Certification for Regulatory Submissions

Signature of program official

(signed)

George M. Leonard

Associate Chief

Date: 2/2/90

Marian P. Connolly

Regulatory Officer

Forest Service USDA

part III. Complete This Part Only if the Request Is for Approval of a Collection of Information Under the Paperwork R Reduction Act and 5 CFR 1320.

l 4. Type of information collection (check only one)

Information collections not contained in rules

Regular submission information collections contained in rules

x Notice of proposed rulemaking (NPRM) rulemaking

15. Typed review requested (check only one)

x Revision of a currently approved collection

Regulatory authority for the information collection

3 6 CFR § 251 or other request for OMB approval the agency head, the senior official or an authorized representative. certifies that the requirements of 36 CFR 1320 , Act statistical standards or directives and any other other applicable information policy directives complied with.

Signature of program official

William L. RICE Date -

Deputy Chief -William Rice

3/23/90 FACE="Arial" SIZE=5>

Signature of agency head, the senior official or an authorized representative _

(signed) Date: 2/23/90

Special Uses-Proposed Rule

Subpart A

General rules applicable to all

uses; criteria for approval or

denial

Special procedures for Special procedures for short-term

commercial & other uses noncommercial users

FS/User Relationship: FS/User Relationship:

Businesslike," e.g., akin to landlord- Host/Guest/Visitor

tenant

,

Nature of Use: Nature of Use:

commercial of printed matter

User rights: User

None. Use is privilege Constitutional right of assembly and

expression

FS Discretion: FS Discretion:

terms & conditions of use & expression. Terms & conditions limited

to resource protection, health, & safety

,

Form of Authorization: Form of Authorization:

A. Justification

1. The agency proposes to amend it's rules governing authorization of occupancy and use of National Forest System lands with regard co right of assembly and speech protected by the Constitution. In addition, the agency proposes to adopt additional standards applicable to all occupancy and use that heretofore have been issued in agency directives rather than rules. Existing rules governing special uses are under Subpart B. to 36 CFR Part 251. This request addresses information the public must provide to apply for a short-term, noncommercial use under the rules proposed at: (1) 36 CFR 251.122(b); (2) 36 CFR 252.123(b)(6); and (3) 36 CFR 251.54.

Under the proposed 36 CFR 251.122(b) group representatives would be required co furnish the following application information: description of event or activity, facilities, improvements, or resources of area applicant proposes co use; estimated number of participants involved; dates and times; identification of National Forest site; name(s) and address(es) and telephone number(s) of person(s) making application; and identification of any prior Forest Service authorization issued in the past two years. Similarly the rules at 36 CFR § 251.54 would be amended to require applicants to identify any prior authorization issued by the Forest Service to the applicant within the last two years and include a statement attesting that any such authorization had not been revoked for breach of the terms and conditions thereof or misrepresentation of material information with regard to use and that the applicant does not owe any outstanding amounts to the United States resulting from any prior authorization issued by the Forest Service. This provision is necessary co ensure chat applicants are responsible parties. The proposed 36 CFR § 251.123(b)(6) also would allow authorized officers to request additional information needed co evaluate the effects of the proposed use.

Agency authorized officers would use information collected within Subpart B and E to assess the effect of the proposed use on forest resources and public health and safety, and identify action terms, and conditions necessary to prevent or mitigate adverse impacts created by the use.

This collection is now authorized and collected using approved form FS-2700-3 (OMB #0596-0082) pursuant to 36 CFR Part 251 Sub part B. With the exception of the proposed new requirement that applicants identity authorization issued by the Forest Service within the last two years, there is no change in the nature or scope of information requested. The only change is chat the application SIZE=2>procedures for group uses are being removed from Subpart 3 and codified in a new Subpart E.

2. Each applicant will submit a written request, unless waived by the authorized officer (36 CFR § 251.122). The information requested, will be used by the authorized officer in making a land management decision co approve or disapprove the requested use. Without such information basic environmental

decisions cannot be made . The information is not available elsewhere and is the minimum necessary for the agency to meet it's land management responsibilities. The agency plans co devise an application form that will reduce the burden on the applicant by providing in one place the list of information the applicant must supply. This will be submitted to the Office of Management and Budget during the public comment period on the proposed rule.

3. Each applicant for use of National Forest System lands has unique circumstances and is for a specific location. The individual's application is the only source of information.

