[Federal Register Volume 60, Number 67 (Friday, April 7, 1995)]
[Rules and Regulations]
[Pages 17639-17649]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-8599]
[[Page 17639]]
DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Part 7
RIN 1024-AC14
National Capital Region Parks; Special Regulations
AGENCY: National Park Service, Department of the Interior.
ACTION: Final rule.
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SUMMARY: This final rule amends the National Capital Region Parks
regulations to limit sales on Federal park land to books, newspapers,
leaflets, pamphlets, buttons and bumper stickers, and to set standards
for sites, stands and structures used in such sales. By this amendment,
the National Park Service (NPS) also rescinds a sales enforcement
guideline that allowed the sales of T-shirts that contained a message
directly related to a cause or activity. This final rule is adopted
because such sales have adversely impacted Federal park land in ways
described further below, resulting in discordant commercialism and
creating a ``flea market'' atmosphere in the National Parks of the
National Capital Region. Finally, pursuant to Public Law 103-279, the
NPS no longer has operating responsibilities for the John F. Kennedy
Center for the Performing Arts. Accordingly, this final rule removes
reference to the Center from the sales regulation.
DATES: The final rule becomes effective May 8, 1995.
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, D.C. 20240, telephone: (202) 208-4338.
SUPPLEMENTARY INFORMATION:
Background
On May 18, 1994, the NPS proposed a rule that would limit sales to
books, newspapers, leaflets and pamphlets on park land of the National
Capital Region (59 FR 25855). Copies of the proposed rule have been
distributed to demonstration and special event applicants, posted and
handed out in the National Capital Region's permit office. Copies were
also mailed to past and current demonstration and special event
applicants and other interested parties. In addition, the proposed
regulation has also received media coverage in stories about the
problems caused by sales activities.
Prior to this proposed rulemaking, the majority of applicants who
sought to engage in demonstrations or special events on park land
within the National Capital Region requested permission to engage in
sales activities related to their event. As detailed in the proposed
rule dated May 18, 1994, the National Capital Region of the NPS adopted
an enforcement guideline reflecting an administrative determination
that the term ``newspapers, leaflets, and pamphlets'' under 36 CFR
7.96(k) may cover certain other designated written material.
Specifically, under the guideline (a copy of which routinely has been
made available to all applicants), allowable materials have included
books, bumper stickers, buttons, posters and T-shirts which display a
message directly related to the cause or activity. The sale of patches,
jewelry, hats, license plates, coffee mugs, flags, records, tapes,
pictures, decals and lapel pins has not been permitted under the
enforcement guideline.
Adverse park impacts generated by the sale of T-shirts under the
enforcement guideline caused the NPS to propose an amendment to the
sales regulation. Since then, the amount of T-shirt sales activities on
park land in the National Capital Region has increased significantly,
and the adverse impacts associated with such sales decidedly worsened.
For example, during calendar year 1994, 4,771 permits were granted
for demonstrations or special events and the majority of these involved
requests for associated T-shirt sales. After publication of the
proposed regulations in May 1994, the Service received 976 T-shirt
applications during the remainder of 1994. In 1992, the Service
received 3,232 demonstration and special event applications, and, in
1993, there were 3,323. Through March 8, 1995, the NPS had received
3,092 applications, 90% of which sought T-shirt sales opportunities.
For the same period of 1994, the NPS had received 2,884 applications,
an increase of more than 200 applications.
Application numbers alone do not tell the whole story because many
applications apply for multiple dates and sites. For example, on
February 28, 1995, the Region received 50 demonstration/special event
applications. All sought T-shirt sales permission. Thirty-one of these
applications requested single T-shirt sales locations, and 19 applied
for multiple locations. The total number of sites applied for in the 50
applications was 112.
For the past several years, the NPS has routinely issued permits
for demonstrations and associated sales near the Vietnam Veterans
Memorial. But particularly throughout the past year, applicants have
sought and gained permission to sell message-bearing T-shirts for
repeated demonstration activities for a number of very general causes
such as ``conservation of the environment,'' ``to promote and broadcast
cultural and environmental messages,'' ``environment protection,''
``promote the salvation of the environment,'' ``Washington DC
statehood,'' and, ironically, ``Preserve National Parks.''
The demonstrator/vendors sales, which began near the Vietnam
Veterans Memorial, have now spread throughout Washington's Monumental
Core. As explained in the preamble to the proposed regulation, the
increase in applications for demonstration/sales sites on the limited
amount of park land available near the Vietnam Veterans Memorial forced
the NPS to designate additional demonstration/sales sites. Facing ever-
increasing numbers of applicants for sales activities, the NPS
designated additional sites adjacent to the popular memorials,
monuments and museums on the National Mall, Washington Monument grounds
and at the Jefferson Memorial.
A fundamental consideration in this rulemaking is the impact of
sales activities on the park land of the National Capital Region. This
park land enjoys a rich diversity of uses. Located at the seat of the
Federal Government, it hosts a wide variety of demonstration
activities, ranging from the lone protester to hundreds of thousands of
participants championing and opposing all manner of causes.
Visitors are also drawn to the great monuments of the Nation's
Capital--most notably, the Lincoln Memorial, Jefferson Memorial, the
Vietnam Veterans Memorial and the Washington Monument--which together
with the Capitol, the National Mall and the White House area, form
Washington's Monumental Core. The National Mall is an integral part of
the original L'Enfant Plan for the City of Washington. It is the single
most significant public park and open space, providing an unencumbered
greensward between the U.S. Capitol to the Washington Monument and the
Lincoln Memorial, a distance of 21 blocks. Visited by millions of
citizens and international travelers, the National Mall provides a
formal work of landscape architecture of monumental proportions and
provides the unifying element for the carefully placed, diverse
architectural symbols, [[Page 17640]] repositories and shrines of the
heritage of our democracy on and along its length. As part of
Washington's Monumental Core, it is unquestionably the most significant
park area in the Nation's Capital. Visitors to the National Mall are
drawn by its proximity to the great monuments of the Nation's Capital
as well as by its vistas and natural beauty. Visitors may enjoy the
sights and activities of Washington, or they may seek time for quiet
reflection in the midst of this great park.
Flanking this core are world-recognized museums such as the
National Air and Space Museum, the National Museum of American History,
the National Museum of Natural History, the Freer Gallery, the National
Museum of African Art, the Arts and Industries Building, the Arthur M.
Sackler Gallery, the Hirshhorn Museum and Sculpture Garden, the West
and East Wings of the National Gallery of Art, and the United States
Botanic Garden.
These monuments, memorials and museums, together with the
commanding vistas and natural beauty, draw several million visitors
annually. In 1994, for example, visitation at the Vietnam Veterans
Memorial was 1,475,044, for the Washington Monument 1,000,270, and for
the Jefferson Memorial 522,339. The Smithsonian's National Air and
Space Museum had 8,494,193 visitors, while its Museum of National
History had 5,756,861.
Many other parks located throughout the National Capital Region
draw hundreds of thousands of visitors. They accommodate recreational
activities including picnics, softball, and field hockey. Park visitors
may enjoy the sights and activities of Washington and its environs and
also seek time for quiet reflection in all of these areas.
Generally, applicants for demonstrations or special events who also
seek to engage in T-shirt sales submit applications in twenty-one day
increments (the maximum number of days authorized by NPS regulation).
See 36 CFR 7.96(g)(5)(iv)(B). Many applicants routinely submit
successive applications in twenty-one day increments for periods of
several months; one group submitted applications to sell T-shirts on
park land through the end of 1996.
The sales that first occurred under the enforcement guideline
several years ago were made in the context of large scale, one-day
demonstrations. The sales activities, like the demonstrations, lasted
but a single day and the T-shirts left with the demonstrators. The
current T-shirt sales are far different.
