hearing. Approximately 79 
respondents requested an administrative hearing on the proposed rule. 
Specifically, one respondent commented that the average person who 
might be affected by the rulemaking might not otherwise know about it 
or 

[[Page 45291]]
feel comfortable commenting. Another respondent cited Hagar v. 
Reclamation Dist. No. 108, 111 U.S. 701 (1884), for the proposition 
that due process requires a judicial proceeding when life, liberty, or 
property are at stake.
    One respondent stated that the agency had failed to give timely 
notice of the proposed rule to those who had notified the agency of 
their interest. Another respondent stated that Forest Service 
correspondence about the status of the proposed rule sent before it was 
published constitutes an ad hoc, unpublished decision issued at the 
same time as the proposed rule in violation of the APA.
    Response. When a rule is promulgated under the notice and comment 
provisions of the APA at 5 U.S.C. 553(c), an administrative hearing is 
not required and is seldom provided. By publishing the proposed rule in 
the Federal Register, by accepting comments on the proposed rule for 90 
days, and by analyzing and addressing the comments received during that 
period in the preamble to this final rule, the Department has fully 
complied with the notice and comment provisions of 5 U.S.C. 553(c).
    For informal rulemaking, an agency satisfies the APA's notice 
requirement by publishing in the Federal Register. The Forest Service 
published the proposed rule in the Federal Register on May 6, 1993. In 
addition, the agency gave direct notice to numerous interested parties 
and invited their comments. The timeliness of the agency's notice is in 
fact supported by the actions of the respondent who stated that the 
agency had failed to give timely notice. That respondent submitted a 
comment on the proposed rule dated June 24, 1993, which was received on 
July 7, 1993, nearly a month before the end of the comment period. 
Correspondence sent by the agency concerning the status of the proposed 
rule before it was published has no legal bearing on this rulemaking 
and does not violate the APA.
    Comment: Requests for Extension of the Comment Period. Fifteen 
respondents requested that the comment period be extended. One of these 
respondents requested an extension to 100 days after publication of the 
proposed rule, until August 14, to allow the Rainbow Family Council, 
which meets July 1, through 7, to submit a comment.
    Response. The APA does not specify the number of days for a comment 
period for informal rulemaking (5 U.S.C. 553(c)). The comment period 
for a proposed rule is often 60 days. The comment period for this 
rulemaking was 90 days and closed August 4, 1993, nearly a month after 
the time identified for the meeting of the Rainbow Family Council. The 
Forest Service received 603 comments on the proposed rule, including 12 
petitions with 20,451 signatures. The Department believes that the 90-
day comment period was sufficient to give all members of the public an 
opportunity to comment on the proposed rule.
    Comment: Compliance With the Paperwork Reduction Act. Five 
respondents commented that the proposed rule violates the Paperwork 
Reduction Act on the grounds that an application for noncommercial 
group uses would take more than one to four hours to complete; that 
preparation time of up to four hours for applications governed by the 
rule indicates that these applications unreasonably restrict 
recreational use of national forests; that it is unreasonable to spend 
an hour or more on something that currently does not have to be done; 
and that the proposed rule would generate paperwork through litigation.
    Response. The Department disagrees with these comments, which are 
irrelevant to compliance with the Paperwork Reduction Act. The 
Paperwork Reduction Act requires approval by the Office of Management 
and Budget (OMB) of any collection of information required by an agency 
that affects ten or more persons (44 U.S.C. 3502(4)(A), 3507(a)). 
``Collection of information'' includes obtaining information through 
the use of application forms (44 U.S.C. 3502(4)(A)). An agency must 
estimate the time needed to comply with the collection of information 
requirement (44 U.S.C. 3507(a)).
    The Department has fully complied with the Paperwork Reduction Act. 
The information that an applicant must provide the Forest Service in an 
application for a noncommercial group use constitutes a collection of 
information requirement under the Paperwork Reduction Act. The 
Department has obtained approval from OMB of a standard application 
form that can be used for all special uses. Because of the very limited 
information required in applications subject to this rule, however, the 
Department has developed a special application form for noncommercial 
group uses. The Department has submitted a request for approval of this 
form to OMB and will obtain approval of this form from OMB before using 
it in conjunction with this rule.
    Since this rule applies to all noncommercial group uses on National 
Forest System lands, the Department has estimated the average amount of 
time an applicant will spend to prepare an application. The amount of 
time will vary depending on the scope and complexity of the proposed 
activity.
    The Department believes that it has not underestimated the 
preparation time for an application. Under Secs. 251.54(e)(2)(i)(A) 
through (e)(2)(i)(E) of the final rule, information required from 
applicants for noncommercial group uses is limited to five very basic 
elements; (1) A description of the proposed activity; (2) a description 
of the National Forest System lands and any facilities the applicant 
would like to use; (3) the estimated number of participants and 
spectators; (4) the date and time of the proposed activity; and (5) the 
name of the person or persons who will sign a special use authorization 
on behalf of the applicant. Moreover, the application requirement is an 
essential component of the special use authorization process, which in 
turn furthers several significant governmental interests.
    Comment. Compliance with Executive Order 12291. Five respondents 
commented that the proposed rule violates or triggers additional 
analysis under Executive Order 12291. Specifically, these respondents 
stated that the regulation is a major rule; that any rule that violates 
rights is a major rule; that in these economically difficult times, the 
regulatory impact could exceed $100 million, and that interested 
parties might incur more court costs as a result of promulgation of the 
rule; that the proposed rule would have an effect of more than $100 
million on the economy, given that the agency spent almost $400,000 at 
the 1992 Rainbow Family Gathering, and that if the agency made similar 
expenditures on noncommercial group uses throughout the year, the 
agency would be spending more than $20 million a year, and that if five 
activities occurred continuously, the agency would be spending $100 
million a year; that the proposed rule would increase costs for state 
and local governments; that it is unclear where the agency derives the 
unilateral authority to make a determination on the issues covered by 
the Order; that the standard cited in the proposed rule is purely 
economic and fails to acknowledge other standards required by law, 
which would easily be met; that the proposed rule violates section 2(a) 
of the Order, which requires that agency decisions be based on adequate 
information concerning the need for and consequences of the proposed 
rule, given that other regulations address the agency's concerns in 
promulgating the rule; that the benefits to society from the 

