[Federal Register Volume 79, Number 112 (Wednesday, June 11, 2014)]
[Rules and Regulations]
[Pages 33434-33436]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-13623]



National Park Service

36 CFR Part 12

[NPS-WASO-REGS-14841; PX.XVPAD0517.00.1; 1024-AE01]

National Cemeteries, Demonstration, Special Event

AGENCY: National Park Service, Interior.

ACTION: Final rule.


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

DATES: This rule is effective on July 11, 2014.

Regulations Program, by telephone: 202-513-7742 or email: [email protected].

SUPPLEMENTARY INFORMATION: We published a proposed rule on this subject 
in the Federal Register on August 29, 2013 (78 FR 53383). The proposed 
rule's comment period ended on October 28, 2013, and resulted in three 
timely submitted comments, a portion of which were duplicative of each 
other. After carefully considering the comments, we have decided to 
adopt the proposed rule unchanged. The comments and our considerations 
are summarized in this preamble under Consideration of Comments.


    The National Park Service (NPS) is responsible for protecting and 
managing 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 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.
    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 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 36 CFR 2.50, 2.51, and 
7.96 (78 FR 14673, March 7, 2013; 78 FR 37713, June 24, 2013).
    The NPS desires to maintain consistency in the regulations 
governing demonstrations and special events in park units, including 
our national cemeteries. Accordingly, we proposed to amend the terms 
demonstration and special event in Sec.  12.3 to mirror the language 
used in 36 CFR 2.51 and 7.96. To avoid the possibility of a decision 
based on impermissible grounds, the rule revises 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.'' These proposed 
revisions do not substantively alter the Sec.  12.4 prohibition of 
special events and demonstrations within national cemeteries.

Consideration of Comments

    Comment 1: The first commenter suggests the phrase ``that attracts 
or'' be added to the definition before the phrase ``is reasonably 
likely to attract.'' The commenter suggests this would help ``avoid 
quarrelsome demonstrator's [sic] efforts to subvert the rule's purpose 
by arguing what is `reasonably likely'.''
    Response: After review, we believe the suggested additional phrase 
is unnecessary. As explained in the proposed rule preamble, we believe 
that a ``reasonably likely'' standard is objective and easily and 
consistently understood. Further, this same standard has been 
successfully implemented in

[[Page 33435]]

NPS regulations governing ``demonstrations'' in 36 CFR 2.50, 2.51, and 
    Comment 2: The second commenter suggests that ``peaceful 
demonstrations or vigils'' should be allowed to occur in national 
cemeteries if they do not interfere with the NPS interests in 
maintaining a solemn atmosphere. The comment also suggests that while 
the NPS's revised definition is a more objective standard, it lacks a 
necessary mens rea requirement and guidance ``as to what is reasonably 
likely to draw a crowd.''
    Response: After review, the NPS respectfully disagrees. As detailed 
in the proposed rule, the NPS's national cemeteries were established as 
national shrines in tribute to the gallant dead of our Armed Forces, 
and are to be protected, managed, and administered as suitable and 
dignified burial grounds and as significant cultural resources. These 
national cemeteries are intended to have a protected atmosphere of 
peace, calm, tranquility, and reverence, where individuals should be 
able to quietly contemplate and reflect upon the significance of the 
contributions made to the nation by those interred. Because the NPS has 
a substantial governmental interest to maintain this protected 
atmosphere, we have determined that even ``peaceful'' demonstrations 
and vigils would have a negative impact on the cemeteries' atmosphere 
of peace, calm, tranquility, and reverence, and should be prohibited.
    Moreover, because the NPS national cemeteries are non-public 
forums, the NPS need not prove that a ``peaceful'' demonstration or 
vigil threatens the cemetery's intended use. The Supreme Court has said 
that such a determination is not necessary for nonpublic forums, where 
``[t]he State, no less than a private owner of property, has power to 
preserve property under its control for the use to which it is lawfully 
dedicated.'' ``We have not required that [proof of past disturbances or 
likelihood of future disturbances] be present to justify the denial of 
access to a non-public forum on grounds that the proposed use may 
disrupt the property's intended function.'' Perry Education Ass'n v. 
Perry Local Educators' Ass'n, 460 U.S. at 46, 52 n.12 (1983).
    The NPS rule does contain an implicit mens rea requirement, a 
criminal-intent element that courts generally find necessary for 
criminal regulations that impact First Amendment activity, and which 
may be found either in the rule's text, its regulatory history, or 
presumed by the courts. Finally, for the reasons earlier detailed, we 
believe that the ``reasonably likely'' standard is well understood.
    Comment 3: The third commenter argues that the verb form definition 
of the word ``conduct'' and the phrase ``casual park use'' are 
ambiguous, suggests these could be construed to prohibit a mother who 
``inadvertently lets out a wail of despair'' at the grave of her 
deceased son, and recommends that the word ``conduct'' be deleted.
    Response: After review, we believe that neither the word nor phrase 
is ambiguous, when one fully considers the NPS's complete two-sentence 
definition. The NPS notes that the word ``conduct'' is being used in 
its noun form, which addresses the manner in which a person behaves, 
and which the commenter concedes is not ambiguous. As earlier 
explained, the regulation's ``reasonably likely'' standard is also well 
understood. As such, an expression of grief that is uttered by a mother 
at her son's grave-side would not fall within the definition of a 
demonstration, especially since the national cemeteries are ``where 
individuals can quietly visit, contemplate, and reflect upon the 
significance'' of the interned. (78 FR 53384, August 29, 2013)
    For the reasons detailed here and in the proposed rule, and 
consistent with First Amendment jurisprudence, the NPS is accordingly 
finalizing unchanged its proposed revised definitions of the terms 
demonstrations and special events at 36 CFR 12.3.

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 
    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 

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, 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

[[Page 33436]]

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 

Consultation With Indian Tribes (Executive Order 13175 and Department 

    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 

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 the 

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 
    Drafting Information: The primary author of this regulation was C. 
Rose Wilkinson, National Park Service, Regulations and Special Park 
Uses, Washington, DC.

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 amends 
36 CFR Part 12 as follows:


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 

2. Revise the part heading as set forth above.
3. Amend Sec.  12.3 by revising the 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 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 
* * * * *

    Dated: May 27, 2014.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2014-13623 Filed 6-10-14; 8:45 am]