[Federal Register Volume 75, Number 201 (Tuesday, October 19, 2010)]
[Rules and Regulations]
[Pages 64148-64155]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-26392]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 2

RIN 1024-AD91


General Regulation: National Park System

AGENCY: National Park Service, Interior.

ACTION: Interim rule with request for comments.

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SUMMARY: The National Park Service (NPS) is issuing this interim 
general rule governing demonstrations and the sale and distribution of 
printed matter for most of the National Park System as well as request 
for comments. This rule revises the definition of what constitutes a 
demonstration and exempts individuals and small groups from the 
requirement to obtain a permit for demonstrations and the sale or 
distribution of printed matter, consistent with the decisions in the 
Boardley v. Department of the Interior litigation. This rule also 
refines how applications are processed and prohibits the harassment of 
visitors and obstruction of public passageways.

DATES: 
    Effective Date: October 19, 2010.
    Comment Date: Comments must be received by December 20, 2010.

ADDRESSES: You may submit comments, identified by the number 1024-ADXX, 
by any of the following methods:

--Federal Rulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
--Mail: National Park Service, Attn. Special Park Uses Program Manager, 
1849 C St., NW., MS-3122, Washington, DC 20240.

    All submissions received must include the agency name and RIN 1024-
ADXX. For additional information see ``Public Participation'' under 
SUPPLEMENTARY INFORMATION below.

FOR FURTHER INFORMATION CONTACT: Lee Dickinson, Special Park Use 
Program Manager, 1849 C St., NW., Washington, DC., 20240 (202) 208-
4206.

SUPPLEMENTARY INFORMATION:

Background

    The NPS Organic Act, 16 U.S.C. 1, created the NPS to ``promote and 
regulate the use of Federal areas known as national parks,'' and 
charged it with the following ``fundamental purpose'': ``to conserve 
the scenery and the natural and historic objects and the wild life 
therein and to provide for the enjoyment of the same in such manner and 
by such means as will leave them unimpaired for future generations.'' 
In 1978, Congress enacted 16 U.S.C. 1a-1, which provides that all of 
the units of the National Park System

    * * * though distinct in character, are united through their 
inter-related purposes and resources into one national park system 
as cumulative expressions of a single national heritage; that, 
individually and collectively, these areas derive increased national 
dignity and recognition of their superlative environmental quality 
through their inclusion jointly with each other in one national park 
system preserved and managed for the benefit and inspiration of all 
the people of the United States. * * *
    Congress also empowered the Secretary of the Interior, at 16 U.S.C. 
3, to
    * * * make and publish such rules and regulations as he may deem 
necessary or proper for the use and management of the parks.

    The National Park System currently consists of 392 park units. It 
covers more than 84 million acres and is located in every state (except 
Delaware), the District of Columbia, American Samoa, Guam, Puerto Rico, 
and the Virgin Islands. This area equals 131,753 square miles, which is 
larger than the total areas of the states of Pennsylvania, Tennessee 
and Virginia. These park units are located in a wide range of 
environments as diverse as the United States itself. They include urban 
areas, from the Town of Harpers Ferry to New York City; oceans, lakes, 
swamps and rivers; mountainous areas that go up in height to the 
20,320-foot Mount McKinley; caves, canyons, cliffs, and karst; deserts, 
forests, and grasslands; and areas throughout the Nation's reach, from 
Buck Island Reef National Monument in the Caribbean, to War in the 
Pacific National Historical Park in Guam, to Gates of the Arctic 
National Park and Preserve above the Arctic Circle.
    The size of these park units also varies tremendously. The largest 
National Park is Wrangell-St. Elias National Park and National 
Preserve, Alaska, at 13.2 million acres. Yellowstone National Park is 
2,219,790 acres. The smallest unit of the National Park System is 
Thaddeus Kosciuszko National Memorial, Pennsylvania, at 0.02 acres. As 
detailed in the NPS

[[Page 64149]]

