[Federal Register Volume 78, Number 121 (Monday, June 24, 2013)]
[Rules and Regulations]
[Pages 37713-37717]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-15005]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 2

[NPS-WASO-REGS-8546; PXXVPADO515]
RIN 1024-AD91


General Regulations; National Park System, Demonstrations, Sale 
or Distribution of Printed Matter

AGENCY: National Park Service, Interior.

ACTION: Final rule.

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SUMMARY: The National Park Service is amending its interim regulations 
governing demonstrations and the sale or distribution of printed matter 
applicable to most units of the National Park System. The rule 
clarifies provisions regarding permits for demonstrations or 
distributing printed matter and in management of two or more small 
(non-permit) groups seeking to use at the same time, an area that has 
been designated as available for these activities.

DATES: This rule is effective June 24, 2013.

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

SUPPLEMENTARY INFORMATION:

Background

    On October 19, 2010, the National Park Service (NPS) issued an 
interim rule that revised regulations at 36 CFR 2.51 and 2.52 that 
governed demonstrations and the sale or distribution of printed matter 
applicable to most areas of the National Park System, and added two 
public conduct

[[Page 37714]]

provisions to regulations at 36 CFR 2.31, that prohibit harassing 
visitors and obstructing public passageways. The interim rule became 
effective immediately upon publication in the Federal Register October 
19, 2010 (75 FR 64148) and requested public comment.
    As more fully detailed in the preamble to the interim rule, the NPS 
is governed by the NPS Organic Act as well as by First Amendment 
jurisprudence. Currently consisting of 401 park units in all 50 states, 
the District of Columbia, and various U.S territories, the National 
Park System encompasses more than 84 million acres. These park units 
are located in a wide range of environments as diverse as the United 
States itself. The size of these park units also varies tremendously, 
ranging from Wrangell-St. Elias National Park and National Preserve, 
Alaska, at 13.2 million acres to Thaddeus Kosciuszko National Memorial, 
Pennsylvania, at 0.02 acres. About one-third of the units of the 
National Park System preserve nature's many and varied gifts to the 
Nation, while the other two-thirds recognize benchmarks of human 
history in America.
    The National Park System provides 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 
an extensive physical infrastructure, which includes thousands of 
buildings, tens of thousands of miles of trails and roads, and almost 
30,000 housing units, campground, and picnic areas as well as 3,000 
water and wastewater treatment systems.
    According to the NPS Statistical Abstract, in 2012 there were 
approximately 282 million visits to units of the National Park System 
that offers visitors not only visual, educational, and recreational 
experiences but also inspirational, contemplative, and spiritual 
experiences. For neighboring Native Americans, certain National Parks 
are also considered sacred sites, where the NPS asks visitors to 
respect these long-standing beliefs.
    Equally important, the National Park System has traditionally 
offered visitors the opportunity to engage in demonstration activity 
and the sale or distribution of printed matter in designated park 
areas. In that regard, the NPS general regulations at 36 CFR 2.51 and 
2.52, applicable to 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, June 30, 1983.

    In 2010, the U.S. Court of Appeals for the District of Columbia 
Circuit issued its decision in Boardley v. Department of the Interior, 
615 F.3d 508 (D.C. Cir. 2010), which stemmed from a demonstration and 
leaflet-distribution incident at Mount Rushmore National Memorial, 
South Dakota, for which the NPS had required a permit. The Court of 
Appeals vacated Sec. Sec.  2.51 and 2.52 in their entirety, based on 
the system-wide lack of an exception from the permit requirement for 
individual and small-group activity in NPS-designated free speech 
areas. The U.S. District Court for the District of Columbia in Boardley 
v. Department of the Interior, 605 F. Supp. 2d 8 (D.D.C. 2009), had 
earlier also found fault with the NPS's regulatory definition of a 
demonstration.
    Consistent with these judicial decisions and in order to avoid a 
regulatory vacuum that could impact the NPS's conservation mandate and 
the use of park areas by the public, the NPS issued the interim rule 
governing demonstrations and the sale or distribution of printed matter 
applicable to most of the National Park System. While retaining the 
park superintendent's ability to designate available areas as well as 
the permit requirement for large groups, the NPS interim rule narrowed 
the definition of what constitutes a demonstration; created a small-
group permit exception; detailed how the NPS addresses competing small 
(non-permit) groups that seek to use the same designated area; refined 
how applications are to be processed; and prohibited harassment of 
visitors by physical touch or by obstruction of building entranceways, 
sidewalks, and other public passageways.
    Consistent with evolving First Amendment jurisprudence, the interim 
rule as revised by this final 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 demonstrators 
only the most limited restrictions necessary to accomplish those goals.

