[Federal Register: August 30, 1995 (Volume 60, Number 168)]
[Rules and Regulations]               
[Page 45257-45295]
>From the Federal Register Online via GPO Access 
[wais.access.gpo.gov]

[[Page 45257]]
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Part III

Department of Agriculture

_______________________________________________________

Forest Service
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36 CFR Parts 251 and 261

Land Uses and Prohibitions; Final Rule

[[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 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 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 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;
--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.
    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
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 
lawabiding. 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. 
    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 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 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 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 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 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. Anotherrespondent 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 
occurwould 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 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.
    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 thereforereasonable 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 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 
processapplications 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.
    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 onthe 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 groupuses, 
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 
orincompatible 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 managecommercial 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 hasa 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 isunnecessary 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.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 frameworknecessary 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 ofspecial 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 applicationunder 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 
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.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 itfeel 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 
theproposed 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.

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;
....(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.

* * * * *
    (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