Overview (October, 2009), the National Park System is also habitat for 
378 threatened or endangered species, has more than 100 million items 
in museum collections, has 1.5 million archaeological sites, and has 
27,000 historic and prehistoric structures. The National Park System 
also has a physical infrastructure that includes 21,000 buildings, 
17,000 miles of trails, 10,000 miles of paved and unpaved roads, 5,000 
housing units, 22,000 campgrounds and picnic areas, 1,600 waste water 
treatment systems, and 1,400 water treatment systems.
    About one-third of the units of the National Park System--such as 
Great Smoky Mountains National Park, Tennessee; Grand Canyon National 
Park, Arizona; Everglades National Park, Florida; and Hawaii Volcanoes 
National Parks, Hawaii--preserve nature's many and varied gifts to the 
Nation. The other two-thirds of the units of the National Park System 
recognize benchmarks of human history in America. These units protect 
elements of great native cultures, far older than European exploration 
and settlement; present battle sites from the Revolutionary and Civil 
Wars--including the key surrender fields of both great conflicts; 
embrace Thomas Edison's New Jersey laboratories where he and his staff 
led a technological revolution more dramatic even than the coming of 
the computer age; and more. These historical park units reflect the 
development of both art and industry in America, along with landmarks 
of social and political change.
    As a broader understanding of history took hold, the National Park 
System eventually grew to include the historic homes of civil rights, 
political, and corporate leaders, and the lands of the poor, struggling 
to build lives for themselves on a Nebraska homestead claim or in an 
urban community. It now embraces the birthplace, church, and grave of 
Dr. Martin Luther King at Martin Luther King, Jr. National Historical 
Site, Georgia; the birth of jazz at New Orleans Jazz National 
Historical Park, Louisiana; the flowering of a literary giant at the 
Eugene O'Neill National Historical Site, California; and the artistic 
grace of a great sculptor's studios at Saint-Gaudens National 
Historical Site, New Hampshire. Because of the lessons they help us 
remember, the National Park System also includes the Japanese American 
World War II internment camp in the desert at Manzanar National 
Historical Site, California, as well as Andersonville National 
Historical Site, Georgia, one of the very bleakest of the Civil War 
prison sites.
    Very large numbers of people annually visit the National Park 
System. According to the National Park Service's 2009 Statistical 
Abstract, there were 285,578,941 visits to the National Park System in 
2009. The National Park System offers visitors not only visual, 
educational, and recreational experiences but also inspirational, 
contemplative, and spiritual experiences. For neighboring Native 
Americans, Rainbow Bridge National Monument, Utah, is considered a 
sacred religious site, such that the Park Service asks visitors to 
respect these long-standing beliefs by volunteering not to approach or 
walk under the bridge.
    Equally important, the National Park System has traditionally 
offered visitors the opportunity to engage in demonstration activity 
and the sale and distribution of printed matter. In that regard, the 
NPS general regulations found at 36 CFR 2.51 and 2.52, applicable for 
all parks not subject to 36 CFR 7.96(g), have governed such activities 
since 1983. Enacted

    * * * to protect the natural and cultural resources of the parks 
and to protect visitors and property within the parks, [these NPS 
general regulations] intended effect * * * is to impose on those 
activities that involve First Amendment consideration only those 
narrow restrictions that are necessary to protect park resources and 
to ensure the management of park areas for public enjoyment. (48 FR 
30252, 30272)

    Among other things, these two NPS regulations required the 
submission of a permit application for public assemblies and meetings 
and the sale and distribution of printed materials, established 
criteria for how parks designate areas available for such activities, 
established criteria for how the NPS will act on an application 
including that it do so ``without unreasonable delay,'' provided that 
parks may impose permit conditions reasonably consistent with 
protection and use of the park area, imposed a limitation on how long a 
permit may be issued (although allowing extensions), and provided the 
grounds for revoking a permit.
    On August 6, 2010, the U.S. Court of Appeals for the District of 
Columbia Circuit issued its decision in Boardley v. Department of the 
Interior, No. 09-5176, 2010 U.S. App. LEXIS 16302 (DC Cir. August 6, 
2010), which stemmed from a demonstration and leaflet distribution 
incident at Mount Rushmore National Memorial for which a permit was 
issued by NPS. Recognizing that no party had proposed to sever the 
regulations and leave part of them intact, the Court of Appeals held 
the regulations unconstitutional in their entirety, based on the 
system-wide lack of an exception from the permit requirement for 
individual and small group activity in the NPS-designated free speech 
areas. In an earlier decision, the U.S. District Court for the District 
of Columbia had found fault with the regulatory definition of a 
demonstration. Consistent with these judicial decisions, and in order 
to avoid a regulatory vacuum that could impact the NPS conservation 
mandate and the use of park areas by the public, the NPS is issuing 
this interim general rule governing demonstrations and the sale and 
distribution of printed matter for most of the National Park System. 
Certain parks in the NPS's National Capital Region are instead subject 
to special regulations found at 36 CFR 7.96, which were not at issue in 
the Boardley litigation.
    While retaining the park superintendent's ability to designate 
available areas as well as the permit requirement for large groups, the 
NPS regulatory changes include the following: narrowing the definition 
of what constitutes a demonstration; creating a small group permit 
exception; detailing how the NPS is to address small non-permit groups 
that seek the same park area; refining how applications are to be 
processed, including that the NPS is to respond within ten days after 
receipt of a complete and fully executed application; and prohibiting 
the harassment of visitors by physical touch or by obstruction of 
building entranceways, sidewalks, and other public passageways. 
Consistent with evolving First Amendment jurisprudence, the NPS rule is 
intended to protect the natural and cultural resources of the National 
Park System and to protect visitors and property within the parks by 
imposing on these activities only the most limited restrictions 
necessary to accomplish those goals.

Rule Analysis

Narrowing the Definition of a Demonstration at 36 CFR 2.51

    In the first phase of the Boardley v. Department of the Interior 
litigation, the District Court held that, because 36 CFR 2.51(a)'s 
phrase ``public expression of views'' could apply to visitors just 
wearing baseball caps, T-shirts or tattoos, it was not narrowly 
tailored, overbroad, and impermissibly vague. The District Court also 
indicated that the Director's memorandum dated October 24, 2007, that 
further defined the phrase, could pose a problem as to the scope of the 
agency's discretion.

