[Federal Register Volume 83, Number 10 (Tuesday, January 16, 2018)]
[Rules and Regulations]
[Pages 2065-2069]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-00515]
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DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Part 2
[NPS-WASO-23396; GPO Deposit Account 4311H2]
RIN 1024-AE32
General Regulations; Areas of the National Park System, Free
Distribution of Other Message-Bearing Items
AGENCY: National Park Service, Interior.
ACTION: Final rule.
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SUMMARY: The National Park Service revises its general rule governing
the sale or distribution of printed matter to include the free
distribution of message-bearing items that do not meet the regulatory
definition of ``printed matter.'' This change gives visitors an
additional channel of communication while protecting the resources and
values of the National Park System.
DATES: This rule is effective on February 15, 2018.
FOR FURTHER INFORMATION CONTACT: Lee Dickinson, Special Park Use
Program Manager, at (202) 513-7092 or [email protected].
SUPPLEMENTARY INFORMATION:
Background
Authority and Jurisdiction To Promulgate Regulations
In the National Park Service (NPS) Organic Act (54 U.S.C. 100101),
Congress granted the NPS broad authority to regulate the use of areas
under its jurisdiction. The Organic Act authorizes the Secretary of the
Interior, acting through the NPS, to ``prescribe such regulations as
the Secretary considers necessary or proper for the use and management
of [National Park] System units.'' 54 U.S.C. 100751(a).
National Park System
Consisting of over 400 units in 50 states, the District of Columbia
and multiple territories, the National Park System covers more than 84
million acres. These units are located in a wide range of environments
as diverse as the United States itself. The size of these units also
varies tremendously, ranging from Wrangell-St. Elias National Park and
National Preserve, Alaska, at 13.2 million acres, to Thaddeus
Kosciuszko National Memorial, Pennsylvania, at 0.02 acres.
About one-third of the units--such as Great Smoky Mountains
National Park, Tennessee; Grand Canyon National Park, Arizona;
Everglades National Park, Florida; and Hawaii Volcanoes National Parks,
Hawaii--preserve nature's many and varied gifts to the nation. The
other two-thirds of the units recognize benchmarks of human history in
America. These units protect elements of great native cultures, far
older than European exploration and settlement; preserve battle sites
from the Revolutionary and Civil Wars--including the key surrender
fields of both great conflicts; embrace Thomas Edison's New Jersey
laboratories where he and his staff led a technological revolution more
dramatic even than the coming of the computer age; and more. These
historical park units reflect the development of both art and industry
in America, along with landmarks of social and political change.
As a broader understanding of history took hold, the National Park
System eventually grew to include the historic homes of civil rights,
political, and corporate leaders, and the lands of the poor, struggling
to build lives for themselves on a Nebraska homestead claim or in an
urban community. The National Park System now embraces the birthplace,
church, and grave of Dr. Martin Luther King at Martin Luther King, Jr.
National Historical Site, Georgia; the birth of jazz at New Orleans
Jazz National Historical Park, Louisiana; the flowering of a literary
giant at the Eugene O'Neill National Historical Site, California; and
the artistic grace of a great sculptor's studios at Saint-Gaudens
National Historical Site, New Hampshire. Because of the lessons they
help us remember, the National Park System also includes the Japanese
American World War II internment camp in the desert at Manzanar
National Historical Site, California, as well as Andersonville National
Historical Site, Georgia, one of the very bleakest of the Civil War
prison sites.
The National Park System is habitat for 247 threatened or
endangered species, has more than 167 million items in museum
collections, has 75,000 archaeological sites, and 27,000 historic and
prehistoric structures. The National Park System also has an extensive
physical infrastructure, which includes thousands of buildings, tens of
thousands of miles of trails and roads,
[[Page 2066]]
and almost 30,000 housing units, campgrounds, and picnic areas as well
as 3,000 water and waste water treatment systems.
