4574 Federal Register / Vol. 57, No. 25 / Thursday. February 6. 1992 / Rules and Regulations
DEPARTMENT OF THE INTERIOR
National Park Service 36 CFR Part 7 RIN 1024-AB93
National Capital Region Parks Prohibition of Storage of Property in Lafayette Park
AGENCY: National Park Service. Department of the Interior
Action: Final rule.
SUMMARY: This final rule amends the National Capital Region Parks regulations in § 7.96 of title 36 Code of Federal Regulations and limits the storage of property in Lafayette Park. The National Park Service has determined that Lafayette Park has become increasingly littered by the storage of assorted property such as construction materials, tarps, bedding, pillows, sleeping bags, tools, food, luggage, clothing and other similar property. The Park Service believes that the storage of such property has a negative impact on the enjoyment of the Park by the visiting public. An earlier restriction prohibiting the storage of property in Lafayette Park was imposed as a condition for a demonstration permit. This prohibition was declared invalid because it had not been published for notice and comment pursuant to the Administrative Procedure Act. 5 U.S.C. 553. This rule limits the storage of property in Lafayette Park for demonstrator and nondemonstrator alike.
EFFECTIVE DATE: April 6, 1992.
FOR FURTHER INFORMATION CONTACT: Sandra Alley, Associate Regional Director, Public Affairs, National Capital Region, National Park Service, 1100 Ohio Drive, SW., Washington. DC 20242, telephone: (202) 619-7223; Richard G. Robbins, Assistant Solicitor, National Capital Parks, Office of the Solicitor, Department of the Interior, Washington, DC 20240, telephone: (202) 208-4338.
SUPPLEMETARY INFORMATION: the following persons participated in the writing of this rule: Richard G. Robbins and Randolph J. Myers, Office of the Solicitor, Department of the Interior
Background
The National Park Senice proposed a rule that would prohibit the storage of certain property in Lafayette Park, 55 FR 40679 (October 4,1990). Copies of the proposed rule were distributed to demonstrators in Lafayette Park on several occasions, and were mailed to the American Civil Liberties Union
Under National Park Service regulations, groups numbering over twenty-five participants must apply for a permit to demonstrate. For several years, the National Park Service imposed as a conditions for a demonstration permit a restriction on the storage of property in Lafayette Park. However, that restriction was invalidated by the United States Court of Appeals for the District of Columbia Circuit because it had not been published for notice and comment pursuant to the Administrative Procedure Act. United States v. Picciotto, 875 F.2d 345 (DC Cir.1989). The Court recognized, however, that the Park Service can promulgate, and has promulgated, regulations governing activities in all National Capital Region parks, including restrictions on demonstrations and special events, some applying to all parks in this area and some applying only to specific parks.
Analysis of Comments
The National Park Service received fifty-two written comments concerning the proposed rule (in addition to assorted photographs of Lafayette Park and five requests for the rulemaking). Comment's were received from five organizations, four representatives of the legal community, and one office within the National Park Service. Two commenters supported the proposed rule as written. One commenter opposed the proposed rule as excessively lenient. Forty-nine commenters, including one petition with approximately three thousand signatures, opposed the proposed rule.
Among those who opposed the proposed rule, several commenters stated that they believed that the rule was an attempt to enable police to oust demonstrators from Lafayette Park. One commenter stated that, while there are outstanding park resources and visitor values that need to be protected, the real problem in the park that the Park Service is trying to address is homelessness within the view of the White House. Many commenters and the petition expressed the view that the rule was a burdensome and unnecessary restriction on freedom of thought and expression and that it was a regulatory attempt to negate constitutionally protected rights under the guise of protecting aesthetics.
The National Park Service respectfuIly disagrees. The rule does not restict, and is not intended to restrict, freedom of thought or expression. Nor does it prohibit demonstrations in Lafayette Park. Demonstrators remain free to utilize Lafayette Park and to distribute literature, march, speak, hold vigils, and otherwise communicate their views.
The National Bark Service's concerns for aesthetics and park resources in Lafayette Park are proper and legitimate governmental interests. The rule is a reasonable, content-neutral limitation on property storage in order to protect park resources and the unique aesthetic quality of Lafayette Park so that visitors may continue to enjoy the history and beauty of the park. At the same time, the rule allows demonstrators to continue to enjoy ample avenues of communication in and around Lafayette Park..
