General Comments

Comment:

Group event.

One respondent commented that the definition for group event would now include special events, recreation events, and all other noncommercial groups, and that this equal treatment of all groups is an outrageous misuse of power which allows for complete disregard for the intent of the group.

Two respondents commented that the threshold of 25 or more in the definition for group event is arbitrary and irrelevant, and that other than with extremely large groups, it is not the size of a group but the actions of a group and the site selected that determine the amount of impact. One of these respondents stated that an orderly church group of 200 can do less damage than a group of 50 demonstrators; the other commented that one person who is careless with a match can do more damage than 50 people swimming in a stream.

One respondent commented that the public has not had an opportunity to read, analyze, and comment on the agency's review of potential impacts that led to the definition of a group as 25 or more people. Two respondents commented that the agency should set different thresholds for a group according to the duration of the proposed activity and its impact on the land, and that the 25-person threshold is arbitrary and may be too large or small depending on special local conditions.

Another respondent voiced strong support for a 25-person cutoff, while eleven other respondents stated that 25 people is too low a threshold for a group event. One suggested 50 or 50 to 100 people. One suggested 50 people, which the respondent stated is the number used by the Bureau of Land Management. Another respondent who suggested 50 people felt that the 25-person threshold would create an undue burden by including many school camping groups and groups gathering only to secure academic credentials, and that the agency does not need to regulate these groups because group leaders with college and graduate-level degrees will always choose sites for their groups where the seven evaluation criteria will be met. One respondent suggested 95 people. One respondent stated that with the 25-person threshold, every family reunion and church picnic would require a permit. Another respondent suggested 250 people in order to allow most ``average'' group activities, such as family reunions and church or company picnics, to use National Forest System lands without an undue paperwork burden.

One respondent stated that the number of people for a group event should be as large as possible and that there are areas of National Forest System lands that can accommodate far more than 25 people. This respondent suggested that like the National Park Service, the Forest Service should designate such areas by regulation and establish a higher number for these areas, so that large groups can gather on short or no notice. In support, this respondent cited the National Park Service's regulations for the National Capital Region at 36 CFR 7.96(g)(2)(ii).

Four respondents were unclear about how the rule would be applied if more than 25 people unexpectedly end up using the same site. One of these respondents stated that it would also be unclear how the rule would be applied if several score people were camping in a large area, but far apart.

Two respondents stated that there is no way to tell how many people will appear at a group event, and that 23 people could be anticipated, but two more could show up, for example, for Rainbow Family site scouting parties. Two respondents stated that the phrase ``and/or attracts'' should be deleted. Specifically, one of these respondents stated that it is reasonable to hold a group responsible for predicting the size of its own turnout, but not for predicting how many unrelated and uninvited outsiders may be attracted to an event. This respondent noted that it is appropriate to require a group that anticipates attracting 25 or more uninvited people to notify the agency in advance.

Three respondents commented that spontaneous gatherings would be eliminated. Two of these respondents commented that large families and church groups that spontaneously camp or conduct other activities on the national forests would not have time to get a permit.

Response.

The Department has substituted the term ``group use'' for ``group event'' in the definitions section and elsewhere in the final rule because use of the term ``group event'' in this rule could be confused with use of the term ``recreation event'' in the Forest Service Manual.

In section 2721.49 of the Forest Service Manual, ``recreation event'' refers to commercial group uses where an entry or participation fee is charged, such as certain motorcycle races or fishing contests. This final rule applies only to noncommercial, not commercial, group uses.

The definition for group use includes all noncommercial group uses, regardless of whether they involve the expression of views, because the courts have held that it is unconstitutional for the regulation to single out expressive activity and treat it differently from other activity.

The Department agrees that the duration of the activity and the site selected have some effect on the amount of resource impacts and that one individual could cause a lot of damage, for example, by starting a forest fire. However, in the Forest Service's experience, the size of a group has a significant effect on the potential for resource damage: Typically, large groups have more impact on a given area than individuals. A numerical threshold is a purely objective, non-discretionary way to determine applicability of the regulation. In contrast, an assessment based on the type of activity could be subjective and discretionary and therefore unconstitutional.