Over 325 million visitors visited the National Park System in 2016,
where visitors find not only visual, educational, and recreational
experiences but also inspirational, contemplative, and spiritual
experiences. For Native Americans, certain national parks are also
considered sacred religious sites, where the NPS asks visitors to
respect these long-held beliefs, such as by voluntarily not walking
under a natural bridge.
Final Rule
First Amendment activities in units of the National Park System are
governed by longstanding but ever-evolving First Amendment
jurisprudence; by the statutes and regulations governing the National
Park System as a whole; and by park-specific statutes and regulations.
Title 36 CFR 2.52 currently allows the sale or distribution only of
printed matter and only in areas of a park designated by the
superintendent. The regulation defines ``printed matter'' as ``message-
bearing textual printed material such as books, pamphlets, magazines,
and leaflets, provided that it is not solely commercial advertising.''
The NPS recognizes, however, that items other than ``printed matter''
may also contain or present speech, either literal or symbolic, that is
not solely commercial and whose expression may be protected by the
First Amendment. Accordingly, the NPS is revising its regulations to
allow the free distribution of message-bearing items other than printed
matter in areas of a park designated by the superintendent, subject to
compliance with the regulations at 36 CFR 2.51 and 2.52. These items
include readable electronic media like CDs, DVDs, and flash drives;
articles of clothing like hats and accessories like buttons and pins;
key chains; and bumper stickers.\1\
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\1\ This rule therefore enshrines in regulation NPS Policy
Memorandum 14-01,(January 28, 2014), which requires superintendents
to allow the free distribution of message-bearing items to the
public other than printed matter, so long as the activity occurs
within an area designated as available for First Amendment
activities under 36 CFR 2.51(c)(l) and otherwise complies with 36
CFR 2.52.
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Under the rule, message-bearing items other than printed matter may
not be sold within a park unit; they may only be distributed free of
charge. This restriction is necessary to prevent the proliferation of
unregulated commercial activity that would be inconsistent with park
resources and values, that would impinge upon and degrade park scenery,
and that would disrupt the visitor experience in many park units.
The revision to Sec. 2.52 to allow the free distribution of other
message-bearing items is consistent with the NPS's National Capital
Region (NCR) regulation at 36 CFR 7.96(k). As discussed in the
preambles to the proposed and final rules for the NCR regulation, 59 FR
25855 (1994) and 60 FR 17639 (1995), the NPS promulgated Sec. 7.96 to
resolve serious issues created by unregulated sales of merchandise on
NPS-administered lands that resulted in conflicting and excessive
commercialism; degraded aesthetic values; had negative impacts on
visitor circulation and contemplation and historic scenes; and
inhibited the conservation of park property. In upholding the
constitutionality of the NCR regulation limiting the sales of such
items, the U.S. Court of Appeals for the District of Columbia Circuit
found that the regulation was ``content neutral'' and ``narrowly
tailored to serve significant government interests'' and offered
``ample alternative channels of communication'' insofar as ``members
may display and give the audio tapes and [religious] beads to members
of the public so long as they do not try to exact a payment or request
a donation in exchange for them.'' ISKCON of Potomac v. Kennedy, 61
F.3d 949, 952, 958 (D.C. Cir. 1995).
Summary of and Responses to Public Comments on the Proposed Rule
The NPS published the proposed rule on October 14, 2016 (81 FR
71026) with request for public comment through the Federal eRulemaking
portal at www.regulations.gov, or by mail or hand delivery. The 60-day
comment period ended on December 13, 2016. A total of 26 comments were
received. The NPS evaluated these comments when developing this final
rule. A summary of comments and NPS responses is provided below. Many
comments supported the rule and expressed gratitude that it provides an
alternative means of communication in national parks. After taking the
public comments into consideration and after additional review, the NPS
has not made any substantive changes in the final rule. A few
conforming edits to 36 CFR 2.51 and 2.52 are included in this final
rule. These changes simply add references to the free distribution of
other message-bearing items to reflect the substantive revisions to
section 2.52 that were included in the proposed rule.
