[Federal Register Volume 59, Number 95 (Wednesday, May 18, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-12126]
[[Page Unknown]]
[Federal Register: May 18, 1994]
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DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Part 7
RIN 1024-AC14
National Capital Region Parks; Sales
AGENCY: National Park Service, Interior.
ACTION: Proposed rule and policy statement with request for comments.
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SUMMARY: The National Park Service (NPS) proposes to revise existing
regulations governing the sale and distribution of newspapers,
leaflets, and pamphlets within the National Capital Region.
Specifically, the Park Service proposes to amend its sales regulation
to allow the sale or distribution of books. Further, the Park Service
proposes to rescind its sales enforcement guideline, which currently
allows the sale of T-shirts, buttons, bumper stickers and posters that
display a message directly related to the cause and activity. A
proposed Administrative Policy Statement explains the administration of
these regulations. These amendments and statement are intended to
regulate sales on park land of the National Capital Region.
DATES: Written comments must be received on or before July 18, 1994.
ADDRESSES: Written comments may be sent to: Robert Stanton, Regional
Director, National Capital Region, National Park Service, 1100 Ohio
Drive, SW., Washington, DC 20242.
FOR FURTHER INFORMATION CONTACT:
Sandra Alley, Associate Regional Director, Public Affairs and Tourism,
National Capital Region, National Park Service, 1100 Ohio Drive, SW.,
Washington, DC 20242, telephone (202) 619-7223; Richard G. Robbins,
Assistant Solicitor, National Capital Parks, Office of the Solicitor,
Department of the Interior, Washington, DC 20240, telephone: (202) 208-
4338.
SUPPLEMENTARY INFORMATION:
1. Background
The parks of the National Capital Region are visited by millions of
citizens and international travelers each year. Many of the parks of
the National Capital Region are among the Nation's oldest, dating from
the District of Columbia's establishment in 1790. The Ellipse, National
Mall, Washington Monument grounds and West Potomac Park, the site of
the Lincoln Memorial, President's Park, and other nationally
significant monuments and park lands are integral parts of the
comprehensive design of the L'Enfant and McMillan plans for the City of
Washington.
These renowned cultural landmarks represent the most significant
park areas and open space in the Nation's Capital. As part of
Washington's monumental core, these areas provide a highly landscaped
green space stretching from the Capitol to the Lincoln Memorial. The
Federal park land essentially serves as the Nation's front yard and
links the legislative, executive, and judicial branches of our Nation's
government.
The Federal park land of the National Capital Region enjoys a rich
diversity of uses. Visitors are drawn by its proximity to the great
monuments of the Nation's Capital such as the Lincoln, Jefferson and
Vietnam Veterans Memorials and the Washington Monument as well as by
its vistas and natural beauty. In addition, there are many other parks
located throughout the National Capital Region which draw thousands of
park visitors. The parks are the scene of a great diversity of
recreational activities including picnics, softball, and field hockey.
While park visitors may enjoy the sights and activities of Washington
and its environs, they may also seek time for quiet reflection in the
midst of these parks. Located as the seat of the Federal Government,
the Federal park land is the site for a wide range of demonstration
activities for and against all manner of causes.
Prior to 1976, sales were prohibited, without a permit, in all park
areas. At that time it was the general policy of the NPS not to grant
sales permits. That prohibition was revised following a decision of the
United States District Court for the District of Columbia in Washington
Free Community v. Wilson, 334 F. Supp. 77 (D.D.C. 1971). The court in
Washington Free Community struck down the regulation as applied to the
sale of newspapers. The court did, however, recognize a substantial
government interest in maintaining an atmosphere of calm, tranquility,
and reverence in certain limited park areas.
In 1976, the NPS promulgated a final rule allowing the sale and
distribution of newspapers, leaflets, and pamphlets without the aid of
a structure or stand in all park areas administered by the National
Capital Region, except in certain enumerated areas.
