Federal Register, Vol. 47, No. 108
Friday, June 4, 1982 ... Part 2
Rules and Regulations

SUPPLEMENTARY INFORMATION: The following persons participated in the writing of this regulation: Richard G. Robbins and Dianne H.Kelly, Office of the Solicitor.

I. Background

On November 13. 1981, an administrative policy statement and amendments to the National Park Service regulations governing demonstrations and special events in , Washington D.C. and its environs were published in the Federal Register, 46 FR 55959. Since that time, the United States Court of Appeals for the District of Columbia Circuit has interpreted that policy statement and those amended regulations as permission granted by the National Park Service to demonstrators to use as sleeping accommodations temporary structures such as tents erected for the purpose of symbolizing a message or providing logistical support Community for creative Non- Violence v. Watt --- F2d ---- D.C, Car. 1982]. slip. op. 81-2381. The National Park Service thus finds it necessary to clarify the definition of symbolic campsites and the extent to which temporary structures are permitted in connection with First Amendment activities. In addition, experience with attempts to administer the amended regulations in the wake of the court decision has led to a change in the circumstances under which the erection of temporary structures will be permitted.

IL Effective Date

The Director of the National Park Service finds that good cause exists for suspending the 30-day delay of effectiveness of final regulations provided for in 5 U.S.C. 53(d).

III. Analysis of Comments

The American Civil Liberties Union submitted comments critical of the prohibition on sleeping in symbolic campsites. alleging, among other things, that the Park Service had violated the terms of the settlement agreement which it negotiated with the ACLU in Women Strike for Peace v. Andrus {Now Women Strike for Peace v. Watt). Civ. No. 741303 (D.D.C.). The settlement produced revised regulations and an administrative policy statement which clarified long-standing Park Service policy that temporary structures could be erected as a symbolic campsite provided that the structures were not used for living accommodations. 48 FR 55959 November 13. 1981). The articulation of this principle in the policy statement involved no change of position by the Park Service: it merely served as explicit recognition of previous practice and policy. Further. the inclusion of the paragraph on symbolic campsites evolved from the good faith efforts of the Park Service to clarify a number of issues of concern to the ACLU which were not raised or addressed in the litigation. Finally. it must be emphasized that discussions about symbolic campsites were always based on the understanding between the Park Service and the ACLU that any structures erected for such a purpose would not be used for living accommodation activities such as overnight sleeping. The ACLU's claim in its comments that the Park Service failed to abide by its own policy statement in opposing overnight sleeping in campsites (Community for Creative Non-Violence v. Watt) appears to be a repudiation of the understanding on the uses of such campsites agreed to by the Park Service and the ACLU. The Park Service must accordingly reject that portion of the ACLU's comments.

The ACLU also asserted that the Park Service proposes to treat demonstrators differently from non-demonstrators, since napping in parks by office workers and the breaking of ground and building of fires in an event such as the Christmas Pageant of Peace are not prohibited. The Park Service wishes to make clear that sleeping and other activities listed as prohibited in the administrative policy statement and rule are prohibited if a reasonable person. viewing the totality of the circumstances, would conclude that the participants, in conducting these activities. were using the site as a living accommodation. In response to this concern expressed by the ACLU, the Park Service is adding to the third paragraph of the policy statement and to 0 50.19(e)(8) e statement to read as follows:

'The above-listed activities are prohibited outside designated campgrounds when it reasonably appears in light of all the circumstances, that the participants, in conducting these activities, are in fact using the area as a living accommodation regardless of the intent of the participants or the nature of any other activities in which they may also be engaging." Agreeing that camping primarily for living accommodation should not be permitted in undesignated parks. the ACLU suggested that camping which ia incidental and integral to demonstration activity should be permitted Such a distinction would put the Park Service in e position of having to scrutinize the content of every demonstration's message to determine when camping il or is not "incidental and integral" to a demonstration This determination would have to turn not on the practical question of whether people are in fact living at a site. but rather on the nature and degree of the relationship between the content of the expression and the camping activities proposed. Were the Park Service to undertake this responsibility, ft would be forced to exercise exactly the same type of content-based discretionary decision making consistently condemned by the courts. Since the assertion of a nexus between content and camping would result in the provision of free, convenient living space for persons pursuing speech activities, it is reasonable to assume that the frequency of such damage would greatly multiply if the ACLU suggestion were adopted. Therefore the Park Service believes that fair administration of its regulations requires the prohibition of use of park land for living accommodations for all park users, whether or not conducting demonstration activities.