1. Comment: Some commenters were concerned that the rule would lead
to the commercialization of national parks and take away from the
serenity and beauty of the environment. One commenter suggested that
the rule should prohibit the sale of printed matter as well as other
message-bearing items in order to prevent rampant consumerism in
national parks. Several commenters suggested that the rule prohibit all
items that include or function as commercial advertising, or any items
that are predominantly or primarily commercial advertising, rather than
only prohibiting those items that are ``solely commercial
advertising.'' One commenter stated that t-shirts, even when given away
for free, are primarily used as marketing devices and not to
communicate information.
NPS Response: The rule only allows the free distribution of other
message-bearing items. Asking for or requiring payment or donations in
exchange for these items is prohibited without written authorization
under 36 CFR 5.3 (Business operations) or 36 CFR 2.37 (Noncommercial
soliciting). The NPS will use the permit process to ensure that the
free distribution of other message-bearing items will not result in the
commercialization of national parks and the degradation of park values
and visitor experiences. This activity will only be allowed in areas
designated as available for First Amendment activities by the
Superintendent.
Items with some amount of commercial advertising may also contain
protected speech under the First Amendment. For this reason, the free
distribution of these items is properly regulated under 36 CFR 2.52
rather than 36 CFR 5.3, which focuses on business operations. Examples
may include t-shirts and water bottles that contain a message unrelated
to commercial advertising that are freely distributed by a corporate
sponsor at a permitted event. Although these items may also contain a
logo or other mark associated with the company, they are not solely
commercial advertising and are therefore subject to regulations
addressing speech rather than business operations.
2. Comment: One commenter questioned the basis for allowing the
sale of printed matter, but not the sale of other message-bearing
items, when both may contain speech protected by the First Amendment.
NPS Response: Experiences on the National Mall and in other
national parks suggest that other message bearing items such as t-
shirts, mugs, hats, and jewelry are more likely than printed matter to
be sold primarily as a commercial enterprise rather than as part of a
sincere First Amendment activity. In the past, the proliferation of
sales of other message bearing items has
[[Page 2067]]
degraded the purposes and values of the National Park System in manner
not experienced with the sale of printed matter that is primarily
focused on communicating a message. The distinction in this rule
between printed matter and other message bearing items will provide the
public with a broader opportunity to engage in protected speech without
opening national parks to unchecked commerce. The sale of an unlimited
range of message bearing merchandise, including t-shirts, would
negatively impact park resources and values as well as the visitor
experience. In order to sell other message bearing items in national
parks, written authorization must be obtained under 36 CFR 5.3.
3. Comment: Several commenters were concerned that allowing the
free distribution of other message-bearing items will result in litter
and waste that will harm resources, including wildlife, and the ability
of visitors to enjoy national parks. These commenters were concerned
about items such as CDs and keychains that are made out of plastic and
other materials that are not biodegradable and are costly to recycle.
NPS Response: Groups of more than 25 people who wish to freely
distribute other message bearing items must obtain a permit that will
contain terms and conditions addressing the proper disposal of litter
and waste. These items will not be allowed to be distributed outside of
designated First Amendment areas, reducing their impact on more
unspoiled and sensitive areas of the Parks. Designated First Amendment
areas are generally developed and have more foot traffic and nearby
amenities such as trash and recycling cans. National parks have
existing programs in place to collect and dispose of litter that will
help mitigate any incremental waste associated with the free
distribution of these items. The NPS will not regulate substantially
more speech than necessary to implement the NPS's substantial
government interest in protecting park resources from impairment. This
rule allows the exercise of protected speech. The NPS has determined
that any additional measures the NPS could take at this time to prevent
additional litter associated with this speech, including, for example,
prohibiting the free distribution of plastic message bearing items, are
unnecessary. If the NPS determines at a later date that additional
management actions are needed to address increases in litter
attributable to message-bearing items, then the NPS will consider
appropriate responses, including new terms and conditions to permits
and changes to this rule.
