[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