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