Federal Register Vol. 58 No. 86
DEPARTMENT OF AGRICULTURE
36 CFR Parts 251 and 261
Land Uses and Prhobitions;
Noncommercial Group Uses
Agency: Forest Service, USDA
Action: Proposed Rule
SUMMARY: This proposed rule would revise the existing rules
governing noncommerical group events and noncommercial
distribution of printed material within the National Forest
System. These revisions would ensure that the authorization
procedures for these activities comply with First Amendment
requirements of free speech and assembly.
DATES: Comments must be received in writing by August 4, 1993.
ADDRESSES: Send written comments to Recreation, Cultural
Resources, and Wilderness Management Staff (2340), Forest
Service, USDA, PO Box 96090, Washington, DC 20090-6090.
FOR FURTHER INFORMATION CONTACT: William T. Svensen, Recreation,
Cultural Resources, and Wilderness Management Staff, (202) 205-
1407, or Ellen R. Hornstein, Office of the General Counsel,
Natural Resources Division, (202) 720-9616.
The First Amendment of the United States Constitution
provides in part that the government may not abridge the freedom
of speech or the right to assemble peaceably. U.S. Const. amend.
I. Freedom of speech means the right to disseminate ideas
freely, both orally or in writing.
It is well established that the government may enforce
reasonable time, place, and manner restrictions on First
Amendment activities. Such restrictions are appropriate where
they are justified without regard to the content of the regulated
speech, where they are narrowly tailored to further a significant
governmental interest, and where they leave open ample
alternative channels for communication of information. "Clark v.
Community for Creative Non-Violence", 468 U.S. 288, 293 (1984).
Permits have been recognized as constitutional restrictions of
time, place, and manner when specific and objective standards
guide the licensing authority. "Shuttlesworth v. City of
Birmingham", 394 U.S. 147, 150-51, 153 (1969).
The Forest Service regulates activity on National Forest
System lands through the issuance of special use authorizations.
Issuing special use authorizations allows the Forest Service to
protect resources and improvements on National Forest System
lands and to prevent conflicts among potential or existing uses
and activities. The rules at 36 CFR part 251, subpart B, govern
the issuance of special use authorizations for all uses of
National Forest System lands, improvements, and resources, except
the disposal of timber (part 223) and minerals (part 228) and the
grazing of livestock (part 222).
On June 21, 1984, the Secretary of Agriculture promulgated a
revision to 36 CFR part 251, subpart B. That rule required a
permit for two types of noncommerical group events, recreation
events and special events, both of which involved ten or more
participants or spectators. As defined, recreation events
entailed competition, entertainment, or training, and special
events included a meeting, assembly, demonstration, parade, or
other activity involving the expression of views. Noncommercial
groups that did not fall into either of these categories did not
have to have a permit. Moreover, the rule contained different
standards for denying a special use authorization for each type
of group event (49 FR 25449).
Subsequently, a federal district court held that it is
unconstitutional to require a group to obtain a special use
authorization simply because they gather to exercise their
constitutional right of free speech. The court explained that
the Forest Service has the right to regulate large group
activities on government land, but only if the regulation is
content-neutral and applies to all large groups. "United States
v. Israel", No. CR-86-027-TUC-RMB (D. Ariz. May 10, 1986).
On May 10, 1988, the Forest Service published an interim
rule amending 36 CFR 251.50 through 251.54 to comport with First
Amendment rights of assembly and free speech within the National
Forest System (53 FR 16548). Upon challenge of this rule, a
federal district court held that the Forest Serice had failed to
show good cause for adopting the interim rule without prior
notice as required by the Administrative Procedure Act, 5 U.S.C.
553. "United States v. Rainbow Family", 695 F. Supp. 294, 302-
06. (I.D. Tex. 1988). In addition, the court invalidated the
classification established by the 1984 rule, which on its face
singled out expressive conduct and required that it be trated
differently from other activity. The court held that the 1984
rule lacked clear and objective standards for determining when a
group activity is a "recreation event" and when it is a "special
event" involving the exercise of free speech. "Rainbow Family,
695 F. Supp. at 309, 312. The court further held that the
standards for evaluating an application for an authorization for
expressive conduct were unconstitutionally vague as they vested
too much discretion in the authorized officer: "Id". at 309-12.
