Comment:On the one
hand, First Amendment due process considerations require a specific
timeframe for granting or denying an application for noncommercial
group uses. On the other hand, a decision to issue a special use
authorization triggers extensive statutory and regulatory
requirements such as those imposed by the ESA and NEPA. Section
251.54(f)(5) of the proposed rule reflected the agency's effort to
balance the competing concerns of complying with these First
Amendment due process considerations and the statutory and
regulatory requirements triggered by a decision to issue a special
Approximately 65 respondents commented that this proposed provision is too vague
and would allow for too much discretion because it fails to provide a definite timeframe
for granting or denying an application. Four respondents cited United States v. Rainbow
Family in support of their position. One respondent cited footnote 5 in United States
v.Abney, 534 F.2d 984 (D.C. Cir. 1976), for the proposition that applications for First
Amendment activities must be handled on an expedited basis to avoid de facto censorship
of certain points of view.
Several respondents recommended an expeditious procedure for reviewing applications.
Four respondents stated that the National Park Service has a specific timeframe for
evaluating permit applications for First Amendment activities. One respondent cited 36
CFR 7.96(g)(3), which provides that National Park Service permit applications for
demonstrations in the National Capital Region are deemed granted if not acted upon
within 24 hours of receipt.
Two respondents commented that the need to comply with statutory and regulatory
requirements could not justify the agency's position and that the Forest Service should
set a short timeframe and deny an application within that timeframe if the agency needed
more time to complete an environmental impact statement.
One respondent suggested that permits should be issued immediately where the forest
plan identifies the proposed activity as appropriate for the requested area and where
the proposed activity meets applicable standards and guidelines. Another respondent
commented that if the group threshold remains at 25, the decision should be made almost
immediately where the requested stay is three days and two nights or less, where the
activity is to be held in an area designed for a large group, such as a developed
campground, and where the forest plan recognizes the activity as appropriate for the
desired area. The same respondent added that if the group threshold was raised to 50,
the decision should be made within 15 days.
One respondent suggested that the agency grant or deny applications within three
working days. Another respondent recommended a timeframe of six weeks for evaluating
applications. One respondent suggested that an application should be granted or denied
30 to 60 days after completion of the necessary NEPA analysis, which could range from
categorically excluding the proposed activity from documentation in an environmental
impact statement or an environmental assessment to preparation of an environmental
impact statement, depending on the intensity, scope, duration, and location of the
Others stated that the agency could take as long as it liked to review applications,
which could wreck a group's plan; that because the agency could take a long time to
evaluate applications, proponents would have to apply far in advance; that this
provision could allow denial by slow response; that applicants would have to go to court
to expedite the process; that the lack of a specific timeframe undercuts the due process
protection of immediate judicial review since access to the courts would be denied until
a decision was made; that it is unclear why it is infeasible to specify a timeframe;
that there is no evidence that NEPA, the ESA, and the NHPA apply to applications for
noncommercial group uses or noncommercial distribution of printed material and that even
if these statutes did apply, the Forest Service could survey the land and as part of
the planning process either identify sensitive areas that need protective or designate
areas suited for the activities in question; that the proposed rule does not define
``unreasonable''; that this provision injects too much uncertainty into the application
process and that while the need to comply with NEPA, ESA, and other statutes might in
rare instances justify an indefinite timeframe for extremely large groups, such a need
does not justify an indefinite timeframe for groups of 25 to 500 engaging in activities
such as educational field trips, company picnics, and family reunions.
Section 251.54(f)(5) of the proposed rule provided
that the agency would grant or deny an application for
noncommercial group uses without unreasonable delay.
