Federal Register
Vol 51, No. 43 /Wednesday, March 5, 1986
Continued

III. Regulatory Changes

As is evident from the foregoing discussion of comments on the proposed regulations, there is a divergence of views on the proper regulatory scheme for Lafayette Park. The National Park Service, in its role as manager of the nation's parks, must ultimately decide how best to administer and manage Lafayette Park. The task is made all the more difficult by the dual functions of that management--to conserve the resource while at the same time allowing public use.

The National Park Service has carefully reviewed the proposed regulations in light of all the comments. The Park Service has found that, with a few changes, as discussed below, the proposed regulations represent the best balance possible between the exercise of First Amendment rights and the maintenance of visual quality, resources and public safety. For this reason, the National Park Service adopts the proposed regulations, with noted changes, as the final rule amending 36 CFR Part 50. The specific changes are discussed below.

1. Signs

The National Park Service is amending its regulations to limit the size of stationary signs permitted in Lafayette Park; limit the number of stationary signs one individual may have in the Park at any one time, and require that stationary signs be attended.

By amending its regulations, the National Park Service is not prohibiting demonstrations in Lafayette Park. Nor is it placing any limitation on signs that are hand-carried. The Park Service is merely placing reasonable, content-neutral limitations on stationary signs used in Lafayette Park so that visitors might be able to enjoy the history and beauty of the Park while demonstrators continue to have ample avenues of communication. In addition, the final regulations would apply only to Lafayette Park and not to the many other park areas in close proximity, for example, the Ellipse on the south side of the White House.

Specifically, the final regulations limit the size of stationary signs permitted in Lafayette Park to the dimensions of four feet in length, four feet in width and one-quarter inch in thickness. Such a size limitation would prohibit the immense billboard-type signs that now dominate Lafayette Park and which substantially impact the aesthetic values of the Park, while creating safety concerns and seriously damaging park resources.

The proposed regulations have been changed slightly to make it clear that the size and sign limitations apply to all signs that are not hand-carried. Therefore, the limitations specified would be applicable to a sign placed on wheels when that sign is not being hand-carried.

As noted in the notice of proposed rulemaking, the National Park consulted its Service Sign System Specification Manual ("Manual") in order to arrive at a permitted sign size that fully accommodates the needs of demonstrators. The Manual is utilized by National Park Service personnel to determine the sign size and lettering necessary to be adequately seen by pedestrian traffic. Signs utilized by the Park Service contain directions, instructions, prohibitions and warnings.

Utilizing standards set forth in the Manual, it was calculated that a sign four feet by four feet could contain at least ten lines of writing in a letter size that could be seen easily up to one hundred feet away from the sign. We are aware that signs with that lengthy a message may not be readable from the White House or the White House sidewalk. However, the National Park Service does not believe that it has an obligation to allow signs that are large enough to be read from any distance a demonstrator chooses. Further, signs up to three feet wide and twenty feet long can be used on the White House sidewalk itself.

In addition, in July of 1985, forty-four percent of the seventy-eight signs in Lafayette Park had a message consisting of ten words or less; of these, fifty percent had messages of five words or less. These messages could easily be placed on a four by four sign in very large lettering that probably could be seen even from the White House sidewalk.

On the basis of these considerations it was determined that a four-foot by four-foot sign offered an effective means of communication for demonstrators. Further, the dimensions stated conform to a standard size of plywood commercially available. While there are no magic dimensions above which damage will certainly occur and below which government interests will certainly be satisfied, the Park Service has attempted to accommodate the needs of both visitors and demonstrators with this selection of permissible sign size.

In addition, the National Park Service is limiting the thickness of stationary signs allowed in Lafayette Park to one-quarter inch. This requirement prevents individuals from claiming all manner of structures as signs. Without a thickness restriction, an individual could utilize a "sign" that was four feet long, four feet wide and four feet thick. A quarter-inch was chosen as the maximum thickness dimension because that is a standard size of plywood, the material most often used for signs in Lafayette Park, end is relatively light and easier to move than other plywood of greater thickness. Park Service employees indicate that quarter-inch plywood weighs half of what half-inch plywood weighs. For example, a four-foot by eight-foot sheet of external plywood one-quarter inch thick weighs twenty-Four pounds; the same sheet one-half inch thick weighs forty-eight pounds.