The court ruled that the 1984 regulations were invalid for
failure to impose a timeframe for filing and acting on an
application, and that the absence of any requirement in the 1984
regulations that a reason be stated for denial of a special use
authorization made it impossible to discern the grounds for an
authorized officer's dicision. "Id". at 311-12. Finally, the
court held that the 1984 rule was invalid for failure to provide
for judicial review of the administrative determination. "Id".
As a result of these court rulings, the Forest Service is
proposing revisions of the rules governing special uses at 36 CFR
part 251. The purpose of this proposed rule is to regulate
noncommercial group events and noncommercial distribution of
printed material on National Forest System lands in compliance
with First Amendment rights of assembly and free speech. To
achive this goal, the proposed rule contains specific, content-
neutral criteria for evaluating applications for noncommercial
events and noncommercial distribution of printed material
and requires that the same criteria be applied to those
activities, regardless of whether they involve First Amendment
rights. In addition, the proposed rule requires an authorized
officer to notify an applicant in writing of the reasons for
denial of a special use authorization and provides for immediate
judicial review of a decision denying an authorization.
Amendments to Part 251
Paragraph (a) would be revised for clarity and to make
explicit that an application is required for authorization of a
special use. Paragraph (c) would be revised to clarify that a
special use authorization is required for noncommercial group
events involving 25 or more people and noncommercial
distribution of printed material.
The agency has an interest in regulating group activities.
Group activities tend to have a greater impact on forest
resources and facilities than activities involving individuals
or smaller parties. The agency also has an interest in
regulating when noncommercial distribution of printed material
occurs. Such distribution can occur by posting, affixing or
erecting the material, which could damage natural resources if
not regulated. In addition, as distribution generally occurs in
crowded areas, it can obstruct traffic and create unsafe traffic
conditions, for example, where a single-lane road provides the
only access to a popular national forest attraction or where a
national forest is near an urban center.
Section 251.51 Definitions
Section 251.51 contains definitions used in part 251. subPart
B. The proposed rule would revise the definition for "group
event" and add new terms and definitions for "commercial use or
activity," "noncommercial use or activity," "printed material,"
and "distribution of printed material."
The term "group event" would cover any activity that involves
and/or attracts 25 or more people, regardless of the Purpose of
the gathering. Thus, this term would embrace all groups that
were included in the "special event" and "Recreation event"
categories of the 1984 rule, as well as those that were
excluded. The Forest Service is Proposing a cutoff of 25 people
based on a review of the potential impact on resources and
facilities. The agency believes that activities involving 25 or
more people tend to have a greater impact on resources and
facilities and thus require evaluation by an authorizsd
officer. If the agency required an authorization for smaller
group activities, the agency would be inundated with
applications, which would crsate an unnecessary administrative
burden and cost in light of the generally low impact of these
activities. Public comment is especially invited on this group
The terms and definitions for "commercial use of activity"
and "noncommercial use or activity" would be added to clarify
which activities would be subiect to the authorization
requirement in § 251.50(c)(3). The terms and definitions for
"printed material" and "distribution of printed material" would
be added to clarify one of the types of activities subject to the
authorization requirement in § 251.50(c)(3).
Section 251.54 -- Special Use Applications
Section 251.54 of the existing rule prescribes procedures
and requirements for processing applications for special use
authorizations. Section 251.54(a) encourages all proponents to
contact an authorized officer as early as possible so that
potential constraints may be identified, the proposal can be
considered in land management plans if necessary, and processing
of an application can be tentatively scheduled, The proposed rule
would amend § 251.54(a) to provide that the proponent will be
given guidance and information about the items listed in
paragraphs (a)(l) through (a)(8) only to the extent applicable to
the proposed use and occupancy. For example, fees and bonding
requirements listed in paragraph (a)(4) would not apply to
applications for noncommercial group uses and noncommercial
distribution of printed material and would not be discussed with
proponents of those activities.
Section 251.54(e) specifies the information that must be
contained in an application for a special use authorizaiion. The
proposed rule would amend paragraph(e)(1) to specify applicant
identification requirements applicable to all special uses.
Specifically, paragraph (e)(l) would require any applicant to
provide his or her name and mailing address, or if the
applicant is not an individual, the name and address of the
applicant's agent who is authorized to receive notice of
actions pertaining to the application.