[[Page 64150]]

Boardley v. Department of the Interior 605 F.Supp.2d 8, 15-16 (D.D.C. 
2009).
    The NPS has not applied its regulations in an impermissible manner, 
nor does it have any interest in applying them in an impermissible way. 
Accordingly the NPS did not appeal the District Court's decision. 
Instead, the NPS issued a clarifying memorandum dated August 3, 2009, 
that directed that the terms ``public expressions of views'' under 36 
CFR 2.51 and ``demonstrations'' under 36 CFR 7.96(g), which have 
traditionally been used interchangeably, shall both be considered to 
mean ``public assemblies, meetings, gatherings, demonstrations, 
picketing, speechmaking, marching, holding vigils or religious services 
engaged in by one or more persons, the conduct of which has the effect 
or propensity to draw a crowd or onlookers.'' The memorandum also 
directed that the terms ``do not apply to casual park use by visitors 
or tourists which does not have an intent or propensity to attract a 
crowd or onlookers.''
    Consistent with the District Court's decision regarding what 
constitutes a demonstration, and the NPS memorandum dated August 3, 
2009, this rule more narrowly limits the definition of a demonstration, 
and makes explicit that the term includes demonstrations, picketing, 
speechmaking, marching, holding vigils or religious services and all 
other like forms of conduct which involve the communication or 
expression of views or grievances, engaged in by one or more persons, 
the conduct of which is reasonably likely to draw a crowd or onlookers. 
This rule at 36 CFR 2.51(a) also makes explicit that the term does not 
include casual park use by visitors or tourists that is not reasonably 
likely to attract a crowd or onlookers. This language is similar to the 
definition of a demonstration in the special regulations for the NPS's 
National Capital Region, 36 CFR 7.96(g)(1)(i), which has been in effect 
since 1983 and has been implemented without difficulty.
    Application of the NPS's narrowed definition of a demonstration 
thus excludes visitors who merely have tattoos or are wearing baseball 
caps, T-shirts, or other articles of clothing that convey a message; or 
visitors whose vehicles merely display bumper stickers. By limiting the 
definition of what constitutes a demonstration, and by explicitly 
excluding casual park use by visitors or tourists which is not 
reasonably likely to attract a crowd or onlookers--such as when scout 
leaders or teachers engage in discussions with their charges--the NPS 
believes that the rule comports with the First Amendment and is 
narrowly tailored to serve significant government interests. Finally, 
since such demonstrations involve personal expressive activity, and 
parks are not mere billboard venues, unattended signage or displays 
continue not to be allowed.

Creating a Small Group Permit Exception at 36 CFR 2.51 and 2.52

    In its Boardley decision, the Court of Appeals held that the NPS 
regulations properly were content neutral and did not vest government 
officials with overly broad discretion, and that a three to ten day 
deadline for a government official to act on an application was 
reasonable. However, it held the regulations unconstitutional because 
they lacked a small group permit exception, on a system-wide basis.
    Equally important, the Court of Appeals recognized that the NPS had 
valid and substantial interests in protecting parks' natural and 
cultural resources, protecting park facilities from damage, avoiding 
overcrowding of park locations, minimizing interference with park 
activities, and preserving peace and tranquility in parks. Boardley v. 
Department of the Interior, 2010 U.S. App. LEXIS 16302 *26-27 (DC Cir. 
August 6, 2010).
    Focusing on the ``free speech areas'' designated by parks under 36 
CFR 2.51(e) and 2.52(e), the Court of Appeals determined that the NPS 
regulations' application to small groups and the lone individual was 
not sufficiently ``narrowly tailored,'' because most individuals and 
small groups who engage in free speech do not pose problems, and 
because the NPS regulations did not leave open ample alternatives for 
communication. The Court of Appeals suggested that there were other 
means of achieving its interests, such as promulgating separate 
regulations for different types of national parks, or prohibiting 
certain types of public conduct, or drafting distinct regulations for 
different types of park areas such as wilderness, visitor centers, and 
parking lots.
    The Court of Appeals stated that ``it is the prerogative of the 
agency (or Congress) to decide whether to rewrite the regulations to 
apply only to large groups, and to decide where to draw that line.'' 
Boardley v. Department of the Interior, 2010 U.S. App. LEXIS 16302 *42-
43 (DC Cir. August 6, 2010). Given the NPS's statutory obligations and 
its important responsibilities to protect and properly manage park 
resources and protect park visitors, the NPS believes that it is 
necessary to have regulations that govern demonstrations and the sale 
or distribution of printed matter. But, consistent with the Court of 
Appeals' decision as to small groups, the NPS has written this rule so 
that permits are generally required only of groups that involve more 
than 25 people. The NPS believes that creating a permit exception for 
groups of 25 or fewer people engaging in demonstrations or the sale or 
distribution of printed matter in NPS-designated available areas is 
reasonable. This is identical to the small group permit exception for 
groups of 25 or fewer people that has been contained in the NPS's 
special regulations for the National Capital Region at 36 CFR 
7.96(g)(2)(i) since 1983.
    Accordingly, under this rule at 36 CFR 2.51(b)(1) and 2.52(b)(1), 
demonstrations and the sale or the distribution of printed matter by 25 
or fewer persons may be conducted without a permit in the available 
areas designated at 36 CFR 2.51(c).
    Pursuant to this rule at 36 CFR 2.51(b)(1)(i)-(ii) and 
2.52(b)(1)(i)-(ii), this small group permit exception is contingent 
upon the other conditions required for the issuance of a permit being 
met: the group must not be merely an extension of another group already 
availing itself of the 25-person maximum; and the activity must not 
unreasonably interfere with other demonstrations, special events, or 
NPS program activities. This, too, is similar to the NPS's special 
regulations for the National Capital Region at 36 CFR 7.96(g)(2)(i).
    For individuals and small groups who take advantage of the permit 
exception, this rule provides at 36 CFR 2.51(b)(1)(iii) and 36 CFR 
2.52(b)(1)(iii) that their activities may include the use of hand-
carried signs, but not stages, platforms, or structures. Small groups 
have a myriad of other ways to communicate their views, such as 
discussions, speeches, leaflets, and hand-carried signs. The NPS 
believes that the unregulated presence of stages, platforms, and 
structures would negatively impact park resources and park visitors. In 
those situations, the NPS will continue to require a permit, which 
allows the park superintendent to consider and assess the nature of the 
proposed equipment and allows the park to impose content neutral, site-
specific and reasonably appropriate park resource and safety 
conditions.
    This rule at 2.51(b)(1)(iv) and 2.52(b)(1)(iv) also requests that 
the organizer submit reasonable advance notice of the proposed event to 
the park superintendent, including whether the organizer has reason to 
believe there may be an attempt to disrupt, protest, or