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Language has been added to the final regulations to make it clear that the sign thickness limitation is not applicable to braces that are reasonably required to meet support and safety requirements. However, this exclusion is not intended to allow huge "A-Frame" type supports or other supports that are not reasonably required to support a four by four sign. In addition, braces may not be used to form an enclosure of two, or more sides. This requirement is added to assure that individuals do not use the exception to the thickness limitation to convert their signs into structures, shelters or places for storage of property.

To accommodate individuals and groups who wish to have larger signs, the National Park Service has exempted all hand-carried signs from these size limitations. This allows demonstrators to have large signs, which includes banners, but assures that the signs will not cause damage to park resources because they will not be placed on the ground, will not create safety concerns because they will be held by demonstrators, and they will not create aesthetic problems because they can be easily moved and will not be permanent in nature.

To avoid circumvention of the size limitations on stationary signs, the final regulations also prohibit a conforming size sign from being elevated to exceed a height of six feet above the ground. It would do little good to place limitations on the height of stationary signs simply to have them again become billboard size by utilizing posts or other means of elevation. In addition, such elevation over six feet could result in additional safety problems. The National Park Service is allowing signs to be elevated in order to accommodate the use of supports and to allow demonstrators to make signs more visible.

Also to avoid circumvention of the size limitations, the final regulations prohibit the arrangement or combination of stationary signs so as to exceed the permitted size limitations. Again. it would be useless to institute sign size limitations if those limitations could be easily circumvented by combining two or more signs so as to create a billboard effect.

The proposed regulations have been revised slightly to prohibit the arrangement of signs so as to form an enclosure of two or more sides. This requirement, Like the parallel requirement for sign bracing, prevents the use of signs for noncommunicative purposes such as for structures, shelter, and storage spaces.

To avoid the problem of one individual utilizing a great deal of space with unlimited numbers of signs and to avoid the massive accumulation of signs that is now occurring in the Park, the National Park Service is limiting the number of stationary signs that a single individual can have in Lafayette Park at one time. Present regulations do not prohibit a single individual from any amount of this national park that attracts thousands of people each year by just adding sign after sign to his or her collection. The final regulations eliminate this unfair usurpation of park land by limiting each person to two stationary four-foot by four-foot signs at any one time in Lafayette Park. This provision would also diminish the aesthetic impact that a few individuals could have if allowed to accumulate unlimited numbers of signs. The Park Service believes that this is a reasonable accommodation of both visitors and demonstrators.

In addition to limiting the number of signs that an individual may have in Lafayette Park, the final regulations require that stationary signs in the Park be attended. The term "attended" is defined in the regulations as being within three feet of a sign. This requirement assures that demonstrators take responsibility for their signs. Specifically, the attendance requirement assures that signs can be readily identified with specific individuals so that safety problems can be quickly rectified so that signs can be moved temporarily for routine park maintenance such as grass cutting, trimming and watering, and so that Park Service personnel can tell which signs are abandoned. Further, we do not believe that individuals have a right to permanently usurp public park areas by erecting signs and then leaving them to attend to other business.

The definition of the term "attended", i.e., within three feet. was not an easy line to draw. The three-foot distance requirement was first suggested by the Court of Appeals for the District of Columbia Circuit. In the course of reviewing a preliminary injunction against enforcement of the White House Sidewalk regulations. the Court modified the Park Service"s definition of the term "attended" to require individuals to be within three feet of their signs. White House Vigil for the ERA Committee v. Watt, No. 83-1775 (D.C. Cir., Order issued Aug. 8 1983]. While the Court finally approved the original definition, i.e., in physical contact, for the White House sidewalk, we adopted a three-foot requirement for Lafayette Park to enable demonstrators to move a short distance from their signs to carry on other activities such as engaging in discussions with others or passing out leaflets or other publications.