The Washington Legal Foundation Chamber of Commerce, and several other commentators, while supporting the ban on use of parks for living accommodations, submitted broader suggestions to restrict the erection and use of temporary structures in park areas. The.Washington Legal Foundation presented a petition for rulemaking reflecting the comments which it also submitted on the proposed rules. Their petition urged the Park Service to determine the appropriateness of structures based on each park's size and location, to regulate the size and aesthetic quality of temporary structures, to allow such structures in only a small percentage of park areas, and to ban structures within a three hundred yard radius of the White House.

As a result of the court decision in Women Strike for Peace v. Morton, 472 F.2d 1273. the Park Service is required to allow the erection of structures by demonstrators to the same extent that it participates in or sponsors the erection of structures itself. Under current regulations, the Director of the National Capital Region has the authority to impose reasonable restrictions on the structures permitted in the interest of protecting the park areas involved. traffic and public safety considerations. and other legitimate park value concerns. 38 CFR 50.19(e)(81(iii). The Park Service believes that the first three proposals of the Washington Legal Foundation, the Chamber of Commerce. and other commentators are already adequately addressed in these existing regulations. Furthermore. the use of temporary structures for living

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accommodations has been an isolated, temporary situation which should be corrected by the proposed regulations dealing with the specific harm caused by such use. There is also no indication that allowing temporary structures within three hundred yards of the White House poses any danger which regulations should address. Courts have consistently held that regulations governing First Amendment activity must be drawn as narrowly as possible in furtherance of a legitimate government interest. In the absence of an identifiable threat the existence of a legitimate government interest appears too tenuous to support more restrictive regulations.

The Park Service has previously considered the necessity of maintaining selected park areas as places of quiet reflection where demonstrations are not permitted. The result of such consideration has been the barring of demonstration activities at portions of historic monuments Such as the Lincoln and Jefferson Memorials and the Washington Monument. In Washington Free Community v. Wilson. 334 F. Supp. 77.(1971), however. the court indicated that the hustle and bustle of some National Capital Region parks such as Lafayette Park preclude attempts to restrict demonstration activities to foster serenity which is not attainable in the midst of a downtown business district

Comments by the Community for Creative Non-Violence end counsel for the group asserted that the proposed regulations were unconstitutional since they furthered no legitimate government interest end violated court rulings. The Park Service believes that a substantial government interest is involved in the prevention of use of the National Capital Parks as campgrounds for those wishing to express a point of view or, indeed, for any park visitors. The regulations banning the use of parks for living accommodations are designed not to stifle First Amendment expression, but to protect undesignated parks from activities for which they are not suited and the impacts or which they cannot sustain. Short-time. casual sleeping which does not occur in the context of using the park for living accommodations will not be affected by these regulations.

The Park Service also believes that the regulations are drawn in accord with relevant court decisions. The only case which found sleeping to be sufficiently expressive in nature to implicate e threshold First Amendment scrutiny was confined to the peculiar facts of the case and the particular regulation involved, which the court found provided too much open ended discretion to the Park Service. The court explicitly stated that an across-the-board ban on sleeping outside official campgrounds might well be constitutionally acceptable if duly promulgated and even-handedly enforced. United States v. Abney, 534 F.2d 984 (D.C. Car. 1976). Even when an activity might provoke initial First Amendment consideration. a legitimate government interest expressed in`the most narrowly drawn restrictions passible is not an unconstitutional burden on free expression. The Park Service believes that preventing the use as public campgrounds of the Memorial Core and other park areas in the national capital constitutes such a legitimate government interest

