Comment:Considerations of public health were limited to the following
with respect to the proposed site:
Section 251.54(h)(1)(iv) of the proposed rule required
authorized officer to determine that a proposed activity would not pose a substantial
danger to public health.
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
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
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
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
(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.
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),
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
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
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).
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