We do not believe that a less restrictive regulation would meet legitimate needs in Lafayette Park or would be enforceable. Requiring only that an individual be somewhere in the seven-acre Park, as suggested by one commenter, would not meet the need far the Park Service to identify specific individuals with specific signs. Neither could such a requirement be effectively enforced. Likewise, a regulation allowing individuals to leave the Park to eat or use the bathroom or chat with persons on the White House Sidewalk, as suggested by other commenters, would also defeat any efforts toward accountability and would be impossible to enforce.

The National Park Service believes that the sign limitations described will together solve many of the problems that have arisen in the Park. While each restriction separately benefits the Park and the public no restriction alone meets all of the Government's interests. For example, a prohibition on signs alone would not necessarily prevent an individual from utilizing a disproportionate amount of space in the Park. Without corresponding size and number limitation so that individual could surround him/herself with a number of large signs and still be within three feet of some part of each sign. Sign size and number restrictions, without a requirement that the signs be attended, would result in the numerous problems associated with absentee owners, as described above.

2. Structures

In addition to restrictions on the use of signs in Lafayette Park, the National Park Service is prohibiting the use of stationary structures in the Park, with the exception of certain speaker's platforms.

Structures have substantially intruded upon visitor's enjoyment of Lafayette Park. The lack of specific restrictions in existing regulations has led to massive structures being placed in the Park. These structures substantially detract from the view of the Park and monopolize large portions of the Park. Further, it has been the experience of the Park Service that some demonstrators have accumulated a large number of items in the Park, items including piles of rubbish, doors and desks, claiming that these are permitted structures. Rather than communicating a message, these items have generally evoked complaints from citizens.

Finally, the presence of structures of any

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sort in the fragile environment of Lafayette Park causes resource damage.

For these reasons, the Park Service initially considered a total ban on all structures in the Park. Consideration of less restrictive alternatives yielded no regulatory scheme that would allow structures to be placed in the Park while avoiding turf damage and the visual blight created by some demonstrators.

However, to avoid working a hardship on large demonstration groups that require a platform so that speakers can be heard and seen effectively by demonstration participants, the Park Service is making an exception for temporary speaker's platforms that are reasonably necessary when a demonstrating group numbers one hundred or more persons. For a group numbering less than one hundred persons, a small, temporary "soapbox" platform is allowed. Although the Park Service realizes that some damage to park resources may be done by these structures, it believes that it has an obligation to balance the needs of demonstrators with the needs and rights of the general public. Further, any harm that may be caused by the large speaker's platforms will be minimized by their short duration in the Park as large demonstrations generally do not remain in the Park longer than one day.

Several changes were made in these provisions to clarify their intent and narrow their scope. First, the final regulations require that one hundred of more persons actually attend a demonstration before a large speaker's platform can be used. This avoids the situation in which a group claims to have one hundred persons "involved" in a demonstration but only five show up. Second, the final regulations allow speaker's platforms only when those platforms are being erected, dismantled or used. These restrictions were added because unattended speaker's platforms would cause the same damage to aesthetics, resource protection and public safety as unattended signs. Further, without such a limitation, unattended speaker's platforms could occupy a substantial amount of space in Lafayette Park. Third, responding to suggestions by Park Police representatives that individuals be allowed larger soapbox speaker's platforms, we have revised the regulations to allow soapbox platforms as large as three feet long, three feet wide. and three feet high. Finally, we have extended the provision requiring that structures in the Park be authorized by permit to soapbox structures.

Consideration of the many comments received on the proposed regulations resulted in two other changes in the final "structures" regulations. First, so as not to prohibit altogether symbolic structures sometimes used by demonstrators, the National Park Service has revised the proposed regulations to allow any structures in Lafayette Park that, in fact, are being hand-carried. The final regulations would allow demonstrators to carry various props and symbolic structures such as effigies, coffins and crosses. The Park Service makes this change in response to commenters, such as the ACLU, who pointed out that the proposed regulations prohibited some structures the use of which would have minimal impact on park resources, public safety, and aesthetic interests. After carefully considering these comments, the Park Service has come to the conclusion that hand-carried structures, not being placed down in the Park, will not cause the resource damage and safety concerns that result from stationary structures. In addition, hand-carried structures will have minimal impact on aesthetic interests as, presumably, the structures will be in the Park only on a temporary basis.

