General Comments

Comment

Section 261.10(h) of the proposed rule prohibited certain conduct when distributing printed material, including delaying, halting, or preventing administrative use of an area by the Forest Service or other scheduled or existing uses or activities on National Forest System lands, misrepresenting the purposes or affiliations of those selling or distributing the material, and misrepresenting the availability of the material without cost or donation.

Eleven respondents commented on this provision. One respondent objected generally to this provision as a violation of First Amendment rights. Another commented that this provision prohibits distribution of printed material and solicitation of donations for printed material.

One respondent stated that distrubtion of printed material could not significantly delay, halt, or prevent administrative use of an area by the Forest Service or other scheduled or existing uses or activities.

Two respondents stated that there is no need for this provision because the agency's concerns about fraud and conflicts with other uses are addressed by other laws.

Five respondents commented that this provision gives the agency too much discretion. One of these respondents commented that the phrase, ``administrative use of an area by the Forest Service or other scheduled or existing uses for activities on National Forest System land,'' is too vague. Another stated that virtually any human presence on National Forest System lands could be determined to impede other uses or to conflict with the forest plan. One respondent commented that an applicant's omission of a purpose or affiliation in applying for a permit could be construed as a misrepresentation that would justify denial of a permit and thereby have a chilling effect on speech. One respondent stated that under this provision, distribution of printed material for no charge while requesting donations could be considered a prohibited misrepresentation, that this provision would prohibit distribution of printed material in exchange for purely voluntary contributions, and that no such rule applies to commercial distribution of printed material.

One respondent stated that no individual at a consensual gathering can assume liability for the proposes or affiliations of other members and that the intent of the prohibition on misrepresentation is to impose liability and to provide a pretext for enforcement action.

One respondent commented that prohibiting misrepresentation when distributing printed material constitutes regulation of the content of speech. Another respondent advised deleting ``misrepresenting the purposes or affiliations of those selling or distributing the material,'' because although commercial speech may be regulated for truthfulness, political speech may not be.

Response

The Department has carefully examined the special use authorization requirement for noncommercial distribution of printed material.

Based on the comments received on resource impacts and on the Department's review of resource impacts associated with noncommercial distribution of printed material, the Department has determined that these impacts are not significant enough to warrant regulation at this time. Therefore, the Department has limited the prohibition contained in Sec. 261.10(h) to commercial distribution of printed material. In so doing, the Department has removed the reference to donations in Sec. 261.10(h) of the final rule, as donations generally do not occur in connection with commercial activities.

Section 261.10(h) of the final rule does prohibit and is not intended to prohibit commercial distribution of printed material. Rather, this provision is intended to ensure that commercial distribution of printed material does not delay, halt, or prevent other authorized uses and activities on National Forest System lands. Section 261.10(h) of the final rule is also intended to protect the public from fraud by prohibiting specific types of misrepresentation in the context of commercial distribution of printed material. Thus, this provision of the final rule regulates the time, place, and manner of commercial distribution of printed material, rather than the content of the commercial printed material.

As discussed in response to comments on Sec. 251.54(h)(1)(iii) of the proposed rule, the Forest Service has had difficulty allocating space among uses and activities, both commercial and noncommercial, on National Forest System lands. Section 261.10(h) of the final rule provides the framework necessary for ensuring that authorized uses and activities can coexist in the national forests and for ensuring that certain specific types of misrepresentation do not occur in the context of commercial distribution of printed material.

Section 261.14

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