[Federal Register Volume 78, Number 168 (Thursday, August 29, 2013)]
[Proposed Rules]
[Pages 53383-53386]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-21060]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 12

[NPS-WASO-REGS-13553; PXXVPAD0515]
RIN 1024-AE01


National Cemeteries, Demonstration, Special Event

AGENCY: National Park Service, Interior.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The National Park Service is proposing to revise the 
definition of the terms demonstration and special event, applicable to 
the national cemeteries administered by the National Park Service.

DATES: Comments must be received by October 28, 2013.

ADDRESSES: You may submit your comments, identified by Regulation 
Identifier Number (RIN) 1024-AE01, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail to: A.J. North, Regulations Program, National Park 
Service, 1849 C Street NW., MS-2355, Washington, DC 20240.
    Instructions: All submissions received must include the agency name 
and RIN for this rulemaking. All comments received will be posted 
without change to http://www.regulations.gov, including any personal 
information provided. For additional information, see the Public 
Participation heading of the SUPPLEMENTARY INFORMATION section of this 
document.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: A.J. North, National Park Service 
Regulations Program, by telephone: 202-513-7742 or email: waso_regulations@nps.gov.

SUPPLEMENTARY INFORMATION: 

Background

    The National Park Service (NPS) is responsible for protecting and 
managing

[[Page 53384]]

fourteen national cemeteries, which are administered as integral parts 
of larger NPS historical units. A list of the national cemeteries 
managed by the NPS may be viewed at http://www.cem.va.gov/cem/cems/doi.asp.
    The national cemeteries administered by the NPS were established as 
national shrines in tribute to the gallant dead who have served in the 
Armed Forces of the United States. These cemeteries are to be 
protected, managed, and administered as suitable and dignified burial 
grounds and as significant cultural resources. In 1986, the NPS 
comprehensively revised the Part 12 rules that govern the NPS 
administered national cemeteries to comply with Federal statutory law 
and to update and standardize procedures for the operation of national 
cemeteries (51 FR 8976, March 14, 1986). As part of this revision, 
Sec.  12.2 was amended to prohibit ``conducting special events and 
demonstrations, except for official commemorative events on Memorial 
Day, Veterans Day, and other dates designated by the superintendent as 
having special historic and commemorative significance for the 
particular national cemetery.'' As more extensively detailed at 51 FR 
8977 (March 14, 1986), this is because these national cemeteries are 
intended to have a protected atmosphere of peace, calm, tranquility, 
and reverence where there is ``a substantial governmental interest that 
exists in maintaining this protected atmosphere where individuals can 
quietly contemplate and reflect upon the significance of the 
contributions made to the nation by those interred.''
    The term demonstration was added to Sec.  12.3 and defined to mean 
``a demonstration, picketing, speechmaking, marching, holding a vigil 
or religious service or any other like form of conduct that involves 
the communication or expression of views or grievances, whether engaged 
in by one or more persons, that has the intent, effect or likelihood to 
attract a crowd or onlookers. This term does not include casual park 
use by persons that does not have an intent or likelihood to attract a 
crowd or onlookers.''
    The term special event was also added and defined as ``a sports 
event, pageant, celebration, historical reenactment, entertainment, 
exhibition, parade, fair, festival or similar activity that is not a 
demonstration, whether engaged in by one or more persons, that has the 
intent, effect or likelihood to attract a crowd or onlookers. This term 
does not include casual park use by persons that does not have an 
intent or likelihood to attract a crowd or onlookers.''

Concerns Over the Definition of the Term ``Demonstration''

