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.
Compliance with Executive Order 12291.
Executive Order 12291 was revoked on September 30, 1993, by section 11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
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.
Listing of Comments
FS Regulation Page