Response to Comments and Supplemental Explanation of the Interim 
Regulations

    When the interim rule was published, the NPS requested public 
comments to be submitted by December 19, 2010. The NPS received four 
comments, each through the Federal eRulemaking Portal at http://www.regulations.gov. The NPS reviewed the comments and, besides 
reaffirming and incorporating by reference its explanation found in its 
earlier rulemaking, offers the following responses to the issues 
raised.
    One comment disagreed with the NPS decision to exempt small groups 
of under 25 persons from the requirement to obtain a permit, and stated 
that all individuals should be required to obtain a permit, although 
through an easier permit process. To be consistent with the Court of 
Appeals decision in Boardley, the NPS believes that it is legally 
obligated to create a regulatory small-group permit exception.
    Another comment stated that small groups that simply hand out 
printed material should not be required to get a permit, unless their 
activity involves tables, signs, banners, or drums. Consistent with the 
Court of Appeals decision in Boardley, the NPS interim rule created a 
small-group permit exception for sale or distribution of printed matter 
in designated free speech areas. While the NPS interim rule at 36 CFR 
2.52(b)(1) and this final rule allow for small groups to sell or 
distribute printed matter and use hand-carried signs without a permit, 
the use of stages, platforms or structures will require a permit. As 
the NPS explained in the preamble to the interim rule, this is because 
the unregulated presence of such structures would negatively impact 
park resources and park visitors. A permit allows the superintendent to 
consider the impact of the proposed equipment and to impose content-
neutral, site-specific and reasonably appropriate resource-protection 
and safety conditions. Because a drum is a musical instrument, such use 
would be governed by the NPS audio disturbance regulations found at 36 
CFR 2.12(a)(1)(i)-(ii).
    One comment thought that by defining a small group as 25 or fewer 
persons, too many groups fell within the ``target'' of the NPS interim 
rule. The comment used the example of a school field trip of 26 or more 
students and chaperones, and expressed concern that it might be 
considered an unlawful demonstration if the participants communicate or 
express their views at a national park. The comment suggests that the 
small-group permit exception

[[Page 37715]]

should be enlarged to 50 persons, to help accommodate normal school 
field trip activity and other gatherings.
    The NPS believes that the interim rule's more narrowly limited 
definition of demonstration already addressed this concern. As the NPS 
explained in the preamble to the interim rule:

    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.