Some commenters stated that stored material in Lafayette Park constitutes neither a "visual blight" nor an unsightliness." Instead, these commenters stated that the presence of demonstrators in Lafayette Park in conjunction with their assorted property and signs, is beautiful, and that a contrary characterization reflects a political bias against the demonstrators. Another commenter stated that the proposed rule was based on the content of demonstrators' "distasteful expression of political dissent." One commenter stated that "perhaps the annoyance of seeing sleeping bags all over the place will motivate tourists to pressure their representatives to push for affordable housing."
The National Park Service has no bias against demonstrations or against the homeless, and the rule neither limits nor is intended to limit expression on any subject matter. The purpose of the rule is solely to address aesthetic and park protection concerns raised by the storage of property in Lafayette Park by any person, demonstrator and nondernortstrator alike. Further, the rule is not intended to address signs that are being displayed.
One commenter stated that the regulation would disallow signs large enough to be read by the public in Lafayette Park. The National Park Service disagrees. The regulation has no impact on, and is not intended to address signs that are being displayed. A separate existing regulation governs signs. See 36 CFR 7.96(g)(5)(x)(B) (1990).
The National Park Service has a legitimate public interest in limiting the storage of property in Lafayette Park, by demonstrators or others. Where demonstrators may be storing property in Lafayette Park, the rule limiting the storage of property is without regard to the nature of the message they may be communicating.
While there may be conflicting opinions regarding the aesthetic qualities of storing property in Lafayette Park the National Park Service, based in part on complaints from the visiting public over the years, believes that it detracts from the aesthetic values of the Park to have excessive amounts of clothing, shoes, bedding, blankets, sleeping bags, construction materials and household items stored within Lafayette Park, and that visitor enjoyment of Lafayette Park is diminished by such storage.
Further, the storage of property has caused damage to park resources in Lafayette Park. Water sprinkler systern heads have been destroyed when property was stored on top of them. Grass has been likewise destroyed and bare spots caused on the lawn when property was stored at a fixed location over several days. Paint that was stored within the park has been spilled on walkways.
The National Park Service believes that the rule does not burden expression, and that even if it were to, any burden would be indirect and insubstantial. The rule does not address expressive activity and has no direct impact on expression. Under the rule, demonstrations continue to enjoy numerous modes of expression and may engage in a wide variety of expressive conduct in Lafayette Park. The rule merely limits, to a minor degree. the ability of persons to store excessive quantities of property within Lafayet Park. Finally, the regulation is not an isolated attempt to regulate the aesthetics of the appearances of Lafayette Park. As detailed in the proposed rule, this is but one element of a continuing effort by the National Park Service to preserve and enhance Lafayette Park for the enjoyment and use of the public.
The American Civil Liberties Union (ACLU) submitted three photograrphs of property they stated was left unattended in Lafayette Park. The ACLU suggested that before the National Park Service considers any rule regarding the storage of property in Lafayette Park it should enforce the existing abandoned property regulation. Further, the ACLU quoted several Lafayette Park demonstrators, who indicated that Park Police officers paid virtually no attention to large mounds of property left in the park by "street people" while quickly confiscating the signs of demonstrators who leave the park for a "few quick minutes."
The United States Park Police have e attempted fairly and uniformly to enforce existing regulations regarding abandoned property and unattended property in Lafayette Park, regaardless of whether the property belongs to demonstrators, "street people," tourists, casual visitors or others.
Increased enforcement activity under existing regulations, as suggested by the ACLU, was attempted in Lafayette Park recently without measurable improvement in the problem of stored property. With the advent of Operation Desert Storm, and corresponding enhanced public safety concerns, the Park Police increased its presence in the White House area including Lafayette Park, Between January 16, 1991, and April 1, 1991, there was an added effort to enforce all existing regulations including the abandoned property regulation. Notwithstanding that increased enforcement effort, the problem of property storage in Lafayette Park remained, primarly because there is no current limitation which specifically relates to the storage of property in Lafayette Park. Existing regulations were not designed to address, have not cured, and cannot resolve the problem of property storage in Lafayette Park.
