General Comments

Comment:

Section 251.54(h) of the proposed rule specified the procedures and criteria for evaluating applications for noncommercial group uses.

Section 251.54(h)(1) of the proposed rule established a presumption in favor of granting an application for a special use authorization for all noncommercial group uses. Under Sec. 251.54(h)(1) of the proposed rule, an authorized officer had to grant an application for a special use authorization for any noncommercial group use upon a determination that seven specific, content-neutral evaluation criteria were met.

Approximately 70 respondents argued that the proposed rule gives the Forest Service too much discretionary power. These respondents stated that an application for a special use authorization could be granted or denied at will;

that the proposed rule results in too much governmental control;

that the proposed rule does not meet the stringent standards of Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992), because the evaluation criteria are not ``narrowly drawn, reasonable and definite'' and vest ``unbridled discretion in a government official'';

that the Forest Service could deny a permit to any group, and that simply restricting conditions under which permits can be denied does not erase a violation of constitutional rights;

that the regulation is intentionally vague and was drafted to fail, thereby inviting harsher legal remedies;

that a permit could be approved or denied based on an authorized officer's personal interpretation of the public interest;

that an authorized officer cannot decide on a whim how many people should gather or what may be discussed at the gathering;

that the proposed rule allows an authorized officer to grant or deny an application on the basis of what might happen;

that an application could be denied on the basis of prejudice and that if one gives others an opportunity to abuse one's rights, they will;

that the agency's intent may not be carried out by subsequent administrators;

that the agency may make it difficult to find out where to obtain a permit;

and that the agency may add reasons for denying a permit and may start requiring permits for individuals.

Response

The Department disagrees with these comments.

Under the proposed and final rules, applications for noncommercial group uses cannot be granted or denied at will, on the basis of prejudice, on the basis of what might happen, or on the basis of a personal interpretation of the public interest. Rather, these applications must be granted or denied on the basis of the specific, content-neutral evaluation criteria at Sec. 251.54(h)(1) that vest little or no discretion in the authorized officer. These criteria merely regulate time, place, and manner with respect to a proposed activity.

The Department drafted the criteria this way to ensure that the rule complies with constitutional requirements. The Department intends that the evaluation criteria be applied consistently and fairly as required by law to all noncommercial groups. After this rule goes into effect, the Department may not change it in any material way without publishing another proposed rule for notice and comment (5 U.S.C. 553).

Application forms for special use authorizations subject to this rule may be obtained from the Forest Service office responsible for management of the affected land. That office will evaluate applications received and decide whether to issue a special use authorization on the basis of those applications.

This rule meets the stringent standards of Forsyth. In that case, the Supreme Court held that a permit fee requirement was not narrowly drawn to provide reasonable and definite standards for fee determinations and that the ordinance at issue was content-based rather than content-neutral because the determination of the amount of the fee turned on a review of the content of the message conveyed. 112 S. Ct. at 2403-04. In contrast, the evaluation criteria in this final rule are narrowly tailored to minimize resource damage, to ensure compliance with federal, state, and local law, and to address specific concerns of public health and safety. None of these considerations has any connection with the content of any message that may be conveyed by a proposed activity.

Accordingly, the Department has retained without change the introductory text in Sec. 251.54(h)(1) in the final rule.

evaluation criteria in general

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