[Federal Register Volume 83, Number 10 (Tuesday, January 16, 2018)]
[Rules and Regulations]
[Pages 2065-2069]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-00515]



National Park Service

36 CFR Part 2

[NPS-WASO-23396; GPO Deposit Account 4311H2]
RIN 1024-AE32

General Regulations; Areas of the National Park System, Free 
Distribution of Other Message-Bearing Items

AGENCY: National Park Service, Interior.

ACTION: Final rule.


SUMMARY: The National Park Service revises its general rule governing 
the sale or distribution of printed matter to include the free 
distribution of message-bearing items that do not meet the regulatory 
definition of ``printed matter.'' This change gives visitors an 
additional channel of communication while protecting the resources and 
values of the National Park System.

DATES: This rule is effective on February 15, 2018.

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



Authority and Jurisdiction To Promulgate Regulations

    In the National Park Service (NPS) Organic Act (54 U.S.C. 100101), 
Congress granted the NPS broad authority to regulate the use of areas 
under its jurisdiction. The Organic Act authorizes the Secretary of the 
Interior, acting through the NPS, to ``prescribe such regulations as 
the Secretary considers necessary or proper for the use and management 
of [National Park] System units.'' 54 U.S.C. 100751(a).

National Park System

    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; preserve 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. The National Park System 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,

[[Page 2066]]

and almost 30,000 housing units, campgrounds, and picnic areas as well 
as 3,000 water and waste water treatment systems.
    Over 325 million visitors visited the National Park System in 2016, 
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 NPS asks visitors to 
respect these long-held beliefs, such as by voluntarily not walking 
under a natural bridge.

Final 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 is revising its regulations 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 and 2.52. 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 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 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 visitor experience in many park units.
    The 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 at 36 CFR 7.96(k). 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 
resolve 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).

Summary of and Responses to Public Comments on the Proposed Rule

    The NPS published the proposed rule on October 14, 2016 (81 FR 
71026) with request for public comment through the Federal eRulemaking 
portal at www.regulations.gov, or by mail or hand delivery. The 60-day 
comment period ended on December 13, 2016. A total of 26 comments were 
received. The NPS evaluated these comments when developing this final 
rule. A summary of comments and NPS responses is provided below. Many 
comments supported the rule and expressed gratitude that it provides an 
alternative means of communication in national parks. After taking the 
public comments into consideration and after additional review, the NPS 
has not made any substantive changes in the final rule. A few 
conforming edits to 36 CFR 2.51 and 2.52 are included in this final 
rule. These changes simply add references to the free distribution of 
other message-bearing items to reflect the substantive revisions to 
section 2.52 that were included in the proposed rule.
    1. Comment: Some commenters were concerned that the rule would lead 
to the commercialization of national parks and take away from the 
serenity and beauty of the environment. One commenter suggested that 
the rule should prohibit the sale of printed matter as well as other 
message-bearing items in order to prevent rampant consumerism in 
national parks. Several commenters suggested that the rule prohibit all 
items that include or function as commercial advertising, or any items 
that are predominantly or primarily commercial advertising, rather than 
only prohibiting those items that are ``solely commercial 
advertising.'' One commenter stated that t-shirts, even when given away 
for free, are primarily used as marketing devices and not to 
communicate information.
    NPS Response: The rule only allows the free distribution of other 
message-bearing items. Asking for or requiring payment or donations in 
exchange for these items is prohibited without written authorization 
under 36 CFR 5.3 (Business operations) or 36 CFR 2.37 (Noncommercial 
soliciting). The NPS will use the permit process to ensure that the 
free distribution of other message-bearing items will not result in the 
commercialization of national parks and the degradation of park values 
and visitor experiences. This activity will only be allowed in areas 
designated as available for First Amendment activities by the 
    Items with some amount of commercial advertising may also contain 
protected speech under the First Amendment. For this reason, the free 
distribution of these items is properly regulated under 36 CFR 2.52 
rather than 36 CFR 5.3, which focuses on business operations. Examples 
may include t-shirts and water bottles that contain a message unrelated 
to commercial advertising that are freely distributed by a corporate 
sponsor at a permitted event. Although these items may also contain a 
logo or other mark associated with the company, they are not solely 
commercial advertising and are therefore subject to regulations 
addressing speech rather than business operations.
    2. Comment: One commenter questioned the basis for allowing the 
sale of printed matter, but not the sale of other message-bearing 
items, when both may contain speech protected by the First Amendment.
    NPS Response: Experiences on the National Mall and in other 
national parks suggest that other message bearing items such as t-
shirts, mugs, hats, and jewelry are more likely than printed matter to 
be sold primarily as a commercial enterprise rather than as part of a 
sincere First Amendment activity. In the past, the proliferation of 
sales of other message bearing items has

