Federal Register / Vol. 60, No. 67 / Friday, April 7, 1995 / Rules and Regulations 17639

National Park Service

36 CFR Part 7

RIN 1024–AC14

National Capital Region Parks; Special

Regulations

AGENCY: National Park Service,

Department of the Interior.

ACTION: Final rule.

SUMMARY: This final rule amends the

National Capital Region Parks

regulations to limit sales on Federal

park land to books, newspapers, leaflets,

pamphlets, buttons and bumper

stickers, and to set standards for sites,

stands and structures used in such sales.

By this amendment, the National Park

Service (NPS) also rescinds a sales

enforcement guideline that allowed the

sales of T-shirts that contained a

message directly related to a cause or

activity. This final rule is adopted

because such sales have adversely

impacted Federal park land in ways

described further below, resulting in

discordant commercialism and creating

a ‘‘flea market’’ atmosphere in the

National Parks of the National Capital

Region. Finally, pursuant to Public Law

103–279, the NPS no longer has

operating responsibilities for the John F.

Kennedy Center for the Performing Arts.

Accordingly, this final rule removes

reference to the Center from the sales

regulation.

DATES: The final rule becomes effective

May 8, 1995.

FOR FURTHER INFORMATION CONTACT:

Sandra Alley, Associate Regional

Director, Public Affairs and Tourism,

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, D.C. 20240,

telephone: (202) 208–4338.

SUPPLEMENTARY INFORMATION:

Background

On May 18, 1994, the NPS proposed

a rule that would limit sales to books,

newspapers, leaflets and pamphlets on

park land of the National Capital Region

(59 FR 25855). Copies of the proposed

rule have been distributed to

demonstration and special event

applicants, posted and handed out in

the National Capital Region’s permit

office. Copies were also mailed to past

and current demonstration and special

event applicants and other interested

parties. In addition, the proposed

regulation has also received media

coverage in stories about the problems

caused by sales activities.

Prior to this proposed rulemaking, the

majority of applicants who sought to

engage in demonstrations or special

events on park land within the National

Capital Region requested permission to

engage in sales activities related to their

event. As detailed in the proposed rule

dated May 18, 1994, the National

Capital Region of the NPS adopted an

enforcement guideline reflecting an

administrative determination that the

term ‘‘newspapers, leaflets, and

pamphlets’’ under 36 CFR 7.96(k) may

cover certain other designated written

material. Specifically, under the

guideline (a copy of which routinely has

been made available to all applicants),

allowable materials have included

books, bumper stickers, buttons, posters

and T-shirts which display a message

directly related to the cause or activity.

The sale of patches, jewelry, hats,

license plates, coffee mugs, flags,

records, tapes, pictures, decals and lapel

pins has not been permitted under the

enforcement guideline.

Adverse park impacts generated by

the sale of T-shirts under the

enforcement guideline caused the NPS

to propose an amendment to the sales

regulation. Since then, the amount of Tshirt sales activities on park land in the

National Capital Region has increased

significantly, and the adverse impacts

associated with such sales decidedly

worsened.

For example, during calendar year

1994, 4,771 permits were granted for

demonstrations or special events and

the majority of these involved requests

for associated T-shirt sales. After

publication of the proposed regulations

in May 1994, the Service received 976

T-shirt applications during the

remainder of 1994. In 1992, the Service

received 3,232 demonstration and

special event applications, and, in 1993,

there were 3,323. Through March 8,

1995, the NPS had received 3,092

applications, 90% of which sought Tshirt sales opportunities. For the same

period of 1994, the NPS had received

2,884 applications, an increase of more

than 200 applications.

Application numbers alone do not tell

the whole story because many

applications apply for multiple dates

and sites. For example, on February 28,

1995, the Region received 50

demonstration/special event

applications. All sought T-shirt sales

permission. Thirty-one of these

applications requested single T-shirt

sales locations, and 19 applied for

multiple locations. The total number of

sites applied for in the 50 applications

was 112.

For the past several years, the NPS

has routinely issued permits for

demonstrations and associated sales

near the Vietnam Veterans Memorial.

But particularly throughout the past

year, applicants have sought and gained

permission to sell message-bearing Tshirts for repeated demonstration

activities for a number of very general

causes such as ‘‘conservation of the

environment,’’ ‘‘to promote and

broadcast cultural and environmental

messages,’’ ‘‘environment protection,’’

‘‘promote the salvation of the

environment,’’ ‘‘Washington DC

statehood,’’ and, ironically, ‘‘Preserve

National Parks.’’

The demonstrator/vendors sales,

which began near the Vietnam Veterans

Memorial, have now spread throughout

Washington’s Monumental Core. As

explained in the preamble to the

proposed regulation, the increase in

applications for demonstration/sales

sites on the limited amount of park land

available near the Vietnam Veterans

Memorial forced the NPS to designate

additional demonstration/sales sites.

Facing ever-increasing numbers of

applicants for sales activities, the NPS

designated additional sites adjacent to

the popular memorials, monuments and

museums on the National Mall,

Washington Monument grounds and at

the Jefferson Memorial.

A fundamental consideration in this

rulemaking is the impact of sales

activities on the park land of the

National Capital Region. This park land

enjoys a rich diversity of uses. Located

at the seat of the Federal Government,

it hosts a wide variety of demonstration

activities, ranging from the lone

protester to hundreds of thousands of

participants championing and opposing

all manner of causes.

Visitors are also drawn to the great

monuments of the Nation’s Capital—

most notably, the Lincoln Memorial,

Jefferson Memorial, the Vietnam

Veterans Memorial and the Washington

Monument—which together with the

Capitol, the National Mall and the

White House area, form Washington’s

Monumental Core. The National Mall is

an integral part of the original L’Enfant

Plan for the City of Washington. It is the

single most significant public park and

open space, providing an

unencumbered greensward between the

U.S. Capitol to the Washington

Monument and the Lincoln Memorial, a

distance of 21 blocks. Visited by

millions of citizens and international

travelers, the National Mall provides a

formal work of landscape architecture of

monumental proportions and provides

the unifying element for the carefully

placed, diverse architectural symbols,
17640 Federal Register / Vol. 60, No. 67 / Friday, April 7, 1995 / Rules and Regulations

repositories and shrines of the heritage

of our democracy on and along its

length. As part of Washington’s

Monumental Core, it is unquestionably

the most significant park area in the

Nation’s Capital. Visitors to the National

Mall are drawn by its proximity to the

great monuments of the Nation’s Capital

as well as by its vistas and natural

beauty. Visitors may enjoy the sights

and activities of Washington, or they

may seek time for quiet reflection in the

midst of this great park.

Flanking this core are worldrecognized museums such as the

National Air and Space Museum, the

National Museum of American History,

the National Museum of Natural

History, the Freer Gallery, the National

Museum of African Art, the Arts and

Industries Building, the Arthur M.

Sackler Gallery, the Hirshhorn Museum

and Sculpture Garden, the West and

East Wings of the National Gallery of

Art, and the United States Botanic

Garden.

These monuments, memorials and

museums, together with the

commanding vistas and natural beauty,

draw several million visitors annually.

In 1994, for example, visitation at the

Vietnam Veterans Memorial was

1,475,044, for the Washington

Monument 1,000,270, and for the

Jefferson Memorial 522,339. The

Smithsonian’s National Air and Space

Museum had 8,494,193 visitors, while

its Museum of National History had

5,756,861.

Many other parks located throughout

the National Capital Region draw

hundreds of thousands of visitors. They

accommodate recreational activities

including picnics, softball, and field

hockey. Park visitors may enjoy the

sights and activities of Washington and

its environs and also seek time for quiet

reflection in all of these areas.

Generally, applicants for

demonstrations or special events who

also seek to engage in T-shirt sales

submit applications in twenty-one day

increments (the maximum number of

days authorized by NPS regulation). See

36 CFR 7.96(g)(5)(iv)(B). Many

applicants routinely submit successive

applications in twenty-one day

increments for periods of several

months; one group submitted

applications to sell T-shirts on park land

through the end of 1996.

The sales that first occurred under the

enforcement guideline several years ago

were made in the context of large scale,

one-day demonstrations. The sales

activities, like the demonstrations,

lasted but a single day and the T-shirts

left with the demonstrators. The current

T-shirt sales are far different.

Vendors sell their wares day-in and

day-out. The sales occur not between

organizers and participants at

demonstrations, but between

commercial vendors seeking customers

from among non-demonstrating visitors

at adjacent national monuments.