The ACLU, and other commenters, also criticized the three cubic fee limit on personal property, stating that as applied to a demonstrator who is conducting a 24-hour vigil, it is insufficient and would severely restrict the rights of individuals conducting such vigils. The ACLU suggested that the limit be abandoned, greatly increased, or modified to exclude literature and paper and that the 24-hour period standard be omitted. Otherwise, the ACLU stated, demonstrators conducting 24-hour vigils would be severely hampered in their ability to communicate their ideas to the public. In addition, another commenter, who identified himself as a demonstrator currently conducting a 24-hour virgil in Lafayette Park, stated that, with more than three million people visiting the park each year, the three cubic feet limit was insufficient to allow adequate quantities of literature for distribution. Along with his written comments, he enclosed approximately one cubic foot of literature, which, he stated, represented only a sample of printed material discussed and distributed during the course of his vigil; he stated that he needed to have at least nine cubic feet of literature in Lafayette Park to assure sufficient quantities for distribution.
The final rule does not contain a 24-hour standard, although the 3 cubic feet limit is retained. The regulation neither inteferes, nor is intended to interfere, with demonstrators' exercise of their first amendment rights. The regulation seeks only to prohibit the storage of excessive property, not necessary to facilitate expressive activity within Lafayette Park. Indeed, it is less stringent than the old rule, which did not stifle free expression. It permits quantities of literature, food, clothing, blankets and a reasonable cover, so long as that property is contained within three cubic feet and is attended. Although tarps are generally prohibited because they constitute a visual blight, interfere with reasonable enforcement, and may blow away, small plastic or other reasonable covers cause fewer aesthetic problems and are therefore permitted. In addition, while blankets may be used as a camping accourtement, the National Park Service recognizes that some people use them as clothing.
Three cubic feet is the approximate size of a large duffle bag; over 13,000 sheets of letter-size paper (81/2" X 11") may be contained within three cubic feet. While a demonstrator conducting a sustained vigil may own property in excess of three cubic feet, and over the course of a period of time may wish to distribute more than three cubic feet of literature, the National Park Service believes that there is no first amendment requirement that such a demonstrator be allowed to keep all of his or her property in Lafayette Park. The Notional Park Service believes that a large duffle bag of gear, some or all of which may be literature, is more than sufficient to facilitate a demonstration for a reasonable period and would not hamper demonstrators in their ability to communicate ideas to the public. Farther, if some or all of their literature is handed out (or their food is consumed) over time, demonstrators are always free to replace such materials within the three cubic foot limitation.
Compliance with Other Laws
The National Park Service has determined that this rule is not a major rule under E.O. 12291 and certifies that this rule will not have significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et esq.)
This rule does not contain information collection requirements which require approval by the Office of Management and Budget under 44 U.S.C. 3501 et seq.
This rule does not constitute a major Federal action which significantly affects the quality of the human environment under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 e: seq.).
This rule is not a policy that has takings implications under E.O. 12630.
List of Subjects in 36 CFR Part 7
National Capital Region parks, National parks.
PART 7--NATIONAL CAPITAL PARKS REGULATIONS
In consideration of the foregoing. part 7 of title 36 of the Code of Federal Regulations is accordingIy amended.
1. The Authority citation for part, continues to read as follows:
Authority 18 U.S.C. 1. 3. 9a. 460(q). 462(k): Sec. 7 96 also issued under D.C. Code 8--137 11981) and D.C Code 40--721 (1981).
2. Section 7.96 is amended by redesignating paragraphs (j) and (k) as (k) and (I) and adding a new paragraph (j) to read as follows:
§ 7.96 National Capital Region parks.
(j) (1) In Lafayette Park the storage of construction material, tools, lumber, paint, tarps, bedding, luggage, pillows, sleeping bags, food, clothing, literature, papers and all other similar property is prohibited.
(2) Notwithstanding (j)(1) of this section, a person in Lafayette Park may have literature, papers, food, clothing, blankets and a reasonable cover to protect such property, occupying up to three (3) cubic feet of space, so long as such property is attended at all times while in the Park (the term "attended' is defined a a person being -within three (3) feet of his or her property).
Dated: November 7,1991.
Mike Hayden.
Assistant Secretary. Fish and Wildlife and Parks.
[FR Doc. 92-2763 Filed 2-5-92: 8:45 am]
BILLING CODE 4310-70-M
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 721
[OPPTS-50585C; FRL-3934-4] RIN 2070-AB27
Sulfurize Alkylphenol; Significant New Use Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
SUMMARY: EPA is promulgating a significant new use rule (SNUR) under section 5(a)(2) of the Toxic Substances Control Act (TSCA) for the chemical substance described generically as sulfurized alkylphenol, which is the subject of premanufacture notice [PMN] P-89-708, and which is subject to a TSCA section 5(e) consent order issued by EPA. This rule would require certain persons who intend to manufacture, import, or process this substance for a significant new use to notify EPA at least 90 days before commencing any manufacturing or processing activities for a use designated by this SNUR as a significant new use. The required notice would provide EPA with the opportunity to evaluate the intended use and. if necessary. to prohibit or limit that activity before it can occur. DATES: The effective date of this rule is April 6. 1992 This rule shall be promulgated for purposes of judicial review at 1 p.m. Eastern Standard Time on February 20.1992.