IV. Regulatory Changes
Structures and Campsites

In order to clarify the long-standing policy and practice of the National Park Service on the nature and use of temporary structures in connection with demonstration activities. the National Park Service is amending 050.19(e)(B) to forbid specifically the use of any such structures, including tents, for the purpose of conducting any living accommodation activity. The decision by the United States Court of Appeals for the District of Columbia Circuit in Community for Creative Non-Violence v. Watt,----F.2d-, slip. op. 81-2381 (Decided January 22, 1982). which interpreted the current regulation and policy statement to allow sleeping by demonstrators in temporary structures. has necessitated this clarification to avoid the use of the Memorial Core and other park areas of the nation's capital as a camping ground. Experience with administering the court's decision permitting sleeping has also confirmed the belief of the Park Service that activity by demonstrators, would expand to include other aspects of living accommodations such as the storage of personal belongings and the performance of necessary sanitary functions, which have occurred in conjunction with the court-approved sleeping activities. The revised rule makes it clear that structures are permitted for symbolic or logistical purposes. but not for living accommodation types of activity. In addition the exemption in § 50.19(b)(l) of groups of 25 or less from the permit requirement imposed on larger groups has led to the proliferation of tents and other structures erected by individuals in close proximity to each other. The increasing numbers of these structures erected without prior knowledge of the Park Service. have imposed a significant cumulative impact on park resources and personnel and have resulted in uncontrolled end continuous pre-emption of substantial park areas by spontaneously erected structures. Accordingly, the Park Service is amending § 50.19(e)(8) further to provide that the erection of structures other than lecterns or small speakers platforms is prohibited unless a demonstration permit is obtained.

Reference to Prefatory Statement

In order to aid readers in understanding the administrative policies which have been developed to implement the revised regulations. a citation to the applicable Federal Register reference will be included at the conclusion of 36 CFR 50.19. Administrative Policy Statement Structures and Campsites

Because of the decision of the United States Court of Appeals for the District of Columbia Circuit in Community for Creative Non-Violence v. Watt, -- F.2d --- D.C. Car. 1982), slip. op. 812381, the National Park Service finds it necessary to clarify the definition at symbolic campsites and the extent to which temporary structures are permitted in connection with First Amendment activities.

It has been the long-standing administrative policy and practice of the National Park Service to allow demonstration, to erect temporary structures reasonably necessary for the conduct of their demonstration. including the provision of logistical support. The requirement that the erection of temporary structures be permitted arose out of the decision of the United States Court of Appeals for the District of Columbia Circuit in Women Strike for Peace v. Morton, 472 f.2d 1273 (D.C. Car. 1972). Following this decision, il became the policy of the National Park Service to allow tents to be erected as temporary structures in connection with permitted demonstrations. Tents may be erected as e means of symbolizing the message of demonstrating groups or of providing support end logistical services. Examples of activities where the Park Service has permitted the erection of tents in connection with demonstration activities include: a demonstration by the Community for Creative Non-Violence in which a number of tents symbolized the need for housing for the homeless; demonstrations by anti-war veterans groups where the tents symbolized conditions in Vietnam:

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Indian tepees by Indian rights groups to symbolize the plight of Indians; and numerous other demonstrations where support services tents were used for first aid facilities. for lost children areas. and to shelter electrical and other sensitive equipment or displays. Although it is the policy of the National Park Service to permit tents as temporary structures for the above purposes in connection with permitted demonstration activities. the Park Service does not permit camping or the erection of tents for camping in connection with demonstration activities in other than formally designated and maintained campgrounds. Camping is defined as the use of park land for living accommodation purposes such as sleeping activities, or making preparations to sleep (including the laying down of bedding for the purpose of sleeping), or storing personal belongings or making any fire, or using any tent or shelter or other structure or vehicle for the purpose of sleeping or doing any digging or earth breaking or carrying on cooking activities. The above-listed activities constitute camping when It reasonably appears. in light of all the circumstances, that the participants. in conducting these activities. are in fact using the area as a living accommodation regardless of the intent of the participants or the nature of any other activities in which they may also be engaging. This policy is not intended to prohibit eating, cooking, and other traditional picnicking activities in areas designated for picnicking pursuant to 36 CFR 50.14. The National Park Service emphatically believes that the Memorial Core area of the nation's capital is an especially unsuitable location for camping activities. The Memorial Core included the Mall area. the Washington Monument grounds. the White House area. the Ellipse, Lafayette Park, East and West Potomac Park, the Jefferson end Lincoln MemoriaLs, and the· Kennedy Center. Were camping permitted in this area. other park visitors, including demonstrating park visitors. would be deprived of use of this nationally significant space. Camping could cause significant damage to park resources, create serious sanitation problems, and seriously tax law enforcement resources. It is probable that the cumulative impact of permitting any camping activities in the Memorial Core and other National Capital Parks areas would cause the National Park Service to incur additional costs for park restoration. sanitary facilities and extra park personnel. including law enforcement personnel. Even though camping is now prohibited the Park Service nevertheless receives several requests each year for camping in connection with demonstration activities. It is believed that these requests would increase dramatically were camping permitted because it would offer free, convenient living space for persons pursuing speech activities. Such use of park space would amount to a federal subsidy of the living costs of demonstrating Park visitors and would create pressure from non-demonstrating visitors for similar accommodations· - It is the opinion of the National Park Service that allowing participants in any activity to live at the site of their activity would create unacceptable adverse impacts to park areas, deprive other Visitors of use of the park area and create law enforcement confrontations arising from attempts to confine activities within specific parameters. In fact, experience with administering the court's decision in Community for Creative Non-Violence v· Watt allowing sleeping revealed that activities by demonstrators expanded into a campground situation with serious adverse effects on Lafayette Park. The National Park Service is mindful of the need to provide camping facilities, in park areas within the metropolitan Washington. D.C. area. Fully equipped and maintained campgrounds are located in Parks which can sustain the impacts from camping activities and which are within reasonable proximity to the capital. Demonstrating park visitors are free to avail themselves of these facilities. The information collection system contained in 9 50.19 has been previously approved by the Office of Management and Budget and assigned OMB Approval No. 1024-0021. IMPACT ANALYSIS The National Park Service has determined that this document is not a major rule requiring preparation of a Regulatory Impact Analysis under Executive Order 12291 and does not require a small entity flexibility analysis under Pub. L 96-354. The rule is designed only to clarify the circumstances and conditions under which temporary structures may be permitted in connection with demonstration activities. People wishing to camp in the Washington. D.C. metropolitan area will continue to have access to park areas designated as public campgrounds. The rule will have no substantial impact on any aspect of the economy. List of Subjects in 36 CFR Part 50 District of Columbia; National Parks: National Capital Parks. Date approved: May 11. 1982 J. Craig Potter, Assistant Secretary, Fish. Wildlife and Parks In consideration of the foregoing. § 50.19 of title 36 of the Code of Federal Regulations is accordingly amended as follows:

PART 80--NATIONAL CAPITAL PARKS REGULATIONS

1. The authority citation for § 50.19 reads as follows: (Sec 3 of the Act of August 25, 1916 (39 Stat 535, as amended: 16 U.S.C 3): 245 DM l(44 FR 23384): Act of Aug. 6. 1956 (70 Stat 1049) 85 amended; Act of Jan 30, 1968 (82 Stat 4); D.C. Code A Section 8-108 (1973): and National Park Service Order No. 77 (38 FR 7478); as amended)

§ 50.19 [Amended]

2. By amending § 50.19(e)(8) by revising the introductory text and adding (e)(8)[v) to read as follows:

(e) ' ''

(8) In connection with permitted demonstrations or special events, temporary structures, may be erected for the purpose of symbolizing a message or meeting logistical needs such as first aid facilities, lost children areas or the provision of shelter for electrical and other sensitive equipment or displays.

Temporary structures may not be used outside designated camping areas for living accommodation activities such as sleeping, or making preparations to sleep (including the laying down of bedding for the purpose of sleeping). or storing personal belongings, or making any fire, or doing any digging ar earth breaking or carrying on cooking activities. The above-listed activities constitute camping when it reasonably appears. in light of all the circumstances, that the participants, in conducting these activities, are in fact using the area as a living accommodation regardless of the intent of the participants or the nature of any other activities in which they may also be engaging. Temporary structures are permitted to the extent described above provided prior notice has been given to the Director. except that:

[i)···

(ii)···

(v) Individuals or groups of 25 persons or less demonstrating under the small group permit exemption of § 50.19(b)(1) shall not be permitted to erect

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temporary structures other than small lecterns or speakers platforms. This provision is not intended to restrict the use of portable signs or banners.

3. By revising O 50.19(h) to read as follows:

(h) Further information on administering these regulations can be found at 47 FR 24299 June 4. 1982).

[PR Doc 82-15101 Filed 6-3-83: 8:45 am
BILLING CODE 4310-70-M

Federal Register / Vol. 47, No. 108 / Friday, June 4, 1982 / Rules and Regulations, Page 24306

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