[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