The consequence of this system of

administration has been the

proliferation of T-shirt sales throughout

the park land of the National Capital

Region. It is now commonplace to see

large quantities of T-shirts displayed

and stored on park land at various

demonstration/sales sites, not only near

the Vietnam Veterans Memorial where

the practice first arose, but also on park

land the entire length of Washington’s

Monumental Core. T-shirt stands now

confront park visitors as they approach

many of the Nation’s monuments,

memorials and museums. They are

located at the base of the Washington

Monument, in front of the Jefferson

Memorial, near the National Holocaust

Memorial Museum, and on the Mall

adjacent to the Museum of Natural

History, the Smithsonian Castle and the

Smithsonian Metro station. Increasing

commercialization within the sales sites

has been marked by the use of life-size

torso mannequins and commercial

clothing racks. As the Smithsonian

Institution observed in its comments on

the proposed regulation:

[T]he number of vendors on the Mall

increase[d] dramatically especially within

the last two years. Rather than occasionally

observing vendors associated with

demonstrations or special events, we note

that vending near Smithsonian museums is

now constant activity, [and the] selling of

products is done mostly by the same groups.

Analysis of and Response to Comments

and Rationale for Final Regulation

A. Overview

The NPS received 4,626 written

comments (some accompanied by

photographs) regarding the proposed

rule. Most were from individuals not

indicating a particular affiliation or

interest. Of the others, 25 were from

veterans organizations, seven from other

organizations, 73 were from veterans or

relatives of veterans, four from

representatives of the legal community,

and one from a past Director of the NPS.

The Department appreciates the time

and effort expended on these comments.

606 comments supported the

proposed rule as drafted. Among these

were four different preprinted signed

letters from 170 individuals as well as

one petition signed by 170 individuals.

Another 1,438 identical, unsigned

letters were received bearing the names

and addresses of different persons

purporting to support the proposed rule

as drafted. The organization responsible

for submitting the letters has requested

that the NPS disregard all of these

unsigned letters because it failed to

obtain the consent of the persons

named. Accordingly, the NPS has not

given these unsigned letters any weight

in its decision making.

2,582 comments opposed the

proposed rule as drafted. Among these

were 2,415 identical, preprinted, signed

post cards. (A sampling of 298 of these

revealed that 43, or 14%, were duplicate

submissions.) One petition in

opposition to the proposed rule was

signed by 130 individuals. One

comment opposed the proposed

regulation as drafted because it was

‘‘exceptionally lenient and generous’’;

another recommended an outright ban

on all sales.

There was one request for a public

hearing. Given the large number of

responses received as well as their

breadth and scope, however, the NPS

does not believe a public hearing would

add to the range of views and solutions

considered.

B. Comments in Support of the

Proposed Rule Based Upon Degradation

of the Park Visitation Experience and

Impact on Park Physical Environment

Many of the 606 comments in support

of the proposed rule agreed with the

NPS’s assessment of the damages to

park land caused by sales activities.

Comments frequently used words such

as ‘‘honky-tonk,’’ ‘‘open air market,’’

‘‘flea market,’’ ‘‘shopping mall,’’

‘‘bazaar,’’ ‘‘circus,’’ ‘‘carnival,’’ ‘‘eye

sore,’’ ‘‘national embarrassment,’’ and

‘‘disgraceful’’ to describe park land

being used for T-shirt and other sales

activities. One comment, by a professor

of urban design, stated:

Your characterization of the current

situation at those sites as having resulted in

‘‘discordant commercialization, creating a

‘flea market’ atmosphere on park land’’

resonates the feelings of all concerned with

the dignity and elegance of memorial

statements in the public domain.

The Smithsonian Institution, National

Park Foundation, National Capital

Planning Commission, Commission of

Fine Arts , National Gallery of Art and

National Park Hospitality Association

wrote in support of the proposed

regulation. The President of the

National Park Foundation stated:

As a resident of the District of Columbia

and someone who cares about the Parks, I

find the increased commercialism, especially

in the National Capital Region, to be

exceedingly offensive * * *. Visits to public

land/Park land should be visits to

uncluttered, noncommercial areas. The law

provides ways for individuals representing
Federal Register / Vol. 60, No. 67 / Friday, April 7, 1995 / Rules and Regulations 17641

causes to get their messages across and leave

open ample opportunities for channels of

communication of information. It was not

intended to create a supermarket for clothing,

hats, banners, pins, and other aggressive sales

of similar items which rob and deny a visitor

the opportunity to see these places as they

were intended to be.

One comment describes the area of

Washington’s Monumental Core as an

unsightly ‘‘virtual sea of T-shirt

vendors.’’ Another lamented that these

vendors have made it difficult to enjoy

the beauty of the Mall, forcing park

visitors to play ‘‘dodge the vendors.’’

Sales activities on the Mall adjacent to

the National Air and Space Museum are

particularly pronounced. Pursuant to

the court’s order in ISKCON of Potomac,

Inc. v. Ridenour, 830 F. Supp. 1, 4

(D.D.C. 1993) (appeal pending), NPS

regulations regarding sales and

solicitation may not be enforced at all in

‘‘the area of the Mall adjacent to the Air

and Space Museum.’’ With no

regulatory enforcement mechanism

possible under this court order, T-shirt

sales tables on park land have

multiplied. Displays have stretched to

extraordinary lengths; e.g., vendors now

occupy all of both sides of a 139 foot

north-south walkway just north of the

National Air and Space Museum.

One comment, by a Smithsonian

Institution employee, described the area

now as having ‘‘shirts hung out in the

breeze’’ creating ‘‘a distracting visual

clamor which totally destroyed the

[Mall’s] grand design.’’ Another, noting

sales of T-shirts inscribed with such

insignia as ‘‘Beavis and Butthead,’’

asked whether it is ‘‘the Park Service’s

objective to turn the National Mall into

a shopping mall?’’ Another protested:

I went to enjoy the beauty of the Mall and

the Museums. Instead, every where I turned

I saw and heard vendors, vendors, and more

vendors. Are we allowing our beautiful

Capital to be turned into a gigantic outdoor

flea market?

One comment, while regretting that

the Boy Scouts of America itself had not

been allowed by the NPS to sell its

memorabilia on the Washington

Monument grounds, nevertheless

supported the proposed regulation,

stating ‘‘that we have come to a sad state

of affairs when commercial vendors,

masquerading under the guise of saving

the whales are allowed to exploit our

National showcase park areas.’’

Former National Park Service Director

James Ridenour wrote in support of the

proposed regulation as necessary to

control ‘‘the carnival atmosphere that

erodes the dignity of our national

capital parks and memorial.’’ As to the

sales occurring near the Vietnam

Veterans Memorial, Ridenour, a

Vietnam veteran, wrote that he was:

[O]ffended by the business that has

continued to expand in that area. These

shanty businesses have become big

businesses. This is not some highly sacred

freedom of speech issue—this is the

despoiling of our nation’s greatest treasures

and a commercialization that goes beyond

what previous administrations ever

envisioned.

A number of national veterans groups,

including AMVETS, Veterans of Foreign

Wars of the United States, Vietnam

Veterans of America, Inc. and the

Vietnam Veterans Memorial Fund,

wrote in support of the proposed

regulation and expressed concern that

sales activities have caused a

commercialized condition of park land

around the Vietnam Veterans Memorial.

(As explained more fully in the next

section, however, other groups,

including the Friends of the Vietnam

Veterans Memorial, the National

Alliance of Families and other local

veterans groups oppose the proposed

regulation, complaining that it would

adversely impact on sales activities by

vigil groups near the Vietnam Veterans

Memorial).

In summary, the commenters

supporting the regulation generally

concurred with the judgment of the NPS

that the T-shirt displays and hawking,

occurring on a daily basis near

frequently visited memorials,

substantially diminish and impair the

park visitors’ experience. In addition to

the general ‘‘flea market’’ atmosphere,

the NPS has observed that sites are

occupying ever-larger areas of park land,

mostly located near or on walkways

close to frequently visited memorials.

As a result, visitor circulation has been

adversely impacted. Sales operations

have also interfered with NPS

interpretative programs. Some

commenters complained that they have

been unable to photograph national

landmarks without also capturing

demonstration/sales sites in the same

picture.

The presence of money within park

areas has always been a law

enforcement concern of the U.S. Park

Police. Sales sites have already

experienced several criminal related

offenses. Also, in an effort by permittees

to reserve ‘‘premium’’ sales sites

adjacent to popular memorials, a

number of permittees have hired

homeless people or have even

physically assaulted one another to

preserve and occupy their sales site

locations.

Increasing T-shirt sales activities have

also brought increasing pedestrian and

vehicle congestion. This has resulted in

damage to turf, trees and shrubbery. At

or near T-shirt sales sites, only mud and

compacted soil remain where grass once

grew. Soil compaction in these areas is

so severe that the NPS has found no

horticultural technique which permits

the restoration of plants without

excluding all activity from the injured

sites for a period of several months.

C. Comments in Opposition to the

Proposed Rule

Of the 2,582 comments opposed to the

proposed rule, all but five focused

solely on the sales activities on park

land around the Vietnam Veterans

Memorial. 2,415 preprinted postcards

were submitted opposing the proposed

regulation on the ground that it would:

[R]emove the best opportunity I have to

publicly show my support for the

organizations and causes represented near

the Memorial. Further, the presence of these

groups and the sale of all of their products

is beneficial to the visitors * * *. (emphasis

in original).