4. Some duplication of information may occur if applicants must obtain State and local permits or approvals. Forest officers in their assessment of each applicants request and identification of known off-lice impacts can advise such authorities accordingly.

5. Because each applicant is unique, dependence has to be upon the individual applicant.

6. Collection of this information under proposed Subpart E does not involve small businesses or other small entities as defined in the Regulatory Flexibility Act. Small entities such as recreational clubs or religious groups or civic organizations may be among applicants for National Forest use under Subpart E..

7. The Forest Service requires this information only when such use is applied for or if a major change to an approved use is requested.

8. This information collection is consistent with the guidelines in 5 CFR 1320.6.

9. Information request for special use application on National Forest System lands outside of Alaska was approved in 1983. This approval resulted when applicants outside of Alaska experienced difficulty with form SF-299 and requested that the Forest Service adopt a change. Original input for this information collection came from the Bureau of Land Management, Fish and Wildlife Service, National Park Service, Department of the Interior Solicitor's Office, Department of Transportation (DOT) Office of General Counsel, DOT Office of Surface Transportation and DOT Federal Aviation Administration.

Although no formal public consultation has been made since OMB approved this information request in 1983 the Forest Service informally solicits input on it's information collection needs and processes from applicants. There are no known complaints by applicants as co information requested for special uses applications. The existing information collection form, FS-2700-3, was developed and approved by OMB in 1983 after difficulty with use of Form SF-299 outside of Alaska.

10. Information of a financial nature, other than the fee paid for the use of National Forest System lands, and other proprietary information is withheld under the Freedom of Information Act.

11. There are no sensitive questions involved in this collection.

12. (a) Estimated cost to respondents: There are approximately 860 groups or individuals using the National Forest annually for group events or short term noncommercial uses. Approximately 840 of these groups involve less than 100 participant and 20 over 100 participants.

Estimated time and cost for those groups under 100 is: l hour per application at $10 per hour X 840 - $8,400 or $10 per applicant.

Estimated time and cost for those groups over 100 is: 4 hours per application at $10 per hour X 20 - $800 or $40 per applicant.

(b) Estimated cost co Federal Government: 270 record keepers (estimated) X 3.9 hours per record keeper - 1,070 hours X $10/hour- $10,700

13. An estimated 860 respondents make application for group use each year. Estimated burden upon each respondent is 1-4 hours to complete the information requirements. Total estimated burden, 860 respondents X 1.07 hours - 920 hours.

14. No change in amount of time required of respondent for furnishing required information is expected.

15. The results of this information collection will not be used for statistical purposes.

ITEM 13

This proposed rule standardizes administration of groups of 25 or more persons using National Forests for assemblies, meetings, gatherings, demonstration and similar activities for expression of views or religious beliefs. Group representatives would furnish description of event, estimated numbers involved, dates and times, identification of site, names and addresses, and telephone numbers. Authorized officers would use this information co consider the effect of the proposed use on forest resources and public health and safety, and identify action terms, and conditions necessary to prevent or mitigate adverse impacts created by the use.

[3410-11] DEPARTMENT OF AGRICULTURE Forest Service 36 CFR Parts 251 and 261 Land Uses; Prohibitions RIN No. 0596- AA80 AGENCY: Forest Service, USDA. ACTION: Proposed rule.

SUMMARY : In response to several Federal court rulings, the Forest Service proposes to amend the rules governing authorization of occupancy and use of National Forest System lands with regard to rights of assembly and speech protected by the First Amendment of the United States Constitution. In addition, the agency proposes to adopt additional standards applicable to all occupancy and use that heretofore have been issued in agency directives rather -tan in rules. The intended effect is to improve administration of occupancy and use authorizations and to devise a process that both safeguards the exercise of First Amendment rights of assembly and free speech on National Forest System lands and ensures that the Forest Service has the means to reasonably protect the resources, facilities, and improvements of the National Forest System from undue adverse impacts of group occupancy and use. Public comment is invited on this proposal.

DATE:Comments must be received in writing by Insert date 45 days from date of publication in the Federal Resister.]

ADDRESS : Send comments to F. Dale Robertson. Chief (2710. Rn). Forest Service, USDA. P.O. Box 96090, Washington, D.C. 20090-6090. FOR FURTHER INFORMATION CONTACT: Marian P. Connolly, Regulatory Officer, (703) 235-1488 or John Shilling, Recreation Staff, (202) 382-9426.