[[Page 45292]]
proposed rule do not outweigh the costs as required by section 2(b) of 
the Order, given that the rule is unconstitutional and that the 
agency's concerns in promulgating the rule are addressed by other 
regulations; and that being set apart from a totalitarian regime and 
the value of freedom as contemplated in Terminiello v. Chicago, 337 
U.S. 4 (1948), should be considered ``beneficial effects that cannot be 
quantified in monetary terms'' under section 3(d) of the Order.
    One respondent commented that the proposed regulation would have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) because the 
proposed rule would impose additional recordkeeping requirements on 
them.
    Response. Executive Order 12291 was revoked on September 30, 1993, 
by section 11 of Executive Order 12866. Thus, Executive Order 12291 
does not apply to the final rule. Nevertheless, as Executive Order 
12291 was in effect when the proposed rule was published, the 
Department will address comments pertaining to that Order.
    Section 1(b) of Executive Order 12291 required agencies to 
determine whether each regulation they promulgated qualified as a major 
rule. Under section 1(b), a regulation was deemed a major rule if it 
was likely to result in: (1) An annual effect on the economy of $100 
million or more; (2) a major increase in costs or prices for consumers, 
individual industries, federal, state, or local government agencies, or 
geographic regions; or (3) significant adverse effects on competition, 
employment, investment, productivity, innovation, or on the ability of 
United States-based enterprises to compete with foreign-based 
enterprises in domestic or export markets.
    The Department determined that the proposed regulation was not a 
major rule because it would have little or no impact on the national 
economy. The proposed rule required a special use authorization for 
noncommercial group uses on National Forest System lands. The proposed 
rule consisted primarily of technical and administrative changes for 
authorization and use of National Forest System lands.
    The fact that interested parties could incur court costs in 
challenging the rule and that the Forest Service and state and local 
governments incur costs in hosting noncommercial group uses does not 
affect the determination that the proposed regulation was not a major 
rule. The Forest Service and state and local governments have incurred 
costs in connection with noncommercial group uses without the special 
use authorization requirement and would continue to incur certain 
costs, such as personnel costs, after the proposed rule became 
effective. The Department believes that costs associated with 
noncommercial group uses would decrease, not increase, after the 
proposed rule went into effect because the rule would enhance the 
Forest Service's ability to manage these uses and minimize adverse 
impacts.
    The proposed rule did not violate sections 2(a) and 2(b) of 
Executive Order 12291. The proposed rule was based on adequate 
information concerning the need for and consequences of the regulation, 
and the benefits outweighed any costs of the rulemaking. The Department 
articulated several significant interests in promulgating the proposed 
rule and determined that requiring a special use authorization for 
noncommercial group uses does not impose a substantial burden on the 
public. Other regulations do not adequately address the Department's 
concerns associated with managing noncommercial group uses of National 
Forest System lands. The Department believes that the proposed rule is 
constitutional. Section 3(d) of Executive Order 12291 applied only to 
major rules. Section 3(d) did not apply to the proposed regulation 
because it was not a major rule.
    The final rule will not have a significant impact on a substantial 
number of small entities under the Regulatory Flexibility Act in part 
because the rule will not impose additional recordkeeping requirements 
on them.
    Comment: Environmental Documentation Required for Rulemaking. Three 
respondents commented that the proposed rule requires documentation in 
an environmental assessment or environmental impact statement. These 
respondents stated that the rule has environmental impacts from 
anticipated litigation with large groups like the Rainbow Family; that 
the rule must affect the environment because otherwise the agency would 
not have issued it; and that the rule might keep people out of the 
national forests and thereby have a significant effect on the human 
environment.
    Response. Section 31.1b of Forest Service Handbook 1909.15 
categorically excludes from documentation in an EA or an EIS ``rules, 
regulations, or policies to establish Service-wide administrative 
procedures, program processes or instructions.'' This regulation falls 
into this category of actions because the rule establishes agency-wide 
administrative procedures for authorization and use of National Forest 
System lands and because no extraordinary circumstances exist which 
would require preparation of an EA or an EIS.

