[Federal Register Volume 81, Number 199 (Friday, October 14, 2016)]
[Proposed Rules]
[Pages 71026-71029]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-24641]



National Park Service

36 CFR Part 2

[NPS-WASO-21549; GPO Deposit Account 4311H2]

RIN 1024-AE32

General Regulations; Areas of the National Park System, Sale and 
Distribution of Printed Matter and Other Message Bearing Items

AGENCY: National Park Service, Interior.

ACTION: Proposed rule.


SUMMARY: The National Park Service (NPS) proposes to revise its general 
rule governing the sale and distribution of printed matter to include 
the free distribution of message-bearing items that do not meet the NPS 
regulatory definition of ``printed matter.'' This change would give 
visitors an alternative channel of communication while protecting the 
resources and values of the National Park System.

DATES: Comments must be received by December 13, 2016.

ADDRESSES: You may submit comments, identified by the Regulation 
Identifier Number (RIN) 1024-AE32, by any of the following methods:
     Electronically: Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments 
after searching for ``RIN 1024-AE32''.
     Hard copy: Mail or hand-deliver to: Lee Dickinson, Special 
Park Uses National Manager, 1849 C St. NW., MS 2355, Washington, DC 
    Instructions: It is the policy of the Department of the Interior, 
whenever practicable, to afford the public an opportunity to 
participate in the rulemaking process. All comments received must 
include the agency name and RIN for this rulemaking. Comments

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received will be posted without change to http://www.regulations.gov, 
including any personal information provided. Comments will not be 
accepted by fax, email, or in any way other than those specified above, 
and bulk comments in any format (hard copy or electronic) submitted on 
behalf of others will not be considered. Organizations should direct 
their members to submit comments individually using one of the methods 
described above.
    Before including your address, phone number, email 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. Please note that submissions merely stating support for 
or opposition to the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination. Please make your comments as specific as 
possible and explain the basis for them.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov.

Program Manager, at (202) 513-7092 or [email protected].



National Park System

    Currently consisting of over 400 units in 50 states, the District 
of Columbia and multiple territories, the National Park System covers 
more than 84 million acres. These units are located in a wide range of 
environments as diverse as the United States itself. The size of these 
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--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 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.
    The National Park System is habitat for 247 threatened or 
endangered species, has more than 167 million items in museum 
collections, has 75,000 archaeological sites, and 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, campgrounds, and picnic areas as well as 3,000 water and waste 
water treatment systems.
    Over 307 million visitors visited the National Park System in 2015, 
where visitors find not only visual, educational, and recreational 
experiences but also inspirational, contemplative, and spiritual 
experiences. For Native Americans, certain national parks are also 
considered sacred religious sites, where the National Park Service 
(NPS) asks visitors to respect these long-held beliefs, such as by 
voluntarily not walking under a natural bridge.

Proposed Rule

    First Amendment activities in units of the national park system are 
governed by longstanding but ever-evolving First Amendment 
jurisprudence; by the statutes and regulations governing the national 
park system as a whole; and by park-specific statutes and regulations.
    Title 36 CFR 2.52 currently allows the sale or distribution only of 
printed matter and only in areas of a park designated by the 
superintendent. The regulation defines ``printed matter'' as ``message-
bearing textual printed material such as books, pamphlets, magazines, 
and leaflets, provided that it is not solely commercial advertising.''
    The NPS recognizes, however, that items other than ``printed 
matter'' may also contain or present speech, either literal or 
symbolic, that is not solely commercial and whose expression may be 
protected by the First Amendment. Accordingly, the NPS now proposes to 
allow the free distribution of message-bearing items other than printed 
matter in areas of a park designated by the superintendent, subject to 
compliance with the regulations at 36 CFR 2.51, 2.52, and 5.3. These 
items include readable electronic media like CDs, DVDs, and flash 
drives; articles of clothing like hats and accessories like buttons and 
pins; key chains; and bumper stickers.\1\

    \1\ This proposed rule therefore enshrines in regulation NPS 
Policy Memorandum 14-01, (January 28, 2014), which requires 
superintendents to allow the free distribution of message-bearing 
items to the public other than printed matter, so long as the 
activity occurs within an area designated as available for First 
Amendment activities under 36 CFR 2.51(c)(l) and otherwise complies 
with 36 CFR 2.52.