Vendors sell their wares day-in and day-out. The sales occur not
between organizers and participants at demonstrations, but between
commercial vendors seeking customers from among non-demonstrating
visitors at adjacent national monuments.
The consequence of this system of administration has been the
proliferation of T-shirt sales throughout the park land of the National
Capital Region. It is now commonplace to see large quantities of T-
shirts displayed and stored on park land at various demonstration/sales
sites, not only near the Vietnam Veterans Memorial where the practice
first arose, but also on park land the entire length of Washington's
Monumental Core. T-shirt stands now confront park visitors as they
approach many of the Nation's monuments, memorials and museums. They
are located at the base of the Washington Monument, in front of the
Jefferson Memorial, near the National Holocaust Memorial Museum, and on
the Mall adjacent to the Museum of Natural History, the Smithsonian
Castle and the Smithsonian Metro station. Increasing commercialization
within the sales sites has been marked by the use of life-size torso
mannequins and commercial clothing racks. As the Smithsonian
Institution observed in its comments on the proposed regulation:
[T]he number of vendors on the Mall increase[d] dramatically
especially within the last two years. Rather than occasionally
observing vendors associated with demonstrations or special events,
we note that vending near Smithsonian museums is now constant
activity, [and the] selling of products is done mostly by the same
groups.
Analysis of and Response to Comments and Rationale for Final
Regulation
A. Overview
The NPS received 4,626 written comments (some accompanied by
photographs) regarding the proposed rule. Most were from individuals
not indicating a particular affiliation or interest. Of the others, 25
were from veterans organizations, seven from other organizations, 73
were from veterans or relatives of veterans, four from representatives
of the legal community, and one from a past Director of the NPS. The
Department appreciates the time and effort expended on these comments.
606 comments supported the proposed rule as drafted. Among these
were four different preprinted signed letters from 170 individuals as
well as one petition signed by 170 individuals. Another 1,438
identical, unsigned letters were received bearing the names and
addresses of different persons purporting to support the proposed rule
as drafted. The organization responsible for submitting the letters has
requested that the NPS disregard all of these unsigned letters because
it failed to obtain the consent of the persons named. Accordingly, the
NPS has not given these unsigned letters any weight in its decision
making.
2,582 comments opposed the proposed rule as drafted. Among these
were 2,415 identical, preprinted, signed post cards. (A sampling of 298
of these revealed that 43, or 14%, were duplicate submissions.) One
petition in opposition to the proposed rule was signed by 130
individuals. One comment opposed the proposed regulation as drafted
because it was ``exceptionally lenient and generous''; another
recommended an outright ban on all sales.
There was one request for a public hearing. Given the large number
of responses received as well as their breadth and scope, however, the
NPS does not believe a public hearing would add to the range of views
and solutions considered.
B. Comments in Support of the Proposed Rule Based Upon Degradation of
the Park Visitation Experience and Impact on Park Physical Environment
Many of the 606 comments in support of the proposed rule agreed
with the NPS's assessment of the damages to park land caused by sales
activities. Comments frequently used words such as ``honky-tonk,''
``open air market,'' ``flea market,'' ``shopping mall,'' ``bazaar,''
``circus,'' ``carnival,'' ``eye sore,'' ``national embarrassment,'' and
``disgraceful'' to describe park land being used for T-shirt and other
sales activities. One comment, by a professor of urban design, stated:
Your characterization of the current situation at those sites as
having resulted in ``discordant commercialization, creating a `flea
market' atmosphere on park land'' resonates the feelings of all
concerned with the dignity and elegance of memorial statements in
the public domain.
The Smithsonian Institution, National Park Foundation, National
Capital Planning Commission, Commission of Fine Arts , National Gallery
of Art and National Park Hospitality Association wrote in support of
the proposed regulation. The President of the National Park Foundation
stated:
As a resident of the District of Columbia and someone who cares
about the Parks, I find the increased commercialism, especially in
the National Capital Region, to be exceedingly offensive * * *.
Visits to public land/Park land should be visits to uncluttered,
noncommercial areas. The law provides ways for individuals
representing [[Page 17641]] causes to get their messages across and
leave open ample opportunities for channels of communication of
information. It was not intended to create a supermarket for
clothing, hats, banners, pins, and other aggressive sales of similar
items which rob and deny a visitor the opportunity to see these
places as they were intended to be.
One comment describes the area of Washington's Monumental Core as
an unsightly ``virtual sea of T-shirt vendors.'' Another lamented that
these vendors have made it difficult to enjoy the beauty of the Mall,
forcing park visitors to play ``dodge the vendors.''
Sales activities on the Mall adjacent to the National Air and Space
Museum are particularly pronounced. Pursuant to the court's order in
ISKCON of Potomac, Inc. v. Ridenour, 830 F. Supp. 1, 4 (D.D.C. 1993)
(appeal pending), NPS regulations regarding sales and solicitation may
not be enforced at all in ``the area of the Mall adjacent to the Air
and Space Museum.'' With no regulatory enforcement mechanism possible
under this court order, T-shirt sales tables on park land have
multiplied. Displays have stretched to extraordinary lengths; e.g.,
vendors now occupy all of both sides of a 139 foot north-south walkway
just north of the National Air and Space Museum.
One comment, by a Smithsonian Institution employee, described the
area now as having ``shirts hung out in the breeze'' creating ``a
distracting visual clamor which totally destroyed the [Mall's] grand
design.'' Another, noting sales of T-shirts inscribed with such
insignia as ``Beavis and Butthead,'' asked whether it is ``the Park
Service's objective to turn the National Mall into a shopping mall?''
Another protested:
I went to enjoy the beauty of the Mall and the Museums. Instead,
every where I turned I saw and heard vendors, vendors, and more
vendors. Are we allowing our beautiful Capital to be turned into a
gigantic outdoor flea market?
One comment, while regretting that the Boy Scouts of America itself
had not been allowed by the NPS to sell its memorabilia on the
Washington Monument grounds, nevertheless supported the proposed
regulation, stating ``that we have come to a sad state of affairs when
commercial vendors, masquerading under the guise of saving the whales
are allowed to exploit our National showcase park areas.''
Former National Park Service Director James Ridenour wrote in
support of the proposed regulation as necessary to control ``the
carnival atmosphere that erodes the dignity of our national capital
parks and memorial.'' As to the sales occurring near the Vietnam
Veterans Memorial, Ridenour, a Vietnam veteran, wrote that he was:
[O]ffended by the business that has continued to expand in that
area. These shanty businesses have become big businesses. This is
not some highly sacred freedom of speech issue--this is the
despoiling of our nation's greatest treasures and a
commercialization that goes beyond what previous administrations
ever envisioned.
A number of national veterans groups, including AMVETS, Veterans of
Foreign Wars of the United States, Vietnam Veterans of America, Inc.
and the Vietnam Veterans Memorial Fund, wrote in support of the
proposed regulation and expressed concern that sales activities have
caused a commercialized condition of park land around the Vietnam
Veterans Memorial. (As explained more fully in the next section,
however, other groups, including the Friends of the Vietnam Veterans
Memorial, the National Alliance of Families and other local veterans
groups oppose the proposed regulation, complaining that it would
adversely impact on sales activities by vigil groups near the Vietnam
Veterans Memorial).
In summary, the commenters supporting the regulation generally
concurred with the judgment of the NPS that the T-shirt displays and
hawking, occurring on a daily basis near frequently visited memorials,
substantially diminish and impair the park visitors' experience. In
addition to the general ``flea market'' atmosphere, the NPS has
observed that sites are occupying ever-larger areas of park land,
mostly located near or on walkways close to frequently visited
memorials. As a result, visitor circulation has been adversely
impacted. Sales operations have also interfered with NPS interpretative
programs. Some commenters complained that they have been unable to
photograph national landmarks without also capturing demonstration/
sales sites in the same picture.