FOR FURTHER INFORMATION CONTACT: David Kling, Acting Director. Environmental Assistance Division (TS-799), Office of Pollution Prevention and Toxics. Envi ronmental Protection Agency. rm. EB 543-B. 401 M St., S - , Washington. DC 20460. Telephone: (202) 554 1404. TDD: (202) 554 0551.
SUPPLEMENTARY INFORMATION: This SNUR would require persons to notify EPA at least 90 days before commencing manufacture. import. or processing of P-89-708 for the significant new uses designated herein. The required notice would provide EPA with information with which to evaluate an intended use and associated activities.
I. Authority
Section 5(a)(2) of TSCA (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a 'significant new use. ' EPA must make this determination by rule after considering all relevant factors. including those listed in, section 5(a)(2). Once EPA determines that a use of a chemical substance is a significant new use. section 5(a)(1)(B) of TSCA requires es persons to submit a notice to EPA at least 90 days before they manufacture, impart, or process the chemical substance for that use. Section 26(c) of TSCA authorizes EPA to take action under section 5(a)(2) with respect to a category of chemical substances
Persons subject to this SNUR would comply with the same notice requirements and EPA regulatory procedures as submitters of premanufacture notices under section 5(a)(1) of TSCA. In particular, these requirements include the information submission requirements of section 5(b) and (d)(1), the exemptions authorized by section 5(h)(l), (h)(2), (h)(3). and (h)(5). and the regulations at 40 CFR part, 20. Once EPA receives a SNUR police. EPA may take regulatory action under section 5(e). 5(f). B. or 7 to control the activities for which it has received a SNUR notice. If EPA does not take action. section 5(g) of TSCA requires
EPA to explain in the Federal Register its reasons for not taking action.
Persons who intend to export a substance identified in a proposed or final SNUR are subject to the export notification provisions of TSCA section 12(b). The regulations that interpret section 12(b) appear at 40 CFR part 707.
II. Applicability of General Provisions
General regulatory provisions applicable to SNURs are codified at 40 CFR part 721, subpart A. On July 27, 1988 (53 FR 28354), and July 27, 1989 -(54 FR 31298). and October 31,1990 (55 FR 45994), EPA promulgated amendments to the general provisions which apply to this SNUR. In the Federal Register of August 17, 1988 (53 FR 31252), EPA promulgated a "User Fee Rule" (40 CFR part 700) under the authority of TSCA section 26(b). Provisions requiring persons submitting significant new use notices to submit certain fees to EPA are discussed in detail in that Federal Register document. Interested persons should refer to these documents for further information.
III. Background
EPA published a direct final SNUR for the chemical substance which was the subject of PMN P - }708 in the Federal Register of September 28, 1990, at 55 FR 39892. EPA received notice of intent to submit adverse comments during the 30 days following publication. Therefore, as required by 721.160, the direct final SNUR for P-89-708 was withdrawn in the Federal Register of May 21, 1991 (56 FR 23227). and a proposed SNUR published in the Federal Register of Slay 21, 1991 (56 FR 23257). EPA received comments from one person, the original PMN submitter of the substance subject to this SNIUR.
the comment provided was that the recordkeeping requirements of 72l.l25(b) and (c) were too-broad and burdensome on manufacturers an processors. Specifically. 721.125(b) requires: Records documenting volumes of the substance purchased in the United States by processors of the substance. names and addresses of suppliers. and the corresponding dates. Similarly. 721.125(c) requires: Records documenting the names and addresses (including shipment destination address. if different) of all persons outside the site of manufacture, importation. or processing to whom the manufacturer, importer, or processor directly sells or transfers the substance, the date of each sale or transfer, and the quantity of the substance sold or transferred on such date. Given that for P-89-708 processors may include distributors and Federal : Register / Vol. 57
36 FR Part 50
National Capital Parks Regulations; Camping
Agency: National Park Service, Interior.
ACTION: Final Rule and policy statements.