[[Page 2067]]

degraded the purposes and values of the National Park System in manner 
not experienced with the sale of printed matter that is primarily 
focused on communicating a message. The distinction in this rule 
between printed matter and other message bearing items will provide the 
public with a broader opportunity to engage in protected speech without 
opening national parks to unchecked commerce. The sale of an unlimited 
range of message bearing merchandise, including t-shirts, would 
negatively impact park resources and values as well as the visitor 
experience. In order to sell other message bearing items in national 
parks, written authorization must be obtained under 36 CFR 5.3.
    3. Comment: Several commenters were concerned that allowing the 
free distribution of other message-bearing items will result in litter 
and waste that will harm resources, including wildlife, and the ability 
of visitors to enjoy national parks. These commenters were concerned 
about items such as CDs and keychains that are made out of plastic and 
other materials that are not biodegradable and are costly to recycle.
    NPS Response: Groups of more than 25 people who wish to freely 
distribute other message bearing items must obtain a permit that will 
contain terms and conditions addressing the proper disposal of litter 
and waste. These items will not be allowed to be distributed outside of 
designated First Amendment areas, reducing their impact on more 
unspoiled and sensitive areas of the Parks. Designated First Amendment 
areas are generally developed and have more foot traffic and nearby 
amenities such as trash and recycling cans. National parks have 
existing programs in place to collect and dispose of litter that will 
help mitigate any incremental waste associated with the free 
distribution of these items. The NPS will not regulate substantially 
more speech than necessary to implement the NPS's substantial 
government interest in protecting park resources from impairment. This 
rule allows the exercise of protected speech. The NPS has determined 
that any additional measures the NPS could take at this time to prevent 
additional litter associated with this speech, including, for example, 
prohibiting the free distribution of plastic message bearing items, are 
unnecessary. If the NPS determines at a later date that additional 
management actions are needed to address increases in litter 
attributable to message-bearing items, then the NPS will consider 
appropriate responses, including new terms and conditions to permits 
and changes to this rule.
    4. Comment: Some commenters felt that the free distribution of 
other message-bearing items will lead to an influx of visitors and 
material objects, such as t-shirts and keychains, to national parks, 
which will degrade the natural beauty, contemplative quality, and 
integrity of these areas. One commenter suggested that the rule allow 
the Superintendent to deny a permit application based upon the severity 
of impacts to park resources and values imposed by these items. One 
commenter was concerned about audio and visual pollution from the 
distribution of these items that will harm park resources and values.
    NPS Response: There are several protections in place that will 
mitigate the impacts of this activity on park values and resources. 
Groups of more than 25 people who wish to freely distribute other 
message bearing items must obtain a permit that will contain terms and 
conditions that will address potential impacts. The Superintendent may 
deny a permit if the number of persons engaged in the distribution 
cannot be reasonably accommodated, 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. 36 CFR 2.52(e). The 
free distribution of other message-bearing items may only occur in 
locations designated under 36 CFR 2.51(c). These locations may only be 
designated if the free distribution of other message-bearing items in 
these locations 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; or 
(iii) be incompatible with the nature and traditional use of the 
particular park area.
    5. Comment: Some commenters were concerned that the content of 
other message-bearing items could be offensive or contain political 
messages that are not appropriate in national parks.
    NPS Response: Similar to other types of protected speech that 
occurs in the National Park System, the NPS does not regulate the 
content of protected speech contained in other message- bearing items.
    6. Comment: One commenter suggested that the NPS define other 
message-bearing items by a closed list of items that meet the 
definition, rather than an open-ended definition that lists only 
examples of items that qualify. This commenter felt that an exclusive 
list would relieve park managers from the burden of having to identify 
which items are message-bearing on a case-by-case basis.
    NPS Response: A non-exhaustive list of things that qualify as other 
message-bearing items gives the NPS more flexibility than a closed list 
to determine which items are message- bearing. This will allow the NPS 
to adapt to the introduction of new message-bearing technologies such 
as digital downloads and other means of delivering electronic content.
    7. Comment: One commenter suggested that the rule establish 
standard locations in all national park units that are designated for 
First Amendment activities, including the free distribution of other 
message-bearing items, in order to preserve the integrity of the parks. 
This commenter suggested visitor centers or information kiosks as 
potential places that could be designated across the National Park 
    NPS Response: NPS regulations at 36 CFR 2.51 require 
Superintendents to identify on a map the locations that are designated 
for demonstrations and the sale and distribution of printed matter. As 
stated above, these locations must meet certain criteria that will help 
address the commenter's concerns. This rule updates these regulations 
to state that these locations are also designated for the free 
distribution of other message-bearing items. The geography, 
infrastructure, and frequency and size of First Amendment activities 
are unique for each national park unit. This makes it difficult to 
identify a standard location that can be designated as appropriate for 
First Amendment activities in every unit. The NPS believes that the 
Superintendents are in the best position to determine which areas in 
the parks they manage are most appropriate for First Amendment 