The NPS's current regulations allow a full range of demonstration
and special event activities on National Capital Region areas pursuant
to 36 CFR 7.96. These regulations allow the sale or distribution of
``newspapers, leaflets, and pamphlets'' on all National Capital Region
areas except for certain limited park areas specified in the
regulations. No permit is required when the sale or distribution occurs
without the aid of stands or structures. A permit is required when the
sale or distribution occurs with the aid of stands or structures. 36
CFR 7.96(k).
In the late 1970's the Park Service was faced with an increasing
number of requests by organizers of large scale, single day
demonstrations. These organizers requested permission to sell, along
with newspapers, leaflets, and pamphlets, T-shirts which displayed a
message directly related to their demonstrations' cause and activity,
and which frequently contained the date of the demonstration.
The NPS seriously considered the requests to sell such T-shirts. It
recognized that such items could possess some measure of communicative
values similar to written material. The NPS believed that, as now, that
the sale of items on park land, consistent with the First Amendment,
may be limited to newspapers, leaflets and pamphlets to protect park
values. However, the Park Service also desired to reasonably
accommodate the sale of such T-shirts, insofar as the sale of such
items were only for a single day, were sold only in connection with
large scale demonstration activity and in that context did not
incrementally disrupt the quality of the park visitor experience or
negatively impact on the park land's aesthetic values.
Accordingly, and after careful consideration, the NPS, National
Capital Region, adopted as an enforcement guideline, an administrative
determination that the permission to sell ``newspapers, leaflets, and
pamphlets'' under 36 CFR 7.96(k), could also be extended to cover T-
shirts which displayed a message directly related to the cause and
activity. As such, the NPS determined not to enforce the regulation's
sales prohibition against such items.
Beginning with the dedication of the Vietnam Veterans Memorial in
1982, however, the Park Service began receiving requests by numerous
demonstration applicants who, in addition to requesting permission to
conduct demonstration activities, requested permission to sell others
items in addition to newspapers, leaflets, pamphlets and event related
T-shirts. These other items included bumper stickers, buttons, posters,
patches, jewelry, hats, license plates, coffee mugs, flags, records,
tapes, pictures, decals and lapel pins.
The NPS seriously considered these new requests. It recognized that
some of these items could possess some measure of communicative value.
The NPS believed then, as now, that its statutory mandate to preserve
park land allows it to properly limit the sale of items on park land to
newspapers, leaflets and pamphlets. However, the Park Service also
desired to reasonably accommodate the sale of certain other items, to
the extent the sale of these items were conducted in connection with
demonstration conduct and were not disruptive to the quality of the
park visitor experience and did not negatively impact on the park
land's aesthetic values.
After further consideration, in 1982, the NPS fine-tuned its
enforcement guideline, and determined that the permission to sell
``newspapers, leaflets, and pamphlets'' under 36 CFR 7.96(k), could be
extended to certain other designated written material. This enforcement
guideline, which was reduced to writing, was a difficult line-drawing
exercise regarding commonly requested items which possessed some
communicative value. After careful consideration, the enforcement
guideline provided that bumper stickers, buttons, posters and T-shirts
which displayed a message directly related to the cause and activity
would also be permitted. The NPS continued to prohibit the sale of
items such as patches, jewelry, hats, license plates, coffee mugs,
flags, records, tapes, pictures, decals and lapel pins. A copy of the
enforcement guideline was routinely made available to all permit
applicants.
2. Current Situation
The National Capital Region of the NPS has an abundance of park
visitors and an absence of commercial vendors. As such, it offers a
``captive audience'' of customers, many of whom are tourists to the
city. The number of individuals and groups seeking to engage in sales
activities has dramatically increased over the years. After almost ten
years of experiences with the current enforcement guideline, the NPS
has concluded that activities allowed under the guideline have become
disruptive to the quality of the park visitor experience and have
negatively impacted on park resources and the aesthetic values of the
park land of the National Capital Region.