Summary

    Having fully considered the comments on the proposed rule received 
during the comment period, the Department is adopting this final rule 
with the modifications previously described in response to comments 
received. This rule is effective 30 days after the date of publication 
in the Federal Register.

Regulatory Impact

    This final rule was received under USDA procedures and determined 
to be a significant rule under Executive Order 12866 on Regulatory 
Planning and Review because of the strong public interest expressed in 
the proposed rule. Accordingly, this final rule was subject to OMB 
review.
    Moreover, this final rule has been considered in light of the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). It has been 
determined that this action will not have a significant economic impact 
on a substantial number of small entities because it will not impose 
recordkeeping requirements on them; it will not affect their 
competitive position in relation to large entities; and it will not 
affect their cash flow, liquidity, or ability to remain in the market.
    This rule has been reviewed for its impact on private property 
rights under Executive Order 12630 of March 15, 1988, as implemented by 
the United States Attorney General's Guidelines for the Evaluation of 
Risk and Avoidance of Unanticipated Takings. Executive Order 12630 does 
not apply to this rule because it consists primarily of technical and 
administrative changes governing application procedures for 
authorization of occupancy and use of National Forest System lands. 
Application for a special use authorization does not grant any right, 
title, or interest in or to lands or resources held by the United 
States.
    This rule has been reviewed under Executive Order 12778, Civil 
Justice Reform. After adoption of this final rule, (1) all state and 
local laws and regulations that conflict with this rule or that impede 
its full implementation will be preempted; (2) no retroactive effect 
will be given to this final rule; and (3) it will not require 
administrative proceedings before parties may file suite in court 
challenging its provisions.

