National Capital Region Parks; Special Regulations

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 T-shirt 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 T-shirt 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 T-shirts 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, [[Page 17640]] 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 world-recognized 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 [[Page 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 [[Page 17642]] 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 T-shirts, 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 message-bearing 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

[[Page 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 shorter-term 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, non-demonstrating 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 message-related 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 [[Page 17644]] 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 message-bearing 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 non-

commercial 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 short-term 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 T-shirts 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 [[Page 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 T-shirt 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 T-shirts 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 ink-

stamped ``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, semi-

permanent 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

[[Page 17646]] 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 T-shirt 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 2\1/2\ 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 2\1/2\ 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 T-shirt 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. [[Page 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 [[Page 17648]] 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: [[Page 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:

Sec. 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 2\1/2\ 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