Federal Register / Vol. 48, No. 118

Federal Register / Vol. 48, No. 118 / Friday, June 17 1983 /Rules and Regulations

DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Part 50
National Capital Parks Regulations; Demonstrations in the White House Area
AGENCY: National Park Service, Interior.
ACTION: Final rule.

SUMMARY: This final rule amends § 50.19 of the Title 36 of thee Code of Federal Regulations concerning demonstrations and special events in the National Capital Parks to regulate the use of signs and placards on the White House sidewalk. The final rule also amends § 50.19 of Title 36 of the Code of Federal Regulations and § 50.7(h) of the same title concerning storage of materials in park areas to prohibit the placement or storage of parcels, containers, packages, bundles or other property on the sidewalk surrounding the White House. Those changes are necessary in order to minimize potential threats to the structure and its occupants and visitors, as well as to provide opportunities to the visitor to view the White House, and to maintain free flow of pedestrian and emergency traffic.

EFFECTIVE DATE: July 5, 1983.

FOR FUTHER INFORMATION CONTACT:

Sandra Alley, Associate Regional Director, Public Affairs, National Capital Region, National Park Service, 1100 Ohio Drive, S.W., Washington, D.C. 20242, telephone (202) 426- 6700;

Richard G. Robbins, Assistant Solicitor, National Capital Parks, Office of the Solicitor, Department of the Interior, Washington, D.C. 20240, telephone (202) 343-4338.

Supplementary information

I. Background

Recently events in the Memorial Core parks, as well as terrorist activities elsewhere, have highlighted security concerns for the White House and the president. Last December, an individual who had been a frequent demonstrator on the White House sidewalk backed a truck up to the Washington Monument and threaten to blow up the structure with 1,000 pounds of dynamite that he allegedly had stored in the truck. The tragedy ended as the individual attempted to leave the area in the truck, going in the direction of the White House.

Since the day of that incident, the National Park Service, along with other law enforcement agencies, has been discussing and reviewing regulations applicable to the White House area to determine if regulatory changes could aid in minimizing potential threats to the structure, its occupants and the visiting public.

During the process of review and drafting of new regulation, additional incidents occurred that increased even more need for security precautions around the White House. In March a large structure used by frequent protestors on the White House sidewalk was burned, damaging a granite post and the fence in front of the Old Executive Building, a few feet from the White House sidewalk. (The

White House Sidewalk is defined in the regulation as "the south side of Pennsylvania Avenue, N.W., between East and West Executive Avenues, N.W., 36 CFR 50.19 (a)(5)). Also in March, an individual used another structure stored by demonstrators on the White House sidewalk to facilitate the scaling of the White House fence.

In addition to these events occurring around the white House, an increase in terrorist activities has heightened the concern for the safety of the President, the White House, and the general public utilizing the white House area. A bomb in front of the American Embassy in Beirut, Lebanon, killed scores of people in the beginning of April. Closer to home in April, a bomb exploded in front of the war College at Fort McNair in Washington.

In light of these incidents, as well as other continaning security concerns, the National Park Service, determined that two areas of major concern should be addressed immediately by regulatory charges--signs or placards stationed on the White House sidewalk and parcels, containers, packages, bundles, and other property placed or stored on the White House sidewalk and other sidewalks surrounding the White House.

The experience of the United States Park Police and the United States Secret Service has shown that signs, placards, and their component parts, the traditional means of demonstrating, can be used for purposes other than expressing a message. Sign supports have been used as weapons. Signs may be used to conceal explosives or other illegal items. Large, rigid signs have been used to facilitate the scaling o the White House fence. Although these may be unavoidable incidents of the right to demonstrate elsewhere, security concerns for the public, the President and White House force the National Park Service to attempt to minimize the possibility of these incidents on the sidewalk in front of the white House, a mere eighty yards from the front entrance.

In addition, experience has shown that signs on the White House sidewalk can block a portion of all of the view of the White House through the fence. Complaints received by the National Park Service from the public indicate that the visitor's ability to view the White House is substantially diminished when a few demonstrators are allowed to carry their protest to the extent of haaving large signs that span the White House vista. Further, security personnel cannot adequately see the outside of the fence.

Parcels and other property likewise can be used to conceal explosive of other devices, or to facilitate the scaling of the White House fence. In addition, they can block the view of the White House and, when accumulated, prevent the free flow of traffic past, and into, the White House.

It is the judgment of the National Park Service that certain restrictions can be placed upon the use of signs or placards and placement or storage of parcels and other property on the White House sidewalk which would enhance the park visitor's experience in viewing the White House and respond to security concerns without impairing the demonstrator's ability to convey a message.

