General Comments

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Executive Order 12291 was revoked on September 30, 1993, by section 11 of Executive Order 12866.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.


Environmental Documentation

Listing of Comments

FS Regulation Page