Forty-six comments voiced concern

that if the proposed regulation is

implemented, one demonstration vigil

now under permit near the Vietnam

Veterans Memorial would be forced to

‘‘close down.’’ In his comment, the

Executive Director of this particular

demonstration described the proposed

regulation as aimed specifically against

his vigil; specifically:

[A] smoke screen designed to conceal the

Park Service’s real agenda[,] which is part of

a long term political effort to remove the

POW/MIA activists from the area near the

Vietnam Veterans Memorial. It is the result

of the combined efforts of career bureaucrats,

who can’t stand the thought of a handful of

veterans, activists, and POW/MIA family

members using the First Amendment to raise

enough funds through the sale of POW/MIA

related T-shirts to continue opposing a failed

U.S. government POW/MIA policy.

The proposed rule is content neutral

and is not intended to harass, much less

‘‘close down,’’ any demonstration. In

proposing the regulation, the National

Park Service recognizes the important

function park land serves for the

‘‘purposes of assembly, communicating

thought between citizens, and

discussing public questions.’’ Hague v.

CIO, 307 U.S. 496, 516 (1939). The rule

is designed to regulate the time, place,

and manner of sales activities to protect

the parks and the visitor experience

without seriously interfering with the

achievement of those essential

purposes.

This same commenter challenged the

accuracy of NPS’s assertion, in the

preamble to the proposed rule, that one

demonstrator ‘‘had gross earnings of

$1,849,683 from the sale of all T-shirts
17642 Federal Register / Vol. 60, No. 67 / Friday, April 7, 1995 / Rules and Regulations

in 1989–91.’’ See 59 FR 25857. This

quotation was taken directly from the

Court’s order in Hart v. Sampley, Civil

No. 91–3068 (D.D.C. December 10,

1992).

An attorney commenting on behalf of

several nonprofit organizations accused

the NPS of ‘‘deliberately seeking to

create a condition on the Mall whereby

it can justify a complete ban on the sale

[of] message-bearing merchandise.’’ The

NPS rejects this characterization. It has

not created the adverse consequences

caused by sales activities on park land

in order to justify sales restrictions.

Rather, as detailed in the proposed sales

regulation, it has permitted groups and

individuals to sell message-bearing Tshirts, but that fact was not widely

known until fairly recently. When the

NPS sought public comment on the

proposed sales regulations, more

persons and groups became aware of the

rules. The current proliferation of sales

applicants is likely to be simply

indicative of the actual number of

persons and groups who would like to

sell T-shirts on National Capital Parks

land.

The NPS has attempted to fairly and

even handedly process applications for

demonstration/sales activities on park

land in accordance with current

regulations and guidelines. The

applications requesting use of park land,

and the permits authorizing such use,

are a matter of public record and review.

Persons who identify themselves as

merely interested in selling T-shirts

with no cause related to a

demonstration have been turned away.

The NPS has also attempted to fairly

and even handedly monitor permittees’

compliance with the terms of their

permits at their demonstration/sales

sites. The NPS proposed to amend its

sales regulation because of the adverse

consequences caused by some of the

sales activities under the sales

enforcement guideline.

The balance of the other comments

that focused on sales activities near the

Vietnam Veterans Memorial did not

challenge the NPS’s motivation, but

opposed the proposed rule because it

would adversely impact veterans

groups’ ability to raise money for their

cause. One commenter, from a Vietnam

veterans organization, wrote that:

In seven years of experience at the

[Vietnam Veterans] Memorial, the Friends

have concluded that the presence of t-shirt

and other sales plays a significant role in the

experience for tens of thousands of visitors.

Guestbooks which have been maintained

near the Memorial by the FVVM show

overwhelmingly that the presence of our

group has been positive.

While the NPS does not question the

sincerity of this commenter’s assertion

that its presence on park land

contributes positively to the park visitor

experience, only two of the 5,716 entries

in the commenter’s guestbooks

expressed views on sales activities. One

wrote of her appreciation for the

opportunity to buy items near the

Memorial, but the other wrote: ‘‘This

merchandise is out of place and

degrades the dignity of this shrine.’’

The Friends also submitted a

‘‘Vietnam Veterans Memorial

Attitudinal Study.’’ The study, prepared

by a marketing research consultant,

consisted of interviews of 329 visitors

who were ‘‘randomly-intercepted in the

area of the [Vietnam Veterans]

Memorial’’ over a three-day period.

Contrary to the commenter’s assertion

that sales play a ‘‘significant role’’ in the

visitor experience at the Vietnam

Veterans Memorial, the study shows

more than two-thirds of the respondents

did not stop at any demonstration/sales

location. Moreover, the study focused

solely on the park land adjacent to the

Vietnam Veterans Memorial, while the

NPS is concerned with the negative

impact of sales activities on park land

throughout the National Capital Region

and cannot legitimately distinguish

between T-shirt sales in one area or one

cause and such sales in another area or

for another cause.

One demonstrator who participated in

the first vigil or ‘‘booth’’ near the

Vietnam Veterans Memorial in 1987

commented that he was closing down

his own operation in part because he

‘‘did not have the manpower or the

money to pay someone to stay in the

parking lot of the NCR building

overnight so that we could be ‘first in

line’ when the permit office opened and

turn in 14 or so permits applications

every day.’’ He opposed the proposed

rule, however, ‘‘because the [Vietnam

Veterans Memorial] Wall is unique

* * * [and] vendors should stay at least

until the healing of all Vietnam Veterans

is complete.’’ He believed that vendors

help provide a ‘‘chance to talk with a

fellow veteran to let out your feelings,

to rid oneself of the hurt, and to find out

about other veteran related programs,

organizations and problems.’’ Under the

new regulation, demonstrators will

remain free to talk with the visiting

veterans and provide oral or written

information regarding veteran-related

programs, organizations and problems.

The only difference is that they cannot

sell T-shirts at the same time.

Finally, one commenter indicated that

the NPS should not be worrying about

T-shirt and other sales because ‘‘this

money is certainly being used for a

wonderful and well needed cause.’’ The

role of T-shirt sales in financing

demonstration activity is considered in

the next section.

D. Commenters’ Objections on

Constitutional Grounds

Some commenters argued that if

demonstrators could not sell such

merchandise they would be unable to

finance their demonstration activities.

The American Civil Liberties Union for

the National Capital Area (ACLU), wrote

that T-shirts, buttons or lapel pins worn

on a person are an integral and

prominent part of demonstrations

because they ‘‘are unusually cheap and

convenient forms of communication

that convey distinct messages because

they connect the message with the

speaker.’’

1. T-Shirts Versus Other Forms of

Communication

After careful consideration, the NPS

has concluded that the basic problem of

commercialization and attendant

adverse impacts on park values is

caused by T-shirt sales. It has also

concluded that the problem cannot be

abated by other than a ban on such sales

on park land.

The NPS acknowledges that lines

must be drawn in deciding the types of

such merchandise that may be sold on

park land in connection with

demonstrations, to allow both

demonstrators and park visitors an

opportunity to use park land and still

preserve the park values operative in the

area. In general, the NPS wants to

permit the maximum amount of

communicative conduct that is

consistent with the protection of the

core park values in the area. It

recognizes that a total ban on all sales

in connection with demonstrations

would arguably be most protective of

the parks, and that a credible legal

argument might be made for such a

resolution. But the NPS desires to

accommodate the sale of messagebearing materials in connection with

demonstrations to the extent it does not

unreasonably impinge on other park

values.

By rescinding its enforcement

guideline and amending 36 CFR 7.96(k)

so as to permit only the sales of books,

newspapers, leaflets, pamphlets, buttons

and bumper stickers, the NPS believes

park resources, the visitor experience,

and the desirability of free expression

will all be protected and enhanced.

The NPS has found that the sale of

traditional written material in the form

of newspapers, leaflets and pamphlets

has not presented the problems that the

sale of T-shirts and of other
Federal Register / Vol. 60, No. 67 / Friday, April 7, 1995 / Rules and Regulations 17643

merchandise has caused. The NPS also

believes books constitute a larger and

logical variant of the newspapers,

leaflets and pamphlets that are currently

permitted.

The NPS has also, upon

reexamination since the proposed

regulation was published, concluded

that buttons and bumper stickers should

be permitted to be sold in connection

with demonstrations. The sales of these

items have not caused the same

problems of commercialization and

negative effects on other park values as

those caused by T-shirt sales.

Accordingly, the NPS has decided to

continue to allow the sale of buttons

and bumper stickers on park land.

While the Service has decided to

prohibit T-shirt sales on park land, it

will of course not restrict or otherwise

regulate the wearing of communicative

T-shirts. More generally, persons and

groups remain free to express their

views on park land, in long-standing

demonstration vigils as well as shorterterm demonstrations. They may

continue to use park land to speak,

display signs and banners, march, hold

vigils, sell and distribute literature,

communicative buttons and bumper

stickers, and otherwise communicate

their views. At the same time, nondemonstrating visitors will still be able

to come to the parks to pursue

communicative, inspirational,

educational and recreational activities.

