General Comments

Comment:

Section 251.54(h)(1)(iv) of the proposed rule required an authorized officer to determine that a proposed activity would not pose a substantial danger to public health.

Considerations of public health were limited to the following with respect to the proposed site:

(a) The sufficiency of sanitation facilities;

(b) The adequacy of waste-disposal facilities;

(c) The availability of sufficient potable drinking water, in view of the expected number of users and the duration of use;

(d) The risk of disease from the physical characteristics of the proposed site or natural conditions associated with the proposed site;

(e) The risk of contamination of the water supply; and

(f) The sufficiency of a plan for safe handling of food.

Approximately 45 respondents commented on this provision. Seven respondents commented that the public health concerns addressed in this provision are beyond the responsibility or competence of the Forest Service (although one noted that contamination of the water supply is a legitimate agency concern). Another respondent stated that this provision is unnecessary because the local health department handles public health issues.

Eight respondents commented that this provision is too paternalistic, that individuals should be responsible for their own health, and that the agency should leave it up to individuals to decide what kind of health risks they want to take when they use National Forest System lands. One of these respondents commented that forest visitors know what they need to survive and that if a site cannot provide it, they will go elsewhere. Another one of these respondents stated that this provision could be used to deny the application of a group that has different sanitary requirements from what would be considered acceptable in mainstream American society.

One respondent noted that while the public health concerns addressed in this provision are typically under the jurisdiction of local health departments, they are also, depending on the circumstances, under the jurisdiction of local Forest Service personnel. This respondent stated that this provision is directly applicable to the protective mandate of the agency and contains important and legitimate standards of performance.

Another respondent stated that the water supply should not be contaminated by noncommercial group uses and that waste disposal facilities should be adequate for these activities.

One respondent felt that activities that pose a substantial danger to public health are a concern of government, that the risk of disease is an important matter, that contamination of the water supply should be a major focus of government agencies, and that food should be handled in a safe way, but that a permit process is not required to address these concerns. Three respondents commented that other laws, regulations, and standards exist to deal with public health problems, such as 36 CFR 251.54(h)(2) of the current rules, which allows the agency to deny a special use authorization if the proposed activity would present a clear and present danger to public health, 16 U.S.C. 551a, which allows the agency to cooperate with state and local law enforcement authorities, and forest plans and public health codes, which address the risk of disease.

One respondent stated that this criterion is unnecessary because the Forest Service adequately notifies forest visitors of the potability of water in the national forests. Two respondents stated that only minimal assurances are necessary for safe sanitation facilities, availability of safe drinking water, and safe food handling procedures, such as assurances to bury human waste away from the water supply, to truck in water from a nearby town, and to wash hands before eating or preparing meals. One of these respondents stated that satisfaction of these requirements would be so easy that they should be omitted as burdensome and unnecessary. One respondent stated that proper food handling is a matter of common sense.

Sixteen respondents stated that this provision is too vague and leaves too much discretion to the authorized officer. These respondents commented that this provision is no better than a similar provision struck down by the court in the Rainbow Family case; that objective standards are not specified, leaving too much room for interpretation, and that it is unclear how a determination could be made without regard to content; that ``substantial danger,'' ``sufficiency of sanitation,'' ``adequacy of waste disposal,'' ``availability of sufficient potable drinking water,'' ``risk of disease,'' ``risk of contamination,'' and ``sufficiency of a plan for safe handling'' are too vague and that the agency should use concrete numerical requirements for facilities based on the size of the group, the length of stay, and the characteristics of the site; that this provision is so broad as to provide a basis for denial of any permit; that this provision could unreasonably require portable toilets for waste disposal, which are more expensive than covered slit-trench latrines and which some groups might not be able to afford; that the risk of disease could be construed unjustifiably to prohibit a large group from using a meadow littered with cow dung from grazing; that a plan for safe handling of food could require unnecessary detail or prohibit individual food preparation; that a group should not need a plan for making peanut butter sandwiches or popcorn; that no church picnic would be authorized if the requirement for a plan for safe handling of food were applied indiscriminately, and that in reality, this provision would be selectively enforced to prevent counterculture groups from distributing food to the needy; and that it is impossible to ensure compliance with these standards prior to a noncommercial group use.