SUMMARY: This document specifies the types of activities considered by the National Park Service to be camping which must be confined to designated camping areas. An Administrative Policy Statement explains the administration of this regulation. A recent court opinion has made it necessary to specify the types of activities considered to be camping.
EFFECTIVE DATE: June 4,1982.
FOR FURTHER INFORMATION CONTACT;
Sandra Alley. Associate ate Regional Director, Public Affairs, National Capital Region, National Park Service,
1100 Ohio Drive SW., Washington, DC 20242, telephone: 202-426-6700: Richard G. Robbins, Assistant Solicitor National Capital Parks, Office of the Solicitor, Department of the Interior, Washington, D.C. 20240, telephone: 202-343-4336.
SUPPLEMENTARY INFORMATION: The following persons participated in the writing of this regulation: Richard G. Robbins and Dianne H Kelly, Office of the Solicitor.
I. Background
On November 13, 1981, an administrative policy statement and amendments to the National Park Service regulations governing demonstrations and special evernts in Washington, D.C and its environs were published in the Federal Register, 46 FR 55959. Since that time, the United States Court of Appeals for the District of Columbia Circuit has interpreted that policy statement and those amended regulations as permission granted by the National Park Service to demonstrators to use as sleeping accommodations temporary structures. such as tents erected for the purpose of symbolizing a message or providing logistical support, Cammunity for Creative Non-Violence v. Watt,-- F2d (D.C C Cir. 1982), op. 81-2381. The National Park Service thus finds it necessary to clarify the definition of symbolic campsites and the extent to which temporary structures are permitted in connection with First Amendment activities.
In addition experience with attempts to administer the amended regulations in the wake of the court decision his led to a change ;in. the cirumstances under which the erection of temporary structures will be permitted.
II. Affective Date
The Director of the National Park Service finds that good cause exists for suspending the 30-day delay of effectiveness of final regulations provided for in 5 US.C 53(d).
III. Analysis of Comments
The American Civil Liberties Union submitted comments critical of the prohibition on sleeping in symbolic campsites, alleging, among other things, that the Park Service had violated the terms of the settlement agreement which it negotiated with the ACLU in Women Strike for Peace v. Andrus [now Women Strike for Peace v. Watt), Civ. No. 74-1303 (D.D.C.). The settlement produced revised regulations and an administrative policy statement which clarified long-standing Park Service poIicy that temporary structures could be errected as a symbolic campsite provided that the structures were not used for living accommodations 46 FR 55959 (November 13, 1981). The articulation of this principle in the policy statement involved no change of position by the Park Service; it merely served as explicit recognition of previous practice and policy. Further, the in inclusion of the paragraph on symbolic campsites evolved from the good faith efforts of the Park Service to clarify a number of issues of concern to the ACLU which were not raised or addressed in the litigation. Finally, it must be emphasized that discussious about symbolic campsites were always based on the understanding between the Park Service and the ACLU that any structures erected for such a purpose would not 'be used for living accommodation activities such as overnight sleeping. The ACLU's claim in its comments that the Park Service failed to abide by its own policy statement in opposing overnight sleeping in campsites (Community for Non-Violence v. Watt) appears to be a repudiation of the understanding on the uses of such campsites agreed to by the Park Service and the ACLU. The Park Service must accordingly reject that portion of the ACLU's comments.
The ACLU also asserted that the Park Service proposes to treat demonstrators differently from non-demonstrators since napping in parks by office workers and the breaking of ground and building of fires in an event such as the Christmas Pageant of Peace are not prohibited. The Park Service wishes to make clear that sleeping and other activities listed as prohibited in the administrative policy statement and rule are prohibited if a reasonable person, viewing the totality of the circumstances, would conclude that the participants, in conducting these activities, were using the site as a living accommodation. In response to this concern expressed by the ACLU, the Park Service is adding to the third paragraph of the policy statement and to § 5O.l9(e)(8) a statement to read as follows:
"The above-listed activities are prohibited outside designated campgounds when it reasonably appears in light of all the circumstances that the participants, in conducting these activities are in fact using the area as a living accommodation regardless of the intent of the participants or the nature of any other activities in which they may also be engaging."