For these reasons, the NPS believes

that compliance with the sales

regulation will not place an

unreasonable limitation on First

Amendment activity. A wide range of

permissible activities remains available

to persons who wish to engage in

demonstrations and associated sales

activities. Ample alternative avenues of

communication are preserved.

Demonstrators will still be able to sell

other merchandise either on property

within the District of Columbia’s

jurisdiction or through the books,

newspapers, leaflets, and pamphlets

sold or distributed on park land. These

areas under District of Columbia

jurisdiction are convenient to park

visitors and are located adjacent to

Washington’s Monumental Core.

Constitution and Independence

Avenues east of 15th Street, NW and all

of the north-south streets north of

Constitution Avenue and south of

Independence Avenue are controlled by

the District of Columbia. For many

years, demonstration groups have used

these areas to sell items not permitted

to be sold on NPS areas. Further, the

vast majority of park visitors must pass

these District streets and sidewalks on

their way to the NPS areas.

Finally, in this connection, the NPS is

concerned that if it continues to allow

sales of T-shirts, it will face ever more

difficult line-drawing decisions. Even

with T-shirt sales now permitted, the

NPS continues to receive requests for

permission to sell other types of

merchandise, such as coffee mugs,

sweat shirts, hats, patches, jewelry,

flags, records, audio tapes, video tapes,

pictures, and decals—all complete with

self-described ‘‘First Amendment

messages’’ affixed to each item. Some

demonstrator/vendor applicants argue

that a First Amendment message is

implicit in the merchandise itself. For

example, in the past one demonstration

group, advocating the protection of

endangered rain forests, requested

permission to sell candy on park land

and argued that the candy possessed

communicative protection because its

ingredients came from the ecologically

sound harvesting of nuts from rain

forests. Others have urged the NPS to

permit the sale of audio tapes. In

addition to posing the same impacts as

T-shirts, NPS personnel would need

recorders to determine whether the tape

related to the demonstration and visitors

would need a like machine to determine

what message was being expressed.

Plainly, a line has to be drawn

somewhere if the National Capital Parks

are not to be wholly given over to

merchandising with a connection to free

expression. The NPS believes an

appropriate line is reflected in these

regulations.

2. T-Shirt Sales as Underwriting the

Expenses of First Amendment

Expression

The NPS acknowledges the possibility

that T-shirt sales on park land improves

the financial ability of some

demonstrators to engage in

demonstration activities. Nevertheless,

the NPS does not believe that the First

Amendment requires it, as a general

rule, to facilitate fund raising by groups

or individuals seeking to express their

views. Such facilitative conduct is,

rather, protected by the First

Amendment ‘‘only insofar as its

restriction imposes burdens on

expression itself.’’ White House Vigil for

the ERA Comm. v. Clark, 746 F.2d 1518,

1540 (D.C. Cir. 1984).

One commenter suggested, as a partial

alternative to a sales ban, that the NPS

‘‘require all vendors to put on public

display a quarterly Statement of

Accounts, as well as yearly Statement of

Earnings, stating where all the money

taken in goes.’’ The NPS questions

whether it could legally require

demonstrators to publicly display how

much money they receive or how it is

spent. Cf. Riley v. National Fed’n of the

Blind, 487 U.S. 781 (1988). In any event,

such an approach does not address the

impacts on the parks and the visitor

experience that have given rise to this

rulemaking.

3. Off-Park, Nearby Locations for T-Shirt

Sales

The park land which comprises

Washington’s Monumental Core, and

nearly all other park land in the

National Capital Region, is located

adjacent to other public property under

the jurisdiction of the District of

Columbia or the states of Maryland and

Virginia. These other governments,

particularly the District of Columbia,

have generally allowed persons and

groups to sell items on sidewalks and

along streets in these areas that are

prohibited from sale on park land. The

NPS does not and is not proposing to

regulate such sales or any other sales of

merchandise on property outside its

jurisdiction. As explained earlier, these

areas provide an opportunity for

demonstration groups to sell items in

close proximity to park areas.

4. Other Alternatives

Commenters suggested several

alternatives to the proposed regulation,

including allowing only certain types of

groups to sell items, more narrowly

defining what constitutes messagerelated T-shirts, and restricting the

placement and/or types of structures

vendors could use. For example, while

the ACLU agreed in its comments that

‘‘the Constitution does not require the

National Mall to be turned into a flea

market,’’ it contended that the NPS must

first adopt restrictions regarding

vendors’ structures and against ‘‘purely

commercial vendors with a tenuous

facade,’’ before considering a sales

restriction. It also stated that ‘‘only if

narrower measures are tried and do not

succeed will the consideration of

broader measures be appropriate.’’

As explained in more detail in what

follows, the NPS has strived hard to

arrive at a solution that protects park

values and the visitor experience while

minimizing any burdens on

communicative conduct. It has carefully

considered, and in some cases tried, the

kinds of alternatives suggested. Some of

the alternatives the NPS has tried

include: Discussing whether an

applicant would voluntarily limit the

number of sites; imposing site size

restrictions; requiring that sites be

attended at all times; confiscating

unattended structures; imposing safety

standards on site equipment; requiring

sanitation measures, including

placement of receptacles; rotating site
17644 Federal Register / Vol. 60, No. 67 / Friday, April 7, 1995 / Rules and Regulations

areas; and seeding and sodding of areas.

These measures have fallen short of

providing adequate protection to park

values in the area. Its extensive

experience in managing park land and

its consideration of the comments on

this proposed regulation have led the

NPS to conclude that no alternatives

exist that would adequately abate or

ameliorate the problems caused by sales

activities.

The basic problem is a pronounced

commercialization of National Capital

Park land with its unique monuments

and memorials attracting millions of

visitors annually. These sales activities

on park land threaten to destroy that

distinctive atmosphere. T-shirt sales

activities, which include intense

competition among permittees to get the

attention and money of park visitors,

have had a profoundly negative impact

on the park experience. T-shirt sales

have introduced a relatively constant,

intrusive and intimidating air to what

was previously, for the most part, a

relatively peaceful, inspirational, and

contemplative scene. Vibrant and

spirited demonstration speech conduct

sometimes found in the National Capital

Parks is more episodic and has not

created such a constant negative impact.

Several Justices of the Supreme Court

have recognized the difference between

more typical demonstration conduct

and sales activities. In United States v.

Kokinda, 479 U.S. 720 (1990), Justice

O’Connor recently stated:

[C]onfrontation by a person asking for

money disrupts passage and is more intrusive

and intimidating than an encounter with a

person giving out information. One need not

ponder the contents of a leaflet or pamphlet

in order mechanically to take it out of

someone’s hand, but one must listen,

comprehend, decide and act in order to

respond to a solicitation. Solicitors can

achieve their goal only by ‘‘stopping

[passersby] momentarily or for longer periods

as money is given or exchanged for

literature’’ or other items.

Id., at 724 (plurality opinion)(quoting

Heffron v. International Soc’y for

Krishna Consciousness, 452 U.S. 640, at

653 (1981)); see also id. at 738–39

(Kennedy, J., concurring in judgment).

a. Limiting T-shirt sales to nonprofit

or other particular kinds of groups.

Some commenters suggested that only

certain types of groups should be

allowed to continue to sell messagebearing merchandise. The commenters

have widely differing views, however,

as to what type of groups should

qualify. One comment suggested the

NPS allow sales only by ‘‘real Vietnam

Veterans’ organizations that have had

displays at the Wall for years.’’ Another

comment called for the NPS to ‘‘cull the

for-profit business concessions, yet

maintain the integrity of those who truly

hold vigils in exercise of their 1st

Amendment rights.’’ The sponsors of

one ethnic celebration, agreeing that

only a limited range of merchandise

sales should be allowed on park land

‘‘to prevent it [sic] being destroyed by

vendors,’’ suggested that only

organizations who hold ‘‘large

demonstration/cultural activities’’

should be allowed to engage in sales. A

local non-profit track and field

organization, while ‘‘sympathetic with

the overall goals of preserving the noncommercial character of NPS lands,’’

nevertheless asked that it be allowed to

collect fees and distribute T-shirts to

participants who race on park land.

Another local running club asked for a

similar exception.

Another commenter advocated that

only tax-exempt nonprofit organizations

who provide supporting documentation

should be allowed to engage in sales

activities. The comment, from an

attorney representing several nonprofit

organizations who have been permitted

to sell message-bearing T-shirts,

complained that ‘‘commercial vendors

were (and are) permitted to sell souvenir

merchandise on the Mall. These vendors

are not tax-exempt; nor do their

activities have a noncommercial

purpose. Rather, their only purpose is to

make money for the proprietors * * *.’’

(emphasis in original).