The presence of money within park areas has always been a law
enforcement concern of the U.S. Park Police. Sales sites have already
experienced several criminal related offenses. Also, in an effort by
permittees to reserve ``premium'' sales sites adjacent to popular
memorials, a number of permittees have hired homeless people or have
even physically assaulted one another to preserve and occupy their
sales site locations.
Increasing T-shirt sales activities have also brought increasing
pedestrian and vehicle congestion. This has resulted in damage to turf,
trees and shrubbery. At or near T-shirt sales sites, only mud and
compacted soil remain where grass once grew. Soil compaction in these
areas is so severe that the NPS has found no horticultural technique
which permits the restoration of plants without excluding all activity
from the injured sites for a period of several months.
C. Comments in Opposition to the Proposed Rule
Of the 2,582 comments opposed to the proposed rule, all but five
focused solely on the sales activities on park land around the Vietnam
Veterans Memorial. 2,415 preprinted postcards were submitted opposing
the proposed regulation on the ground that it would:
[R]emove the best opportunity I have to publicly show my support
for the organizations and causes represented near the Memorial.
Further, the presence of these groups and the sale of all of their
products is beneficial to the visitors * * *. (emphasis in
original).
Forty-six comments voiced concern that if the proposed regulation
is implemented, one demonstration vigil now under permit near the
Vietnam Veterans Memorial would be forced to ``close down.'' In his
comment, the Executive Director of this particular demonstration
described the proposed regulation as aimed specifically against his
vigil; specifically:
[A] smoke screen designed to conceal the Park Service's real
agenda[,] which is part of a long term political effort to remove
the POW/MIA activists from the area near the Vietnam Veterans
Memorial. It is the result of the combined efforts of career
bureaucrats, who can't stand the thought of a handful of veterans,
activists, and POW/MIA family members using the First Amendment to
raise enough funds through the sale of POW/MIA related T-shirts to
continue opposing a failed U.S. government POW/MIA policy.
The proposed rule is content neutral and is not intended to harass,
much less ``close down,'' any demonstration. In proposing the
regulation, the National Park Service recognizes the important function
park land serves for the ``purposes of assembly, communicating thought
between citizens, and discussing public questions.'' Hague v. CIO, 307
U.S. 496, 516 (1939). The rule is designed to regulate the time, place,
and manner of sales activities to protect the parks and the visitor
experience without seriously interfering with the achievement of those
essential purposes.
This same commenter challenged the accuracy of NPS's assertion, in
the preamble to the proposed rule, that one demonstrator ``had gross
earnings of $1,849,683 from the sale of all T-shirts [[Page 17642]] in
1989-91.'' See 59 FR 25857. This quotation was taken directly from the
Court's order in Hart v. Sampley, Civil No. 91-3068 (D.D.C. December
10, 1992).
An attorney commenting on behalf of several nonprofit organizations
accused the NPS of ``deliberately seeking to create a condition on the
Mall whereby it can justify a complete ban on the sale [of] message-
bearing merchandise.'' The NPS rejects this characterization. It has
not created the adverse consequences caused by sales activities on park
land in order to justify sales restrictions. Rather, as detailed in the
proposed sales regulation, it has permitted groups and individuals to
sell message-bearing T-shirts, but that fact was not widely known until
fairly recently. When the NPS sought public comment on the proposed
sales regulations, more persons and groups became aware of the rules.
The current proliferation of sales applicants is likely to be simply
indicative of the actual number of persons and groups who would like to
sell T-shirts on National Capital Parks land.
The NPS has attempted to fairly and even handedly process
applications for demonstration/sales activities on park land in
accordance with current regulations and guidelines. The applications
requesting use of park land, and the permits authorizing such use, are
a matter of public record and review. Persons who identify themselves
as merely interested in selling T-shirts with no cause related to a
demonstration have been turned away. The NPS has also attempted to
fairly and even handedly monitor permittees' compliance with the terms
of their permits at their demonstration/sales sites. The NPS proposed
to amend its sales regulation because of the adverse consequences
caused by some of the sales activities under the sales enforcement
guideline.
The balance of the other comments that focused on sales activities
near the Vietnam Veterans Memorial did not challenge the NPS's
motivation, but opposed the proposed rule because it would adversely
impact veterans groups' ability to raise money for their cause. One
commenter, from a Vietnam veterans organization, wrote that:
In seven years of experience at the [Vietnam Veterans] Memorial,
the Friends have concluded that the presence of t-shirt and other
sales plays a significant role in the experience for tens of
thousands of visitors. Guestbooks which have been maintained near
the Memorial by the FVVM show overwhelmingly that the presence of
our group has been positive.
While the NPS does not question the sincerity of this commenter's
assertion that its presence on park land contributes positively to the
park visitor experience, only two of the 5,716 entries in the
commenter's guestbooks expressed views on sales activities. One wrote
of her appreciation for the opportunity to buy items near the Memorial,
but the other wrote: ``This merchandise is out of place and degrades
the dignity of this shrine.''
The Friends also submitted a ``Vietnam Veterans Memorial
Attitudinal Study.'' The study, prepared by a marketing research
consultant, consisted of interviews of 329 visitors who were
``randomly-intercepted in the area of the [Vietnam Veterans] Memorial''
over a three-day period. Contrary to the commenter's assertion that
sales play a ``significant role'' in the visitor experience at the
Vietnam Veterans Memorial, the study shows more than two-thirds of the
respondents did not stop at any demonstration/sales location. Moreover,
the study focused solely on the park land adjacent to the Vietnam
Veterans Memorial, while the NPS is concerned with the negative impact
of sales activities on park land throughout the National Capital Region
and cannot legitimately distinguish between T-shirt sales in one area
or one cause and such sales in another area or for another cause.
One demonstrator who participated in the first vigil or ``booth''
near the Vietnam Veterans Memorial in 1987 commented that he was
closing down his own operation in part because he ``did not have the
manpower or the money to pay someone to stay in the parking lot of the
NCR building overnight so that we could be `first in line' when the
permit office opened and turn in 14 or so permits applications every
day.'' He opposed the proposed rule, however, ``because the [Vietnam
Veterans Memorial] Wall is unique * * * [and] vendors should stay at
least until the healing of all Vietnam Veterans is complete.'' He
believed that vendors help provide a ``chance to talk with a fellow
veteran to let out your feelings, to rid oneself of the hurt, and to
find out about other veteran related programs, organizations and
problems.'' Under the new regulation, demonstrators will remain free to
talk with the visiting veterans and provide oral or written information
regarding veteran-related programs, organizations and problems. The
only difference is that they cannot sell T-shirts at the same time.
Finally, one commenter indicated that the NPS should not be
worrying about T-shirt and other sales because ``this money is
certainly being used for a wonderful and well needed cause.'' The role
of T-shirt sales in financing demonstration activity is considered in
the next section.
D. Commenters' Objections on Constitutional Grounds
Some commenters argued that if demonstrators could not sell such
merchandise they would be unable to finance their demonstration
activities. The American Civil Liberties Union for the National Capital
Area (ACLU), wrote that T-shirts, buttons or lapel pins worn on a
person are an integral and prominent part of demonstrations because
they ``are unusually cheap and convenient forms of communication that
convey distinct messages because they connect the message with the
speaker.''
1. T-Shirts Versus Other Forms of Communication
After careful consideration, the NPS has concluded that the basic
problem of commercialization and attendant adverse impacts on park
values is caused by T-shirt sales. It has also concluded that the
problem cannot be abated by other than a ban on such sales on park
land.