75 FR 64150, October 19, 2010.

    The NPS's selection of 25 persons as the number of individuals that 
generally qualify for the small-group permit exception is also 
consistent with the Court of Appeal's decision in Boardley that 
explicitly recognized that the agency may decide where to draw that 
line. 615 F.3d at 525. The NPS believes that its determination is 
reasonable; it also is identical to a long-standing small-group permit 
exception in the NPS's special regulations for the National Capital 
Region at 36 CFR 7.96(g)(2)(1).
    One comment asked if sound systems are allowed without a permit. 
This question is answered by 36 CFR 2.12(a)(4), which requires 
individual(s) who want to operate a public address system in connection 
with demonstrations and special events to obtain a permit.
    One comment asked if a small group needs a permit to engage in 
demonstration or printed matter activities that are located outside of 
a park-designated First Amendment area.
    Consistent with the NPS's interim rule, demonstrations and printed 
matter distributions are limited to locations designated by the 
superintendent as available for these activities. If a person or group 
wishes to engage in such activities in an area not designated by the 
superintendent, the person or group may request in writing that the 
superintendent reconsider whether the area should be designated as 
available under 36 CFR 2.51(c). This regulation does not alter a 
dissatisfied petitioner's right, if any, to challenge a 
superintendent's designation of any area under 36 CFR 2.51(c) under the 
Administrative Procedure Act.
    One comment stated that designated free speech areas needed to be 
clearly described to preserve the parks as educational places and asked 
what steps parks could take to avoid disturbances there. The NPS 
believes that the interim rule addressed these issues. Specifically, 36 
CFR 2.51(c)(2) provides that the superintendent must designate on a 
map, which must be available in the office of the superintendent and by 
public notice, the locations designated as available for demonstrations 
and the sale or distribution of printed matter. As for concerns about 
disturbances there, any NPS action must comport with relevant First 
Amendment jurisprudence.
    It is firmly settled under our Constitution that the public 
expression of ideas may not be prohibited merely because the ideas 
themselves are offensive to some of their hearers. Street v. New York, 
394 U.S. 576, 592 (1969). While speech is often provocative and 
challenging, it is nevertheless protected against censorship or 
punishment, unless shown likely to produce a clear and present danger 
of serious substantive evil that rises far above public inconvenience, 
annoyance or unrest. Terminiello v. Chicago, 337 U.S. 1, 4 (1949). In 
response to a disturbance, in a designated First Amendment area or 
elsewhere, the NPS will take action consistent with relevant First 
Amendment jurisprudence. Such NPS actions may generally center on 
whether the unlawful disturbance violates the NPS regulations, such as 
those prohibiting harassment, obstruction, or disorderly conduct at 36 
CFR 2.31(a)(4)-(5), and 2.34.
    Finally, the NPS interim rule's 36 CFR 2.51(b)(2) and 2.52(b)(2), 
and this final rule request that an organizer, who seeks to take 
advantage of the small-group permit exception, provide reasonable 
notice to the superintendent if the organizer has reason to believe 
there may be an attempt to disrupt, protest, or prevent the event. 
While not mandatory, this voluntary notice provision gives park 
officials an opportunity to plan additional public safety and resource 
protection measures. The NPS had asked for comments at 75 FR 64151, 
October 19, 2010, whether such notice should be made mandatory in 
future regulations. The NPS received no comments on this issue and will 
defer to future rulemaking whether such notice should be made 
mandatory.

Clarifications of the Interim Regulations

    After further internal review, the NPS is making three 
clarifications and one correction to the interim rule. Two 
clarifications, at 36 CFR 2.51(f) and 2.52(e), are intended to make the 
regulatory text more explicit that the superintendent must either issue 
a permit or a written denial within ten days of receiving a complete 
and fully executed application. The ten-day action deadline, to issue 
either a permit or a written denial, was clearly part of the NPS's 
intention in the interim rule and is consistent with the Court of 
Appeals decision in Boardley, which found the NPS's regulatory deadline 
to be reasonable under the Supreme Court's First Amendment 
jurisprudence. 615 F.3d at 519 (citing Thomas v. Chicago Park District, 
534 U.S. 316, 318 (2002)).
    The third clarification, at 36 CFR 2.52(b)(4), inserts the phrase 
``to use.'' Inadvertently omitted in the initial rulemaking, the phrase 
clarifies the situation when a park addresses two or more (non-
permitted) small groups that are seeking to use the same designated 
area at the same time. The paragraph is identical to 36 CFR 2.51(b)(4), 
and has been amended to read as set forth in the regulatory text of 
this rule.
    Finally, the NPS is making one correction to fix a clerical error, 
by deleting the word ``and'' at the end 36 CFR 2.52(b)(1)(i). The 
sentence has been amended to read: None of the reasons for denying a 
permit that are set out in paragraph (e) of this section are present;.

