[Federal Register Volume 76, Number 1 (Monday, January 3, 2011)]
[Proposed Rules]
[Pages 57-62]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-33071]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 7

RIN 1024-AD89


Special Regulation: Areas of the National Park System, National 
Capital Region

AGENCY: National Park Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The National Park Service (NPS) proposes to amend the 
regulations on demonstrations and special events for the National 
Capital Region. This proposed rule would revise the definition of 
``demonstration'' as well as specify the conditions under which 
solicitation of gifts, money, goods, or services could occur.

DATES: Comments must be received by March 4, 2011.

ADDRESSES: You may submit your comments, identified by Regulatory 
Information Number 1024-AD89, by any of the following methods:

--Federal rulemaking portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
--Mail or hand delivery: National Park Service, Regional Director, 
Division of Park Programs, 1100 Ohio Drive, SW., Room 128, Washington, 
DC 20242.

FOR FURTHER INFORMATION CONTACT: Robbin Owen, Chief, Division of Park 
Programs, National Park Service, National Capital Region, 1100 Ohio 
Drive, SW., Room 128, Washington, DC 20242. Telephone: (202) 619-7225. 
Fax: (202) 401-2430.

SUPPLEMENTARY INFORMATION:

Background

Revise the Definition of ``Demonstration''

    This proposed rule would revise the definition of demonstration at 
36 CFR 7.96 (g)(1)(i) by eliminating the term ``intent or propensity'' 
where it appears in the definition and replace it with the term 
``reasonably likely.'' In Boardley v. Department of the Interior, 605 
F. Supp. 2d 8 (D.D.C. 2009) the United States District Court for the 
District of Columbia commented on the demonstration definition for the 
National Capital Region under 36 CFR 7.96 (g)(1)(i). The Court 
commented the definition could raise problems, because it allowed NPS 
officials to restrict speech based on their determination that a person 
intended to draw a crowd with their conduct. Such a determination could 
easily rest on impermissible grounds, such as an official's perception 
that certain expression is controversial or inappropriate, which would 
be a content-based decision, impermissible under the First Amendment. 
While the NPS has not applied the regulation in such an impermissible 
manner, and has since issued a clarifying memorandum to preclude such a 
determination, this proposed rule would revise the definition of 
demonstration to minimize any possibility of a decision based on 
impermissible grounds.

Amendment of the Solicitation Regulation

    This proposed rule also would amend the provision regarding 
soliciting, in order to be consistent with the United States Court of 
Appeals for the District of Columbia decision in ISKCON of Potomac v. 
Kennedy, 61 F.3d 949 (DC Cir. 1995).
    In ISKCON of Potomac, the Court of Appeals held that the NPS's 
regulatory ban of soliciting, which the NPS traditionally construed as 
applying only to the in-person solicitation of immediate donations, was 
not ``narrowly tailored.'' The Court recognized that:

    * * *[t]he conduct of a special event within a small, well-
defined permit area will have some effect on the ambiance of the 
Mall. But we cannot see how allowing in-person solicitations within 
the permit area will add to whatever adverse impact will result from 
the special event itself. The effects of solicitation will be 
confined to the permit area, and those who wish to escape them may 
simply steer clear of the authorized demonstration or special event. 
61 F.3d at 956.

    The Court also said:

    Our holding allows only those individuals or groups 
participating in an authorized demonstration or special event to 
solicit donations within the confines of a restricted permit area 
such as that assigned to ISKCON. It does not require the NPS to let 
rampant panhandling go unchecked. 61 F.3d at 956.

    Following the ISKCON of Potomac decision, as an interim measure, 
the NPS posted a notice at its Washington, DC, National Capital Region 
Division of Park Programs permit office as well as in the 
Superintendent's Compendium of regulations for the National Mall and 
Memorial Parks, stating that soliciting would be allowed if it occurred 
within the confines of a permit area as part of a permitted ongoing 
activity. The soliciting regulation itself, however, also must be 
amended.
    Consistent with ISKCON of Potomac, this proposed amendment would 
allow individuals or groups who are participating in a permitted 
demonstration or special event to solicit donations within the confines 
of a restricted permit area. Such soliciting is authorized only when 
provided for in a permit. Groups seeking to solicit donations as part 
of a demonstration or special event will need to describe the 
activities in their permit application.
    This proposed rule also formalizes the long-standing view that 
soliciting is limited to the in-person soliciting of immediate 
donations.
    This proposed rule deals with soliciting and not sales. Any attempt 
to offer or sell items, whether directly or by the use of deceit, is 
governed by the NPS sales regulation, at 36 CFR 7.96 (k), which limits 
items to be sold on park lands to books, newspapers, leaflets, 
pamphlets, buttons, and bumper stickers. As the NPS explained it its 
prefatory statement to its sales regulation, at 60 FR 17648 (1995),

    * * * 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.

