General Comments

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.

Section 251.54(h)(1)(vi)

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