The Department has carefully reviewed the comments concerning the appropriate numerical threshold for a group use and has carefully reviewed the Forest Service's experience with all types of noncommercial group uses on National Forest System lands, particularly with respect to resource impacts associated with these uses. The Department's review of impacts associated with noncommercial group uses is not based on a study, but on the Forest Service's experience in the field. Parts of this review were discussed in the response to comments on the Department's significant interests in promulgating this rule.

Based on its review of the comments on the numerical cutoff for a group and of the adverse impacts associated with group uses, the Department has determined that a 25-person threshold is too low and that 75 people would be a more appropriate threshold for applicability of the rule.

The Department recognizes that any numerical threshold is arbitrary in that a group of 74 people could have as much impact on forest resources as a group of 75, and that 25 people could have more impact than 100, depending on the type of activity and the characteristics of the site. Nevertheless, the Department believes that a numerical threshold is the fairest and most objective standard for applicability of the rule and that groups with 75 or more people tend to have a greater impact on National Forest System lands than smaller groups.

The National Park Service designates sites that are available for public assemblies in the National Capital Region and other park areas. These regulations can be found at 36 CFR 2.51, 7.96(g)(2)(ii). The Department does not believe it is practicable or necessary to require designation of sites that are available for noncommercial group uses of National Forest System lands. In general, the National Park Service and the Forest Service administer different amounts and types of land and different varieties of uses and activities on the land and therefore cannot take exactly the same approach to land management.

In the contiguous 48 states the National Park Service manages approximately 25.5 million acres of land with many fairly developed sites and an extensive reservation system. To a significant degree, public use of National Park Service land is concentrated. In contrast, in the contiguous 48 states the Forest Service manages approximately 169 million acres of land with primarily expansive, undeveloped resources. Management units in the National Forest System are generally not subject to the same level of regulation as National Park Service management units, and the Forest Service oversees a broader variety of uses and activities than the National Park Service. Generally, whereas the National Park Service has a preservation mission, the Forest Service has a multiple-use mission.

Finally, the Department does not need to designate specific sites because this final rule allows noncommercial groups to gather on very short notice without designation of specific sites. Section 251.54(f)(5) of the final rule provides for submission of applications up to 72 hours before a proposed activity and provides for a very short, specific timeframe for granting or denying applications.

This rule is intended to apply to noncommercial uses that involve groups of 75 or more people. The rule is not intended to apply to 75 or more individuals who do not arrive as part of a particular group or in connection with an organized activity, such as 75 or more people who reserve campsites individually rather than as a group at a popular developed recreation area on a holiday weekend. To clarify this intent, the Department is adding the words ``a group of'' to the definition for group use.

The rule is intended to apply to groups of 75 or more people that have requested use of a certain area for a noncommercial activity. The rule will apply to a group of 75 or more people that request to camp in the same area, even if they intend to camp far apart from each other.

The Department believes that it is reasonable for groups to estimate the expected number of participants and spectators at their activities. For example, groups could base their estimate on past experience and/or how many have expressed interest or have committed to participate in an activity. The Department agrees, however, that the phrase ``and/or attracts'' should be deleted from the definition for group use because it is not reasonable for groups to predict how many unrelated and uninvited outsiders may be attracted to an activity. Accordingly, the Department has deleted the phrase ``and/or attracts,'' but has added the phrase ``either as participants or spectators,'' to make it clear that an activity involving a group of 75 or more people, regardless of whether they are participants or spectators, requires a special use authorization.

The Department believes that in order to meet its objectives of ensuring resource protection, addressing public health and safety concerns, and allocating space in the face of greater legal constraints on the use of the land, it is both fair and necessary to require noncommercial groups of 75 or more people to obtain a special use authorization prior to their activity. Under the final rule, noncommercial group uses can be very close to spontaneous because applications for a special use authorization may be submitted up to 72 hours prior to the activity.

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