    Finally, it has been the NPS's long-standing application of its 
regulations that demonstrations and special events, whether under 
permit or not, are not allowed in the restricted areas at 36 CFR 7.96 
(g)(3)(ii). To better ensure that everyone fully understands that 
demonstrations and special events, with or without a permit, are not 
allowed in these restricted areas, NPS proposes to amend its 
introductory sentence to clearly indicate that no demonstrations or 
special events are allowed in the designated restricted areas.

Compliance with Other Laws, Executive Orders, and Department Policy

Regulatory Planning and Review (Executive Order 12866)

    This document is not a significant rule and the Office of 
Management and Budget, (OMB), has not reviewed this rule under 
Executive Order 12866.
    (1) This rule will not have an effect of $100 million or more on 
the economy. It will not adversely affect in a material

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way the economy, productivity, competition, jobs, the environment, 
public health or safety, or State, local, or Tribal governments or 
communities.
    (2) This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency. The rule 
only effects management and operations of National Park Service areas 
within the National Capital Region.
    (3) This rule does not alter the budgetary effects of entitlements, 
grants, user fees, or loan programs or the rights or obligations of 
their recipients.
    (4) This rule does not raise novel legal or policy issues. The rule 
modifies existing NPS regulations to be consistent with recent Federal 
Court decisions.

Regulatory Flexibility Act (RFA)

    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 (5 U.S.C. 601 et seq.).
    The rule expands opportunities for individuals and organizations to 
solicit funds, goods or services associated with a special event for 
which a permit has been issued. Other organizations with interest in 
the rule will not be effected economically.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2), 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 (UMRA)

    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, (2 U.S.C. 1531 et seq.) 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 within 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 within the National Capital Region.

Paperwork Reduction Act (PRA)

    The Office of Management and Budget has approved the information 
collections in this rule and has assigned control number 1024-0021, 
expiring on November 30, 2013. We estimate the burden associated with 
this information collection to be \3/4\ hour. The information 
collection activities are necessary for the public to obtain benefits 
in the form of special park use permits.

National Environmental Policy Act (NEPA)

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. A detailed statement 
under the National Environmental Policy Act of 1969 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) insofar 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 the National Environmental Policy Act.

Information Quality Act (IQA)

    In developing this rule we did not conduct or use a study, 
experiment, or survey requiring peer review under the Information 
Quality Act (Pub. L. 106-554).

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 
better help us 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

    All submissions received 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

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comments received, go to http://www.regulations.gov and enter ``1024-
AD89'' 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 7

    District of Columbia, National parks, Reporting and recordkeeping 
requirements.
    In consideration of the foregoing, the National Park Service 
proposes to amend 36 CFR part 7 as set forth below:

PART 7--SPECIAL REGULATIONS, AREAS OF THE NATIONAL PARK SYSTEM

    1. The authority citation for part 7 is revised to read as follows:

    Authority: 16 U.S.C. 1, 3, 9a, 460(q), 462(k); Sec. 7.96 also 
issued under 36 U.S.C. 501-511, DC Code 10-137 (2001) and DC Code 
50-2201.07 (2001).

    2. In Sec.  7.96:
    A. Revise paragraph (g)(1)(i);
    B. Revise paragraph (g)(3)(ii) introductory text;
    C. Revise paragraph (g)(3)(ii)(D);
    D. Add paragraph (g)(3)(ii)(E);
    E. Remove maps following paragraph (g)(7); and
    F. Revise paragraph (h).
    The revisions and addition read as follows:


Sec.  7.96  National Capital Region.

* * * * *
    (g) Demonstrations and special events--(1) Definitions (i) The term 
``demonstration'' 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 term does not 
include casual park use by visitors or tourists that is not reasonably 
likely to attract a crowd or onlookers.
* * * * *
    (3) * * *
    (ii) Other park areas. Demonstrations and special events are not 
allowed in the following other park areas:
* * * * *
    (D) The Vietnam Veterans Memorial, except for official annual 
Memorial Day and Veterans Day commemorative ceremonies.
    (E) Maps of the park areas designated in this paragraph are as 
follows. The darkened portions of the diagrams show the areas where 
demonstrations or special events are prohibited.
BILLING CODE 4312-52-P

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BILLING CODE 4312-52-C

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* * * * *
    (h) Soliciting under permit. (1) The in-person soliciting or 
demanding gifts, money, goods or services is prohibited, unless it 
occurs as part of a permit issued for a demonstration or special event.
    (2) Persons permitted to solicit must not:
    (i) Give false or misleading information regarding their purposes 
or affiliations;
    (ii) Give false or misleading information whether any item is 
available without donation.
* * * * *

    Dated: December 22, 2010.
Thomas L. Strickland,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-33071 Filed 12-30-10; 8:45 am]
BILLING CODE 4312-52-P