Agreeing that camping primarily for living accommodation should not be permitted in undesignated parks, the ACLU suggested that camping which is incidental and integral to demonstration activity should be permitted. Such a distinction would put the Park Service in a position of having-to scrutinize the content of every demonistration's message to determine when camping is or is not "incidental and integral to a demonstration. This determination would have to turn not on the practical question of whether people are in fact living at a site, but rather on the nature and degree of the relationship between the content of the expression and the camping activities proposed. Were the Park Service to understake this responsibitity, it would be forced to exercise exactly the same type of content-based discretionary decision making consistently condemned by the courts. Since the assertion of a nexus between content and camping would result in the provision of free, convenient living space for persons pursuing speech activities, it is reasonablr to assume that the frequency of such claims would greatly multiply if the ACLU suggestion were adopted. Therefore, the Park service believes that fair administration of its regulations requires the prohibition of use of park land for living accommodations for all park users, whether or not conducting demonstration activities.
The Washington Legal Foundation, Chamber of Commerce, and several other commentators, while supporting the ban on use of parks for living accommodations, submitted broader suggestions to restrict the erection and use of temporary structures in park areas. The Washington Legal Foundation presented a petition for rulemaking reflecting the comments which it also submitted on the proposed rules. Their petition urged the park Service to determine the appropriateness of structures based on each park's size and location, to regulate the size and aesthetic quality of temporary structures, to allow such structures in only a small percentage of park areas, and to ban structures within a three hundred yard radius of the White House.
As a result of the court decision in Women Strike for Peace v. Morton, 472 F2d 1273. the Park Service is required to allow the erection of structures by demonstrators to the same extent that it participates in or sponsors the erection of structures itself. Under current regulations, the Director of the National Capital Region has the authority to impose reasonable restrictions on the structures permitted in the interest of protecting the Park areas involved, traffic and public safety considerations, and other legitimate ate park value concerns, 36 CFR 50.19(e)(8)(iii). The Park Service believes that the first three proposals of the Washington Legal Foundation, the Chamber of Commence, and other commentators are already adequately addressed in these existing regulations. Furthemore, the use of temporary structures for living accommodations has been an isolated, temporary situation which should be corrected by the proposed regulations dealing with the specific harm caused by such use.
There is also no indication that allowing temporary structures within three hundred yards of the White House poses any danger which regulations should address. Courts haave consistently held that regulations governing First Amendment activity must be drawn as norrowly as possible in futherance of a legitimate government interest. In the absence of an identifiable threat, the existence of a legitimate governmenr interest appears too tenuous to support more restrictive regulations.
The Park Service has previously considered the necessity of maintaining selected park areas as places of quiet reflection where demonstrations are not permitted. The result of such consideration has been the barring of demonstration activities at portions of historic monumments such as the Lincoln and ]efferson Memorals and the Washington Monument. In Washington Free Community v. Wilson, 334 F Supp, 77 (1971), however. the court indicated that the hustle and bustle of some National Capital Region parks such as Lafayette Park preclude attesmpts to restrict demonstration activities to foster serenity which is not attainable in the midst of a downtown business district.
Comments by the Com munity for Creative Non-Violence and counsel for the group asserted that the proposed regulations were nuconstitutional since they furthered no legitimate government interest and violated court ruliings. The Park Service believes that a substantial government interest is involved in the prevention of use of the National Capital Parks as campgrounds for those wishing to express a point of view or, indeed, for any park visitors. The regulation banning the use of parks for living accommodations are deigned not to stifle First Amendment expression, but to protect undesignated parks from activities for which they are not sited and the impacts of which they cannot sustain. Short-time, causal sleeping which does not occur in the context of using the Park for living accommodations will not be affected by these regulations.
The Park Sevice also believes that the regulations are drawn in accord with relevant court decisions. The only case which found sleeping to be sufficiently expressive in nature to implicate a threshold First Amendment scrutiny was confined to the peculiar facts of the case and the particular regulation involved which the court found provided too much open-ended discretion to the Park Service. The court explicitly stated that an acoss-the-board ban on sleeping outside official campgrounds might well be constitutionally acceptable if if duly promulgated and even-handedly enforced, United States v.. Abney, 534 F2d 984 {D.C Cir. 1976} Even when an actvity might provoked initial First Amendment consideration, a legitimate government interest expressed in the most narrowly drawn restrictions possible is not an umconstitutional burden on free express ion. The Park Service believes that preventing the use as public campgrounds of the Memorial Core ant other park areas in the national capital constitutes such a legitimate government interest.