    In Boardley v. Department of the Interior, 605 F.Supp. 2d 8 (D.D.C. 
2009), the United States District Court for the District of Columbia 
noted that the NPS's definition of the term demonstration in 36 CFR 
2.51(a) and 7.96(g)(1)(i) could pose a problem on the scope of the 
agency's discretion, insofar as it could be construed to allow NPS 
officials to restrict speech based on their determination that a person 
intended to draw a crowd with their conduct. The NPS had not applied, 
nor intended to apply, its regulations in an impermissible manner. 
Nevertheless, to address the District Court's concerns in Boardley, the 
NPS narrowed the definition of demonstration in an interim general rule 
governing demonstration and the sale and distribution of printed matter 
for most of the National Park System (75 FR 64148, Oct. 19, 2010). This 
rule was amended and finalized on June 24, 2013 (78 FR 37713). In 
response to Boardley, the NPS also issued a final rule that narrowed 
the NPS's National Capital Region definition of demonstration at Sec.  
7.96 (78 FR 14673, March 7, 2013).
    The new definition of demonstration in 36 CFR 2.51 and 7.96 
provided a ``reasonably likely'' standard--rather than an ``effect, 
intent or propensity'' standard--to ensure the necessary objectivity in 
the regulatory process, while negating the possibility of a permit 
being granted or rejected on impermissible grounds. The NPS also 
determined that the ``reasonably likely'' standard is easily and 
consistently understood.

Proposed Rule

    The national cemeteries administered by the NPS have been set aside 
as resting places for members of the fighting forces of the United 
States. Many activities and events that may be appropriate in other 
park areas are inappropriate in a national cemetery because of its 
protected atmosphere of peace, calm, tranquility, and reverence. The 
NPS continues to maintain its substantial interest in maintaining this 
protected atmosphere in its national cemeteries, where individuals can 
quietly visit, contemplate, and reflect upon the significance of the 
contributions made to the nation by those who have been interred there.
    The NPS also desires to maintain consistency in the regulations 
governing demonstrations and special events in park units, including 
national cemeteries. Accordingly, the proposed amended definition of 
the term demonstration in Sec.  12.3 would mirror the language now used 
36 CFR 2.51 and 7.96. The proposed amended definition of the term 
special event in Sec.  12.3 would also contain nearly identical 
language. To avoid the possibility of a decision based on impermissible 
grounds, the proposed rule would revise the Sec.  12.3 definitions of 
demonstration and special event by eliminating the terms ``intent, 
effect, or likelihood'' and replacing them with the term ``reasonably 
likely to draw a crowd or onlookers.'' While these proposed revisions 
would not substantively alter the Sec.  12.4 prohibition of special 
events and demonstrations within national cemeteries, it would more 
clearly and consistently define these terms.

Compliance With Other Laws, Executive Orders, and Department Policy

Regulatory Planning and Review (Executive Orders 12866 and 13563).

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. OIRA has determined that this rule is not 
significant.
    Executive Order 13563 reaffirms the principles of Executive Order 
12866 while calling for improvements in the nation's regulatory system 
to promote predictability, to reduce uncertainty, and to use the best, 
most innovative, and least burdensome tools for achieving regulatory 
ends. The executive order directs agencies to consider regulatory 
approaches that reduce burdens and maintain flexibility and freedom of 
choice for the public where these approaches are relevant, feasible, 
and consistent with regulatory objectives. Executive Order 13563 
emphasizes further that regulations must be based on the best available 
science and that the rulemaking process must allow for public 
participation and an open exchange of ideas. We have developed this 
rule in a manner consistent with these requirements.

Regulatory Flexibility Act (RFA)

    This rule will not have a significant economic effect on a 
substantial number of small entities under the RFA (5 U.S.C. 601 et 
seq.).

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2), the SBREFA. 
This rule:
    (a) Does not have an annual effect on the economy of $100 million 
or more.
    (b) Will not cause a major increase in costs or prices for 
consumers,

[[Page 53385]]

individual industries, Federal, State, or local government agencies, or 
geographic regions.
    (c) Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.

Unfunded Mandates Reform Act (UMRA)

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local or tribal governments or the private sector. It addresses public 
use of national park lands, and imposes no requirements on other 
agencies or governments. A statement containing the information 
required by the UMRA (2 U.S.C. 1531 et seq.) is not required.

Takings (Executive Order 12630).

    This rule does not affect a taking of private property or otherwise 
have taking implications under Executive Order 12630. A takings 
implication assessment is not required.

Federalism (Executive Order 13132)

    Under the criteria in section 1 of Executive Order 13132, the rule 
does not have sufficient federalism implications to warrant the 
preparation of a Federalism summary impact statement. This proposed 
rule only affects use of NPS administered lands and waters. It has no 
outside effects on other areas. A Federalism summary impact statement 
is not required.