[[Page 45293]]


Paperwork Reduction Act

    The information an applicant must provide the Forest Service under 
Secs. 251.54 (e)(2)(i)(A) through (e)(2)(i)(E) to obtain an 
authorization for a noncommercial group use constitutes an information 
requirement as defined by the Paperwork Reduction Act and OMB 
implementing rules at 5 CFR part 1320 and thus requires OMB approval 
before adoption of the final rule. The Department has developed an 
application form for noncommercial group uses and is in the process of 
obtaining approval of this form from OMB. The Department will obtain 
approval of this form before using it in conjunction with this rule. 
The Department estimates that each applicant would spend an average of 
one to four hours preparing an application, depending on the scope and 
complexity of the proposed activity.

Environmental Impact

    Section 31.1b of Forest Service Handbook 1909.15 (57 FR 43180, 
September 18, 1992) categorically excludes from documentation in an EA 
or an EIS ``rules, regulations, or policies to establish Service-wide 
administrative procedures, program processes or instructions.'' Based 
on consideration of the comments received and the nature and scope of 
this rulemaking, the Department has determined that this rule falls 
within this category of actions and that no extraordinary circumstances 
exist which would require preparation of an EA or an EIS.

List of Subjects

36 CFR Part 251

    Electric power, Mineral resources, National forests, Rights-of-way, 
Water resources.

36 CFR Part 261

    Law enforcement, National forests.

    Therefore, for the reasons set forth in the preamble, part 251, 
subpart B, and part 261, subpart A, of Chapter II of Title 36 of the 
Code of Federal Regulations are hereby amended as follows:

PART 251--LAND USES [AMENDED]

Subpart B--Special Uses

    1. The authority citation for subpart B continues to read:

    Authority: 16 U.S.C. 472, 551, 1134, 3210; 30 U.S.C. 185; 43 
U.S.C. 1740, 1761-1771.

    2. Amend Sec. 251.50 by revising the section heading, paragraph 
(a), the introductory text for paragraph (c), and paragraph (c)(3) to 
read as follows:


Sec. 251.50  Scope.

    (a) All uses of National Forest System lands, improvements, and 
resources, except those provided for in the regulations governing the 
disposal of timber (part 223) and minerals (part 228) and the grazing 
of livestock (part 222), are designated ``special uses.'' Before 
engaging in a special use, persons or entities must submit an 
application to an authorized officer and must obtain a special use 
authorization from the authorized officer unless that requirement is 
waived by paragraph (c) of this section.
* * * * *
    (c) A special use authorization is not required for noncommercial 
recreational activities such as camping, picnicking, hiking, fishing, 
hunting, horseback riding, and boating, as well as noncommercial 
activities involving the expression of views such as assemblies, 
meetings, demonstrations, and parades, except for:
    (1) * * *
    (2) * * *
    (3) Noncommercial group uses as defined in Sec. 251.51 of this 
subpart.
* * * * *
    3. Amend Sec. 251.51 by removing the terms and definitions for 
``Group event,'' ``Distributing noncommercial printed material,'' and 
``Noncommercial printed material,'' and adding the following new terms 
and definitions in alphabetical order to read as follows:


Sec. 251.51  Definitions.

* * * * *
    Commercial use of activity--any use or activity on National Forest 
System lands (a) where an entry or participation fee is charged, or (b) 
where the primary purpose is the sale of a good or service, and in 
either case, regardless of whether the use or activity is intended to 
produce a profit.
    Group use--an activity conducted on National Forest System lands 
that involves a group of 75 or more people, either as participants or 
spectators.
    Noncommercial use or activity--any use or activity that does not 
involve a commercial use or activity as defined in this section.
* * * * *
    4. Amend Sec. 251.54 by revising the introductory text for 
paragraph (a); removing the introductory text for paragraph (e); 
revising paragraph (e)(1); redesignating paragraphs (e)(2) through 
(e)(5) as paragraphs (e)(3) through (e)(6); adding a new paragraph 
(e)(2); redesignating paragraphs (f)(1) and (f)(2) as (f)(2) and (f)(3) 
and designating the first sentence of paragraph (f) introductory text, 
as paragraph (f)(1); adding new paragraphs (f)(4) and (f)(5); and 
revising paragraph (h) to read as follows:


Sec. 251.54  Special use applications.

