[Federal Register Volume 78, Number 168 (Thursday, August 29, 2013)]
[Proposed Rules]
[Pages 53383-53386]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-21060]
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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.
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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: [email protected].
SUPPLEMENTARY INFORMATION:
Background
The National Park Service (NPS) is responsible for protecting and
managing
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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,
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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]
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