The NPS acknowledges that lines must be drawn in deciding the types
of such merchandise that may be sold on park land in connection with
demonstrations, to allow both demonstrators and park visitors an
opportunity to use park land and still preserve the park values
operative in the area. In general, the NPS wants to permit the maximum
amount of communicative conduct that is consistent with the protection
of the core park values in the area. It recognizes that a total ban on
all sales in connection with demonstrations would arguably be most
protective of the parks, and that a credible legal argument might be
made for such a resolution. But the NPS desires to accommodate the sale
of message-bearing materials in connection with demonstrations to the
extent it does not unreasonably impinge on other park values.
By rescinding its enforcement guideline and amending 36 CFR 7.96(k)
so as to permit only the sales of books, newspapers, leaflets,
pamphlets, buttons and bumper stickers, the NPS believes park
resources, the visitor experience, and the desirability of free
expression will all be protected and enhanced.
The NPS has found that the sale of traditional written material in
the form of newspapers, leaflets and pamphlets has not presented the
problems that the sale of T-shirts and of other
[[Page 17643]] merchandise has caused. The NPS also believes books
constitute a larger and logical variant of the newspapers, leaflets and
pamphlets that are currently permitted.
The NPS has also, upon reexamination since the proposed regulation
was published, concluded that buttons and bumper stickers should be
permitted to be sold in connection with demonstrations. The sales of
these items have not caused the same problems of commercialization and
negative effects on other park values as those caused by T-shirt sales.
Accordingly, the NPS has decided to continue to allow the sale of
buttons and bumper stickers on park land.
While the Service has decided to prohibit T-shirt sales on park
land, it will of course not restrict or otherwise regulate the wearing
of communicative T-shirts. More generally, persons and groups remain
free to express their views on park land, in long-standing
demonstration vigils as well as shorter-term demonstrations. They may
continue to use park land to speak, display signs and banners, march,
hold vigils, sell and distribute literature, communicative buttons and
bumper stickers, and otherwise communicate their views. At the same
time, non-demonstrating visitors will still be able to come to the
parks to pursue communicative, inspirational, educational and
recreational activities.
For these reasons, the NPS believes that compliance with the sales
regulation will not place an unreasonable limitation on First Amendment
activity. A wide range of permissible activities remains available to
persons who wish to engage in demonstrations and associated sales
activities. Ample alternative avenues of communication are preserved.
Demonstrators will still be able to sell other merchandise either on
property within the District of Columbia's jurisdiction or through the
books, newspapers, leaflets, and pamphlets sold or distributed on park
land. These areas under District of Columbia jurisdiction are
convenient to park visitors and are located adjacent to Washington's
Monumental Core. Constitution and Independence Avenues east of 15th
Street, NW and all of the north-south streets north of Constitution
Avenue and south of Independence Avenue are controlled by the District
of Columbia. For many years, demonstration groups have used these areas
to sell items not permitted to be sold on NPS areas. Further, the vast
majority of park visitors must pass these District streets and
sidewalks on their way to the NPS areas.
Finally, in this connection, the NPS is concerned that if it
continues to allow sales of T-shirts, it will face ever more difficult
line-drawing decisions. Even with T-shirt sales now permitted, the NPS
continues to receive requests for permission to sell other types of
merchandise, such as coffee mugs, sweat shirts, hats, patches, jewelry,
flags, records, audio tapes, video tapes, pictures, and decals--all
complete with self-described ``First Amendment messages'' affixed to
each item. Some demonstrator/vendor applicants argue that a First
Amendment message is implicit in the merchandise itself. For example,
in the past one demonstration group, advocating the protection of
endangered rain forests, requested permission to sell candy on park
land and argued that the candy possessed communicative protection
because its ingredients came from the ecologically sound harvesting of
nuts from rain forests. Others have urged the NPS to permit the sale of
audio tapes. In addition to posing the same impacts as T-shirts, NPS
personnel would need recorders to determine whether the tape related to
the demonstration and visitors would need a like machine to determine
what message was being expressed.
Plainly, a line has to be drawn somewhere if the National Capital
Parks are not to be wholly given over to merchandising with a
connection to free expression. The NPS believes an appropriate line is
reflected in these regulations.
2. T-Shirt Sales as Underwriting the Expenses of First Amendment
Expression
The NPS acknowledges the possibility that T-shirt sales on park
land improves the financial ability of some demonstrators to engage in
demonstration activities. Nevertheless, the NPS does not believe that
the First Amendment requires it, as a general rule, to facilitate fund
raising by groups or individuals seeking to express their views. Such
facilitative conduct is, rather, protected by the First Amendment
``only insofar as its restriction imposes burdens on expression
itself.'' White House Vigil for the ERA Comm. v. Clark, 746 F.2d 1518,
1540 (D.C. Cir. 1984).
One commenter suggested, as a partial alternative to a sales ban,
that the NPS ``require all vendors to put on public display a quarterly
Statement of Accounts, as well as yearly Statement of Earnings, stating
where all the money taken in goes.'' The NPS questions whether it could
legally require demonstrators to publicly display how much money they
receive or how it is spent. Cf. Riley v. National Fed'n of the Blind,
487 U.S. 781 (1988). In any event, such an approach does not address
the impacts on the parks and the visitor experience that have given
rise to this rulemaking.
3. Off-Park, Nearby Locations for T-Shirt Sales
The park land which comprises Washington's Monumental Core, and
nearly all other park land in the National Capital Region, is located
adjacent to other public property under the jurisdiction of the
District of Columbia or the states of Maryland and Virginia. These
other governments, particularly the District of Columbia, have
generally allowed persons and groups to sell items on sidewalks and
along streets in these areas that are prohibited from sale on park
land. The NPS does not and is not proposing to regulate such sales or
any other sales of merchandise on property outside its jurisdiction. As
explained earlier, these areas provide an opportunity for demonstration
groups to sell items in close proximity to park areas.
4. Other Alternatives
Commenters suggested several alternatives to the proposed
regulation, including allowing only certain types of groups to sell
items, more narrowly defining what constitutes message-related T-
shirts, and restricting the placement and/or types of structures
vendors could use. For example, while the ACLU agreed in its comments
that ``the Constitution does not require the National Mall to be turned
into a flea market,'' it contended that the NPS must first adopt
restrictions regarding vendors' structures and against ``purely
commercial vendors with a tenuous facade,'' before considering a sales
restriction. It also stated that ``only if narrower measures are tried
and do not succeed will the consideration of broader measures be
appropriate.''
As explained in more detail in what follows, the NPS has strived
hard to arrive at a solution that protects park values and the visitor
experience while minimizing any burdens on communicative conduct. It
has carefully considered, and in some cases tried, the kinds of
alternatives suggested. Some of the alternatives the NPS has tried
include: Discussing whether an applicant would voluntarily limit the
number of sites; imposing site size restrictions; requiring that sites
be attended at all times; confiscating unattended structures; imposing
safety standards on site equipment; requiring sanitation measures,
including placement of receptacles; rotating site [[Page 17644]] areas;
and seeding and sodding of areas. These measures have fallen short of
providing adequate protection to park values in the area. Its extensive
experience in managing park land and its consideration of the comments
on this proposed regulation have led the NPS to conclude that no
alternatives exist that would adequately abate or ameliorate the
problems caused by sales activities.
The basic problem is a pronounced commercialization of National
Capital Park land with its unique monuments and memorials attracting
millions of visitors annually. These sales activities on park land
threaten to destroy that distinctive atmosphere. T-shirt sales
activities, which include intense competition among permittees to get
the attention and money of park visitors, have had a profoundly
negative impact on the park experience. T-shirt sales have introduced a
relatively constant, intrusive and intimidating air to what was
previously, for the most part, a relatively peaceful, inspirational,
and contemplative scene. Vibrant and spirited demonstration speech
conduct sometimes found in the National Capital Parks is more episodic
and has not created such a constant negative impact.