    (a) Preapplication activity. When occupancy or use of National 
Forest System lands is desired, a proponent is encouraged to contact 
the Forest Service office(s) responsible for management of the affected 
land as early as possible so that potential constraints may be 
identified, the proposal can be considered in forest land and resource 
management plans if necessary, and processing of an application can be 
tentatively scheduled. To the extent applicable to the proposed use and 
occupancy, the proponent will be given guidance and information about:
* * * * *
    (e) Application content--(1) Applicant identification. Any 
applicant for a special use authorization shall provide the applicant's 
name and mailing address, and, if the applicant is not an individual, 
the name and address of the applicant's agent who is authorized to 
receive notice of actions pertaining to the application.
    (2) Required Information--(i) Noncommercial group uses. An 
applicant for noncommercial group uses shall provide the following:
    (A) A description of the proposed activity;
    (B) The location and a description of the National Forest System 
lands and facilities the applicant would like to use;
    (C) The estimated number of participants and spectators;
    (D) The starting and ending time and date of the proposed activity; 
and
    (E) The name of the person or persons 21 years of age or older who 
will sign a special use authorization on behalf of the applicant. 
Paragraphs (e)(3) through (e)(6) of this section shall not apply to 
applications for noncommercial group uses.
    (ii) All other special uses. At a minimum, applications for special 
uses other than noncommercial group uses shall include the information 
contained in paragraphs (e)(3) through (e)(6) of this section. In 
addition, if requested by an authorized officer, an applicant in one of 
the following categories shall furnish the information specified for 
that category:
    (A) A State and local government agency: a copy of the 
authorization under which the application is made;
    (B) A public corporation: the statute or other authority under 
which it was organized;

[[Page 45294]]

