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
Listing of Comments
FS Regulation Page