Several Justices of the Supreme Court have recognized the
difference between more typical demonstration conduct and sales
activities. In United States v. Kokinda, 479 U.S. 720 (1990), Justice
O'Connor recently stated:
[C]onfrontation by a person asking for money disrupts passage
and is more intrusive and intimidating than an encounter with a
person giving out information. One need not ponder the contents of a
leaflet or pamphlet in order mechanically to take it out of
someone's hand, but one must listen, comprehend, decide and act in
order to respond to a solicitation. Solicitors can achieve their
goal only by ``stopping [passersby] momentarily or for longer
periods as money is given or exchanged for literature'' or other
items.
Id., at 724 (plurality opinion)(quoting Heffron v. International
Soc'y for Krishna Consciousness, 452 U.S. 640, at 653 (1981)); see also
id. at 738-39 (Kennedy, J., concurring in judgment).
a. Limiting T-shirt sales to nonprofit or other particular kinds of
groups. Some commenters suggested that only certain types of groups
should be allowed to continue to sell message-bearing merchandise. The
commenters have widely differing views, however, as to what type of
groups should qualify. One comment suggested the NPS allow sales only
by ``real Vietnam Veterans' organizations that have had displays at the
Wall for years.'' Another comment called for the NPS to ``cull the for-
profit business concessions, yet maintain the integrity of those who
truly hold vigils in exercise of their 1st Amendment rights.'' The
sponsors of one ethnic celebration, agreeing that only a limited range
of merchandise sales should be allowed on park land ``to prevent it
[sic] being destroyed by vendors,'' suggested that only organizations
who hold ``large demonstration/cultural activities'' should be allowed
to engage in sales. A local non-profit track and field organization,
while ``sympathetic with the overall goals of preserving the non-
commercial character of NPS lands,'' nevertheless asked that it be
allowed to collect fees and distribute T-shirts to participants who
race on park land. Another local running club asked for a similar
exception.
Another commenter advocated that only tax-exempt nonprofit
organizations who provide supporting documentation should be allowed to
engage in sales activities. The comment, from an attorney representing
several nonprofit organizations who have been permitted to sell
message-bearing T-shirts, complained that ``commercial vendors were
(and are) permitted to sell souvenir merchandise on the Mall. These
vendors are not tax-exempt; nor do their activities have a
noncommercial purpose. Rather, their only purpose is to make money for
the proprietors * * *.'' (emphasis in original).
The NPS's decision to grant a permit to use park land does not turn
on the organizational or tax status of the applicant. NPS regulations
do not provide for inquiries into an applicant's tax status or how
proceeds may be dispersed. Nor do such inquiries form any part of the
basis in approving permits. While one commenter did cite an example of
such an inquiry by the NPS in a national park in California, the NPS
has determined that the California park unit had done so erroneously.
In fashioning a solution to the problems caused by T-shirt sales in
the National Capital Parks, the NPS believes it cannot carve out
special exceptions for any category of group. Just as it would be
impermissible to preclude all but long-standing ``real Vietnam Veterans
organizations,'' it would likewise be improper to preclude all but tax-
exempt nonprofit groups. To allow only certain types of groups to
engage in sales would disenfranchise individuals and unincorporated
groups completely. Other organizations not qualified by circumstance or
choice for tax-exempt status, such as for-profit corporations and labor
unions, would be likewise excluded. More generally, such an approach
would rest access to park land for sales upon the manner in which a
group seeks to organize itself legally. Such a matter ought not be of
central concern to the NPS.
The adverse impacts upon park land are the same, irrespective of
the nature of the demonstrator/vendor's tax status. In short, the NPS
believes it would be unreasonable to require citizens concerned about
current issues to incorporate and gain tax-exempt status in order to
engage in demonstration/sales activities within the parks. Such a
requirement is unrelated to the protection of park resources and would
unreasonably discriminate against a wide range of individuals and
groups. Moreover, a large number of the demonstrator/vendors currently
using park land for T-shirt sales activities are in fact tax-exempt
organizations. Despite their tax status, the impact on the park is
unacceptable.
b. Limiting T-shirt sales to very short-term demonstrations. The
ACLU commented that ``persons applying for permits for short-term
demonstrations [should] be given permission to sell demonstration-
related communicative materials from portable card tables that, as in
the past, will 'le[ave] with the demonstrators.''' The NPS's experience
is that this type of restriction, while conceptually attractive, is
practically impossible to implement. The majority of groups and
individuals selling T-shirts as a part of their activity seek to do so
for long periods of time. The NPS has found, on several occasions, the
same group signing up under different names and individual sponsors for
successive weeks. This ``gaming'' of the permit system results in a
long-term demonstration by successive short-term individuals or causes.
The NPS does not believe it may reasonably or practically limit a
group or individual to demonstrations lasting only one week or day or
so per year. By regulation, applications to use park land are generally
limited to 21-day increments. They may be extended for additional 21-
day increments, subject only to being ``bumped'' if another applicant
submits an application for the same park site and the park area does
not reasonably permit multiple occupancy. If the park site does not
permit multiple occupancy, the NPS is obligated to propose an
alternative park site for the use of the second applicant. 36 CFR
7.96(g)(4)(iii)(A).
This system is grounded in the NPS's belief that, in general, if
park land is not being utilized for an ongoing activity, it is
available to groups for First Amendment conduct. To turn down a group
because they have exhausted their ``allotted'' days of speech would fly
in [[Page 17645]] the face of that principle. Moreover, the NPS has
neither the expertise nor the manpower to develop the investigative and
enforcement staff to avoid the inevitable ``gaming'' that would result
as groups and individuals tried to obtain access for additional days
and sites.
c. Adopting standards for the message's relationship to the
merchandise being sold. Some commenters suggested that the NPS impose
``merchandise standards'' to ensure, in the words of one commenter,
that T-shirts being sold contain ``a religious, philosophical,
political, or ideological message that is inextricably intertwined with
the Permittee's nonprofit purposes and activities.'' This commenter
continued:
Many vendors sell purely commercial or souvenir T-shirts that do
not contain any message whatsoever. Other vendors take an otherwise
commercial or souvenir T-shirt, stamp a small logo on it, or the
phrase Washington, DC, and sell that item, although the message is
barely visible and/or lacks intellectual content * * *.
Except where a court order (now on appeal) has prohibited it from
doing so on the Mall near the National Air and Space Museum, the NPS
has for many years prohibited demonstrator/permittees from selling T-
shirts that lack any message related to the permittee's cause or
activity. It monitors demonstration/sales sites to ensure compliance.
If warnings to violators are not immediately heeded, citation and
revocation of the permit occur. Between July 6, 1994 and August 13,
1994, for example, the U.S. Park Police revoked twelve permits for
violating the requirement that T-shirts have a message related to the
permittee's cause. Even with this limitation, sales activities have
continued to proliferate to the detriment of the parks and the
visitors' experience within the parks. The limitation itself raises
troublesome questions; e.g., should the NPS set standards as to how
large or permanent or sophisticated the message on the T-shirt must be?
How direct must be its relationship with the cause being demonstrated
for? How strongly must participants hold their views?
Many T-shirts being sold on park land by permittees appear
identical to the T-shirts sold by District of Columbia street vendors,
except for the presence of an added message. The message often consists
of something as cryptic as ``Preserve our Natural Environment'' or ``DC
Statehood.'' The comment from the Smithsonian Institution notes that:
[A] vendor of wildlife T-shirts from a folding table was the
only visible `demonstration' engaged in by an alleged environmental
group. Other than the name of the group in small letters on the T-
shirt depicting wild animals, the salesman knew nothing about the
group or its activities and was unable and/or unwilling to discuss
with a visitor whether the proceeds of the T-shirt sales were being
dedicated to a non-profit purpose.