4. Comment: Some commenters felt that the free distribution of
other message-bearing items will lead to an influx of visitors and
material objects, such as t-shirts and keychains, to national parks,
which will degrade the natural beauty, contemplative quality, and
integrity of these areas. One commenter suggested that the rule allow
the Superintendent to deny a permit application based upon the severity
of impacts to park resources and values imposed by these items. One
commenter was concerned about audio and visual pollution from the
distribution of these items that will harm park resources and values.
NPS Response: There are several protections in place that will
mitigate the impacts of this activity on park values and resources.
Groups of more than 25 people who wish to freely distribute other
message bearing items must obtain a permit that will contain terms and
conditions that will address potential impacts. The Superintendent may
deny a permit if the number of persons engaged in the distribution
cannot be reasonably accommodated, considering such things as damage to
park resources or facilities, impairment of a protected area's
atmosphere of peace and tranquility, interference with program
activities, or impairment of public use facilities. 36 CFR 2.52(e). The
free distribution of other message-bearing items may only occur in
locations designated under 36 CFR 2.51(c). These locations may only be
designated if the free distribution of other message-bearing items in
these locations would not (i) cause injury or damage to park resources;
(ii) unreasonably impair the atmosphere of peace and tranquility
maintained in wilderness, natural, historic, or commemorative zones; or
(iii) be incompatible with the nature and traditional use of the
particular park area.
5. Comment: Some commenters were concerned that the content of
other message-bearing items could be offensive or contain political
messages that are not appropriate in national parks.
NPS Response: Similar to other types of protected speech that
occurs in the National Park System, the NPS does not regulate the
content of protected speech contained in other message- bearing items.
6. Comment: One commenter suggested that the NPS define other
message-bearing items by a closed list of items that meet the
definition, rather than an open-ended definition that lists only
examples of items that qualify. This commenter felt that an exclusive
list would relieve park managers from the burden of having to identify
which items are message-bearing on a case-by-case basis.
NPS Response: A non-exhaustive list of things that qualify as other
message-bearing items gives the NPS more flexibility than a closed list
to determine which items are message- bearing. This will allow the NPS
to adapt to the introduction of new message-bearing technologies such
as digital downloads and other means of delivering electronic content.
7. Comment: One commenter suggested that the rule establish
standard locations in all national park units that are designated for
First Amendment activities, including the free distribution of other
message-bearing items, in order to preserve the integrity of the parks.
This commenter suggested visitor centers or information kiosks as
potential places that could be designated across the National Park
System.
NPS Response: NPS regulations at 36 CFR 2.51 require
Superintendents to identify on a map the locations that are designated
for demonstrations and the sale and distribution of printed matter. As
stated above, these locations must meet certain criteria that will help
address the commenter's concerns. This rule updates these regulations
to state that these locations are also designated for the free
distribution of other message-bearing items. The geography,
infrastructure, and frequency and size of First Amendment activities
are unique for each national park unit. This makes it difficult to
identify a standard location that can be designated as appropriate for
First Amendment activities in every unit. The NPS believes that the
Superintendents are in the best position to determine which areas in
the parks they manage are most appropriate for First Amendment
activities.
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 in the Office of Management and Budget will review
all significant rules. The Office of Information and Regulatory Affairs
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
[[Page 2068]]
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.
Reducing Regulation and Controlling Regulatory Costs (Executive Order
13771)
This rule is an E.O. 13771 deregulatory action because once
finalized, it will have costs less than zero.
Regulatory Flexibility Act
This rule will not have a significant economic effect on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). This rule will generate positive benefits
and no costs. This certification is based upon the cost-benefit and
regulatory flexibility analyses found in the report entitled ``Cost-
Benefit and Regulatory Flexibility Analyses: Proposed Regulation
Revisions for Free Distribution of Other Message-Bearing Items'' that
is available to the public upon request.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. 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, 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
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 Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is
not required.
Takings (Executive Order 12630)
This rule does not effect a taking of private property or otherwise
have takings 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 rule only
affects use of federally-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.
