36 CFR Part 7
National Capital Region Parks:
Prohibition of Storage of Property in
AGENCY: National Park Service.
Department of the Interior.
Action: Final rule.
SUMMARY: This final rule amends the National Capital Region Parks reoulations in 8 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. D.C. 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.
SUPPLEMENTARY INFORMATION: The following persons participated in the writing of this rule: Richard G. Robbins and Randolph J. Myers. Office of the Solicitor. Department of Interior
The National Park Service 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 condition for demonstration permit a restriction on !he storage of property in Lafayette Park. However, that restriction was invalidated by :he United Stales Court of Appeals for the District of Columbia Circuit because it had not been published for notice and comment pursuant! to the Administrative Procedures Act. United States v. Picciotto, 875 F.2d 345 (DC Cir. 1969).
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.
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. Comments 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 prctected rights under the guise of protecting aesthetics.
The National Park Service respectfully disagrees. The rule does not restrict 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 Park Service's concerns for aesthetics and perk 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 contain; 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 nondemonstrator alike. Further. the rule is not intended to address signs that are being displayed.
One commenter stated thnt the regulation would disallow signs large enough to be read by the public in Lafayette Park. The National Park Service disagrees. The regulation has net 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. The 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 system 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 actisity 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 Lafayette 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 photographs of property they stated was left unattended in Lafayette Park. The ACLU suggented that before the National Park Service considers any rule regarding the storage of property in Lafayette Park i: should enforce the existing abandoned property regulation Further the ACLU quoted several Lafayette Park denonstrators,who indicated that Park Police offcers paid virtually no attention to large mounds of property left in die 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 attempted fairly and uniformly to enforce existing regulations regarding abandoned property and unattended property in Lafayette Park, regardless 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 the problem of stored property. With the advent of Operation Desert Storm, and corresponding enhanced public safely concerns, the Park Police increased its presence in the White House area including Lafayette Park. Between January 18. 1991, and 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. primarily because there 13 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 feet 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 vigil in Lafayette Park. staled 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 staled, 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 interferes, 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 Ii permits of quantities of literature, food, clothing,blankets and a reasonable cover, so long as that property 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 accouterment, the National Park Service recognizes that some people use them as clothing.
Three cubic feet is the approximate size of a large duffel bag; over 13,000 sheets of letter-size paper(8'/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 mere 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 ail of his or her property in Lafayette Park.
The National Park Service believes that a large duffel bag of gear, some or ail 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.
Further, 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 with 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 seq.)
This rule does not contain information collection requirements which require approval by the Office of Management and Budget under 44 USC 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 [it U.S.C, 4-321 et seq.).
This rule is not a policy that has taking implications under E.O. 12630
List of Subjects in 36 CFR Part 7
National Capital Region Parks
In consideration of the foregoing, part 7 of title 36 of the Code of Federal Regulations is accordingly amended.
1. The Authority citation for part 7 continues to read as follows: Authority: 16 U.S.C. 1. 3. 9a. 460(9). 462:k): sec. 7.96 also issued under D.C. Code 8-137 ,(1981) and D.C. Code 40-721 (1~81). 2. Section 7.96 is amended by redesignating paragraphs (j) and (k) as ((k) and (1) and adding a new paragraph (l) to read as follows:
g 7.96 National Capital Region parks.
(j) (I) 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 as 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 Dec. 92-2763 Filed 2-5-92; 8:45 am
billing code 4310-70-m