IV. Regulatiory Changes
Structures and Campsites
In order to clarify the long-standing policy and practice of the National Park Service on the nature and use of temporary structures in connection with demonstration activities the National Park Service is amending § 50.19(e)(8) to forbid specifically the use of any such structures, including tents for the purpose of conducting any living accom modation activity. The decision by the United States Court of Appeal for the District of Columbia Circuit in Community for Creative Non-Violence v. Watt,-- F2d--, slip. op. 81-2381 (Decided January 22,. 1982), which interpreted the current regulation and policy statement to allow sleeping by demonstrators in temporary structures, has necessitated this clarification to avoid the use of the Memorial Core and other Park areas of the nation's capital as a camping ground. Exprience with administering the court s decision pemitting sleeping has also cofirmed the belief of the Park Service that activity by demnonstrators would expand to include other aspests of living accommodations such as the storage of personal belongings and the performance of necessary sanitary functions, which have occurred in conjunction with the court-approved sleeping activities. The revised rule makes it clear that structures are permitted for symbolic or logistical purposes, but not for living accommodation types of activity.
in addition, he exemption § 50.19(b)(1) of groups of 25 or less from the permit requirement imposed on larger groups has led to the proliferation of tents and other structures erected by individuals in close proximity to each
other. The increasing numbers of these structures, erected without prior knowledge of' the Park Service, have imposed a significant cumulative iimpact on park resources and personnel and have resulted in uncontrolled and continuous pre-emption of substantial park areas by spontaneously erected structures. Accordingly, the Park Service is amending § 50.19(e)(8) further to provide fide that the erection of structures other than lecterns or small speakers platforms is prohibited unless a demonstration permit is obtained.
Reference to Perfactory Statement
In order to aid readers in understsnding the administrative policies which have been developed to implement the revised regulation, a citation to the applicable Federal Register reference will be included at the conclusion of 36 CFR 50.19.
Administrative Policy Statement
Structures and Campsites
Because of the decision of the United States Court of Appeals for the District of Columbia Circuit in Community for Creative Non-Violence v. Watt,--F2d-- (D.C.Cir.1982), slip. op. 81-2381, the National Park Service finds it necessary to clarify the definition of symbolic campsites and the extent to which temporary structtures are permitted in connection with First Amendment activities.
It has been the long-standing administrative policy and practice of the National Park Service to allow demonstrators to erect temporary structures reasonably necessary for the conduct of their demonstration. including the provision of logistical support. The requirement that the erection of temporary structures be permitted arose out of the decision of the United States Court of Appeals for the District of Columbia Circuit in Women Strike for Peace v.. Morton, 472 F.2d 1273 ((D.C. Clr. 1972). Following this decision, it became the policy of the National Park Service to allow tents to be erected as temporary structures in connection with permitted demonstrations. Tents may be erected as a means of symbolizing the message of demonstrating groups or of providing support and logistical services. Examples of activities where the Park Service has permitted the erection of tents in connection with demonstration activities include a demonstration by the Community for Creative Non-Violence in which a number of tents symbolized the need for housing for the homeless: demonstrations by anti-war veterans gnoups where the tents symbolized contitions in Vietnam: Indian teepees by Indian rights groups to symbolize the plight of Indians: and numerous other demonstrations where support services tents were used for first aid facilities, for lost children areas, and to shelter electrical and other sensitive equipment or displays.
Although it is the policy of the National Park Service to permit tents as temporary structures for the above purposes in connection with permitted demonstration activities, the Park Service does not permit camping or the erection of tents for camping in connection with demonstration activities in other the than formally designated and maintained campgrounds. Camping is defined as the use of park land for living accommodation purposes such as sleeping activities, or making preparations to sleep (including the laying down of bedding for the purpose of sleeping), or storing personal belongings or making any fire, or using any tent or shelter or other structure or vehicle for the purpose of sleeping or doing any digging or earth breaking for carrying on cooking activities. The above-listed activities constitute camping when it reasonably appears, in light of all the circrumstances, that the partisipants, in conducting these activities, are in fact using the area as a living accommodations regardless of the intent of the participant or the nature of any other activities in which they may also be engaging. This policy is not intended to prohibit eating, cooking, and other traditional picnicking activities in areas designated for picnicking pursuant to 36 CFR 50.14.