[[Page 64151]]

prevent the event. The advance notice provision is intended to afford 
at least some opportunity for the park to consider whether additional 
special public safety and resource protection measures may be needed. 
Failure to provide advance notice is not grounds to prohibit the 
activity. Advance notice is not a substitute for actual physical 
presence or a permit, and does not reserve a particular designated area 
for the organizer. The NPS requests comments as to whether such notice 
should be made mandatory in future regulations.
    Because some park units' designated available areas may be too 
small to physically accommodate 25 persons, the NPS rule at 36 CFR 
2.51(b)(3) and 2.52(b)(3), provides that a park may reduce the 25-
person maximum for the small group permit exception for a designated 
area. This may occur, however, only if a 25-person group cannot be 
reasonably physically accommodated in the designated area and only if 
approved by the regional director in writing, which shall be made 
available at the superintendent's office and by public notice under 36 
CFR 1.7.
    We also expect that some designated available areas, such as those 
near a park visitor center, may be very sought-after venues that more 
than one group may seek to use at the same time. In order to ensure 
public safety and provide a fair and content-neutral accommodation to 
such groups, the NPS rule at 36 CFR 2.51(b)(4) and 2.52(b)(4) provides 
that if two (or more) groups taking advantage of the small group permit 
exception seek the same designated area at the same time, and the area 
cannot reasonably accommodate both groups, the park will, whenever 
possible, direct the later-arriving group to relocate to another nearby 
available designated area. As discussed above, advance notice will not 
give a later-arriving group priority over an earlier-arriving group. 
The rule thus gives activities under permit a preferred right to the 
designated area, and if the area cannot accommodate two activities, the 
groups availing themselves of the small group permit exception will, 
whenever possible, be relocated to a nearby available designated area. 
For this reason, persons or groups that would otherwise qualify for 
this exception may wish to apply for and receive a permit in order to 
ensure that they have priority for use of the designated area.
    The NPS's ability to consider the physical dimensions of the 
designated available areas as well as the safety of the small group and 
other park visitors is important, especially in the event of a 
disruptive counter-demonstration. NPS may consider a threat of violence 
as a permissible ground for a time, place, and manner limitation. 
``When the choice is between an abbreviated march or a bloodbath, 
government must have some leeway to make adjustments necessary for the 
protection of participants, innocent onlookers, and others in the 
vicinity.'' Christian Knights of the Ku Klux Klan Invisible Empire, 
Inc. v. District of Columbia, 972 F.2d 365, 374 (DC Cir. 1992).

Other Changes in the NPS Rule

    This rule at 36 CFR 2.51(d) and 2.52(c) incorporates the various 
application questions found in the earlier 2.51(b) and 2.52(b), with 
one additional provision: The application will also ask whether there 
is any reason to believe that there will be an attempt to disrupt, 
protest, or prevent the event. Such application information is critical 
in helping the NPS to assess the need for additional public safety 
measures as it attempts to facilitate the applicant's activity. It has 
been a standard question asked in NPS Application Form 10-930 for many 
years, and the NPS wants to make explicit the importance of obtaining 
this information.
    The rule also provides that applications should not be submitted 
and will not be accepted more than one year before the proposed event 
(including set-up time), and that applications submitted earlier will 
be returned. This is consistent with long-standing NPS administrative 
practice. As detailed in 73 FR 46217 (2008), this one year time frame 
allows applicants to be better able to determine the proposed 
activity's true size and scope, and allows the NPS to be better able to 
determine whether it can be reasonably accommodated, while also 
allowing a fair and equal opportunity to use parkland.
    This rule has been simplified, with various cross-indexing and 
subheading captions, so that it may be more understandable. For 
example, the rule at 36 CFR 2.51(h) and 2.52(g) standardizes the 
maximum duration of a permit to 14 consecutive days, a change from just 
7 days in the prior 36 CFR 2.51(g), but consistent with the prior 36 
CFR 2.52(g). The rule still allows a permit to be extended upon 
submission of a new application.
    This rule at 36 CFR 2.51(c)(1)(i)-(v) also consolidates the 
regulatory criteria earlier found at 2.51(e)(1)-(5) and 2.52(e)(1)-(5), 
governing when the NPS may determine an area is available for 
demonstrations and the sale or distribution of printed matter. Parks 
that authorize special events under 36 CFR 2.50 should consider those 
special event areas to also be available for demonstrations and the 
sale and distribution of printed matter.
    This rule at 36 CFR 2.51(c)(1)(vi) also creates one additional 
regulatory criterion for the NPS to consider in deciding which areas to 
designate as available for demonstrations and the sale or distribution 
of printed matter: Whether such activities would be incompatible with 
the nature and traditional use of the particular park area involved. 
This additional factor is consistent with the Court of Appeals decision 
in Boardley, which stated that:

    Presumably, many national parks include areas--even large areas, 
such as a vast wilderness preserve--which never have been dedicated 
to free expression and public assembly, would be clearly 
incompatible with such use, and would therefore be classified as 
nonpublic forums. But at the same time, many national parks 
undoubtedly include areas that meet the definition of traditional 
public forums.

Boardley v. Department of the Interior, 2010 U.S. App. LEXIS 16302 *12-
13 (DC Cir. August 6, 2010) (citations omitted). While traditional 
public forums may exist in some parks, by designating certain areas as 
available for demonstrations and the sale or distribution of printed 
matter, NPS does not intend to define those designated available areas 
as public forums for purposes of First Amendment analysis.
    This rule at 36 CFR 2.52(a) also defines what constitutes ``printed 
matter.'' This definition simply codifies, with minor modifications, a 
definition already provided in the preamble to the 1983 final 
regulation. 48 FR 30272 (June 30, 1983).
    This rule, at 36 CFR 2.51(e) and 2.52(d), also directs that the 
superintendent shall issue a permit within ten days of receipt of a 
fully executed application that includes all of the requested 
information and is submitted within one year of the proposed event. The 
text of the earlier NPS regulations required park action ``without 
unreasonable delay,'' which the NPS later modified to two business days 
following another Circuit's decision. However, the Court of Appeals in 
Boardley found that the other Circuit's decision was no longer 
persuasive due to a subsequent Supreme Court decision, and that ``it 
had no trouble finding deadlines between three and ten days to be 
reasonable.'' Boardley v. Department of the Interior, 2010 U.S. App. 
LEXIS 16302 *23 (DC Cir. August 6, 2010).

[[Page 64152]]

Harassment and Obstruction

    This rule, at 36 CFR 2.31(a)(4)-(5), also creates two additional 
public conduct regulations that prohibit harassment and obstruction. 
The harassment of park visitors with physical contact was earlier 
prohibited at 36 CFR 2.52(h), and the NPS believes that such public 
conduct regulations are critical to help protect park resources, 
programs, and visitors. These regulations are also consistent with the 
Court of Appeals decision in Boardley, which recognized that the 
government could achieve its legitimate interests by narrowly tailored 
public conduct regulations: ``Instead of subjecting individuals and 
small groups to a prior restraint on speech, the NPS could simply 
prohibit and punish conduct that harasses park visitors, interferes 
with official programs, or creates security or accessibility hazards.'' 
Boardley, 2010 U.S. App. LEXIS 16302 at *40 (DC Cir. August 6, 2010).

Compliance With Other Laws, Executive Orders, and Department Policy

Effective Date

    Pursuant to 5 U.S.C. 553(d)(3) and 318 DM 4.7 B(1)(ii), this rule 
is effective immediately, so that, following the issuance of the 
mandate by the Court of Appeals in Boardley, the NPS may continue to 
perform its duties under the NPS Organic Act, consistent with the First 
Amendment, by properly managing federal parkland while allowing 
activities associated with demonstrations and the sale and distribution 
of printed matter.

Regulatory Planning and Review (Executive Order 12866)

    This document is a significant rule and the Office of Management 
and Budget has reviewed this rule under Executive Order 12866. This 
rule:
    (1) Will not have an effect of $100 million or more on the economy. 
It will not adversely affect in a material way the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, or tribal governments or communities.
    (2) Will not create a serious inconsistency or otherwise interfere 
with an action taken or planned by another agency. The rule only 
affects management and operations of National Park Service areas 
outside the National Capital Region.
    (3) Does not alter the budgetary effects of entitlements, grants, 
user fees, or loan programs or the rights or obligations of their 
recipients.
    (4) Does raise novel legal or policy issues. The rule modifies 
existing NPS regulations to be consistent with recent federal court 
decisions.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    The Department of the Interior certifies that this document will 
not have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act.
    The rule expands opportunities for individuals and organizations to 
engage in small group demonstrations and the sale or distribution of 
printed matter for which no permit need be issued. Other organizations 
with interest in the rule will not be effected economically.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804 (2))

    This rule is not a major rule under the Small Business Regulatory 
Enforcement Fairness Act. This rule:
    a. Does not have an annual effect on the economy of $100 million or 
more.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.

Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.)

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local, or tribal governments or the private sector. A statement 
containing the information required by the Unfunded Mandates Reform Act 
is not required.

Takings (Executive Order 12630)

    Under the criteria in Executive Order 12630, this rule does not 
have significant takings implications. It pertains specifically to 
operation and management of locations outside the NPS-National Capital 
Region. A takings implication assessment is not required.