    Under the proposed rule, message-bearing items other than printed 
matter may not be sold within a park unit; they may only be distributed 
free of charge. This restriction is necessary to prevent the 
proliferation of unregulated commercial activity that would be 
inconsistent with park resources and values, that would impinge upon 
and degrade park scenery, and that would disrupt the atmosphere of 
peace and tranquility that is an important part of the visitor 
experience in many park units.
    The proposed revision to Sec.  2.52 to allow the free distribution 
of other message-bearing items, is consistent with the NPS's National 
Capital Region (NCR) regulation, 36 CFR 7.96(k), that allows the free 
distribution of other message-bearing items. As discussed in the 
preambles to the proposed and final rules for the NCR regulation, 59 FR 
25855 (1994) and 60 FR 17639 (1995), the NPS promulgated Sec.  7.96 to 

[[Page 71028]]

serious issues created by unregulated sales of merchandise on NPS-
administered lands that resulted in conflicting and excessive 
commercialism; degraded aesthetic values; had negative impacts on 
visitor circulation and contemplation and historic scenes; and 
inhibited the conservation of park property. In upholding the 
constitutionality of the NCR regulation limiting the sales of such 
items, the U.S. Court of Appeals for the District of Columbia Circuit 
found that the regulation was ``content neutral'' and ``narrowly 
tailored to serve significant government interests'' and offered 
``ample alternative channels of communication'' insofar as ``members 
may display and give the audio tapes and [religious] beads to members 
of the public so long as they do not try to exact a payment or request 
a donation in exchange for them.'' ISKCON of Potomac v. Kennedy, 61 
F.3d 949, 952, 958 (D.C. Cir. 1995).

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 not significant.
    Executive Order 13563 reaffirms the principles of Executive Order 
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. Executive Order 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

    This rule 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 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

    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

    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. It addresses public 
use of national park lands, and imposes no requirements on other 
agencies or governments. 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)

    This rule does not effect a taking of private property or otherwise 
have takings implications under Executive Order 12630. 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 a Federalism summary impact statement. This proposed 
rule only affects use of federally-administered lands and waters. It 
has no outside effects on other areas. A Federalism summary impact 
statement is not required.

Civil Justice Reform (Executive Order 12988)

    This rule complies with the requirements of Executive Order 12988. 
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 

Consultation With Indian Tribes (Executive Order 13175 and Department 

    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 criteria in Executive Order 13175 and under the 
Department's tribal consultation policy and have determined that tribal 
consultation is not required because the rule will have no substantial 
direct effect on federally recognized Indian tribes.

Paperwork Reduction Act

    This rule does not contain any new collections of information that 
require approval by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act. OMB has approved the information collection 
requirements associated with NPS Special Park Use Permits and has 
assigned OMB Control Number 1024-0026 (expires 10/31/16). An agency may 
not conduct or sponsor and a person is not required to respond to a 
collection of information unless it displays a currently valid OMB 
control number.

National Environmental Policy Act of 1969

    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 (NEPA) 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 conflict with 
adjacent ownerships or lands uses, or cause a nuisance to adjacent 
owners or occupants.
    We have also determined that the rule does not involve any of the

[[Page 71029]]

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 

Clarity of This Rule

    We are required by Executive Orders 12866 (section 1(b)(12)), 12988 
(section 3(b)(1)(B)), and 13563 (section 1(a)), 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 common, everyday words and clear language rather than 
    (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 you find unclear, which sections or sentences are 
too long, the sections where you feel lists or tables would be useful, 

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 
proposes to amend 36 CFR part 2 as set forth below:


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

    Authority:  54 U.S.C. 100101, 100751, 320102.

2. Amend Sec.  2.52 as follows:
a. Revise the section heading.
b. Revise the paragraph (a) subject heading.
c. Add two sentences at the end of paragraph (a).
d. Revise paragraph (b) introductory text.
    The revisions and additions to read as follows:

Sec.  2.52  Sale of printed matter and the distribution of printed 
matter and other message-bearing items.

    (a) Printed Matter and Other Message Bearing Items. * * * The term 
``other message-bearing items'' means a message-bearing item that is 
not ``printed matter,'' that is distributed free of charge and without 
asking for payment or a donation, and is not solely commercial 
advertising. Other message-bearing items include, but are not limited 
to: Readable electronic media such as CDs, DVDs, and flash drives; 
clothing and accessories such as hats and key chains; buttons; pins; 
and bumper stickers.
    (b) Permits and the small group permit exception. The sale or 
distribution of printed matter, and the free distribution of other 
message-bearing items, is allowed within park areas if it occurs in an 
area designated as available under Sec.  2.51(c)(2) and when the 
superintendent has issued a permit for the activity, except that:
* * * * *

    Dated: October 4, 2016.
Michael Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2016-24641 Filed 10-13-16; 8:45 am]