The NPS’s decision to grant a permit

to use park land does not turn on the

organizational or tax status of the

applicant. NPS regulations do not

provide for inquiries into an applicant’s

tax status or how proceeds may be

dispersed. Nor do such inquiries form

any part of the basis in approving

permits. While one commenter did cite

an example of such an inquiry by the

NPS in a national park in California, the

NPS has determined that the California

park unit had done so erroneously.

In fashioning a solution to the

problems caused by T-shirt sales in the

National Capital Parks, the NPS believes

it cannot carve out special exceptions

for any category of group. Just as it

would be impermissible to preclude all

but long-standing ‘‘real Vietnam

Veterans organizations,’’ it would

likewise be improper to preclude all but

tax-exempt nonprofit groups. To allow

only certain types of groups to engage in

sales would disenfranchise individuals

and unincorporated groups completely.

Other organizations not qualified by

circumstance or choice for tax-exempt

status, such as for-profit corporations

and labor unions, would be likewise

excluded. More generally, such an

approach would rest access to park land

for sales upon the manner in which a

group seeks to organize itself legally.

Such a matter ought not be of central

concern to the NPS.

The adverse impacts upon park land

are the same, irrespective of the nature

of the demonstrator/vendor’s tax status.

In short, the NPS believes it would be

unreasonable to require citizens

concerned about current issues to

incorporate and gain tax-exempt status

in order to engage in demonstration/

sales activities within the parks. Such a

requirement is unrelated to the

protection of park resources and would

unreasonably discriminate against a

wide range of individuals and groups.

Moreover, a large number of the

demonstrator/vendors currently using

park land for T-shirt sales activities are

in fact tax-exempt organizations.

Despite their tax status, the impact on

the park is unacceptable.

b. Limiting T-shirt sales to very shortterm demonstrations. The ACLU

commented that ‘‘persons applying for

permits for short-term demonstrations

[should] be given permission to sell

demonstration-related communicative

materials from portable card tables that,

as in the past, will ’le[ave] with the

demonstrators.’ ’’ The NPS’s experience

is that this type of restriction, while

conceptually attractive, is practically

impossible to implement. The majority

of groups and individuals selling Tshirts as a part of their activity seek to

do so for long periods of time. The NPS

has found, on several occasions, the

same group signing up under different

names and individual sponsors for

successive weeks. This ‘‘gaming’’ of the

permit system results in a long-term

demonstration by successive short-term

individuals or causes.

The NPS does not believe it may

reasonably or practically limit a group

or individual to demonstrations lasting

only one week or day or so per year. By

regulation, applications to use park land

are generally limited to 21-day

increments. They may be extended for

additional 21-day increments, subject

only to being ‘‘bumped’’ if another

applicant submits an application for the

same park site and the park area does

not reasonably permit multiple

occupancy. If the park site does not

permit multiple occupancy, the NPS is

obligated to propose an alternative park

site for the use of the second applicant.

36 CFR 7.96(g)(4)(iii)(A).

This system is grounded in the NPS’s

belief that, in general, if park land is not

being utilized for an ongoing activity, it

is available to groups for First

Amendment conduct. To turn down a

group because they have exhausted their

‘‘allotted’’ days of speech would fly in
Federal Register / Vol. 60, No. 67 / Friday, April 7, 1995 / Rules and Regulations 17645

the face of that principle. Moreover, the

NPS has neither the expertise nor the

manpower to develop the investigative

and enforcement staff to avoid the

inevitable ‘‘gaming’’ that would result as

groups and individuals tried to obtain

access for additional days and sites.

c. Adopting standards for the

message’s relationship to the

merchandise being sold. Some

commenters suggested that the NPS

impose ‘‘merchandise standards’’ to

ensure, in the words of one commenter,

that T-shirts being sold contain ‘‘a

religious, philosophical, political, or

ideological message that is inextricably

intertwined with the Permittee’s

nonprofit purposes and activities.’’ This

commenter continued:

Many vendors sell purely commercial or

souvenir T-shirts that do not contain any

message whatsoever. Other vendors take an

otherwise commercial or souvenir T-shirt,

stamp a small logo on it, or the phrase

Washington, DC, and sell that item, although

the message is barely visible and/or lacks

intellectual content * * *.

Except where a court order (now on

appeal) has prohibited it from doing so

on the Mall near the National Air and

Space Museum, the NPS has for many

years prohibited demonstrator/

permittees from selling T-shirts that lack

any message related to the permittee’s

cause or activity. It monitors

demonstration/sales sites to ensure

compliance. If warnings to violators are

not immediately heeded, citation and

revocation of the permit occur. Between

July 6, 1994 and August 13, 1994, for

example, the U.S. Park Police revoked

twelve permits for violating the

requirement that T-shirts have a

message related to the permittee’s cause.

Even with this limitation, sales

activities have continued to proliferate

to the detriment of the parks and the

visitors’ experience within the parks.

The limitation itself raises troublesome

questions; e.g., should the NPS set

standards as to how large or permanent

or sophisticated the message on the Tshirt must be? How direct must be its

relationship with the cause being

demonstrated for? How strongly must

participants hold their views?

Many T-shirts being sold on park land

by permittees appear identical to the Tshirts sold by District of Columbia street

vendors, except for the presence of an

added message. The message often

consists of something as cryptic as

‘‘Preserve our Natural Environment’’ or

‘‘DC Statehood.’’ The comment from the

Smithsonian Institution notes that:

[A] vendor of wildlife T-shirts from a

folding table was the only visible

‘demonstration’ engaged in by an alleged

environmental group. Other than the name of

the group in small letters on the T-shirt

depicting wild animals, the salesman knew

nothing about the group or its activities and

was unable and/or unwilling to discuss with

a visitor whether the proceeds of the T-shirt

sales were being dedicated to a non-profit

purpose.

In describing demonstration/sales

activities on the Mall, the Washington

Post on July 6, 1994, reported:

The guise of a demonstration at some of the

new stands is pretty thin. Vendors have used

a rubber stamp to mark souvenir T-shirts and

sweat shirts with ‘‘D.C Statehood’’ or ‘‘Save

the Environment.’’

Among those selling shirts marked with an

inked stamp this week was Merlyn Eda, of

Fort Washington. She sat beneath a sign that

advocated statehood for the District, and her

permit said she was demonstrating for

making the District a state, but she said she

wasn’t much interested in the issue.

‘‘It’s a reason to be out here,’’ she said as

she straightened stacks of shirts showing the

Capitol. ‘‘I’d like a better cause, and I’m

thinking about one.’’

Susan Griffin, chairwoman of the D.C.

Statehood Party, said neither the party nor

the Citizens for a New Columbia have

sanctioned the sale of T-shirts to promote

their cause.

A man who would only identify himself as

Isac was selling T-shirts with pictures of the

monuments and the stamped message for the

environment.

He said that he didn’t know anything about

environmental issues and he was working as

a salesman on the Mall eight hours a day in

exchange for free room and board.

The number of vendors setting up stands

in close proximity of each other has set off

a price war along the walkway on the Mall

where seven sellers, most with identical

designs, vie for customers.

Christopher Sullivan, a volunteer for Earth

Friends, Inc. said his group initiated the

price reductions because it is concerned not

about making money but about promoting

environmental awareness.

‘‘It looks like hell around here,’’ Sullivan

said. ‘‘I feel my rights as a legitimate

demonstrator have been violated because of

these other stands.’’

As this comment suggests, many

customers of T-shirt vendors may be

deceived as to whether they are

genuinely supporting a ‘‘cause’’ by their

purchase. One permittee, purporting to

‘‘educate the general public about the

importance of environmental

protection,’’ has sold T-shirts which

depict a cow jumping over the Capitol

and which bear a ‘‘First Amendment

message,’’ ink-stamped and barely

discernible (and in at least one case

upside down): ‘‘PRESERVE NATIONAL

PARKS Earth Friends.’’ Two other

permittees have sold identical cow T

shirts, although with different ‘‘First

Amendment messages’’: one an inkstamped ‘‘DC FOR STATEHOOD,

WASHINGTON DC,’’ another with

‘‘PRESERVE THE NATURAL

ENVIRONMENT.’’ A demonstrator/

vendor was overheard advising one park

visitor not to be concerned with the

‘‘message,’’ because the ink stamp

would ‘‘wash out in the first washing.’’

Since the Washington Post article

appeared, the NPS has noticed that

most, but not all, of the ‘‘First

Amendment messages’’ are no longer

ink-stamped, but silk-screened. Though

many of these message activities lack

sophistication, verve or impact, the NPS

is rightly extremely uncomfortable

basing its decisions regarding access to

park land upon the quality or sincerity

of a person’s message or belief. Once the

NPS has satisfied itself that there is

some nexus between the cause and the

message, it has felt that no further

inquiry is legitimate or warranted. In the

circumstances, enforcement of this

requirement has not lessened the

negative impacts from those sales

activities significantly, if at all. In these

circumstances, the NPS has concluded

that the best solution is to steer clear of

these delicate questions of regulating

the message, by instead going at the

heart of the commercialization issue,

which is T-shirt sales.

d. Restricting structures and other

sales facilities. Some commenters

advocated restricting the structures from

which permittees sell their items. One

suggested that trailers and ‘‘ostentatious

booths’’ be banned, that only booths

which could be set up within twenty

minutes be allowed, and that they be

removed after 7 p.m. except for

important Federal holidays. The ACLU

commented that it could ‘‘see no reason

to prohibit the sale of communicative

materials when it is done without the

aid of stands or structures.’’ It suggested

that, ‘‘since the perceived problem

arises from the use of long-term, semipermanent structures, we believe such

structures are the appropriate focus of

regulation,’’ including ‘‘their number,

size, location, appearance, and duration

of placement.’’