Upon consideration of the comments received, the Department agrees that
a short, specific timeframe for processing applications is needed to meet First
See, e.g., Shuttlesworth, 394 U.S. at 162-64 (Harlan, J.,
concurring) (applications for First Amendment activities must be handled on an expedited
basis to avoid de facto censorship of certain points of view); A Quaker Action Group,
516 F.2d at 735 (a permit system must have a fixed deadline for administrative action
on a permit application for First Amendment activities; suggests that 24 hours be the
maximum time for processing an application, and that applications be deemed granted if
not acted upon within that time limit); Rainbow Family, 695 F. Supp, at 311 (1984
Forrest Service regulations are invalid for failure to specify a deadline for submitting
an application and for granting or denying an authorization for First Amendment
activities); see also Rainbow Family, 695 F. Supp. at 325 (although NEPA is
unquestionably constitutional, even an otherwise valid statute cannot be applied in a
manner designed to suppress First Amendment activity) (citing CCNV, 468 U.S. at 293;
Police Dep't of Chicago v. Mosley, 408 U.S. 92 (1972)).
However, as the court noted in the Rainbow Family case, 695 F. Supp. at 323-24, the
agency must comply with certain statutory and regulatory requirements under NEPA before
issuing a special use authorization. NEPA mandates that federal agencies undertake an
environmental analysis on proposals for major Federal actions significantly affecting
the quality of the human environment (42 U.S.C. 4332(2)(C)). The Council on
Environmental Quality (CEQ) has developed regulations implementing NEPA (40 U.S.C. part
In general, under the CEQ regulations, an agency must conduct an environmental
analysis to determine whether a proposed action may constitute a major federal action
significantly affecting the quality of the human environment (40 CFR 1501.4, 1508.9,
1508.13). If a proposed action may significantly affect the quality of the human
environment, an environmental impact statement (EIS) must be prepared (40 CFR 1501.4,
1502.4). As one of the example of a major federal action, the CEQ regulations list
approval of specific projects, such as actions approved by permit (40 CFR
Thus, as a general matter, the issuance of Forest Service special use authorizations
constitutes a federal action for NEPA purposes which may require documentation in a
categorical exclusion (CE), environmental analysis (EA), or an EIS. Proposed actions
implementing forest plans for which an EA or an EIS is prepared are subject to the
Forest Service's appeal regulations for project decisions (36 CFR 215.3(a) (58 FR
58911), which add substantially to the processing time (36 CFR part 215 (58 FR 58904)).
However, the CEQ regulations encourage agencies to reduce paperwork and delay by
categorically excluding certain types of proposed actions from documentation in an EA
or an EIS which do not individually or cumulatively have a significant effect on the
human environment (40 CFR 1500.4(p), 1500.5(k), 1507.3, 1508.4)). The Forest Service
NEPA procedures categorically exclude certain types of proposed actions from
documentation in an EA or an EIS, including proposed actions that fall within a category
listed in Sec. 31.1b of Forest Service Handbook 1909.15 (57 FR 43180), if no
extraordinary circumstances are related to or affected by the proposed action.
One of the categories listed in Sec. 31.1b is:
8. Approval . . . of minor, short-term (one year or less) special uses of National
Forest System lands. Examples include but are not limited to:
a. Approving, on an annual basis, the intermittent use and occupancy by a
State-licensed outfitter or guide.
b. Approving the use of National Forest System land for apiaries.
c. Approving the gathering of forest products for personal use.
As explained in
section 30.3(2) of the Handbook, extraordinary circumstances include, but are not
limited to, the presence of:
a. Steep slopes or highly erosive soils.
b. Threatened and endangered species or their critical habitat.
c. Flood plains, wetlands, or municipal watersheds.
d. Congressionally designated areas, such as wilderness, wilderness study areas,
or National Recreation Areas.
e. Inventoried roadless areas.
f. Research Natural Areas.
g. Native American religious or cultural sites, archaeological sites, or historic
properties or areas.
The Department does not intend to preclude reliance on a categorical
exclusion because of the mere presence of or a de minimis impact on one or more
extraordinary circumstances. Rather, the Department intends to preclude reliance on a
categorical exclusion if the proposed action materially impacts the characteristics or
functions of one or more extraordinary circumstances.
The Department believes it essential to reconcile the First Amendment requirement
for a short, specific timeframe with the need to comply with NEPA procedures. Thus, in
response to the comments received, the Department gives notice that the Forest Service
will categorically exclude authorization of noncommerical group uses from documentation
in an EA or EIS under Sec. 31.1b(8) of Forest Service Handbook 1909.15, provided there
are no extraordinary circumstances related to or affected by the proposed activity.