In describing demonstration/sales activities on the Mall, the
Washington Post on July 6, 1994, reported:
The guise of a demonstration at some of the new stands is pretty
thin. Vendors have used a rubber stamp to mark souvenir T-shirts and
sweat shirts with ``D.C Statehood'' or ``Save the Environment.''
Among those selling shirts marked with an inked stamp this week
was Merlyn Eda, of Fort Washington. She sat beneath a sign that
advocated statehood for the District, and her permit said she was
demonstrating for making the District a state, but she said she
wasn't much interested in the issue.
``It's a reason to be out here,'' she said as she straightened
stacks of shirts showing the Capitol. ``I'd like a better cause, and
I'm thinking about one.''
Susan Griffin, chairwoman of the D.C. Statehood Party, said
neither the party nor the Citizens for a New Columbia have
sanctioned the sale of T-shirts to promote their cause.
A man who would only identify himself as Isac was selling T-
shirts with pictures of the monuments and the stamped message for
the environment.
He said that he didn't know anything about environmental issues
and he was working as a salesman on the Mall eight hours a day in
exchange for free room and board.
The number of vendors setting up stands in close proximity of
each other has set off a price war along the walkway on the Mall
where seven sellers, most with identical designs, vie for customers.
Christopher Sullivan, a volunteer for Earth Friends, Inc. said
his group initiated the price reductions because it is concerned not
about making money but about promoting environmental awareness.
``It looks like hell around here,'' Sullivan said. ``I feel my
rights as a legitimate demonstrator have been violated because of
these other stands.''
As this comment suggests, many customers of T-shirt vendors may be
deceived as to whether they are genuinely supporting a ``cause'' by
their purchase. One permittee, purporting to ``educate the general
public about the importance of environmental protection,'' has sold T-
shirts which depict a cow jumping over the Capitol and which bear a
``First Amendment message,'' ink-stamped and barely discernible (and in
at least one case upside down): ``PRESERVE NATIONAL PARKS Earth
Friends.'' Two other permittees have sold identical cow T shirts,
although with different ``First Amendment messages'': one an ink-
stamped ``DC FOR STATEHOOD, WASHINGTON DC,'' another with ``PRESERVE
THE NATURAL ENVIRONMENT.'' A demonstrator/vendor was overheard advising
one park visitor not to be concerned with the ``message,'' because the
ink stamp would ``wash out in the first washing.''
Since the Washington Post article appeared, the NPS has noticed
that most, but not all, of the ``First Amendment messages'' are no
longer ink-stamped, but silk-screened. Though many of these message
activities lack sophistication, verve or impact, the NPS is rightly
extremely uncomfortable basing its decisions regarding access to park
land upon the quality or sincerity of a person's message or belief.
Once the NPS has satisfied itself that there is some nexus between the
cause and the message, it has felt that no further inquiry is
legitimate or warranted. In the circumstances, enforcement of this
requirement has not lessened the negative impacts from those sales
activities significantly, if at all. In these circumstances, the NPS
has concluded that the best solution is to steer clear of these
delicate questions of regulating the message, by instead going at the
heart of the commercialization issue, which is T-shirt sales.
d. Restricting structures and other sales facilities. Some
commenters advocated restricting the structures from which permittees
sell their items. One suggested that trailers and ``ostentatious
booths'' be banned, that only booths which could be set up within
twenty minutes be allowed, and that they be removed after 7 p.m. except
for important Federal holidays. The ACLU commented that it could ``see
no reason to prohibit the sale of communicative materials when it is
done without the aid of stands or structures.'' It suggested that,
``since the perceived problem arises from the use of long-term, semi-
permanent structures, we believe such structures are the appropriate
focus of regulation,'' including ``their number, size, location,
appearance, and duration of placement.''
The attorney representing nonprofit organizations likewise
suggested that the NPS impose signage restrictions, with merchandise
being displayed on table tops only in a neat and orderly fashion, not
exceeding two feet in height. He also suggested that umbrellas, chairs,
and other decorative devices employed to amplify the presentation of
the permittee's message be permitted only in connection with the sale
of message-bearing merchandise, that structures, such as merchandise
display racks, be prohibited and that all other materials, such as
inventory, storage boxes, transport devices, and the like, be
[[Page 17646]] required to be stored underneath the table.
The NPS has seriously considered these suggestions. As the ACLU
noted, the NPS is quite familiar with the regulation of structures. In
the National Capital Region, for example, the Service has found it
necessary to ban structures from Lafayette Park and the White House
sidewalk in order to address security and aesthetic concerns.
Based on its years of experience in managing the Federal park land
and dealing with a full range of sales activities, the NPS does not
believe that size or structure restrictions adequately address the
problems caused by T-shirt sales activities on park land. As explained
further below, the NPS already regulates the size of sales areas
permitted to each permittee. The problems of commercialization and
attendant adverse impacts are caused by the T-shirt sales themselves
and the sheer number of demonstration/vendors interested in engaging in
such sales activities. Moreover, an outright ban on structures for
sales activities would likely create a mobile and potentially even more
intrusive commercialization of park land and degradation of the visitor
experience. In short, seeking to control the size of structures and
area to be used by each permittee would not directly address the
commercialization and attendant adverse impacts.
The NPS has long required demonstration vendors to conform to
restrictions on site dimensions. Near the Vietnam Veterans Memorial,
the NPS has restricted vendors to sites 6 feet by 15 feet. This area
permits the storage of substantial amounts of written materials on
site. If additional written material is needed, it can be brought to
the site as needed. Further, this size both maximizes the numbers of
sites as well as allows each permittee sufficient space to present his
or her message to the visiting public. In response to the dramatic
increase of demonstration T-shirt sales activities on Washington's
Monumental Core, the NPS has established the same size dimensions for
sales sites in that area as well.
These restrictions alone have not proven adequate to address the
problems sought to be ameliorated by this regulation. However, the NPS
has decided that the site dimension standard is important and ought to
be included in the regulation. A restriction on the size of structures
within such sales sites is also adopted. Accordingly, the final
regulation incorporates permissible dimensions of sales sites, stands
and structures used in sales. Specifically, the final regulation limits
sales sites to dimensions of 6 feet wide by 15 feet long by 6 feet
high. Within a site, tables will be limited to one per site, no larger
than 2\1/2\ feet by 8 feet or 4 feet by 4 feet.
The NPS reviewed the demonstration sales sites currently under
permit. Demonstration/sales stands and structures generally consist of
tables with dimensions of 2\1/2\ feet by 8 feet or, less frequently,
dimensions of 4 feet by 4 feet. Both sizes have fully afforded
permittees the ability to present their message as well as display
their materials. The tables and associated sales activities were
generally able to be fully accommodated within dimensions of 6 feet by
15 feet. In fact, the NPS has been imposing the particular sales site
limitation since September 1994.
The NPS believes that a height restriction on tables and their
appendages is also warranted. It has determined that a height
restriction of 6 feet on sales sites will allow groups to display and
sell printed materials while reducing the commercial atmosphere on park
land.
e. Zoning the park land to set aside particular areas for sale
activities. Some commenters suggested that the NPS permit T-shirt sales
only in certain park areas, preferably located away from the historic
monuments and memorials. One commenter suggested that the NPS should
design and construct a limited number of lightweight portable booths
``in the vicinity of the Memorial, but out of the main flow of the
tourist traffic.''
