General Comments

Section 251.60--Termination, Revocation, and Suspension

Under the proposed rule, special use authorizations for activities subject to the rule were exempted from 36 CFR 251.60(b), which provides that a special use authorization may be suspended, revoked or terminated at the discretion of an authorized officer for ``reasons in the public interest.'' This proposed exemption made clear the agency's intent to ensure that an authorized officer does not have unbridled discretion with respect to administration of activities subject to the rule.

Under the proposed rule, an authorized officer could still terminate, revoke, or suspend an authorization for these activities for noncompliance with applicable statutes, regulations, or terms and conditions of the authorization; for failure of the holder to exercise the rights and privileges granted; with the consent of the holder; or when, by its terms, a fixed or agreed-upon condition, event, or time occurs.

Comment

Nine respondents commented on this provision. Seven respondents commented that this provision gives the authorized officer too much discretion.

These respondents stated that the agency could revoke a permit in the middle of a gathering; that the agency could make revocation of a permit likely by requiring strict compliance with a condition that would be difficult to meet or that would inevitably occur; that actions of one person could put everyone at legal risk; that the agency could arbitrarily change a prior determination, for example, a designation of noncommercial to commercial, in order to revoke a permit; and that it is good that one basis for termination, revocation, and suspension was removed, but that reasons to stop an activity will still be determined by the Forest Service, and that there is no reason to stop a gathering unless people do something wrong, such as dumping tons of garbage or burning trees.

Two respondents objected to allowing an authorized officer to revoke a special use authorization if the holder fails to exercise the privileges granted by the authorization. One of these respondents commented that this basis for revocation is unclear and duplicates the basis for revocation for noncompliance with the terms and conditions of the authorization.

Another respondent objected to allowing an authorized officer to terminate a special use authorization with the consent of the holder on the ground that an individual could relinquish privileges on behalf of the group.

One respondent stated that the same criteria for termination, revocation, and suspension should apply to all permit holders, regardless of whether the holder is exercising constitutional rights.

One respondent commented that the rule should require an authorized officer to go before a judge and produce evidence before a permit is revoked.

Response

The Department disagrees that the same criteria for termination, revocation, and suspension should apply to both commercial and noncommercial special use authorizations.

Different standards apply to categories of activities like noncommercial group uses, which may include activities involving noncommercial speech.

The courts have held that this regulation cannot single out noncommercial expression and treat it differently from other similar types of activities. Israel, No. CR-86-027-TUC-RMB (D. Ariz. May 10, 1986); Rainbow Family, 695 F. Supp. at 309, 312. The courts have also held that the administrative standards that govern special use authorizations for noncommercial expression must be specific and objective and must not leave too much discretion to the authorized officer. Shuttlesworth, 394 U.S. at 150-51, 153; Rainbow Family, 695 F. Supp. at 309-12.

Therefore, the Department must ensure that the same criteria for termination, revocation, and suspension of special use authorizations for noncommercial group uses apply to all authorizations in that category, regardless of whether they involve the expression of views. The Department also must ensure that these criteria are specific and objective and do not leave unbridled discretion to the authorized officer.

The Department agrees that allowing an authorized officer to terminate, revoke, or suspend a special use authorization for a noncommercial group use when, by its terms, a fixed or agreed upon condition, event, or time occurs could undercut the Department's intent to ensure that the authorized officer does not have unbridled discretion in administering noncommercial group uses. Consequently, Sec. 251.60(a)(1)(i) in the final rule limits the grounds for revocation or suspension of a special use authorization for a noncommercial group use to (a) the criteria under which the authorization may be denied under Sec. 251.54(h)(1) of the final rule, (b) noncompliance with applicable statutes, regulations, or the terms and conditions of the authorization, (c) failure of the holder to exercise the privileges granted by the authorization, and (d) with the holder's consent.

In keeping with the courts' requirement for expeditious review of decisions affecting authorization of expressive activities, decisions to revoke or suspend a special use authorization for noncommercial group uses are immediately subject to judicial review under Sec. 251.60(a)(1)(ii) of the final rule. Thus, Sec. 251.101, which requires exhaustion of administrative remedies under the agency's administrative appeals process for special uses, does not apply.

Section 251.60(a)(1)(iii) of the final rule clarifies that a special use authorization for a noncommercial group use terminates when it expires by its own terms. No agency action is involved. Consequently, Sec. 251.60(a)(1)(iii) of the final rule makes clear that termination of a special use authorization for a noncommercial group use does not constitute agency action that is subject to administrative or judicial review.

Section 251.60(b) of the final rule exempts special use authorizations for noncommercial group uses from the authority to suspend, revoke, or terminate, at the discretion of an authorized officer, for reasons in the public interest.

Revocation will not be more likely for special use authorizations for noncommercial group uses than for other types of uses. The Forest Service endeavors and will continue to endeavor to help all holders comply with applicable statutes, regulations, and the terms and conditions of their special use authorizations and will endeavor to ensure compliance with the new evaluation criteria in Sec. 251.54(h)(1) of the final rule. Under this rule, individual group members will be personally responsible for their own actions, while the group will be responsible for the actions of its members as a whole that have a bearing on compliance with the special use authorization and applicable law.

Revocation or suspension on the basis of the holder's failure to exercise the privileges granted by the authorization allows an authorized officer to give the site authorized for use by the holder to another applicant if the holder decides not to use the site. The Department believes that this basis for revocation or suspension is clear and distinguishable from revocation or suspension on the basis of the holder's noncompliance with the terms and conditions of the authorization.

In the case of a special use authorization for a noncommercial group use, the person or persons who have been designated to sign and have signed the authorization on behalf of the group under Secs. 251.54(e)(2)(i)(E) and 251.54(h)(1)(viii) of the final rule would be expected to have the authority to consent to revocation or suspension of the authorization for purposes of Sec. 251.60(a)(1)(i)(D) of the final rule.

Section 261.2

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