Background and Need for Rulemaking

There are 156 National Forests comprising almost 224 million acres in 40 States and Puerto Rico. These forest, together with 19 National Grasslands, Land Utilization Projects, purchase units and other lands, compose what is now called the National Forest System. Pursuant to the Multiple-Use, Sustained-Yield Act of 1960, as amended (16 U.S.C. 520-531), the Forest Service is charged with managing the resources of the National Forest System for multiple uses and values and to produce goods, services, and other resource amenities not only for the use and enjoyment of the current generation but also for future generations in perpetuity Management and use of National Forest System lands is not limited to Federal activities but includes managing myriad public, private, governmental, and commercial uses of these lands—which, until now, have been referred to collectively as "special uses.'

The Forest Service administers approximately 60,000 special use-authorizations annually. The wide variety of authorized uses range from ski resorts and private recreation residences, pipelines and easements, outfitter and guide services, pasture use and gemstone collection, to large assemblies and gatherings for religious service. or special recreational events such as boating regattas. The Forest Service administers these uses through the regulations at 36 CFR Part 251. Subpart 3 - Special Uses. The rules provide the forest officer with broad discretion to permit or disapprove uses of National Forest lands and to establish the terms and conditions of occupancy and use.

It is the degree of discretion granted by the current rules and the inconsistent application of that discretion that has led to recent Federal court rulings that the special use regulations are vague as to who needs a permit for recreational and other similar uses and that the regulations, therefore. unlawfully infringe upon the exercise of First Amendment rights by National Forest users.

These rulings have created a legal and managerial dilemma for Forest Service which it has been trying to resolve since 1983--how to carry out its statutory mandate to manage and regulate the use of National Forest System lands in a manner the: protects the resources of the forest and that also does not infringe upon the Constitutional rights of assembly and free speech of those who wish to use National Forest lands for expressive purposes.

It should be noted that this is a relatively new dilemma, one that has arisen only in the current decade. Congress authorized the President to withdraw lands from the public domain for forest reserves in 1891 (16 U.S.C. 471). In 1897, Congress enacted legislation to ensure the proper care, protection, and management of the public forests; to authorize the employment of rangers to guard these forests; to open the forests to regulated use; and to authorize the Secretary of the Interior—later the Secretary of Agriculture—to issue rules and regulations to govern occupancy and use of these lands (16 U.S.C. 473-475, 477-482, 551).

Eighty-five years ago when the forest reserves—subsequently renamed the National Forests—were transferred to the jurisdiction of the Secretary of Agriculture, the issues in regulating use of the national forests were to protect the lands from unlawful entry and use and to ensure that occupancy and use occurred only with the approval of the Ranger. Early rangers performed essentially a custodial role, protecting the federal forests from fire, poachers. trespassers, and others who would exploit public resources for private gain and issuing permits for timber, grazing, and other forest products.

Unless otherwise authorized by statute—for example, in the case of mineral entry-any occupancy and use other than by the Federal Government was considered a "special" use and a

With the growth in recreation uses in the 1930's and 40's, it became evident that it was impracticable to require a special use permit of individual recreation users. In 1942, the Secretary's regulations were revised to explicitly provide thee "temporary use or occupancy of national forest lands by individuals for camping, picnicking, hiking, fishing, hunting, riding, and similar purposes may be allowed without a special use permit." (36 CFR 251.1; Reg. U-10, 1942). Thus, the rules created the first differentiation between individual recreational use and group recreational user. the latter still requiring a permit.

For the next 40 years the regulations governing special uses remained essentially unchanged. Uses were still characterized as special uses and as privileges, permits were still required for most uses, and fees were charged for most uses. The rules were recodified several times during this period, but substantive revisions, addressed issues, of fees or of meeting requirements of new laws such as compliance with the National Environmental Policy Act or the Federal Land Management and Policy Act. No revisions were made to the rules as to individual or group recreation uses.