Federalism (Executive Order 13132)

    In accordance with Executive Order 13132, the rule does not have 
sufficient federalism implications to warrant the preparation of 
summary impact statement. A Federalism summary impact statement is not 
required.

Civil Justice Reform (Executive Order 12988)

    This rule complies with the requirements of Executive Order 12988. 
Specifically, this rule:
    (a) Meets the criteria of section 3(a) requiring that all 
regulations be reviewed to eliminate errors and ambiguity and be 
written to minimize litigation; and
    (b) Meets the criteria of section 3(b)(2) requiring that all 
regulations be written in clear language and contain clear legal 
standards.

Consultation With Indian tribes (Executive Order 13175)

    Under the criteria in Executive Order 13175, we have evaluated this 
rule and determined that it has no potential effects on federally 
recognized Indian tribes. The rule only applies to management and 
operation of NPS areas outside the National Capital Region.

Paperwork Reduction Act

    The Office of Management and Budget has approved the information 
collections in this rule and has assigned control number 1024-0026 
expiring on June 30, 2013. The information collection activities are 
necessary for the public to obtain benefits in the form of special park 
use permits.

National Environmental Policy Act of 1969

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. It is a modification of 
existing NPS regulations as required by a decision of the Court of 
Appeals. Moreover, a detailed statement under the National 
Environmental Policy Act of 1969 (NEPA) is not required because the 
rule is covered by a categorical exclusion. We have determined that the 
proposed rule is categorically excluded under 516 DM 12.5(A)(10) as it 
is a modification of existing NPS regulations that does not increase 
public use to the extent of compromising the nature and character of 
the area or causing physical damage to it. Further, the rule will not 
result in the introduction of incompatible uses which might compromise 
the nature and characteristics of the area or cause physical damage to 
it. Finally, the rule will not cause conflict with adjacent ownerships 
or land uses, or cause a nuisance to adjacent owners or occupants.
    We have also determined that the rule does not involve any of the 
extraordinary circumstances listed in 43 CFR 46.215 that would require 
further analysis under NEPA.

[[Page 64153]]

Information Quality Act (Pub. L. 106-554)

    In developing this rule we did not conduct or use a study, 
experiment, or survey requiring peer review under the Information 
Quality Act.

Effects on the Energy Supply (Executive Order 13211)

    This rule is not a significant energy action under the definition 
in Executive Order 13211. A Statement of Energy Effects is not 
required.

Clarity of This Regulation

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To help 
us better revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

Public Participation

    Pursuant to 5 U.S.C. 553, good cause exists both to publish this 
interim rule without prior public notice and comment and for this rule 
to become effective immediately, following the issuance of the mandate 
by the Court of Appeals in Boardley v. Department of the Interior. This 
allows the NPS to continue to perform its duties under the NPS Organic 
Act, consistent with the First Amendment: to properly manage federal 
parkland while allowing activities associated with demonstrations and 
the sale and distribution of printed matter. As explained above, the 
Court of Appeals found that the rules at 2.51 and 2.52 were 
unconstitutional in their entirety. Thus, to ensure that no regulatory 
vacuum exists, it is necessary to promulgate these rules without 
advance notice and comment, and it would be impracticable and contrary 
to the public interest to delay their effective date. And as explained 
above, these changes adopt some provisions already included within the 
special regulations for the NPS's National Capital Region, which were 
the result of notice and comment rulemakings. Although the interim rule 
is effective immediately, NPS still requests public comments on this 
rule. Comments will be accepted for 60 days. NPS will review all 
comments received, and at the conclusion of the comment period will 
determine whether revisions to this interim rule are warranted.
    All submissions must include the agency name and docket number or 
Regulatory Information Number (RIN) for this rulemaking. All comments 
received will be posted without change to http://www.regulations.gov.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov and enter ``1024-
ADXX'' in the ``Keyword or ID'' search box.

Public Availability of Comments

    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment including your personal identifying 
information may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

List of Subjects in 36 CFR Part 2

    Environmental protection, National parks, Reporting and 
recordkeeping requirements.

0
In consideration of the foregoing, the National Park Service amends 36 
CFR part 2 as set forth below:

PART 2--RESOURCE PROTECTION, PUBLIC USE AND RECREATION

0
1. The authority citation for part 2 continues to read as follows:

    Authority:  16 U.S.C. 1, 3, 9a, 462(k).


0
2. In Sec.  2.31 add paragraphs (a)(4) and (a)(5), to read as follows:


Sec.  2.31  Trespassing, tampering, vandalism, harassment, obstruction.

    (a) * * *
    (4) Harassment. Intentional or reckless harassment of park visitors 
with physical contact.
    (5) Obstruction. Intentional or reckless obstruction of any 
sidewalk, trail, highway, building entranceway, railroad track, or 
public utility right-of-way, or other public passage, whether alone or 
with others. The mere gathering of persons to hear a speaker 
communicate, or simply being a member of such a gathering, does not 
constitute obstruction. An official may make a reasonable request or 
order that one or more persons move in order to prevent obstruction of 
a public passage, and refusal of such an order constitutes obstruction.
* * * * *

0
3. Section 2.51 is revised to read as follows:


Sec.  2.51  Demonstrations.