Its extensive experience in administering permits has convinced the
NPS that it could not designate an adequate amount of park land to
handle the number of applicants who have been and will likely seek to
engage in T-shirt sales activities without creating the same adverse
impacts now being felt. On park land adjacent to the Vietnam Veterans
Memorial, for example, the NPS has been unsuccessful in limiting fixed
portions of park land for demonstration/vendors. Each of the
applicants, whose numbers are steadily increasing, demands access to
park visitors near the Memorial. With existing sites already under
permit, the NPS has been forced to permit the additional applicants to
use other available park land.
Demonstration activities near the Vietnam Veterans Memorial are
typically limited to issues related to the war and its casualties. The
remainder of the Monumental Core, including the Mall, has been
described as ``the Nation's front yard,'' and as such has traditionally
been the focal point of demonstrations on a full range of issues and
causes--both domestic and international. Having been unsuccessful in
designating limited areas around the Vietnam Veterans Memorial for
demonstration/vendor activities, the NPS does not believe it possible
to designate limited areas within the Monumental Core.
The statistics bear out this conclusion. In November 1994, for
example, notwithstanding cold weather and a decrease in park visitors,
the NPS had to designate 260 sites in the Monumental Core, along with
23 sites near the Vietnam Veterans Memorial, to accommodate those who
sought demonstration/sales permits. With the advent of better weather
and an increase in park visitors, the NPS expects many more
applications this spring. In fact, through March 8, 1995, the National
Capital Region received 3,092 applications for demonstrations and
special events. Ninety percent (90%) of these seek permission to vend
T-shirts in the Monumental Core area. By way of comparison, during this
same period in 1994, the Region received 2,884 demonstration and
special event permit requests, an increase of over 200 applications.
The proliferation of T-shirt sales among demonstrator/vendors has
led the NPS to conclude that it would be impossible to reasonably
accommodate the demand for demonstration/sales of T-shirts within any
limited ``sales zones.'' If a zoning system were attempted, either the
NPS would have to devise some method or standards to choose among
applicants or designate ever-expanding sales zones. Furthermore, the
current first-come, first-served system would not likely result in a
fair distribution of very scarce sites and would require a much more
intensely managed system.
As noted earlier, applications for 21-day T-shirt demonstration/
sales permits are now routinely being submitted a full year in advance
and are ever-growing in number. If ``sales zones'' were so limited as
to reduce the adverse impacts on National Capital Parks to more
acceptable levels, only a very limited number of applicants would be
able to engage in such sales activities. In these circumstances, the
NPS believes that allowing all applicants to engage in demonstration/
sales activities that do not involve T-shirt sales ultimately imposes
less restriction on free expression, as well as being fairer and better
for the National Capital Parks and their visitors, than to allow a
small number of applicants to engage in T-shirt sales on limited
amounts of designated park land.
The NPS is mindful that it has not fared well in the courts in
imposing numerical restrictions on demonstrators. [[Page 17647]] In A
Quaker Action Group v. Morton, 516 F.2d 717 (D.C. Cir. 1975), for
example, the court struck down the NPS's attempt to limit a
demonstration in the seven-acre Lafayette Park, a small fraction of the
acreage of the Monumental Core, to 500 people. The court found it had a
carrying capacity allowing up to 50,000 people to engage in
demonstrations at any one time.
More importantly, the NPS believes that a ``sales zones'' scheme
would not satisfactorily control the adverse impact on the parks. The
NPS's experience at the Vietnam Veterans Memorial shows that, even when
sales are confined to a designated area, unacceptable impacts on park
values result.
Defining the precise location of park areas to be set aside for
such activity would also be difficult. Permittees engaging in
demonstration/sales activities do not congregate at any single locale,
but spread out to locations adjacent to popular park features to
maximize their visitor exposure. The NPS would continue to be faced
with requests for designated sales zones adjacent to most, if not all,
of the monuments, memorials, and museums.
Even with the creation of even a modest number of zones scattered
throughout areas of the National Mall, the NPS and the nation would
effectively lose those areas completely and permanently to commercial
activities. The experience of the last year or so suggests that
competition for those limited zones would be intense. The zones would
likely be occupied 365 days a year, effectively removing them from park
use. Not only would perpetual ``mini-bazaars'' be created, but the
physical impact would create scars that would not heal.
For all of these reasons, based on its experience in managing the
Federal park land and dealing with a full range of sales activities,
the NPS does not believe that the designation of sales zones is a
viable or adequate alternative.
D. T-Shirt Sales and the Activities of the Authorized Concessioner for
the National Mall
The NPS's concessioner for the National Mall commented in support
of the proposed regulation, stating that ``the large number of
commercial vendors operating on the National Mall * * * are disrupting
the historical, aesthetic, and traditional values of our National
Capital parks.'' The comment also advised that the concessioner was
experiencing an adverse economic impact in lost sales due to
demonstrator/vendors. Some of the concessioner's employees also
submitted comments expressing concern that sales by demonstrator/
vendors could threaten their jobs.
While the NPS agrees with the concessioner about the adverse
aesthetic impact caused by sales on Federal park land, the alleged
adverse financial impact on the concessioner and its employees has
played no role in the NPS's decision on the sales regulation.
Two comments opposed to the proposed rule described the activities
of the NPS's concessioner on the National Mall as an ``unsightly,
inappropriate, and unwelcomed [sic] commercial intrusion,'' and
concluded that ``any commercialization of the Mall that has occurred is
as much attributable to the NPS as to any specific First Amendment
activity.'' One of these commenters stated:
I personally observed dozens of licensed mobile ice cream and
popcorn vendors on all parts of the Mall. In one particular
instance, Earth Friends was ordered to move its location across from
the Museum of Natural History [because] their presence at that
location was purportedly causing pedestrian traffic congestion. Yet,
the same location was quickly occupied by an ice cream vendor that
attracts twice as many people as did Earth Friend's T-shirt sales.
Additionally, I note that the Park Service maintains (or
authorizes) two permanent refreshment stands on the Mall that sell a
variety of products, including beer, and several souvenir booths
that sell film, maps, books, and other souvenir products. In
addition to the merry-go-round, I observed permanent, unsightly
refreshment stands directly in front of the Air and Space Museum,
the American History Museum, and the Natural History Museum. These
refreshment facilities attracted far greater crowds, and pedestrian
congestion, than any of the T-shirt operations that I observed.
This description is incomplete and partially incorrect. Most of the
vendors mentioned are not on park land. Rather, they are located on the
grounds of the Smithsonian Institution or on streets under the
jurisdiction of the District of Columbia. The NPS has not licensed
popcorn vendors on the Mall.
The NPS regulates concession activities on park land with a
principal objective of precluding unwarranted commercialization and
adverse impacts on park land. The relevant guidance from Congress, the
Concessions Policy Act of 1965, 16 U.S.C. 20, is:
[T]hat the preservation of park values requires that such public
accommodations, facilities, and services as have to be provided
within those areas should be provided only under carefully
controlled safeguards against unregulated and indiscriminate use, so
that heavy visitation will not unduly impair these values and so
that development of such facilities can best be limited to locations
where the least damage to park values will be caused. It is the
policy of the Congress that such development shall be limited to
those that are necessary and appropriate for public use and
enjoyment of the national park area in which they are located and
that are consistent to the highest practicable degree with the
preservation and conservation of the areas.
Consistent with this mandate, the NPS maintains concession activity
on the federal park land of the National Capital Region under carefully
designed safeguards. Concessions are limited only to those facilities
and services necessary and appropriate for the convenience of the
public. They are carefully designed, sited, and otherwise controlled so
as to cause the least damage to park values and the park experience.
To serve the millions of visitors to park land between the Lincoln
Memorial and the east end of the National Mall, the NPS's concessioner
operates nine food and five retail operations from fixed locations.