In addition, the National Park Service has revised the proposed regulations so as to define the term "structure" by example in the final regulations. We believe that this gives the public adequate notice of the items that are prohibited in Lafayette Park. This revision responds to a suggestion by a commenter, as mentioned above, and to a recent District Court ruling in a criminal case finding that the term "structures" in the current regulations as applied to the White House sidewalk is unconstitutionally vague. United States v. Snyder, Cr. Nos. 85-0222 and 85-0306 (D.D.C. Opinion filed Dec. 8, 1985).

The final regulations define the term "structure" by giving examples of categories of items included within the term, i.e., props and displays, furniture and furnishings, shelters, and wagons and carts, and then giving further examples of items included within the categories. The list of categories was compiled from Park Service reports and staff observations of structures that have been used in Lafayette Park and that create the problems discussed extensively above. For example, desks and chairs have been used extensively in the Park, creating several outdoor office spaces. Various shelters have been created, ofttimes out of large signs, in which persons have been found sleeping. Props and displays have included such items as a toilet, chests, doors, and primitive buildings of unsafe construction. Carts have been filled with trash and left in the Park as symbolic structures. These types of items, especially when stationary in the Park, have caused physical damage to the Park as well as substantially diminishing its aesthetic quality, while communicating little. Because it is not possible to list every structure that might cause damage in Lafayette Park, a "catch-all" phrase is added to the examples to include "all other similar types of property which might tend to harm park resources including aesthetic interests"

The final regulations make it clear that certain items are not included within the definition of the term "structure". So as to avoid any possible misunderstanding, the final regulations exempt signs from the definition. Likewise, the National Park Service wants to make it clear that wheelchairs and other devices for the handicapped in use by handicapped persons will not be considered to be structures. Finally, the Park Service notes that bicycles and baby carriages and strollers temporarily placed in or being moved across the Park are not included within the definition of the term "structure" as long as these items are attended undefined as an individual being within three feet of the bicycle, baby carriage, or stroller). It has been the experience of park personnel that these items are generally in the Park for only brief periods of time and do not cause the harm to aesthetics, resources and public safety that are caused by the structures mentioned above.

The National Park Service does not believe that the addition of this definition by example changes the substance of the proposed regulations. The additional provision merely clarifies the prohibition contained in the proposed rule, and adds certain practical exceptions, so that the public is given clear notice of what is and what is not allowed.

3. Conclusion.

The National Park Service believes that the final regulatory restrictions, taken as a whole, accomplish the purpose of restoring Lafayette Park as a historic site and formal garden while still allowing ample avenues of communication for those who wish to demonstrate in the Park or elsewhere in the vicinity of the White House. The Park Service believes that it has a responsibility to maintain e high level of aesthetic quality in the parks under its administration, consistent with its duty to allow citizens an opportunity to express their First Amendment rights. Further, the Park Service would be remiss in its responsibilities to all citizens if it did nothing to curb

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increasing resource damage or if it ignored safety concerns. Moreover, the National Park Service believes that there is clear legal authority for promulgation of these regulations as they are content neutral, leave open ample alternative avenues of communication, and are narrowly tailored to meet legitimate government interests. The substantial government interest in safety, resource protection and aesthetics has been affirmed repeatedly by the courts. In fact, the Supreme Court has recognized aesthetics as a substantial government interest in at least two cases decided within the past two years.

It is not easy to draw the lines established in the final rule for this reason, the National Park Service wishes to express its appreciation to the many individuals and groups who took the time to contribute their comments and suggestions on the proper management of the national parts.

Drafting Information

The following persons participated in the writing of this rule: Richard G. Robbins and Patricia S. Bangert. Office of the SolicItor. U.S. Department of the Interior.

Paperwork Reduction Act

The information requirements contained in § 50.19 of Part 50 have been cleared by the Office of Management and Budget for approval under 44 U.S.C. 3501, et seq.. and assigned clearance number 102~021.