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 criteria in Executive Order 13175 and under the
Department's tribal consultation policy and have determined that tribal
consultation is not required because the rule will have no substantial
direct effect on federally recognized Indian tribes.
Paperwork Reduction Act
This rule does not contain any new collections of information that
require approval by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act. OMB has approved the information collection
requirements associated with NPS Special Park Use Permits and has
assigned OMB Control Number 1024-0026 (expires 01/31/20). An agency may
not conduct or sponsor and a person is not required to respond to a
collection of information unless it displays a currently valid OMB
control number.
National Environmental Policy Act of 1969
This rule does not constitute a major Federal action significantly
affecting the quality of the human environment. A detailed statement
under the National Environmental Policy Act of 1969 (NEPA) is not
required because the rule is covered by a categorical exclusion. We
have determined that the rule is categorically excluded under 516 DM
12.5(A)(10) as it is a modification of existing NPS regulations that
does not increase public use to the extent of compromising the nature
and character of the area or causing physical damage to it. Further,
the rule will not result in the introduction of incompatible uses which
might compromise the nature and characteristics of the area or cause
physical damage to it. Finally, the rule will not conflict with
adjacent ownerships or lands uses, or cause a nuisance to adjacent
owners or occupants.
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 is not
required.
List of Subjects in 36 CFR Part 2
Environmental protection, National parks, Reporting and
recordkeeping requirements.
In consideration of the foregoing, the National Park Service amends
36 CFR part 2 as set forth below:
PART 2--RESOURCE PROTECTION, PUBLIC USE AND RECREATION
0
1. The authority citation for part 2 continues to read as follows
Authority: 54 U.S.C. 100101, 100751, 320102.
0
2. Amend Sec. 2.51 by revising the section heading and paragraphs
(c)(1) introductory text and (c)(2) to read as follows:
Sec. 2.51 Demonstrations and designated available park areas.
* * * * *
(c) Designated available park areas. (1) Locations may be
designated as
[[Page 2069]]
available for demonstrations under this section, and for the sale or
distribution of printed matter and the free distribution of other
message-bearing items under Sec. 2.52, only if these activities would
not:
* * * * *
(2) The superintendent must designate on a map, which must be
available in the office of the superintendent and by public notice
under Sec. 1.7 of this chapter, the locations designated as available
for demonstrations, the sale or distribution of printed matter, and the
free distribution of other message bearing items.
* * * * *
0
3. Amend Sec. 2.52 by:
0
a. Revising the section heading;
0
b. Revising the paragraph (a) subject heading;
0
c. Adding two sentences at the end of paragraph (a);
0
d. Revising paragraph (b) introductory text; and
0
e. Revising paragraph (i) introductory text.
The revisions and additions to read as follows:
Sec. 2.52 Sale of printed matter and the distribution of printed
matter and other message-bearing items.
(a) Printed matter and other message-bearing items. * * * The term
``other message-bearing items'' means a message-bearing item that is
not ``printed matter'' and is not solely commercial advertising. Other
message-bearing items include, but are not limited to: Readable
electronic media such as CDs, DVDs, and flash drives; clothing and
accessories such as hats and key chains; buttons; pins; and bumper
stickers.
(b) Permits and the small group permit exception. The sale or
distribution of printed matter, and the free distribution of other
message-bearing items without asking for or demanding payment or
donation, is allowed within park areas if it occurs in an area
designated as available under Sec. 2.51(c)(2) and when the
superintendent has issued a permit for the activity, except that:
* * * * *
(i) Misrepresentation. Persons engaged in the sale or distribution
of printed matter or the free distribution of other message-bearing
items under this section are prohibited from misrepresenting the
purposes or affiliations of those engaged in the sale or distribution,
and misrepresenting whether the printed matter or other message-bearing
items are available without cost or donation.
* * * * *
Jason Larrabee,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks
Exercising the Authority of the Assistant Secretary for Fish and
Wildlife and Parks.
[FR Doc. 2018-00515 Filed 1-12-18; 8:45 am]
BILLING CODE 4312-52-P