The Department believes that authorization of noncommercial group uses qualifies
for categorical exclusion under Sec. 31.1b(8) because noncommercial group uses are
short-term, typically for only a few days or weeks, and because they are minor in that
they entail readily mitigable environmental disturbance.
This determination is further supported by the reports on the 1991 and 1992 Rainbow
Family Gatherings and by the Rainbow Family case. In the context of an extensive
analysis of NEPA requirements, the court in the Rainbow Family case concluded that it
is questionable whether the annual Rainbow Family Gatherings would have any significant
impact on the environment for NEPA purposes. The court stated that environmental impacts
associated with these activities, such as the temporary contamination of streams, are
likely to be short-term. 695 F. Supp. at 324.
The Department's determination is also supported by the approach taken by the
National Park Service: The National Park Service categorically excludes from
documentation in an EA or an EIS ``the issuance of permits for demonstrations,
gatherings, ceremonies, concerts, arts and crafts shows, etc., entailing only short-term
or readily mitigable environmental disturbance'' provided extraordinary circumstances
are not adversely impacted by these activities (Department of the Interior NEPA
Procedures, 516 DM 6, Appendix 7, sec. 7.4(D)(5); 516 DM 2, Appendix 2, sec. 2.1 through
2.10). By categorically excluding these types of activities from documentation in an
EA or an EIS if they do not adversely affect any extraordinary circumstances, the
National Park Service is able to processapplications for these activities within the
24-hour timeframe imposed by 36 CFR 7.96(g)(3).
In addition to having determined that noncommercial group uses conform to the
categorical exclusion in Sec. 31.1b(8) of Forest Service Handbook 1909.15, the
Department has incorporated the extraordinary circumstances exception to categorical
exclusions into the evaluation process as an additional criterion at Sec.
251.54(h)(1)(iii) of the final rule. If an authorized officer determines that all the
evaluation criteria are met, including the criterion concerning the extraordinary
circumstances exception, the application will be granted. With this assurance that the
most sensitive environmental lands and resources will be protected, an extensive NEPA
analysis is not required.
Categorically excluding noncommercial group uses from documentation in an EA or an
EIS under Sec. 31.1b(8) of Forest Service Handbook 1909.15 allows the Forest Service
to expedite the processing of applications for these activities in compliance with both
NEPA and the First Amendment. Moreover, proposed actions that are categorically excluded
from documentation in an EA or an EIS under Sec. 31.1b are exempt from the potentially
lengthy notice and comment procedures in the Forest Service's appeal regulations for
project decisions (36 CFR 215.4(b) (58 FR 58911)).
Finally, like the National Park Service regulation at 36 CFR 7.96(g)(3), Sec.
251.54(f)(5) of the final rule specifies a short timeframe both for submitting and
processing applications for noncommercial group uses. Section 251.54(f)(5) provides that
applications for noncommercial group uses may be submitted up to 72 hours before the
activity and that applications for noncommercial group uses are deemed granted and that
an authorization will be issued for those uses unless the applications are denied within
48 hours of receipt.
The 48-hour and 24-hour timeframes for submission and processing of applications
under the National Park Service's regulation apply only to activities in the National
Capital Region, which is a fairly concentrated and developed park area. This final rule
applies to the entire National Forest System. The Department believes that the
additional 24 hours both for submitting and processing applications under this rule are
warranted given the sizable amounts of undeveloped land and the wide variety of uses
and activities that are subject to this regulation.
As provided in 36 CFR 7.96(g)(3), where an application for a special use
authorization has been granted or has been deemed granted under Sec. 251.54(f)(5) and
an authorization has been issued, an authorized officer may revoke the authorization
under the limited circumstances provided in Sec. 251.60(a)(1) of the final rule.
Under Sec. 251.54(f)(5), as under 36 CFR 7.96(g)(4), applications for noncommercial
group uses will be processed in order of receipt, and the use of a particular area will
be allocated in order of receipt of a fully executed application, subject to any
relevant limitations set forth in Sec. 251.54.
Listing of Comments
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