The impetus for revising the rules as they applied to group uses came first in a decision dated September 7, 1982, U.S. v. Louis R. Beam , 686 F. 2^nd 252 (5^th Cir. 1982). The case involved 2 assemblies of Ku Klux Klan members on the Lyndon Baynes Johnson National Grasslands in Texas, part of the National Forest System, at which military-type training, including field maneuvers and

classroom-style instructions, was conducted. Mr. Beam, as a participant in the activity, was cited by a Forest Service officer for occupancy without a permit, pursuant to 36 CFR 261.10. and was subsequently convicted of a misdemeanor. On appeal by Mr. Beam, the Circuit Court held that. while "... the government may ... properly prevent, or condition on prior permit, the use of National Forests by private groups for activities such as paramilitary maneuvers, or for other privately conducted functions.," the Forest Service rules at 36 CFR §261.10 were ambiguous as to what was a public assembly and what was a private assembly. The court then held that by addressing only public uses, the rules did not govern private group use, and, therefore, a permit was not required for such use.

In response, the Secretary promulgated a revision to the Special Uses rules on June 21, 1984, (49 FR 25447 ) which sought to eliminate any confusion over public versus private gatherings, as the agency had never intended by its use of the term "public meeting, assembly, or special event" to indicate that "private'

gatherings were to be treated differently. This revision also sought for the first time to recognize and protect First Amendment rights of assembly by establishing two categories of group use. The first, "recreation events," were those activities by groups of more than 10 persons engaged in planned and organized events such as fishing tournaments and bossing regattas. The second category,

"special event", was established to cover group activity involving the exercise of First Amendment rights. The intent was to limit the degree of discretion available to forest officers in evaluating applications for permits for First Amendment-type uses by limiting review to matters of health and safety and resource protection. For applications for recreation events. the rules provided greater administrative discretion in approving or denying the use.

The 1984 regulations were successfully challenged in U.S. v. Israel , No. CR-86-027-TUC-RMB (D. Ariz., May 16, 1986). In that case-the Federal District Court for the District of Arizona dismissed charges against persons who had gathered on National Forest Systems lands without first obtaining a special use authorization for a "special event." Recognizing that the Forest Service had "every right to regulate large-group use of government land" (Order at 1), the court nonetheless held that the Forest Service may do so only if it applies such regulation to all groups. Because the Forest Service had failed to do so, the court held the regulation unconstitutional. as it "impermissible singles out those who wish to gather in order to exercise their First Amendment right." (Order at 1).

An an effort to respond to the court's finding, the Special Use regulations were amended by interim rule dated May 10, 1988.

The 1988 Interim Rule

(53 FR 16550). The interim rule required special use authorizations for all groups of 25 or more persons intending to use or occupy National Forest System lands, regardless of purpose. Again, in an effort to ensure protection of First Amendment rights of assembly, the regulations retained the two categories—special events ant recreation events—and further limited the reasons by which a forest officer could deny a special events permit

The 1988 interim rule was held to be invalid in U.S. v. The Rainbow Family , 694 F. Supp. 994, (E.D. Texas, June 1, 1988). In this case, the U.S. sought to enjoin the Rainbow Family from gathering on the National Forests in Texas until the group obtained a permit for a "recreation event." The court found the Forest Service had failed to show good cause for adopting the interim rule without prior notice as required by the Administrative Procedures Act (5 U.S.C. 553) and, therefore, held the rules to be invalid. The court then looked to the 1904 regulations and ruled these regulations unconstitutional. Like the court in U.S. v. Israel , the court in U.S. v. the Rainbow Family found the rules lacked adequate standards for determining when a use is a special event for the exercise of First Amendment activities and when it is a recreation event. The court held the 1984 rules to be discriminatory against those seeking to exercise their First Amendment rights. The court also held that some of the "criteria for approval or denial to a group seeking a permit seeking to engage in public expression of views are so broad and ambiguous as to vest unbridled discretion in the agency decision oaken" The court further held that the lack of any requirement that a reason be stated for denial of a special use authorization made it impossible to discern the true grounds for an authorized officer's decision.

A reading of these three cases makes clear that the agency must revise its special uses rules to achieve the following objectives:

1.Eliminate, to the maximum extent possible. the necessity for authorized forest officers to distinguish between whether a group use is a First Amendment expressive use or a recreational event and thus eliminate the necessity to determine which rules of procedure apply to applications and authorizations of such uses:

2.Treat all group uses as evenly as possible;

3.Limit the discretion and thus the potential for abuse of discretion granted to forest officers in reviewing permit applications that involve expressive uses by establishing more narrow standards of review; and

4.Require that authorized officers state the reason for denial of a group use authorization.