Civil Justice Reform (Executive Order 12988)

    This rule complies with the requirements of Executive Order 12988. 
Specifically, this rule:
    (a) Meets the criteria of section 3(a) requiring that all 
regulations be reviewed to eliminate errors and ambiguity and be 
written to minimize litigation; and
    (b) Meets the criteria of section 3(b)(2) requiring that all 
regulations be written in clear language and contain clear legal 
standards.

Consultation With Indian Tribes (Executive Order 13175 and Department 
Policy)

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Indian tribes through a 
commitment to consultation with Indian tribes and recognition of their 
right to self-governance and tribal sovereignty. We have evaluated this 
rule under the Department's consultation policy and under the criteria 
in Executive Order 13175 and have determined that it has no substantial 
direct effects on federally recognized Indian tribes and that 
consultation under the Department's tribal consultation policy is not 
required.

Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.)

    This rule does not contain information collection requirements, and 
a submission to the Office of Management and Budget under the PRA is 
not required.

National Environmental Policy Act (NEPA)

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. A detailed statement 
under the NEPA of 1969 is not required because we have determined the 
rule is categorically excluded under 43 CFR 46.210(i) because it is 
administrative, legal, and technical in nature. We have also determined 
that the rule does not involve any of the extraordinary circumstances 
listed in 43 CFR 46.215 that would require further analysis under NEPA.

 Effects on the Energy Supply (Executive Order 13211)

    This rule is not a significant energy action under the definition 
in Executive Order 13211. A Statement of Energy Effects in not 
required.

Clarity of This Rule

    We are required by Executive Orders 12866 (section 1(b)(12)) and 
12988 (section 3(b)(1)(B)) and by the Presidential Memorandum of June 
1, 1998, to write all rules in plain language. This means that each 
rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that you find unclear, which sections or sentences are 
too long, the sections where you feel lists or tables would be useful, 
etc.
    Drafting Information: The primary author of this regulation was C. 
Rose Wilkinson, National Park Service, Regulations and Special Park 
Uses, Washington, DC.

Public Participation

    It is the policy of the Department of the Interior, whenever 
practicable, to afford the public an opportunity to participate in the 
rulemaking process. Accordingly, interested persons may submit written 
comments regarding this proposed rule by one of the methods listed in 
the ADDRESSES section. All comments must be received by midnight of the 
close of the comment period. Bulk comments in any format (hard copy or 
electronic) submitted on behalf of others will not be accepted.

Public Availability of Comments

    Before including your address, phone number, email address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

List of Subjects in 36 CFR Part 12

    Cemeteries, Military personnel, National parks, Reporting and 
recordkeeping requirements, Veterans.

    In consideration of the foregoing, the National Park Service 
proposes to amend 36 CFR Part 12 as follows:

PART 12--NATIONAL CEMETERIES

0
1. The authority citation for Part 12 continues to read as follows:

    Authority:  16 U.S.C. 1, 3, 9a, and 462(k); E.O. 6166, 6228, and 
8428.

0
2. Revise the part heading as set forth above.
0
3. Amend Sec.  12.3 by revising definitions of ``Demonstration'' and 
``Special event'' to read as follows:


Sec.  12.3  Definitions.

* * * * *
    Demonstration means a demonstration, picketing, speechmaking, 
marching, holding a vigil or religious service, or any other like form 
of conduct that involves the communication or expression of views or 
grievances, engaged in by one or more persons, the conduct of which is 
reasonably likely to attract a crowd or onlookers. This term does not 
include

[[Page 53386]]

casual park use by persons that is not reasonably likely to attract a 
crowd or onlookers.
* * * * *
    Special event means a sports event, pageant, celebration, 
historical reenactment, entertainment, exhibition, parade, fair, 
festival, or similar activity that is not a demonstration, engaged in 
by one or more persons, the conduct of which is reasonably likely to 
attract a crowd or onlookers. This term does not include casual park 
use by persons that is not reasonably likely to attract a crowd or 
onlookers.
* * * * *

    Dated: August 6, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-21060 Filed 8-28-13; 8:45 am]
BILLING CODE 4312-EJ-P