    (a) Demonstrations. The term ``demonstrations'' includes 
demonstrations, picketing, speechmaking, marching, holding vigils or 
religious services, and all other like forms of conduct that involve 
the communication or expression of views or grievances, engaged in by 
one or more persons, the conduct of which is reasonably likely to 
attract a crowd or onlookers. This term does not include casual park 
use by visitors or tourists that is not reasonably likely to attract a 
crowd or onlookers.
    (b) Permits and the small group permit exception. Demonstrations 
are allowed within park areas designated as available under paragraph 
(c)(2) of this section, when the superintendent has issued a permit for 
the activity, except that:
    (1) Demonstrations involving 25 persons or fewer may be held 
without a permit within designated park areas, provided that:
    (i) None of the reasons for denying a permit that are set out in 
paragraph (f) of this section are present;
    (ii) The group is not merely an extension of another group already 
availing itself of the small group permit exception under this 
provision;
    (iii) They will not unreasonably interfere with other permitted 
demonstrations and special events, or park program activities; and
    (iv) Hand-carried signs may be used, but stages, platforms, or 
structures may not be used.
    (2) While it is not mandatory, the organizer is requested to 
provide reasonable notice of the proposed event to the park 
superintendent, including whether there is any reason to believe that 
there may be an attempt to disrupt, protest, or prevent the activity.
    (3) The 25-person maximum for the small group permit exception may 
be reduced for a designated available area, but only if:
    (i) A written determination that a 25-person group cannot be 
reasonably physically accommodated within that area is approved by the 
regional director; and
    (ii) The written determination is made available at the office of 
the

[[Page 64154]]

superintendent and by public notice under Sec.  1.7 of this chapter.
    (4) In the event that two or more groups taking advantage of the 
small group permit exception seek to use the same designated available 
area at the same time, and the area cannot reasonably accommodate 
multiple occupancy, the superintendent will, whenever possible, direct 
the later-arriving group to relocate to another nearby designated 
available area.
    (c) Designated available park areas. (1) Locations may be 
designated as available for demonstrations under this section, and for 
the sale or distribution of printed matter under Sec.  2.52, only if 
these activities would not:
    (i) Cause injury or damage to park resources;
    (ii) Unreasonably impair the atmosphere of peace and tranquility 
maintained in wilderness, natural, historic, or commemorative zones;
    (iii) Unreasonably interfere with interpretive, visitor service, or 
other program activities, or with the administrative activities of the 
National Park Service;
    (iv) Substantially impair the operation of public use facilities or 
services of National Park Service concessioners, holders of commercial 
use authorizations, or contractors;
    (v) Present a clear and present danger to the public health and 
safety; or
    (vi) Be incompatible with the nature and traditional use of the 
particular park area involved.
    (2) The superintendent must designate on a map, which must be 
available in the office of the superintendent and by public notice 
under Sec.  1.7 of this chapter, the locations designated as available 
for demonstrations and the sale or distribution of printed matter.
    (d) Application for permit. A permit application must provide:
    (1) The name of the applicant or the name of the organization (if 
any);
    (2) The date, time, duration, nature, and place of the proposed 
event;
    (3) An estimate of the number of persons expected to attend;
    (4) A statement of equipment and facilities to be used;
    (5) Whether there is any reason to believe that there will be an 
attempt to disrupt, protest, or prevent the event; and
    (6) Any other information required by the permit application form.
    (e) The superintendant must not accept an application more than one 
year before the proposed event (including time required for set-up); 
applications received more than a year in advance will be returned to 
the applicant.
    (f) Processing the application. The superintendent must issue a 
permit within ten days of receiving a complete and fully executed 
application unless:
    (1) The superintendant has granted or will grant a prior 
application for a permit for the same time and place, and the 
activities authorized by that permit do not reasonably allow multiple 
occupancy of that particular area;
    (2) It reasonably appears that the event will present a clear and 
present danger to public health or safety;
    (3) The event is of such nature or duration that it cannot 
reasonably be accommodated in the particular location applied for, 
considering such things as damage to park resources or facilities, 
impairment of a protected area's atmosphere of peace and tranquility, 
interference with program activities, or impairment of public use 
facilities;
    (4) The location applied for has not been designated as available 
under paragraph (c)(2) of this section;
    (5) The application was submitted more than one year before the 
proposed event (including set-up); or
    (6) The activity would constitute a violation of an applicable law 
or regulation.
    (g) Written denial of permit. If a permit is denied, the 
superintendant will inform the applicant in writing of the denial and 
the reasons for it.
    (h) Permit conditions. The permit may contain conditions reasonably 
consistent with the requirements of public health and safety, 
protection of park resources, and the use of the park area for the 
purposes for which it was established. It may also contain reasonable 
limitations on the equipment used and the time and area within which 
the event is allowed.
    (i) Permit duration. (1) Permits may be issued for a maximum of 14 
consecutive days.
    (2) A permit may be extended for up to 14 days, but a new 
application must be submitted for each extension requested.
    (3) The extension may be denied if another applicant has requested 
use of the same location and the location cannot reasonably accommodate 
multiple occupancy.
    (j) Violation prohibited. Violation of these regulations or the 
terms of the permit is prohibited.
    (k) Permit revocation, termination of small group exception. (1) 
The superintendent may revoke a permit for any violation of its terms 
and conditions.
    (2) The superintendent may revoke a permit, or order a small group 
permit exception activity to cease, when any of the conditions listed 
in paragraph (f) of this section exist.
    (3) The superintendent will make the revocation or order to cease 
in writing, with the reasons clearly set forth. In emergency 
circumstances the superintendent will make an immediate verbal 
revocation or order to cease, followed by written confirmation within 
72 hours.