Compliance with Other Laws

The National Park Service has determined that this document is not a major rule requiring preparation of a Regulatory Impact Analysis under Executive Order 22291. The National Park Service also has determined that the rule will not have a significant economic impact on a substantial number of small entities and, therefore, does not require a small entity flexibility analysis under 5 U.S.C. 801. The rule merely places reasonable limitations on the use of structures and signs in Lafayette Park. The rule will have no significant impact on any aspect of the economy.

The National Park Service has further determined that this rule is not a major Federal action significantly affecting the quality of the human environment under the National Environmental Policy Act 12 U.SC. 4332, et seq.

List of Subjects in 38 CFR Part 50

District of Columbia, National parks, National Capital parks.

PART 50--NATIONAL CAPITAL PARKS Regulations

In consideration of the foregoing, 36 CFR Part 50 is amended as follows:
1. The authority citation for Part 50 is revised to read as follows:

Authority: 16 U.SC. 1, 3.9a, 462(k): (D.C. Code 8-137 (1981) and D.C. Code § 40-723 (1981).


2. Section 50.19 is amended by redesignating paragraphs, (e) (11) through (14) as (e) (12) through (15) and adding a new paragraph (e)(11) to read as follows:

850.19 Demonstrations and Special Events.

(e)***
(11) The following are prohibited in Lafayette Park:

(i) The erection placement or use of structures of any kind except for the following:

(A) Structures that are being hand-carried are allowed.

(B) When one hundred (100) or more persons are participating in a demonstration in the Park, a temporary speaker's platform as is reasonably required to serve the demonstration participants is allowed as long as such platform is being erected, dismantled or used, provided that only one speaker's platform is allowed per demonstrating group, and provided further that such speaker's platform is authorized by a permit issued pursuant to paragraph (b) of this section.

(C) When less than one hundred (100) persons are participating in a demonstration in the Park, a temporary "soapbox" speaker's platform is allowed as long as such platform is being erected, dismantled or used, provided that only one speaker's platform is allowed per demonstrating group, and provided further that the speaker's platform is no larger than three (3) feet in length, three (3) feet in width, and three (3) feet in height, and provided further that such speaker"s platform is authorized by a permit issued pursuant to paragraph (b) of this section

(D) For the purpose of this section, the term "structure" includes props and displays, such as coffins, crates, crosses, theaters, cages, and statues; furniture and furnishings. such as desks, chairs, tables, bookcases, cabinets, platforms, podiums and lecterns; shelters, such as tents, boxes and other enclosures; wagons and carts; and all other similar types of property which might tend to harm park resources including aesthetic interests. Provided however that the term, "structure" does not include signs; bicycles, baby carriages and baby strollers lawfully in the park that are temporarily placed in, or are being moved across, the Park, and that are attended at times while in the Park the term "attended" is defined as an individual being within three (3) feet of his or her bicycle baby carriage or baby stroller, and wheelchair and other devices for the handicapped in use by handicapped persons.


(ii) The use of signs except for the following:

(A) Hand-carried signs are allowed regardless of size.

(B) Signs that are not being hand-carried and that are no larger than four (4) feet in length, four (4) feet in width and one-quarter (1/4) inch in thickness (exclusive of braces that are reasonably required to meet support and safety requirements and that are not used so as to form an enclosure of two (2) or more sides) may be used in Lafayette Park, provided that no individual may have more than two (2) such signs in the Park at any one time, and provided further that such signs must be attended at all times the term. "attended" is defined as an individual being within three (3) feet of his or her signs, and provided further that such signs may not be elevated ia a manner so as to exceed a height of six (6) feet above the ground at their highest point, may not be arranged or combined in a manner so as to exceed the size limitations set forth in this paragraph, and may not be arranged in such a fashion as to form an enclosure of two (2) or more sides. For example, under this provision, two four-foot by four-foot signs may not be combined so as to create a sign eight feet long and four feet wide, and three such signs may not be arranged to create a sign four feet long and twelve feet wide, and two or more signs of any size may not be leaned or otherwise placed together so as to form an enclosure of two or more sides, etc

Dated: February 27, 1986.
P. Daniel Smith,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 88-4693 Filed 3-4-86; 8:45 am]

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