    (C) A federal government agency: the title of the agency official 
delegated the authority to file the application;
    (D) A private corporation:
    (1) Evidence of incorporation and its current good standing;
    (2) if reasonably obtainable by the applicant, the name and address 
of each shareholder owning three percent or more of the shares. 
Together with the number and percentage of any class of voting shares 
of the entity which such shareholder is authorized to vote;
    (3) the name and address of each affiliate of the entity;
    (4) in the case of an affiliate which is controlled by the entity, 
the number of shares and the percentage of any class of voting stock of 
the affiliate that the entity owns either directly or indirectly; or
    (5) in the case of an affiliate which controls that entity, the 
number of shares and the percentage of any class of voting stock of 
that entity owned, either directly or indirectly by the affiliate; or
    (E) A partnership, association or other unincorporated entity: a 
certified copy of the partnership agreement or other similar document, 
if any, creating the entity, or a certificate of good standing under 
the laws of the State.
* * * * *
    (f) Processing applications. (1) * * *
    (4) The authorized officer shall give due deference to the findings 
of another agency such as the Public Utility Commission, the Federal 
Energy Regulatory Commission, or the Interstate Commerce Commission in 
lieu of another detailed finding. If this information is already on 
file with the Forest Service, it need not be refiled if reference is 
made to the previous filing date, place, and case number.
    (5) Applications for noncommercial group uses must be received at 
least 72 hours in advance of the proposed activity. Applications for 
noncommercial group uses shall be processed in order of receipt, and 
the use of a particular area shall be allocated in order of receipt of 
fully executed applications, subject to any relevant limitations set 
forth in this section. All applications for noncommercial group uses 
shall be deemed granted and an authorization shall be issued for those 
uses unless the applications are denied within 48 hours of receipt. 
Where an application for a noncommercial group use has been granted or 
is deemed to have been granted and an authorization has been issued 
under this paragraph, an authorized officer may revoke that 
authorization only as provided under Sec. 251.60(a)(1)(i).
* * * * *
    (h) Response to applications for noncommercial group uses. (1) An 
authorized officer shall grant an application for a special use 
authorization for a noncommercial group use upon a determination that:
    (i) Authorization of the proposed activity is not prohibited by the 
rules at 36 CFR part 261, subpart A, or by orders issued under 36 CFR 
part 261, subpart B, or by Federal, State, or local law unrelated to 
the content of expressive activity;
    (ii) Authorization of the proposed activity is consistent or can be 
made consistent with standards and guidelines in the applicable forest 
land and resource management plan required under the National Forest 
Management Act and 36 CFR part 219;
    (iii) The proposed activity does not materially impact the 
characteristics or functions of the environmentally sensitive resources 
or lands identified in Forest Service Handbook 1909.15, chapter 30.
    (iv) The proposed activity will not delay, halt, or prevent 
administrative use of an area by the Forest Service or other scheduled 
or existing uses or activities on National Forest System lands, 
including but not limited to uses and activities authorized under parts 
222, 223, 228, and 251 of this chapter;
    (v) The proposed activity does not violate state and local public 
health laws and regulations as applied to the proposed site. Issues 
addressed by state and local public health laws and regulations as 
applied to the proposed site include but are not limited to:
    (A) The sufficiency of sanitation facilities;
    (B) The sufficiency of waste-disposal facilities;
    (C) The availability of sufficient potable drinking water;
    (D) The risk of disease from the physical characteristics of the 
proposed site or natural conditions associated with the proposed site; 
and
    (E) The risk of contamination of the water supply;
    (vi) The proposed activity will not pose a substantial danger to 
public safety. Considerations of public safety shall not include 
concerns about possible reaction to the users' identity or beliefs from 
non-members of the group that is seeking an authorization and shall be 
limited to the following;
    (A) The potential for physical injury to other forest users from 
the proposed activity;
    (B) The potential for physical injury to users from the physical 
characteristics of the proposed site or natural conditions associated 
with the proposed site;
    (C) The potential for physical injury to users from scheduled or 
existing uses or activities on National Forest System lands; and
    (D) The adequacy of ingress and egress in case of an emergency;
    (vii) The proposed activity does not involve military or 
paramilitary training or exercises by private organizations or 
individuals, unless such training or exercises are federally funded; 
and
    (viii) A person or persons 21 years of age or older have been 
designated to sign and do sign a special use authorization on behalf of 
the applicant.
    (2) If an authorized officer denies an application because it does 
not meet the criteria in paragraphs (h)(1)(i) through (h)(1)(viii) of 
this section, the authorized officer shall notify the applicant in 
writing of the reasons for the denial. If an alternative time, place, 
or manner will allow the applicant to meet the eight evaluation 
criteria, an authorized officer shall offer that alternative. If an 
application is denied solely under paragraph (h)(1)(iii) of this 
section and all alternatives suggested are unacceptable to the 
applicant, the authorized officer shall offer to have completed the 
requisite environmental and other analysis for the requested site. A 
decision to grant or deny the application for which an environmental 
assessment or an environmental impact statement is prepared shall be 
subject to the notice and appeal procedures at 36 CFR part 215 and 
shall be made within 48 hours after the decision becomes final under 
that appeal process. A denial of an application under paragraphs 
(h)(1)(i) through (h)(1)(viii) of this section constitutes final agency 
action and is immediately subject to judicial review.
    5. Amend Sec. 251.56 by revising paragraph (e) to read as follows:


Sec. 251.56  Terms and conditions.

* * * * *
    (e) Bonding. An authorized officer may require the holder of a 
special use authorization for other than a noncommercial group use to 
furnish a bond or other security to secure all or any of the 
obligations imposed by the terms of the authorization or by any 
applicable law, regulation or order.
* * * * *
    6. Amend Sec. 251.57 by redesignating paragraphs (d) through (h) as 
(e) through (i) and adding a new paragraph (d) to read as follows:


Sec. 251.57  Rental fees.