Effective Date

    This final rule is effective immediately. To the extent it is a 
substantive rule, it relieves a restriction on permit applicants, in 
that it provides more explicitly for a prompt response by the 
superintendent to the application. The other clarifications and 
corrections in this rule, while necessary, are essentially non-
substantive. The Department of the Interior also finds that there is 
good cause for making this rule effective immediately, pursuant to the 
Administrative Procedure Act, 5 U.S.C. 553(d)(3) and 318 DM 6.25. As 
noted above, the ten-day response deadline was clearly part of NPS's 
intention in the interim rule. Because this clarification makes the 
rule more consistent with the Court of Appeals decision in Boardley, it 
should go into effect immediately. Moreover, there would be a benefit 
to the public in making the rule effective immediately, in that it 
clarifies and corrects provisions governing the permit application 
process.

[[Page 37716]]

Compliance With Other Laws, Executive Orders, and Department Policy

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs in the Office of Management and Budget will review 
all significant rules. The Office of Information and Regulatory Affairs 
has determined that this rule is significant because it will raise 
novel legal or policy issues. The rule amends existing NPS interim 
regulations applicable to most areas of the National Park System, 
pertaining to demonstrations and sale or distribution of printed 
matter. The rule also clarifies provisions governing permits for 
demonstrations and sale or distribution of printed matter and for 
managing groups engaged in these activities.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

Regulatory Flexibility Act (RFA)

    This rule will not have a significant economic effect on a 
substantial number of small entities under the RFA (5 U.S.C. 601 et 
seq.).
    The rule only amends existing NPS regulations to clarify regulatory 
text. 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 SBREFA. 
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 UMRA, (2 U.S.C. 1531 et 
seq.) is not required.

Takings (Executive Order 12630)

    Under the criteria in section 2 of 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)

    Under the criteria in section 1 of Executive Order 13132, the rule 
does not have sufficient federalism implications to warrant the 
preparation of Federalism 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 and Department 
Policy)

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Indian tribes through a 
commitment to consultation with Indian tribes and recognition of their 
right to self-governance and tribal sovereignty. We have evaluated this 
rule under the Department's consultation policy and under the criteria 
in Executive Order 13175 and have determined that it has no substantial 
direct effects on federally recognized Indian tribes and that 
consultation under the Department's tribal consultation policy is not 
required. The rule only applies to management and operation of NPS 
areas outside the National Capital Region.

Paperwork Reduction Act (PRA)

    This rule contains information collection requirements, and a 
submission under the PRA is required. A Federal agency may not conduct 
or sponsor and you are not required to respond to a collection of 
information, unless it displays a currently valid Office of Management 
and Budget (OMB) control number. OMB has approved the information 
collections in this rule and has assigned control number 1024-0026, 
expiring on June 30, 2013. We estimate the burden associated with this 
information collection to be thirty (30) minutes. 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 NEPA of 1969 is not required because the rule is covered by a 
categorical exclusion. We have determined that the 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.

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.

List of Subjects in 36 CFR Part 2

    Environmental protection, National parks, Reporting and 
recordkeeping requirements.

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

[[Page 37717]]

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.  2.51 revise the introductory text of paragraph (f) to read 
as follows:


Sec.  2.51  Demonstrations.

* * * * *
    (f) Processing the application. The superintendent must issue a 
permit or a written denial within ten days of receiving a complete and 
fully executed application. A permit will be approved unless:
* * * * *

0
3. In Sec.  2.52 revise paragraph (b)(1)(i), paragraph (b)(4), and the 
introductory text of paragraph (e) to read as follows:


Sec.  2.52  Sale or distribution of printed matter.

* * * * *
    (b) * * *
    (1) * * *
    (i) None of the reasons for denying a permit that are set out in 
paragraph (e) of this section are present;
* * * * *
    (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.
* * * * *
    (e) Processing the application. The superintendent must issue a 
permit or a written denial within ten days of receiving a complete and 
fully executed application. A permit will be approved unless:
* * * * *

    Dated: June 12, 2013.
Michael J. Bean,
Acting Principal Deputy Assistant Secretary for Fish and Wildlife and 
Parks.
[FR Doc. 2013-15005 Filed 6-21-13; 8:45 am]
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