General Comments


Efficacy of the Rulemaking.

Approximately 23 respondents commented that promulgating this regulation is a waste of time and money because it will be struck down by the federal courts, like the two prior attempts before it.


The final rule ensures that the authorization procedures for noncommercial group uses comply with First Amendment requirements while providing a reasonable administrative framework for addressing the significant governmental interests identified in the rule. The Department has structured this rule very differently from the 1984 rule that was struck down in United States v. Israel and United States v. Rainbow Family. Those courts held that the 1984 rule on its face singled out expressive conduct and required that it be treated differently from other activity; lacked clear and objective standards for evaluating applications for expressive activities; and lacked procedural safeguards required by constitutional law. The court in United States v. Rainbow Family invalidated the 1988 version because the agency had failed to show good cause under the APA for adopting an interim rule without prior notice and comment.

In contrast, this final rule establishes a single regulatory category that includes expressive and non-expressive activities; applies the same specific, content-neutral evaluation criteria to all applications in that category; and contains all the procedural safeguards required by case law. Rather than publish an interim rule that goes into effect upon publication but before comments are received and analyzed, the agency published a proposed rule for notice and comment, and the Department is publishing a final rule incorporating the analysis of timely received comments. The final rule does not go into effect until 30 days after it is published. In promulgating this rule, the Department has meticulously complied with all requirements of the APA.

Consequences of Noncompliance

Listing of Comments

FS Regulation Page