The attorney representing nonprofit

organizations likewise suggested that

the NPS impose signage restrictions,

with merchandise being displayed on

table tops only in a neat and orderly

fashion, not exceeding two feet in

height. He also suggested that

umbrellas, chairs, and other decorative

devices employed to amplify the

presentation of the permittee’s message

be permitted only in connection with

the sale of message-bearing

merchandise, that structures, such as

merchandise display racks, be

prohibited and that all other materials,

such as inventory, storage boxes,

transport devices, and the like, be
17646 Federal Register / Vol. 60, No. 67 / Friday, April 7, 1995 / Rules and Regulations

required to be stored underneath the

table.

The NPS has seriously considered

these suggestions. As the ACLU noted,

the NPS is quite familiar with the

regulation of structures. In the National

Capital Region, for example, the Service

has found it necessary to ban structures

from Lafayette Park and the White

House sidewalk in order to address

security and aesthetic concerns.

Based on its years of experience in

managing the Federal park land and

dealing with a full range of sales

activities, the NPS does not believe that

size or structure restrictions adequately

address the problems caused by T-shirt

sales activities on park land. As

explained further below, the NPS

already regulates the size of sales areas

permitted to each permittee. The

problems of commercialization and

attendant adverse impacts are caused by

the T-shirt sales themselves and the

sheer number of demonstration/vendors

interested in engaging in such sales

activities. Moreover, an outright ban on

structures for sales activities would

likely create a mobile and potentially

even more intrusive commercialization

of park land and degradation of the

visitor experience. In short, seeking to

control the size of structures and area to

be used by each permittee would not

directly address the commercialization

and attendant adverse impacts.

The NPS has long required

demonstration vendors to conform to

restrictions on site dimensions. Near the

Vietnam Veterans Memorial, the NPS

has restricted vendors to sites 6 feet by

15 feet. This area permits the storage of

substantial amounts of written materials

on site. If additional written material is

needed, it can be brought to the site as

needed. Further, this size both

maximizes the numbers of sites as well

as allows each permittee sufficient

space to present his or her message to

the visiting public. In response to the

dramatic increase of demonstration Tshirt sales activities on Washington’s

Monumental Core, the NPS has

established the same size dimensions

for sales sites in that area as well.

These restrictions alone have not

proven adequate to address the

problems sought to be ameliorated by

this regulation. However, the NPS has

decided that the site dimension

standard is important and ought to be

included in the regulation. A restriction

on the size of structures within such

sales sites is also adopted. Accordingly,

the final regulation incorporates

permissible dimensions of sales sites,

stands and structures used in sales.

Specifically, the final regulation limits

sales sites to dimensions of 6 feet wide

by 15 feet long by 6 feet high. Within

a site, tables will be limited to one per

site, no larger than 21⁄2 feet by 8 feet or

4 feet by 4 feet.

The NPS reviewed the demonstration

sales sites currently under permit.

Demonstration/sales stands and

structures generally consist of tables

with dimensions of 21⁄2 feet by 8 feet or,

less frequently, dimensions of 4 feet by

4 feet. Both sizes have fully afforded

permittees the ability to present their

message as well as display their

materials. The tables and associated

sales activities were generally able to be

fully accommodated within dimensions

of 6 feet by 15 feet. In fact, the NPS has

been imposing the particular sales site

limitation since September 1994.

The NPS believes that a height

restriction on tables and their

appendages is also warranted. It has

determined that a height restriction of 6

feet on sales sites will allow groups to

display and sell printed materials while

reducing the commercial atmosphere on

park land.

e. Zoning the park land to set aside

particular areas for sale activities. Some

commenters suggested that the NPS

permit T-shirt sales only in certain park

areas, preferably located away from the

historic monuments and memorials.

One commenter suggested that the NPS

should design and construct a limited

number of lightweight portable booths

‘‘in the vicinity of the Memorial, but out

of the main flow of the tourist traffic.’’

Its extensive experience in

administering permits has convinced

the NPS that it could not designate an

adequate amount of park land to handle

the number of applicants who have been

and will likely seek to engage in T-shirt

sales activities without creating the

same adverse impacts now being felt.

On park land adjacent to the Vietnam

Veterans Memorial, for example, the

NPS has been unsuccessful in limiting

fixed portions of park land for

demonstration/vendors. Each of the

applicants, whose numbers are steadily

increasing, demands access to park

visitors near the Memorial. With

existing sites already under permit, the

NPS has been forced to permit the

additional applicants to use other

available park land.

Demonstration activities near the

Vietnam Veterans Memorial are

typically limited to issues related to the

war and its casualties. The remainder of

the Monumental Core, including the

Mall, has been described as ‘‘the

Nation’s front yard,’’ and as such has

traditionally been the focal point of

demonstrations on a full range of issues

and causes—both domestic and

international. Having been unsuccessful

in designating limited areas around the

Vietnam Veterans Memorial for

demonstration/vendor activities, the

NPS does not believe it possible to

designate limited areas within the

Monumental Core.

The statistics bear out this conclusion.

In November 1994, for example,

notwithstanding cold weather and a

decrease in park visitors, the NPS had

to designate 260 sites in the

Monumental Core, along with 23 sites

near the Vietnam Veterans Memorial, to

accommodate those who sought

demonstration/sales permits. With the

advent of better weather and an increase

in park visitors, the NPS expects many

more applications this spring. In fact,

through March 8, 1995, the National

Capital Region received 3,092

applications for demonstrations and

special events. Ninety percent (90%) of

these seek permission to vend T-shirts

in the Monumental Core area. By way of

comparison, during this same period in

1994, the Region received 2,884

demonstration and special event permit

requests, an increase of over 200

applications.

The proliferation of T-shirt sales

among demonstrator/vendors has led

the NPS to conclude that it would be

impossible to reasonably accommodate

the demand for demonstration/sales of

T-shirts within any limited ‘‘sales

zones.’’ If a zoning system were

attempted, either the NPS would have to

devise some method or standards to

choose among applicants or designate

ever-expanding sales zones.

Furthermore, the current first-come,

first-served system would not likely

result in a fair distribution of very

scarce sites and would require a much

more intensely managed system.

As noted earlier, applications for 21-

day T-shirt demonstration/sales permits

are now routinely being submitted a full

year in advance and are ever-growing in

number. If ‘‘sales zones’’ were so limited

as to reduce the adverse impacts on

National Capital Parks to more

acceptable levels, only a very limited

number of applicants would be able to

engage in such sales activities. In these

circumstances, the NPS believes that

allowing all applicants to engage in

demonstration/sales activities that do

not involve T-shirt sales ultimately

imposes less restriction on free

expression, as well as being fairer and

better for the National Capital Parks and

their visitors, than to allow a small

number of applicants to engage in Tshirt sales on limited amounts of

designated park land.

The NPS is mindful that it has not

fared well in the courts in imposing

numerical restrictions on demonstrators.
Federal Register / Vol. 60, No. 67 / Friday, April 7, 1995 / Rules and Regulations 17647

In A Quaker Action Group v. Morton,

516 F.2d 717 (D.C. Cir. 1975), for

example, the court struck down the

NPS’s attempt to limit a demonstration

in the seven-acre Lafayette Park, a small

fraction of the acreage of the

Monumental Core, to 500 people. The

court found it had a carrying capacity

allowing up to 50,000 people to engage

in demonstrations at any one time.

More importantly, the NPS believes

that a ‘‘sales zones’’ scheme would not

satisfactorily control the adverse impact

on the parks. The NPS’s experience at

the Vietnam Veterans Memorial shows

that, even when sales are confined to a

designated area, unacceptable impacts

on park values result.

Defining the precise location of park

areas to be set aside for such activity

would also be difficult. Permittees

engaging in demonstration/sales

activities do not congregate at any single

locale, but spread out to locations

adjacent to popular park features to

maximize their visitor exposure. The

NPS would continue to be faced with

requests for designated sales zones

adjacent to most, if not all, of the

monuments, memorials, and museums.

Even with the creation of even a

modest number of zones scattered

throughout areas of the National Mall,

the NPS and the nation would

effectively lose those areas completely

and permanently to commercial

activities. The experience of the last

year or so suggests that competition for

those limited zones would be intense.

The zones would likely be occupied 365

days a year, effectively removing them

from park use. Not only would

perpetual ‘‘mini-bazaars’’ be created, but

the physical impact would create scars

that would not heal.