Specifically, the NPS has determined that the display and sale of
bumper stickers, buttons, posters and T-shirts, permitted under the
enforcement guideline, irrespective of the message presented, has
brought discordant and excessive commercialism, as well as degraded
aesthetic values, visitor circulation, interpretive programs, historic
scenes, and has inhibited the conservation of park property by denying
visitors the variety of opportunities to safely enjoy park resources.
In 1994, the National Capital Region expects to issue approximately
thirty-five hundred demonstration and special event permits. These
activities include demonstrations, the sale and distribution of printed
material with the aid of stands or structures, and special events. In
the small area near the Vietnam Veterans Memorial alone, the National
Capital Region expects there will be approximately sixteen hundred
permits issued. The vast majority of these permits are for a
combination of demonstration/sales activities.
The T-shirts sales which now occur on park land are far different
from the sales which first occurred under the enforcement guideline.
When first permitted, sales occurred on a single day from card tables
set up among the participants at large-scale demonstrations. The T-
shirts left with the demonstrators. Now, vendors sell a wide variety of
T-shirts all year round. The sales occur, not among participants at a
demonstration, but from vendors seeking customers from non-
demonstrating visitors as they visit an adjacent national monument.
Many of the T-shirt displays and sales occur on a daily round-the-clock
basis.
On any one day it is not uncommon to have large quantities of
bumper stickers, buttons, posters and T-shirts displayed and stored on
federal park land at various demonstration/sales sites. Most of these
sites are located near the Vietnam Veterans Memorial. With only a
limited amount of park land available near the Memorial, the number of
designated demonstration/sales sites has been increased to accommodate
the additional numbers of applications. At each of these demonstration/
sales sites, it is common to see the T-shirts displayed on large tables
or mounted on life-size torso mannequins or on five foot high A-frames.
The number and type of T-shirts attempted to be sold as well as T-shirt
vendors, is increasing.
Further, the NPS has found that the demonstration/sales sites which
now sell the items permitted under the enforcement guideline occupy
larger areas of park land. The space is used to display the range of
items such as T-shirts and to provide storage of sales stock. This has
negatively impacted on park land, and has caused tree, shrubbery, and
turf damage. With larger sites located near or on walkways close to
frequently visited memorials, visitor circulation has been negatively
impacted. Sales operations have interfered with Park Service
interpretative programs. Further, the increased presence of money at
demonstration/sales sites has caused the NPS to be concerned about the
risk of theft.
While demonstration/sales sites that sell only items specified
within the narrower band of the sales regulation may also impact on
trees and turf as well as visitor circulation, because of their smaller
size such impact will be vastly reduced. Moreover, the NPS believes
that if sales under the enforcement guideline were prohibited, based on
its past experience, the number of vendors seeking to engage in sales
activities would fall. This, of course, would further reduce the
negative impact on park resources.
Irrespective of the content of the messages contained on T-shirts,
bumper stickers, buttons and posters, the NPS has received complaints
from visitors. Complaints have stated the visitors found the sale of
such merchandise on Federal park land to be unsightly, inappropriate
and an unwelcome commercial intrusion. Media articles have described
the sales areas as a ``flea market.'' The Commission of fine Arts has
described the areas as ugly and spoiling the beauty of one of
Washington's great memorials.
The NPS believes that the sales currently permitted under the
existing enforcement guideline have become discordant commercialism and
have created a flea-market atmosphere on park land. Further, the NPS
has found that many of the T-shirts that vendors seek to market have
only a remote nexus to some demonstration and special event message.
One demonstration applicant imprinted scores of T-shirts with images of
cherry blossoms, within which, barely discernable, was an image of the
Vietnam Veterans Wall. During the heavily visited 1992 Cherry Blossom
Festival, the applicant asserted a right to sell such T-shirts, and
demanded permission to sell them along the walkways where park visitors
strolled along the Tidal Basin's flowering cherry trees.