The National Park Service emphatically believes that the Memorial Core area of the nation's capital is an especially unsuitable location for camping activities. The Memorial Core includes the Mall area, the Washington Monument grounds, the White House area, the Ellipse, Lafayette Park, East and West Potomac Park, the Jefferson and Lincoln Memorials, and the Kennedy Center. Were camping permitted in this area, other park visitors, including demonstrating park visitors, would be deprived of use of this nationally significant space. Camping could cause ignificant damage to park resources, create serious sanitation problems, and seriously tax law enforcement resources. It is probable that the cumulative impact of permitting any camping activities in the Memorial Core and other National Capital Parks areas would cause the National Park Service to incur additional costs for park restoration, sanitary facilities and extra park personnel, including law enforcenment personnel. Even though camping is now prohibited, the Park Service nevertheless receives several requests each year for canping in connection with demonstration activities. It is believed that these requests would increase dramatically were camping permitted because it would offer free, convenient living space for persons pursuing speech activities. Such use of park space would amount to a federal subsidy of the living casts of demonstrating park visitors and would pressure from non-demonstrating visitors for similar accommodation.
It is the opinion of the National Park Service that allowing participants in any activity to live at the site of their activity would create unacceptable adverse impacts to Park areas, deprive others visitors of use of the Park area and create law enforcement confrontations arising from attempts to confine activities within specific parameters. In fact, experience with administering the court's decision in Community for Creative Non-Violence v. Watt allowing sleeping revealed that activities by demonstrators expanded into a campground situation with serious adverse effects on Lafayette Park. The National Park Service is mindful of the need to provide camping facilities in park areas within the metropolitan Washington. D.C ares. Fully equipped and maintained campgrounds are located in parks which can sustain the impacts from camping activities and which are within reasonable proximity to the capital. Demonstrating park visitors are free to avail themselves of these facilities.
The information collection system contained in § 50.19 has been previously approved by the Office of Management and Budget and assigned OMB Approval No. 1024-0021.
Impact Analysis
The National Park Service has determined that this document is not a major rule requiring preparation of a Regulatosy Impact Analyses under Excecutive Order 12291 and does not require a small entity flexibility analysis under Pub. I. 96-354. The rule is designed only to clarify the circumstances and conditions under which temporary structures may be permitted in connection with demonstration activities. People wishing to camp in the Washington. D.C. metropolitan area will continue to have access to park areas designated as public campgrounds. The rule will have no substantial impact on any aspect of the economy.
List of Subjects in 36 CFR Part 50
District District of Colunbia: National Parks: National Capital Parka
Data approved: May 11, 1982, J. Craig Potter, Assistant Secretary, Fish, Wildlife and Parks.
In consideration of the foregoing § 50.19 of title 36 of the Code of Federal Regulations is accordingly amended as fallows:
PART 50--NATIONAL CAPITAL PARKS REGU LATIONS
I. The authority citation for § 50. 9 reads as follows:
(Sec 3 of the Act of August 25. 1916 (39 Stat. 535, as amended: 18 U.S.C. 3): 245 DM 1 (44 FR 23384): Act of Aug. 5, 1958 (70 Stat. 1049) as amended; Act of Jan. 30, 1958 (82 Stat. 4): D.C Code A, Section 8-108 (1973): and Park Service Order No. 77 (38 FR 7478), as amended.)
§ 50.19 [Amended]
2. By amending § 50.19(e)(8) by revising the introdouctory text and adding (e)(8)(v) to read as follows:
(e)
(8) In connection with permitted demonstrations or special events, temporary structures, may be erected for the purpose of symbolizing a message or meeting logistical needs such as first aid facilities, lost Children areas or the provision of shelter for Electrical and other sensitive equipment or displays. Temporary structures may not be used outside designated camping areas for living accommodation activities such as sleeping, or making preparations to sleep (including the laying down of bedding for the purpose of sleeping), or, storing personal belongings, or making any fire, or doing any digging or earth breaking or carrying on cooking activities. The above-listed activities constitute camping when it reasonably appears, in light of all the circumstances, that the participants, in conducting these activities, are in fact using the are. as a living accommodation regardless of the intent of the participants or the nature of any other activities in which they may also be engaging. Temporary structures are permitted to the extent described above, provided prior notice has been given to the Director. except that
(i)
(ii)
(iii)
(iv)
(v) Individuals or groups of 25 persons or less demonstrating under the small group permit exemption of § 50.19(b)(1) shall not be permitted to erect temporary sstructures other than small lecterns or speakers platforms, This provision is not intended to restrict the use of portable signs or banners.
3. By revising § 50.19(h) to ;read as follows:
(h) Futher information on administrating these regulations can be found at 47 FR 24299 (June 4, 1982).
[FR Dec. 42, 15101 Filed 5-3-82 8:45 am]