For all of these reasons, based on its

experience in managing the Federal

park land and dealing with a full range

of sales activities, the NPS does not

believe that the designation of sales

zones is a viable or adequate alternative.

D. T-Shirt Sales and the Activities of the

Authorized Concessioner for the

National Mall

The NPS’s concessioner for the

National Mall commented in support of

the proposed regulation, stating that

‘‘the large number of commercial

vendors operating on the National Mall

* * * are disrupting the historical,

aesthetic, and traditional values of our

National Capital parks.’’ The comment

also advised that the concessioner was

experiencing an adverse economic

impact in lost sales due to

demonstrator/vendors. Some of the

concessioner’s employees also

submitted comments expressing

concern that sales by demonstrator/

vendors could threaten their jobs.

While the NPS agrees with the

concessioner about the adverse aesthetic

impact caused by sales on Federal park

land, the alleged adverse financial

impact on the concessioner and its

employees has played no role in the

NPS’s decision on the sales regulation.

Two comments opposed to the

proposed rule described the activities of

the NPS’s concessioner on the National

Mall as an ‘‘unsightly, inappropriate,

and unwelcomed [sic] commercial

intrusion,’’ and concluded that ‘‘any

commercialization of the Mall that has

occurred is as much attributable to the

NPS as to any specific First Amendment

activity.’’ One of these commenters

stated:

I personally observed dozens of licensed

mobile ice cream and popcorn vendors on all

parts of the Mall. In one particular instance,

Earth Friends was ordered to move its

location across from the Museum of Natural

History [because] their presence at that

location was purportedly causing pedestrian

traffic congestion. Yet, the same location was

quickly occupied by an ice cream vendor that

attracts twice as many people as did Earth

Friend’s T-shirt sales.

Additionally, I note that the Park Service

maintains (or authorizes) two permanent

refreshment stands on the Mall that sell a

variety of products, including beer, and

several souvenir booths that sell film, maps,

books, and other souvenir products. In

addition to the merry-go-round, I observed

permanent, unsightly refreshment stands

directly in front of the Air and Space

Museum, the American History Museum, and

the Natural History Museum. These

refreshment facilities attracted far greater

crowds, and pedestrian congestion, than any

of the T-shirt operations that I observed.

This description is incomplete and

partially incorrect. Most of the vendors

mentioned are not on park land. Rather,

they are located on the grounds of the

Smithsonian Institution or on streets

under the jurisdiction of the District of

Columbia. The NPS has not licensed

popcorn vendors on the Mall.

The NPS regulates concession

activities on park land with a principal

objective of precluding unwarranted

commercialization and adverse impacts

on park land. The relevant guidance

from Congress, the Concessions Policy

Act of 1965, 16 U.S.C. 20, is:

[T]hat the preservation of park values

requires that such public accommodations,

facilities, and services as have to be provided

within those areas should be provided only

under carefully controlled safeguards against

unregulated and indiscriminate use, so that

heavy visitation will not unduly impair these

values and so that development of such

facilities can best be limited to locations

where the least damage to park values will

be caused. It is the policy of the Congress that

such development shall be limited to those

that are necessary and appropriate for public

use and enjoyment of the national park area

in which they are located and that are

consistent to the highest practicable degree

with the preservation and conservation of the

areas.

Consistent with this mandate, the

NPS maintains concession activity on

the federal park land of the National

Capital Region under carefully designed

safeguards. Concessions are limited only

to those facilities and services necessary

and appropriate for the convenience of

the public. They are carefully designed,

sited, and otherwise controlled so as to

cause the least damage to park values

and the park experience.

To serve the millions of visitors to

park land between the Lincoln

Memorial and the east end of the

National Mall, the NPS’s concessioner

operates nine food and five retail

operations from fixed locations. During

the peak visitation period, from April

through September, these fixed facilities

are supplemented by fourteen ice cream

carts that operate on the National Mall.

The temporary and fixed facilities were

designed to be the minimum size and

number needed to serve only the

immediate needs of the park visitors

already drawn to the area. They are

carefully located in areas capable of

withstanding the attendant impact;

many are confined within buildings.

The NPS regularly inspects them to

maintain requisite standards of physical

appearance and operations. The NPS

also controls the nature, type, quality,

and price of items offered for sale by the

concessioner to the park visitor. It

routinely evaluates the concessioner’s

quality of services, requires insurance

and indemnification, charges a franchise

fee, and annually reviews its financial

records. None of these controls has ever

been applied to demonstration/vendors,

and the NPS believes at least some, if

not all, would be inappropriate to

impose on persons or groups expressing

First Amendment rights.

While some commenters compared

concessions accommodations with

demonstration/sales booths, none

suggested that the NPS impose on

permittees the same conditions it has

imposed on its concessioner. In any

event, for the reasons expressed earlier,

the NPS believes that it would be a very

delicate matter at best, and more likely

inappropriate, for it to try to impose

such conditions on the exercise of free

expression attendant to demonstration/

vendors. More broadly, comparing the

purpose and regulation of concessions

designed to meet the needs of park

visitors with sales activities associated
17648 Federal Register / Vol. 60, No. 67 / Friday, April 7, 1995 / Rules and Regulations

with demonstrations is like comparing

apples and oranges.

The NPS concedes that it sometimes

encounters unauthorized food and ice

cream vendors on the Mall. It devotes

considerable enforcement efforts against

such illegal activities. It regularly

monitors park land for unauthorized

vendors, and when it detects them, it

either warns them or cites them and

orders them to leave park land

immediately. Between July 6, 1994 and

August 13, 1994, for example, the U.S.

Park Police issued seventeen citations

against unauthorized food or beverage

vendors found on the Mall.

The proliferation of demonstration/

vendors of T-shirts in the last few years

has complicated this enforcement

problem significantly. As the

Smithsonian Institution comment noted:

[M]any illegal [that is, non-permit-holding]

vendors, encouraged by potential profits and

perhaps hoping to get lost among the

increased number of vendors on the Mall, are

joining their permit holding counterparts in

increasing numbers. We have seen many

more illegal ice cream and food vendors,

vendors of key chains, hats, umbrellas, and

even a photographer who takes visitor

pictures with cardboard cut-outs of

celebrities on parkland.

The NPS remains committed to

eliminating illegal vendors as well as

addressing the unacceptable impacts by

the demonstrator/vendors.

E. Other Matters Addressed in the Final

Regulation

In its comments, the Smithsonian

Institution expressed concern that the

language of the proposed sales

regulation might create some

misunderstanding as to what would be

allowed to be sold on park land, with

or without a permit. The NPS obviously

desires to prevent any such

misunderstandings, and therefore

reaffirms its intention that only books,

newspapers, leaflets, pamphlets, buttons

and bumper stickers may be sold under

the revised sales regulations. Attempts

to offer or sell items, whether directly or

by the use of an artifice, other than

books, newspapers, leaflets, pamphlets,

buttons and bumper stickers on park

land are prohibited. For example,

restricted merchandise cannot be ‘‘given

away’’ and a ‘‘donation accepted’’ or

one item ‘‘given away’’ in return for the

purchase of another item; such

transactions amount to sales. To prevent

any misunderstanding, the NPS has

changed the language that appeared in

the proposed sales regulation.

Finally, in the draft regulations, the

NPS had proposed to make two minor

numbering corrections in 36 CFR

7.96(k)(3)(vii), (ix) due to the

redesignation of paragraph (k) (57 FR

4574). Pursuant to Public Law 103–279,

the NPS no longer has operating

responsibilities for the John F. Kennedy

Center for the Performing Arts. As a

result, the minor numbering corrections

suggested in the proposed rule are no

longer necessary. Instead, the final rule

removes reference to the Center by

eliminating 36 CFR 7.96(k)(3).

3. Summary/Conclusion

For all of the foregoing reasons, the

NPS believes that the display and

hawking of T-shirts, clothing and

similar items in connection with

authorized demonstrations has had an

unacceptable impact on the National

Capital Parks and the visitor experience.

Its extensive experience in monitoring

sales activities permitted under the

current sales enforcement guideline has

led the NPS to the firm conclusion that

those activities have brought discordant

and excessive commercialism to federal

park land. Such sales have degraded

aesthetic values, visitor circulation and

contemplation, interpretive programs

and historic scenes and have inhibited

the conservation of park property. It also

believes that no reasonable alternative is

available to the action here announced.

Therefore, the NPS believes it is

necessary to rescind the enforcement

guideline and to amend the sales

regulation to limit permissible sales to

books, newspapers, leaflets, pamphlets,

buttons and bumper stickers.

In the considered judgment of the

NPS, other measures have been found

inadequate to the problem and do not

provide a satisfactory level of protection

for park value resources in the areas.

When such sales activities have so

negatively impacted park land and the

park visitor, by turning the National

Mall, the ‘‘Nation’s front yard,’’ into a

flea market, the NPS believes it is

obligated to abate the problems caused

by such sales activities.