Other applicants have sought permission to sell T-shirts containing
vistas of Washington DC or military fighter planes--which in themselves
were no different than the T-shirts sold by commercial vendors
throughout the city--but upon which applicants placed small logos
identifying their group. Another applicant sought to sell T-shirts with
images of wildlife, and contended that it furthered their environmental
concerns. All of the applicants argue that their message relates to
ongoing demonstration conduct.
The sale of T-shirts on park land is financially lucrative. During
the course of a recent copyright infringement lawsuit, the United
States district Court for the District of Columbia reviewed the tax
records of one regular permittee for a demonstration/sales site near
the Vietnam Veterans Memorial. From the tax records the Court concluded
that this individual ``had gross earnings of $1,849,683 from the sale
of all T-shirts in 1989-91.'' Hart v. Sampley, Civil No. 91-3068, slip
op. at 2, (D.D.C. Dec. 10, 1992).
No doubt, in part, because of the lucrative nature of these sales
outlets, the NPS has experienced increasing numbers of applications as
well as an intense competition between existing applicants as they
``compete'' to attract park visitors to buy their merchandise. Further,
as applicants seek to solicit sales from park visitors to the Memorial,
the competition between applicants has resulted in absurd situations
incompatible with the purposes for which park areas were established.
Some applicants selling merchandise under the enforcement guideline
have attempted to subvert the NPS's attempts to allow a full range of
applicants the ability to demonstrate on the geographically limited
park land adjacent to the Vietnam Veterans Memorial. In that regard the
NPS has found that certain applicants for the limited demonstration/
sales sites near the Memorial, after submitting fully executed
applications for designated sites, failed to actually occupy the sites
for which they have properly received permits. There have been numerous
complaints that such applicants have been motivated to obtain permits
for the sites, not to use them but solely to deny competitors the
opportunity to occupy and conduct their demonstration/sales activities
at the sites.
Such conduct, which some applicants have come to describe as a
``vending war'' between rival groups, is an abuse of the NPS's
regulations in that it needlessly, and unfairly, denies others an
opportunity to use these sites. Indeed, this ``vending war'' has gone
so far as to have some applicants submit, on a daily basis,
applications in twenty-one day increments for the limited available
preferred sites near the Vietnam Veterans memorial for up to a year in
advance.
Physical altercations have also occurred between applicants seeking
to file their applications first. Recently, one applicant complained to
Park Service employees that ``rival'' demonstrators soiled his site
with body waste. Other demonstrators have demanded that the Park
Service prohibit their competitors' sales activities on park land.
The NPS has received numerous requests to market other items
including clothing articles such as flak jackets, hats and sweatshirts.
Applicants have argued that if T-shirts are permitted, other types of
clothing should be also. Other applicants have argued that if buttons
are permitted, pins should be also. Other applicants have argued that
if bumper stickers are permitted, adhesive cloth patches should be
also. And, still other applicants have argued that if newspapers,
leaflets, and pamphlets are permitted, cassette and video tapes which
convey a message that is comprehended through the use of electronic
devices should be also. While such requests to expand the range of
items that may be sold have been denied due to the cumulative negative
impact on park visitors and park values, they have caused the Park
Service to further reexamine the appropriateness of the enforcement
guideline.
The NPS, National Capital Region, is experienceing increasing
numbers of new applicants requesting permission to sell items,
permitted under the enforcement guideline, on other park land. Some
applicants appear to have no other purpose for their activity than
selling T-shirts. Applications for sales activities has spread from the
Vietnam Veterans Memorial, to areas along the National Mall and to
other Federal park lands of the National Capital Region.