Additionally, the proposed rule would amend this paragraph
by adding a new paragraph (e)(2) to specify separate information
requirements for noncommercial group uses and noncommercial
distribution of printed material. Paragraph (e)(2) would require
applicants for noncommercial group uses and noncommercial
distribution of printed material to provide the following:
(1) A description of the proposed activity;
(2) A description of the National Forest System land and any
facilities the applicant would like to use;
(3) The estimated number of participants and spectators;
(4) The date and time of the proposed activity; and
(5) The name of the person or persons 21 years of age or older
who will sign a special use authorization on behalf of the
This is the minimum information needed by the authorized
officer to apply the evaluation criteria in the proposed rule.
application information requirements for all other special uses
would romain as provided in the existing ruIe, with one
exception. The provision currently in paragraph (e)(l) concerning
the deference to be given to findings of another agency would be
moved to a new paragreph (f)(4), since this provision relates to
the processing of applications rather than to their content.
The Rainbow court identified the need for a specific
timeframe for granting or denying an application for a
noncommercial group event or noncommercial distribution of
printed material, 695 F.Supp. at 311. This decisionmaking
process, however, may trigger extensive statutory and regulalory
requirements, including those imposed by the National
Environmental Policy Act of 1969 (NEPA), 42 USC 4331 et seg., the
Endangered Species Act (ESA), 16 USC 531 et seq., the National
Historic Preservation Act, 16 USC 470 et seq., and other laws;
The time needed to comply with these requirements varies greatly
depending on the particular circumstances of each application.
Committing to a specific timeframe could put the agency in the
position of having to choose between violating either its own
regulations or one or more of these statutory mandates.
Consequently, the agency has determined that it would be
infeasible and arbitrary to specify a time period in which final
agency decision would be made.
In recognition of these competing concerns, the proposed
rule would add a new paragraph (f)(5) providing that the agency
would grant or deny an application for noncommercial group
events or noncommercial distribution of
printed material without unreasonable delay. A determination of
whether the agency acted with sufficient speed would require an
anaiysis of what is reasonable under the circumstances, in view
of the applicable statutory and regulatory obligations.
Applicants are encouraged to contact the agency as early as
possible to discuss the amount of time that could be required to
make a decision, and to apply sufficiently in advance of their
proposed sctivities to allow the agency to comply with applicable
statutory and regulatory requirements.
Section 251.54(h) of the 1984 rule enumerated grounds for
denying an application for a special use other than a special
event. Section 251.54(i) listed separate grounds for denying an
application for a special event, which invoIved the expression of
views. Thus, the 1984 rule applied different criteria for
activities with First Amendment implications than for all other
activities, including other types of group events.
Moreover, the criteria for First Amendment activities were not
specific enough to reduce the potential for application of
disparate standards in or reviewing applcations for an
The proposed rule would presume that any noncommercal
group event and noncommercial distribution of printed material
would be authorized, upon a determination that seven evaluation
criteria were met. These criteria would merely regulate time,
place, and manner with respect to a proposed activity. The
proposed Rule would dictate that these same criteria be applied
to all types of noncommercial group events and noncommercial
distribution of printed material. Thus, these criteria are
intended to be content-neutral, are narrowiy tailored to advance
significant governmental interests, and leave open ample
alternative channels for communication of the information.
Specifically, 251.54(h)(1) of the proposed rule would provide
that an authorized officer shall grant an application for a
special use authorization for any noncommercial group evant or
for noncommercial distribution of printed material, upon a
(1) The proposed activity is not prohibited by the rules at 36
CFR part 261, sub Part A, or by an order issued pursuant to 36
CFR part 261 subpart B, or by federal, state, or local law
unrelated io the content of expressive activity. This criterion
would allow the agency to deny an application for an activity
that would violate federal, state, or local law. This criterion
would also allow the Forest Service to regulate where a proposed
activity would be conducted. Tbe Forest Service must comply with
applicable federal law and regulations in managing the National
Forest System. For example, the Wilderness Act requires the
Forest Service to protect and manage wilderness areas so as to
preserve their natural condition and to ensure that the
imprint of human activity remains substantially unnoticeable. 16
U.S.C. 113l(c). The ESA prohibits s taking of an endangered
species. A "TAKING" as defined by the EPA includes the loss of
a listed species habitat. Thus, an authorized officer might deny
an application if the activity would be conducted in a wilderness
area or would risk a taking of a threatened or endangsred species
such as the spotted owl or grizzly bear. In addition, an
authorized officer would have to deny an application if the
activity would be conducted in an area that is closed or
restricted pursuant to an order issued under 36 CFR part 261.
Under a 261 order, the Forest Servics might close a trial in the
event of extreme fire danger or inclement weather.