The NPS believes that limiting sales

activities to newspapers, leaflets,

pamphlets, books, buttons and bumper

stickers is a reasonable time, place, and

manner restriction. The restriction is

clearly content-neutral in that it applies

irrespective of the nature of the message

presented. It leaves open ample

alternative channels for communication

of the information. It also preserves the

integrity of park resources and provides

for the public enjoyment of our national

parks while leaving park resources

unimpaired for future generations. As

such, it constitutes a restriction which

is ‘‘narrowly tailored to serve a

significant government interest.’’

Drafting Information

The following persons participated in

the writing of this rule: John D. Leshy,

Solicitor, Richard G. Robbins and

Randolph J. Myers, Office of the

Solicitor, U.S. Department of the

Interior.

Compliance with Other Laws

This rule was reviewed under

Executive Order 12866. The Department

of the Interior determined that this

document will not have a significant

economic effect on a substantial number

of small entities under the Regulatory

Flexibility Act (5 USC 601 et seq.)

because general sales are already

prohibited in this area, and individuals

and groups seeking to sell as a part of

a demonstration or special event are free

to sell prohibited merchandise on

adjacent non NPS lands.

The NPS has determined that this

proposed rulemaking will not have a

significant effect on the quality of the

human environment, health and safety

because it is not expected to:

(a) Increase public use to the extent of

compromising the nature and character

of the area or causing physical damage

to it;

(b) Introduce incompatible uses that

compromise the nature and character of

the area or causing physical damage to

it;

(c) Conflict with adjacent ownerships

or land uses; or

(d) Cause a nuisance to adjacent

owners or occupants.

Based on this determination, and in

accord with the procedural

requirements of the National

Environmental Policy Act (NEPA), and

by Departmental guidelines in 516 DM

6 (49 FR 21438), neither an

Environmental Assessment (EA) nor an

Environmental Impact Statement (EIS)

has been prepared.

This final rule does not contain

information collection requirements that

require approval by the Office of

Management and Budget under 44

U.S.C. 3501 et seq.

The NPS has reviewed this final rule

as directed by Executive Order 12630

and has determined that the regulation

does not have taking implications.

The Department of the Interior has

certified to the Office of Management

and Budget that this final rule meets the

applicable standards provided in

section 2(a) and 2(b)(2) of Executive

Order 12778.

List of Subjects in 36 CFR Part 7

National parks; Reporting and

recordkeeping requirements.

In consideration of the foregoing, 36

CFR Chapter I is amended as follows:
Federal Register / Vol. 60, No. 67 / Friday, April 7, 1995 / Rules and Regulations 17649

PART 7—SPECIAL REGULATIONS,

AREAS OF THE NATIONAL PARK

SYSTEM

1. The authority citation for part 7

continues to read as follows:

Authority: 16 U.S.C. 1, 3, 9a, 460(q),

462(k); Sec. 7.96 also issued under D.C. Code

8–137 (1981) and D.C. Code 40–721 (1981).

2. Section 7.96 is amended by revising

paragraph (k)(2) to read as follows:

§ 7.96 National Capital Region Parks.

* * * * *

(k) * * *

(1) * * *

(2) No merchandise may be sold

during the conduct of special events or

demonstrations except for books,

newspapers, leaflets, pamphlets, buttons

and bumper stickers. A permit is

required for the sale or distribution of

permitted merchandise when done with

the aid of a stand or structure. Such

stand or structure may consist of one

table per site, which may be no larger

than 21⁄2 feet by 8 feet or 4 feet by 4 feet.

The dimensions of a sales site may not

exceed 6 feet wide by 15 feet long by 6

feet high. With or without a permit,

such sale or distribution is prohibited in

the following areas:

* * * * *

3. Section 7.96 paragraph (k)(3) is

removed.

4. Section 7.96 paragraph (k)(4) is

redesignated as paragraph (k)(3).

Dated: March 14, 1995.

George T. Frampton, Jr.,

Assistant Secretary, Fish and Wildlife and

Parks.

[FR Doc. 95–8599 Filed 4–6–95; 8:45 am]

BILLING CODE 4310–70–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 258

[FRL–5186–1]

RIN 2050–AE27

Financial Assurance Effective Date for

Owners and Operators of Municipal

Solid Waste Landfill Facilities

AGENCY: Environmental Protection

Agency [EPA].

ACTION: Final rule.

SUMMARY: The Environmental Protection

Agency is amending the criteria for

Municipal Solid Waste Landfills

(MSWLFs) under subtitle D of the

Resource Conservation and Recovery

Act (RCRA), 42 U.S.C. 6921 et seq., by

delaying the effective date of the

Financial Assurance Criteria set out at

40 CFR part 258, subpart G, until April

9, 1997. The extension applies to any

size MSWLF, including remote, very

small landfills as defined at 40 CFR

258.1(f)(1), and delays the compliance

date for MSWLFs by two years, from

April 9, 1995 until April 9, 1997 (for

remote, very small landfills by 18

months, from October 9, 1995 until

April 9, 1997).

EFFECTIVE DATE: The amendments in this

final rule are effective March 31, 1995.

The effective date of subpart G of part

258 (§§ 258.70 through 258.74) which

was added at 56 FR 51016 is delayed

until April 9, 1997.

ADDRESSES: The docket for this

rulemaking is available for public

inspection at Room M–2616, U.S. EPA,

401 M Street SW., Washington, DC

20460 from 9 a.m. to 4 p.m., Monday

through Friday, excluding holidays. The

docket number is F–95–FADF-FFFFF.

Call (202) 260–9327 to make an

appointment with the docket clerk. As

provided in 40 CFR Part 2, a reasonable

fee may be charged for copying services.

FOR FURTHER INFORMATION CONTACT: The

RCRA Hotline toll free at (800) 424–

9346 or in Washington, D.C. at (703)

412–9810, from 8:30 a.m. to 7:30 p.m.

EST, Monday through Friday, excluding

holidays; or Nancy Hunt, Office of Solid

Waste (5303W), U.S. Environmental

Protection Agency, 401 M Street SW,

Washington, DC 20460 at (703) 308–

8762.

SUPPLEMENTARY INFORMATION:

Preamble Outline

I. Authority.

II. Background.

III. Response to Comments and Analysis of

Issues.

A. Support for Extension.

B. Opposition to Extension.

C. Local Governments.

D. Remote/Very Small Landfills.

E. Unfunded Mandate.

IV. Effective Date.

V. Economic and Regulatory Impacts.

A. Executive Order 12866.

B. Regulatory Flexibility Act.

C. Paperwork Reduction Act.

I. Authority

These amendments to Title 40, part

258, of the Code of Federal Regulations

are promulgated under the authority of

sections 1008(a)(3), 2002(a), 4004(a),

and 4010(c) of the Resource

Conservation and Recovery Act (RCRA),

as amended, 42 U.S.C. 6907(a)(3),

6912(a), 6944(a), and 6949a(c).

II. Background

The Agency proposed revised criteria

for municipal solid waste landfills

(MSWLFs), including financial

assurance requirements, on August 30,

1988 (see 53 FR 33314). The purpose of

the financial assurance requirements is

to assure that adequate funds will be

readily available to cover the costs of

closure, post-closure care, and

corrective action associated with

MSWLFs.

In the August 30, 1988 proposal,

rather than proposing specific financial

assurance mechanisms, the Agency

proposed a financial assurance

performance standard. The Agency

solicited public comment on this

performance standard approach and, at

the same time, requested comment on

whether the Agency should develop

financial test mechanisms for use by

local governments and corporations.

In response to comment, the Agency

promulgated several specific financial

mechanisms in the October 9, 1991 final

rule on MSWLF criteria (56 FR 50978),

in addition to the financial assurance

performance standard of section 258.74,

which allows approved States to use

any State-approved mechanism that

meets that performance standard.

Commenters on the August 30, 1988

proposal also supported the

development of financial tests for local

governments and for corporations to

demonstrate that they can satisfy the

goals of financial assurance on their

own, without the need to produce a

third-party instrument to assure that the

obligations associated with their landfill

will be met. The Agency agreed with

commenters and in the October 9, 1991

preamble, announced its intention to

develop both a local government and

corporate financial test in advance of

the effective date of the financial

assurance provisions.

The Agency has delayed the effective

date of the financial responsibility

provisions until April 9, 1995 (see 58 FR

51536) in order to provide adequate

time to promulgate a financial test for

local governments and another for

corporations before the effective date of

the financial assurance provisions. The

delayed effective date also was intended

to provide owners and operators

sufficient time to determine whether

they satisfy the applicable financial test

criteria for all of the obligations

associated with their facilities, and to

obtain a guarantor or an alternate

instrument, if necessary. The Agency

also recognized that local governments,

in particular, require notice of the

requirements in order to plan their

budgets for the upcoming year.

The Agency proposed a local

government financial test and a

corporate financial test on December 27,

1993 (see 58 FR 68353) and October 12,