* * * * *

[[Page 45295]]

    (d) No fee shall be charged when the authorization is for a 
noncommercial group use as defined in Sec. 251.51 of this subpart.
* * * * *
    7. Amend Sec. 251.60 by revising paragraphs (a) and (b) to read as 
follows:


Sec. 251.60  Termination, revocation, and suspension.

    (a) Grounds for termination, revocation, and suspension. (1) 
Noncommercial group uses.
    (i) Revocation or suspension. An authorized officer may revoke or 
suspend a special use authorization for a noncommercial group use only 
under one of the following circumstances:
    (A) Under the criteria for which an application for a special use 
authorization may be denied under Sec. 251.54(h)(1);
    (B) for noncompliance with applicable statutes or regulations or 
the terms and conditions of the authorization;
    (C) for failure of the holder to exercise the rights or privileges 
granted; or
    (D) with the consent of the holder.
    (ii) Administrative or judicial review. Revocation or suspension of 
a special use authorization under this paragraph constitutes final 
agency action and is immediately subject to judicial review.
    (iii) Termination. A special use authorization for a noncommercial 
group use terminates when it expires by its own terms. Termination of a 
special use authorization under this paragraph does not involve agency 
action and is not subject to administrative or judicial review.
    (2) All other special uses. An authorized officer may terminate, 
suspend, or revoke a special use authorization for all other special 
uses except an easement issued pursuant to Sec. 251.53(e) and (l):
    (i) For noncompliance with applicable statutes, regulations, or the 
terms and conditions of the authorization;
    (ii) for failure of the holder to exercise the rights or privileges 
granted;
    (iii) with the consent of the holder; or
    (iv) when, by its terms, a fixed or agreed upon condition, event, 
or time occurs. Termination, revocation, or suspension of a special use 
authorization under this paragraph is subject to administrative and 
judicial review in accordance with 36 CFR part 251, subpart C.
    (b) A special use authorization may be suspended, revoked, or 
terminated at the discretion of the authorized officer for reasons in 
the public interest, except that this provision shall not apply to a 
special use authorization for a noncommercial group use.
* * * * *

PART 261--PROHIBITIONS

    8. Revise the authority citation for part 261 to read as follows:

    Authority: 7 U.S.C. 1011(f); 16 U.S.C. 472, 551, 1133(c)-(d)(1), 
1246(i).

Subpart A--General Prohibitions

    9. Amend Sec. 261.2 by adding the following new terms and 
definitions in alphabetical order to read as follows:


Sec. 261.2  Definitions.

* * * * *
    Commercial use or activity--any use or activity on National Forest 
System lands (a) where an entry or participation fee is charged, or (b) 
where the primary purpose is the sale of a good or service, and in 
either case, regardless of whether the use or activity is intended to 
produce a profit.
    Distribution of printed material--disseminating, posting, affixing, 
or erecting printed material as defined in this section.
    Printed material--any written and/or graphic material including but 
not limited to pamphlets, brochures, photographs, graphics, signs, and 
posters.
* * * * *
    10. Amend Sec. 261.10 by redesignating paragraphs (h) through (n) 
as paragraphs (i) through (o), revising paragraph (g), and adding a new 
paragraph (h) to read as follows:


Sec. 261.10  Occupancy and use.

* * * * *
    (g) Commercial distribution of printed material without a special 
use authorization.
    (h) When commercially distributing printed material, delaying, 
halting, or preventing administrative use of an area by the Forest 
Service or other scheduled or existing uses or activities on National 
Forest System lands; misrepresenting the purposes or affiliations of 
those selling or distributing the material; or misrepresenting the 
availability of the material without cost.
* * * * *


Sec. 261.14  Developed recreation sites.

    11. Amend Sec. 261.14 by removing paragraph (p) and redesignating 
paragraph (q) as paragraph (p).

    Dated: August 14, 1995.
Mark Gaede,
Acting Deputy Under Secretary, Natural Resources and Environment.
[FR Doc. 95-21225 Filed 8-29-95; 8:45 am]
BILLING CODE 3410-11-M