The NPS, based on its past experience, anticipates that there will
be an increasing number of applicants who will seek to engage in sales
activities on park land. The design of Washington, DC has created
outstanding areas which have honored those who have made lasting
contributions tot he history of our Nation. While 108 memorials,
monuments and plaques have been erected on Federal park land in the
District of Columbia and its environs, the number of national memorials
will increase. In that regard, new memorial proposals for Federal park
land, which have already received authorizing legislation, include the
Korean War Veterans Memorial, the Vietnam Women's Memorial, the
Franklin Delano Roosevelt Memorial Park, the George Mason Memorial, the
Black Revolutionary War Patriots Memorial, the Women in Military
Service for America Memorial, and the National Peace Garden. In the
years to come the number of national memorials on Federal park land
likely will increase further.
The Commemorative Works Act, 40 U.S.C. 1001-1010, provided that the
placement of future commemorative works in the District of Columbia and
its environs are to be ``of preeminent historical and lasting
significance to the Nation.'' With the additional of future significant
national memorials, there will also be an increase of park visitors to
the memorials. Based on its past experience, the NPS believes that
there will also be an increase in the number of applicants who will
seek to engage in sales activities pursuant to the current regulations
and enforcement guideline.
3. Regulatory Changes
The NPS believes that the regulation, as enforced pursuant to the
enforcement guidelines, is no longer appropriate in that it has become
disruptive to the quality of the park visitor experience and negatively
impacts on the park land's aesthetic values. As such, the NPS now
believes that the enforcement guideline should be rescinded and the
sales regulations amended to include books so as to prevent current and
future intrusions on park values and impacts on park visitors. Park
visitors should not have their experience diminished by crowds
displaying and hawking clothing and similar items.
The sales activity permitted under the current enforcement
guideline has brought discordant and excessive commercialism to
generally tranquil park settings. The sales have also degraded
aesthetic values, visitor circulation, interpretive programs, and
historic scenes, as well as inhibited the conservation of park property
by denying visitors the variety of opportunities to safety enjoy park
resources.
The NPS believes that further use of the current enforcement
guideline will result in continued and increased intrusions. As such,
the NPS believes that it is necessary to rescind the enforcement
guideline and amend the sales regulation, so as to limit sales to
books, newspapers, leaflets and pamphlets. The Park Service believes
that books constitute a larger, as well as logical variant, of
newspapers, leaflets, and pamphlets that are currently permitted. The
NPS has not experienced problems with the sale of such items.
The NPS believes that it may consider the cumulative impact, caused
by the sale of these items at demonstration/sales sites, in reexamining
its enforcement guideline of 36 CFR 7.96(k) which permits the sale and
distribution of ``newspapers, leaflets, and pamphlets.'' As such, the
Park Service believes that there should be a recision of the
enforcement guideline and an amendment of the regulations.
By rescinding its enforcement guideline and amending 36 CFR
7.96(k), so as to permit only the sales of books, newspapers, leaflets
and pamphlets, the Park Service believes that the park resources and
visitor experience will be protected and enhanced. Moreover, the NPS
believes that compliance with the sales regulation will not place an
unreasonable limitation on First Amendment activity, especially in
light of vast range of permissible activities available to persons
engaged in demonstrations and sales activities.
Visitors will still be able to come to the parks to pursue
communicative, inspirational, educational and recreational activities.
Consistent with Park Service regulations, demonstrators remain free to
sell and distribute literature, display signs and banners, march,
speak, hold vigils, and otherwise communicate their views. Further,
based on its years of experience in managing the Federal park land and
dealing with a full range of sales activities, the NPS believes that it
may validly limit the sale of what would otherwise be an unlimited
range of merchandise.
The NPS believes that limiting sales and distribution activities to
newspapers, leaflets, pamphlets, and books is a reasonable time, place,
or manner restriction. The restriction is clearly content-neutral in
that it applies irrespective of the nature of the message presented.
It leaves open ample alternative channels for communication of the
information. And, it preserves the integrity of park resources and
provides for the public enjoyment of our national parks while leaving
park resources unimpaired for future generations. As such, it
constitutes a restriction which is ``narrowly tailored to serve a
significant government interest.''