One respondent stated that this provision would require all groups to have an attorney, licensed food handler, trained medical staff, and environmental specialist. One respondent suggested that the agency specify who will review plans for the safe handling of food, who will assess the risk of disease, and who will disseminate assessments of these public health concerns, as well as how the agency's recommendations on these issues will be enforced. This respondent also suggested that the agency specify the ratio of people per latrine required under this provision.

Two respondents suggested that the agency key this provision to specific standards by requiring adherence of the proposed activity with applicable state and local health regulations.

Response

The Department agrees that the public health considerations addressed in Sec. 251.54(h)(1)(v) of the final rule are important and that it is appropriate to address these concerns in this rulemaking.

The Forest Service hasa general mandate to address concerns of public health 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 held in the Rainbow Family case, it is a reasonable time, place, and manner restriction to require that noncommercial group use of the national forests not threaten the public health or 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)). In United States v. Rainbow Family, the court required compliance with discrete health and sanitation provisions that addressed the same public health concerns enumerated in Sec. 251.54(h)(1)(v) of the final rule. 695 F. Supp. at 330-52.

As shown by the reports on the 1991 and 1992 Rainbow Family Gatherings, the Forest Service works with local health department officials to address concerns of public health that arise in connection with large group gatherings on National Forest System lands. The Department believes that a special use authorization process is needed to handle public health issues associated with large group use of the national forests. Other regulations, particularly 36 CFR 251.54(h)(2) of the current rules, which the court in the Rainbow Family case struck down for vagueness, do not provide the framework necessary for applying public health standards to noncommercial group uses.

The shigellosis outbreak at the 1987 Rainbow Family Gathering is one example of the type of problem that could be prevented or more effectively controlled through a special use authorization process. Although the Forest Service posted water sources and bulletin boards at the site with notices to boil water for at least 30 minutes, many people drank the water without boiling it. The Department believes that by allowing the Forest Service to address this type of public health issue before a noncommercial group use takes place, the application and permitting process will enhance the agency's ability to communicate concerns about this type of issue to groups and thus prevent serious health risks.

The 1984 group uses rule allowed an authorized officer to deny an application for a noncommercial group use if it presented a clear and present danger to public health (49 FR 25449). The court in the Rainbow Family case struck down this language because it was too vague and allowed for too much discretion on the part of the authorized officer. 695 F. Supp. at 311.

Section 251.54(h)(1)(v) of the final rule corrects this deficiency by restricting the authorized officer's review to concrete, content-neutral considerations of public health associated with the site proposed by the applicant. The Department intends to apply this provision uniformly and fairly as required by law, based on an objective assessment of each application.

The Department agrees that the considerations of public health in this provision should be keyed to specific standards by requiring adherence of the proposed activity with applicable state and local public health laws and regulations. Consequently, the Department has revised this criterion to provide that an authorized officer must determine that the proposed activity does not violate state and local public health laws and regulations as applied to the proposed site. Issues addressed by state and local public health laws and regulations as applied to the proposed site included but are not limited to the specific considerations of public health in Sec. 251.54(h)(1)(v) of the final rule.

Section 251.54(h)(1)(v) of the final rule does not require that applicants retain experts on public health issues or make a determination with respect to the public health considerations listed in that provision. Applicants merely have to submit an application that provides the basic information required in Secs. 251.54(e)(2)(i)(A) through (e)(2)(i)(E). An authorized officer will then evaluate whether the proposed activity violates state and local public health laws and regulations as applied to the site identified in the application. To clarify intent, the Department has removed Sec. 251.54(h)(1)(iv)(F) of the proposed rule, which listed the sufficiency of a plan for safe handling of food as one consideration of public health, because it is not clear that an authorized officer could apply state and local law on this subject solely on the basis of the information provided in an application. The Department has substituted ``sufficiency'' for ``adequacy'' in Sec. 251.54(h)(1)(v)(B) of the final rule to make that provision consistent with the terms used in Secs. 251.54(h)(1)(v) (A) and (C). In Sec. 251.54(h)(1)(v)(C) of the final rule, the Department has deleted the phrase ``in view of the expected number of users and duration of use.'' The Department believes that this phrase is redundant because of use of the word ``sufficient'' in Sec. 251.54(h)(1)(v)(C).

Section 251.54(h)(1)(v)

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