During the peak visitation period, from April through September, these
fixed facilities are supplemented by fourteen ice cream carts that
operate on the National Mall. The temporary and fixed facilities were
designed to be the minimum size and number needed to serve only the
immediate needs of the park visitors already drawn to the area. They
are carefully located in areas capable of withstanding the attendant
impact; many are confined within buildings. The NPS regularly inspects
them to maintain requisite standards of physical appearance and
operations. The NPS also controls the nature, type, quality, and price
of items offered for sale by the concessioner to the park visitor. It
routinely evaluates the concessioner's quality of services, requires
insurance and indemnification, charges a franchise fee, and annually
reviews its financial records. None of these controls has ever been
applied to demonstration/vendors, and the NPS believes at least some,
if not all, would be inappropriate to impose on persons or groups
expressing First Amendment rights.
While some commenters compared concessions accommodations with
demonstration/sales booths, none suggested that the NPS impose on
permittees the same conditions it has imposed on its concessioner. In
any event, for the reasons expressed earlier, the NPS believes that it
would be a very delicate matter at best, and more likely inappropriate,
for it to try to impose such conditions on the exercise of free
expression attendant to demonstration/vendors. More broadly, comparing
the purpose and regulation of concessions designed to meet the needs of
park visitors with sales activities associated [[Page 17648]] with
demonstrations is like comparing apples and oranges.
The NPS concedes that it sometimes encounters unauthorized food and
ice cream vendors on the Mall. It devotes considerable enforcement
efforts against such illegal activities. It regularly monitors park
land for unauthorized vendors, and when it detects them, it either
warns them or cites them and orders them to leave park land
immediately. Between July 6, 1994 and August 13, 1994, for example, the
U.S. Park Police issued seventeen citations against unauthorized food
or beverage vendors found on the Mall.
The proliferation of demonstration/vendors of T-shirts in the last
few years has complicated this enforcement problem significantly. As
the Smithsonian Institution comment noted:
[M]any illegal [that is, non-permit-holding] vendors, encouraged
by potential profits and perhaps hoping to get lost among the
increased number of vendors on the Mall, are joining their permit
holding counterparts in increasing numbers. We have seen many more
illegal ice cream and food vendors, vendors of key chains, hats,
umbrellas, and even a photographer who takes visitor pictures with
cardboard cut-outs of celebrities on parkland.
The NPS remains committed to eliminating illegal vendors as well as
addressing the unacceptable impacts by the demonstrator/vendors.
E. Other Matters Addressed in the Final Regulation
In its comments, the Smithsonian Institution expressed concern that
the language of the proposed sales regulation might create some
misunderstanding as to what would be allowed to be sold on park land,
with or without a permit. The NPS obviously desires to prevent any such
misunderstandings, and therefore reaffirms its intention that only
books, newspapers, leaflets, pamphlets, buttons and bumper stickers may
be sold under the revised sales regulations. Attempts to offer or sell
items, whether directly or by the use of an artifice, other than books,
newspapers, leaflets, pamphlets, buttons and bumper stickers on park
land are prohibited. For example, restricted merchandise cannot be
``given away'' and a ``donation accepted'' or one item ``given away''
in return for the purchase of another item; such transactions amount to
sales. To prevent any misunderstanding, the NPS has changed the
language that appeared in the proposed sales regulation.
Finally, in the draft regulations, the NPS had proposed to make two
minor numbering corrections in 36 CFR 7.96(k)(3)(vii), (ix) due to the
redesignation of paragraph (k) (57 FR 4574). Pursuant to Public Law
103-279, the NPS no longer has operating responsibilities for the John
F. Kennedy Center for the Performing Arts. As a result, the minor
numbering corrections suggested in the proposed rule are no longer
necessary. Instead, the final rule removes reference to the Center by
eliminating 36 CFR 7.96(k)(3).
3. Summary/Conclusion
For all of the foregoing reasons, the NPS believes that the display
and hawking of T-shirts, clothing and similar items in connection with
authorized demonstrations has had an unacceptable impact on the
National Capital Parks and the visitor experience. Its extensive
experience in monitoring sales activities permitted under the current
sales enforcement guideline has led the NPS to the firm conclusion that
those activities have brought discordant and excessive commercialism to
federal park land. Such sales have degraded aesthetic values, visitor
circulation and contemplation, interpretive programs and historic
scenes and have inhibited the conservation of park property. It also
believes that no reasonable alternative is available to the action here
announced. Therefore, the NPS believes it is necessary to rescind the
enforcement guideline and to amend the sales regulation to limit
permissible sales to books, newspapers, leaflets, pamphlets, buttons
and bumper stickers.
In the considered judgment of the NPS, other measures have been
found inadequate to the problem and do not provide a satisfactory level
of protection for park value resources in the areas. When such sales
activities have so negatively impacted park land and the park visitor,
by turning the National Mall, the ``Nation's front yard,'' into a flea
market, the NPS believes it is obligated to abate the problems caused
by such sales activities.
The NPS believes that limiting sales activities to newspapers,
leaflets, pamphlets, books, buttons and bumper stickers is a reasonable
time, place, and 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. It also 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.''
Drafting Information
The following persons participated in the writing of this rule:
John D. Leshy, Solicitor, Richard G. Robbins and Randolph J. Myers,
Office of the Solicitor, U.S. Department of the Interior.
Compliance with Other Laws
This rule was reviewed under Executive Order 12866. The Department
of the Interior determined that this document will not have a
significant economic effect on a substantial number of small entities
under the Regulatory Flexibility Act (5 USC 601 et seq.) because
general sales are already prohibited in this area, and individuals and
groups seeking to sell as a part of a demonstration or special event
are free to sell prohibited merchandise on adjacent non NPS lands.
The NPS has determined that this proposed rulemaking will not have
a significant effect on the quality of the human environment, 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 that compromise the nature and
character of the area or causing physical damage to it;
(c) Conflict with adjacent ownerships or land uses; or
(d) Cause a nuisance to adjacent owners or occupants.
Based on this determination, and in accord with the procedural
requirements of the National Environmental Policy Act (NEPA), and by
Departmental guidelines in 516 DM 6 (49 FR 21438), neither an
Environmental Assessment (EA) nor an Environmental Impact Statement
(EIS) has been prepared.
This final rule does not contain information collection
requirements that require approval by the Office of Management and
Budget under 44 U.S.C. 3501 et seq.
The NPS has reviewed this final rule as directed by Executive Order
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 final rule meets the applicable
standards provided in section 2(a) and 2(b)(2) of Executive Order
12778.
List of Subjects in 36 CFR Part 7
National parks; Reporting and recordkeeping requirements.
In consideration of the foregoing, 36 CFR Chapter I is amended as
follows: [[Page 17649]]
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) to read as
follows:
Sec. 7.96 National Capital Region Parks.
* * * * *
(k) * * *
(1) * * *
(2) No merchandise may be sold during the conduct of special events
or demonstrations except for books, newspapers, leaflets, pamphlets,
buttons and bumper stickers. A permit is required for the sale or
distribution of permitted merchandise when done with the aid of a stand
or structure. Such stand or structure may consist of one table per
site, which may be no larger than 2\1/2\ feet by 8 feet or 4 feet by 4
feet. The dimensions of a sales site may not exceed 6 feet wide by 15
feet long by 6 feet high. With or without a permit, such sale or
distribution is prohibited in the following areas:
* * * * *
3. Section 7.96 paragraph (k)(3) is removed.
4. Section 7.96 paragraph (k)(4) is redesignated as paragraph
(k)(3).
Dated: March 14, 1995.
George T. Frampton, Jr.,
Assistant Secretary, Fish and Wildlife and Parks.
[FR Doc. 95-8599 Filed 4-6-95; 8:45 am]
BILLING CODE 4310-70-P