Finally, the NPS proposes to make two minor numbering corrections
in 36 CFR 7.96(k)(3)(vii), (ix) due to the redesignation of paragraph
(k) in 57 FR 4574 (February 6, 1992).
The NPS desires to fully inform the public of its actions on this
matter. As such, copies of this document will be made available to all
interested parties, including permit applicants, at the National
Capital Region, Office of Public Affairs and Tourism.
Drafting Information
The following persons participated in the writing of this rule:
Richard G. Robbins and Randolph J. Myers, Office of the Solicitor, U.S.
Department of the Interior.
Paperwork Reduction Act
The collections of information contained in this rule have been
approved by the Office of Management and Budget under 44 U.S.C. 3501 et
seq. and assigned clearance number 1024-0021.
Compliance With Other Laws
The rule has been reviewed under Executive Order 12866.
In accordance with the Regulatory Flexibility Act, the NPS has
determined that these proposed rules will not have a significant
economic effect on a substantial number of small entities, nor does it
require a preparation of a regulatory analysis.
The NPS has determined that this proposed rulemaking will not have
a significant effect on the quality of the human, environmental,
health, and safety because it is not expected to:
(a) Increase public use to the extent of compromising the nature
and character of the area or causing physical damage to it;
(b) Introduce incompatible uses which might compromise the nature
and characteristics of the area, or cause physical damage to it;
(c) Conflict with adjacent ownerships of land uses; or
(d) Cause a nuisance to adjacent owners or occupants.
Based on this determination, this proposed rulemaking is
categorically excluded from the procedural requirements of the National
Environmental Policy Act (NEPA) by Departmental guidelines in 516 DM 6,
(49 FR 21438). As such, neither an Environmental Assessment nor an
Environmental Impact Statement has been prepared.
The Service has reviewed this proposed rule as directed by E.O.
12630 and has determined that the regulation does not have taking
implications.
The Department of the Interior has certified to the Office of
Management and Budget that this proposed rule meets the applicable
standards provided in section 2(a) and 2(b)(2) of Executive Order No.
12778.
List of Subjects in 36 CFR Part 7
National parks, Reporting and recordkeeping requirements.
In consideration of the foregoing, it is proposed to amend 36 CFR
Part 7 as follows:
PART 7--SPECIAL REGULATIONS, AREAS OF THE NATIONAL PARK SYSTEM
1. The Authority citation for Part 7 continues to read as follows:
Authority: 16 U.S.C. 1, 3, 9a, 460(q), 462(k); Sec. 7.96 also
issued under D.C. Code 8-137 (1981) and D.C. Code 40-721 (1981).
2. Section 7.96 is amended by revising paragraph (k)(2)
introductory text, paragraph (k)(3) introductory text, the first
sentence of paragraph (k)(3)(vii), and the first sentence of paragraph
(k)(3)(ix) to read as follows:
Sec. 7.96 National Capital Region parks.
* * * * *
(k) * * *
(l) * * *
(2) The sale or distribution of books, newspapers, leaflets, and
pamphlets, conducted without the aid of stands or structures, is
allowed in all park areas open to the general public without a permit
except the following areas where such sale or distribution is
prohibited:
* * * * *
(3) The sale and distribution of books, newspapers, leaflets, and
pamphlets from fixed location stands is permitted within the Kennedy
Center, provided a permit to do so has been issued by the General
Manager: And provided further, that the printed matter is not primarily
commercial advertising.
* * * * *
(vii) Person engaged in the sale or distribution of printed matter
under paragraph (k) of this section shall not conduct activities from
other than a stand in the locations designated, or hawk or call out
from the stand. * * *
* * * * *
(ix) A permit may be revoked under any of those conditions, as
listed in paragraph (k)(3)(ii) of this section, which constitute
grounds for denial of a permit, or for violation of the terms and
conditions of the permit. * * *
* * * * *
Dated: January 24, 1994.
George T. Frampton,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 94-12126 Filed 5-17-94; 8:45 am]
BILLING CODE 4310-70-M