(2) The proposed activity is consistent
or can be made consistent with the applicable approved land and
resource management plan. The National Forest Management Act
requires that "(r)esource plans and permits, contracts, and other
instruments for the use and occupancy of National Forest System
lands shall be consistent with the land management plans." 16
U,S.C. 1604(i). An activity is consistent with a forest use plan
if it adheres to a plan's standards and guidelines that are
forest-wide or that are included in managemnet prescriptions for
specific management areas. Standards and guidelines describe any
activities that are not permitted to occur in a specified area or
prescribe how activities must be implemented for environmental
protection or other purposes. Forest plans are developed in
accordance with the rules at 36 CFR part 219 and adopted with
extensive public participation and comment.
(3) The proposed activity would not delay, halt, or
prevent administrative use of an area by the Forest Service or
other scheduled or existing uses or activities on National Forest
System land, including but not limited to uses and activities
authorized pursuant to parts 222, 223, 224, and 225 of this
chapter. Under this criterion, authorized officer might require a
large group to alter arrival and departure times or to use an
alternative access route to avoid congestion. An officer might
suggest an alternate site on the opening day of fishing season
for the same reason. This criterion would also allow the Forest
Service to ensure that a group af Boy Scouts is not given a site
that is already being used as pastureland under a grazing permit
or that is currently being logged under a timber sale contract.
The 1984 rule Provided that an application for a special
event could be denied if the event conflicted with a previously
approved use or if it would be of such nature or duration that it
could not reasonably be accommodated in the place and time
requested (49 FR 25449). The federal district court in Rainbow
Fcrmily held that denying a permit because it it "conflicts" with
another use or because it "cannot reasonably be accommodated" in
the time and place requested allows for too much discretion on
the part of the authorized officer. 695 F. Supp. at 312.
This proposed rule would address the court's concern by
providing specific examples of how an activity covered by this
paragraph could delay, halt, or prevent existing or scheduled
activities and what those activities might include. Similarly,
the proposed rule would remove the unconstitutionally vague
criterion which allows an authorized officer to deny an
application for an activity covered by this Proposed rule on the
ground that it cannot reasanably be accommodated in the time and
(4) The proposed activity would not pose a substantial
danger to public health. Considerations of public health shall be
limited to the following with respect to the proposed site:
(5) The proposed activily would not pose a substantial
danger to public safety. Considerations of public safety shall
not include concerns about possible reaction to the users'
identity or beliefs from non-members of the group seeking an
authorization and shall be limited to the following:
(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 duration of use;
(d) The risk of disease from the physical charecteristics of the
proposed Site or natural conditions associated with the proposed
(e) The risk of contamination of the water supply; and
(f) The sufficiency of a plan for safe handling of food.
The 1984 rule allowed an authorized officer to deny an
application for a special event if it presented a clear and
present danger to the public health or safety (49 FR 25449). The
Rainbow court 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 31l. The proposed rule would overcome
this deficiency. In regulating where the activity would occur,
the criterion in the proposed rule would restrict the authorized
officer's discretion by enumerating concrete, content-neutral
considerations of public health and safety.
(6) The proposed activity does not involve military or
paramilitary training or exercises by private organizations or
individuals, unless such training or exercises are federally
funded. This activity does not implicate the First Amendment and
is currently prohibited by Forest Service policy as inconsistent
with National Forsst System purposes.
(7) A person or persons 21 years of age or older has been
designated to sign and does sign a special use authorization on
behalf of the applicant. The agency must have someone to contact
for purposes of special use administration. The authorized
officer may have questions about the application or may need to
notify the applicant in the event of an emergency. If the
application does not identify a contact person, the agency cannot
make the appropriate notifications. In addition, someone on
behalf of the appiicant must accept the responsibilities
associated with use of National Forest System land.
Public comment is especially invited on the seven evaluation
If, at the conclusion of the application process, the
application does not meet the ssven criteria, an administrative
officer could deny the application. Under proposed §251.54(h)(2),
however, an authorized officer would have to notify an applicant
in writing of the reasons for denial of an application for a
special use authorization. The Proposed rule would make explicit
that a denial of an application under §251.54(h)(l) would
constitute final agency action and would be immediately subject
to judicial review.
(a) The potential for physical injury to other forest
users from the proposed activity;
(b) The potential for physical inury to users from the
physical characteristics of the proposed site or natural
conditions associcrted with the proposed site;
(c) The potential for physical injury to users from scheduled
or existing uses or activities on National Forest System land;
(d) The adequacy of ingress and egress in case of an
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