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

[[Page 2068]]

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.

Reducing Regulation and Controlling Regulatory Costs (Executive Order 

    This rule is an E.O. 13771 deregulatory action because once 
finalized, it will have costs less than zero.

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.). This rule will generate positive benefits 
and no costs. This certification is based upon the cost-benefit and 
regulatory flexibility analyses found in the report entitled ``Cost-
Benefit and Regulatory Flexibility Analyses: Proposed Regulation 
Revisions for Free Distribution of Other Message-Bearing Items'' that 
is available to the public upon request.

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 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 01/31/20). 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 
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 

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:


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

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

2. Amend Sec.  2.51 by revising the section heading and paragraphs 
(c)(1) introductory text and (c)(2) to read as follows:

Sec.  2.51  Demonstrations and designated available park areas.

* * * * *
    (c) Designated available park areas. (1) Locations may be 
designated as

[[Page 2069]]

available for demonstrations under this section, and for the sale or 
distribution of printed matter and the free distribution of other 
message-bearing items under Sec.  2.52, only if these activities would 
* * * * *
    (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, the sale or distribution of printed matter, and the 
free distribution of other message bearing items.
* * * * *

3. Amend Sec.  2.52 by:
a. Revising the section heading;
b. Revising the paragraph (a) subject heading;
c. Adding two sentences at the end of paragraph (a);
d. Revising paragraph (b) introductory text; and
e. Revising paragraph (i) 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'' 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 
    (b) Permits and the small group permit exception. The sale or 
distribution of printed matter, and the free distribution of other 
message-bearing items without asking for or demanding payment or 
donation, 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:
* * * * *
    (i) Misrepresentation. Persons engaged in the sale or distribution 
of printed matter or the free distribution of other message-bearing 
items under this section are prohibited from misrepresenting the 
purposes or affiliations of those engaged in the sale or distribution, 
and misrepresenting whether the printed matter or other message-bearing 
items are available without cost or donation.
* * * * *

Jason Larrabee,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks 
Exercising the Authority of the Assistant Secretary for Fish and 
Wildlife and Parks.
[FR Doc. 2018-00515 Filed 1-12-18; 8:45 am]