0
4. Section 2.52 is revised to read as follows:


Sec.  2.52  Sale or distribution of printed matter.

    (a) Printed Matter. The term ``printed matter'' means message-
bearing textual printed material such as books, pamphlets, magazines, 
and leaflets, provided that it is not solely commercial advertising.
    (b) Permits and the small group permit exception. The sale or 
distribution of printed matter is allowed within park areas designated 
as available under Sec.  2.51(c)(2) when the superintendent has issued 
a permit for the activity, except that:
    (1) Sale or distribution activity by 25 persons or fewer may be 
conducted without a permit within designated park areas, provided that:
    (i) None of the reasons for denying a permit that are set out in 
paragraph (e) of this section are present; and
    (ii) The group is not merely an extension of another group already 
availing itself of the small group permit exception under this 
provision;
    (iii) The sale or distribution will not unreasonably interfere with 
other permitted demonstrations and special events, or program 
activities; and
    (iv) Hand-carried signs may be used, but stages, platforms, or 
structures may not be used.
    (2) While it is not mandatory, the organizer is requested to 
provide reasonable notice of the proposed event to the park 
superintendent, including whether there is any reason to believe that 
there may be an attempt to disrupt, protest, or prevent the activity.
    (3) The 25-person maximum for the small group permit exception may 
be reduced for a designated available area, but only if:
    (i) A written determination that a 25-person group cannot be 
reasonably physically accommodated within that area is approved by the 
regional director; and
    (ii) The written determination is made available at the office of 
the superintendent and by public notice under Sec.  1.7 of this 
chapter.
    (4) In the event that two or more groups taking advantage of the 
small-group permit exception seek the same

[[Page 64155]]

designated available area at the same time, and the area cannot 
reasonably accommodate multiple occupancy, the superintendent will, 
whenever possible, direct the later-arriving group to relocate to 
another nearby designated available area.
    (c) Application for permit. An application must provide:
    (1) The name of the applicant or the name of the organization (if 
any);
    (2) The date, time, duration, nature, and place of the proposed 
event;
    (3) An estimate of the number of persons expected to attend;
    (4) A statement of equipment and facilities to be used;
    (5) Whether there is any reason to believe that there will be an 
attempt to disrupt, protest, or prevent the event; and
    (6) Any other information required by the permit application form.
    (d) The superintendant must not accept an application more than one 
year before the proposed event (including time required for set-up); 
applications received more than a year in advance will be returned to 
the applicant.
    (e) Processing the application. The superintendent must issue a 
permit within ten days of receiving a complete and fully executed 
application unless:
    (1) The superintendant has granted or will grant a prior 
application for a permit for the same time and place, and the 
activities authorized by that permit do not reasonably allow multiple 
occupancy of the particular area;
    (2) It reasonably appears that the sale or distribution will 
present a clear and present danger to the public health and safety;
    (3) The number of persons engaged in the sale or distribution 
exceeds the number that can reasonably be accommodated in the 
particular location applied for, considering such things as damage to 
park resources or facilities, impairment of a protected area's 
atmosphere of peace and tranquility, interference with program 
activities, or impairment of public use facilities;
    (4) The location applied for has not been designated as available 
under Sec.  2.51(c)(2);
    (5) The application was submitted more than one year before the 
proposed event (including set-up); or
    (6) The activity would constitute a violation of an applicable law 
or regulation.
    (f) Written denial of permit. If a permit is denied, the 
superintendant will inform the applicant in writing of the denial and 
the reasons for it.
    (g) Permit conditions. The permit may contain conditions reasonably 
consistent with the requirements of public health and safety, 
protection of park resources, and the use of the park area for the 
purposes for which it was established.
    (h) Permit duration. (1) Permits may be issued for a maximum of 14 
consecutive days.
    (2) A permit may be extended for up to 14 days, but a new 
application must be submitted for each extension requested.
    (3) The extension may be denied if another applicant has requested 
use of the same location and the location cannot reasonably accommodate 
multiple occupancy.
    (i) Misrepresentation. It is prohibited for persons engaged in the 
sale or distribution of printed matter under this section to 
misrepresent the purposes or affiliations of those engaged in the sale 
or distribution, or to misrepresent whether the printed matter is 
available without cost or donation.
    (j) Violation prohibited. Violation of these regulations or the 
terms of the permit is prohibited.
    (k) Permit revocation, termination of small group exception. (1) 
The superintendent may revoke a permit for any violation of its terms 
and conditions.
    (2) The superintendent may revoke a permit, or order a small group 
permit exception activity to cease, when any of the conditions listed 
in paragraph (e) of this section exist.
    (3) The superintendent will make the revocation or order to cease 
in writing, with the reasons clearly set forth. In emergency 
circumstances the superintendent will make an immediate verbal 
revocation or order to cease, followed by written confirmation within 
72 hours.

    Dated: October 1, 2010.
Will Shafroth,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-26392 Filed 10-15-10; 4:15 pm]
BILLING CODE 4312-52-P