Regulatory revisions concerning signs and other property on the sidewalks contiguous to the White House were published as an interim rulemaking on April 22, 1983 (48 Fr 17352). The interim rule was challenged in White House committee for the ERA Vigil v. Watt, Civil Action No. 83-1243 (D.D.C. filed 4/29/ 83) ("ERA Committee"). Plaintiffs alleged constitutional and Administrative Procedure Act ("APA") defects. The District Court found that food cause had not been shown for g9iving immediate effect to the regulation. On the Basis, the court enjoined enforcement of the regulation as an interim rule until the publication of final rule.

In response too the District court's order, the National Park Service republished the regulation as a proposed rulemaking on May 17, 1983 (48 FR 22284). An additional comment period ending May 31, 1983 was given.

II. Effective Date

The Director of the National Park Service finds good cause exists for suspending part of the 30-day delay of effectiveness provided for in 5 U.S.C. 553(d), as adopted by the Department of the Interior immediate security concerns in the White House area provided this good cause.

III. Analysis of Comments

The National Park Service received fifteen comments on the proposed regulations. Seven commentators favored implementation of the regulations as proposed. In addition, the Washington Legal Foundation ("WLF") submitted comments which were date May 31, 1983, but which were received several days after that date. WLF favored implementation of the regulations as proposed and concluded in legal analysis that the regulations were constitutional. Eight commentators opposed some portion of the proposed regulations, most of these supporting other portions.

A. The American Civil Liberties Union ("ACLU") submitted extensive comments on the proposed regulations. In addition, the ACLU represented plaintiffs in the ERA Committee case and made comments and suggestions on the regulation in the bearing on that matter. In their comments, the ACLU agreed that the National Park Service has legitimate interest in White House security, the flow of pedestrian and emergency traffic and aesthetics. However, the group objected generally to the proposed regulations as not serving those interests with their view of the required narrow specificity. The Washington Area Military and Draft Law Panel ("WAMDLP") generally took the same view.

Specifically, the ACLU questioned whether the proposed regulations adequately addressed legitimate security concerns. The group questioned whether the requirement that signs be carried and that they be carried by one individual served security interests in preventing the scaling of the White House fence.

In response, It must be pointed out, first, that the ACLU has misread the proposed regulations. The proposed, as well as the final regulation, allow individuals to set down signs or placards. The final regulation makes it clear that signs can be placed on certain portions of the sidewalk as long as they are no closer than three feet from the fence and are attended. References to the hand-holding of signs have been deleted from the final regulations. Second, the final rulemaking deletes the requirement that signs be carried or held by only one individual. The final regulations allow as many individuals who desire to hold a sign or placard to do so.

Specifically as to the governmental interest in preventing the scaling of the White House fence, the ACLU suggested that the proposed rule did not meet this interest. The group agreed that a sign could be used to scale the fence and further indicated that it would not oppose a regulation directed at signs large and sturdy enough to accomplish this purpose. In response to the suggestion by the ACLU, the National Park Service has modified the final regulation to allow large signs and placards up to 3' X 20' X1/4" at the White House sidewalk but restricts the materials that may be used to construct the signs. Such a restriction on materials of which signs can be made was suggested by the ACLU during the hearing on ERA Committee.

The ACLU also questioned whether the proposed regulations met the government's interest in preventing concealment of explosives or other contraband on the White House sidewalk. The ACLU pointed out that contraband can be concealed in property, as well as behind signs, and that no instance of concealment behind sighs had been mentioned in the proposed rulemaking. The National Park Service finds this reasoning to be unpersuasive. We agree that contraband may be hidden in personal property--this is precisely the reason for the prohibition on placing property on the sidewalk. However, this is not a reason for failing to address the problem of possible concealment behind signs leaned against the White House fence. Also, the fact an explosive has not been found behind a sign does not obviate any future possibility of this occurring.

The ACLU also indicated that contraband can be hidden behind a sign that is being carried. This may be true, but the National Park Service must rely on security judgment that indicates a lesser risk of an explosive than an individual placing it behind his or another person's sign when the sign is not immediately attended. One purpose of requiring signs to be attended is to ensure that demonstrators have control over their signs at all times to diminish the likelihood that another will use the signs of unsuspecting demonstrators for their own purpose.

The ACLU, as well as WAMDLP, Women Strike for Peace and SANE, criticized requirements in the purposed regulation that owners of placards or other property placed on the White House sidewalk consent of search of the property and remove such property after sixty minutes. The final regulation prohibits pacing property on sidewalks contiguous to the White House. However, a proviso to the regulation states that momentary placement of property in the immediate presence of the owner is permitted,. Thus making it clear that the regulation will not be applied so as to prevent temporary placement of articles such as cameras or purses on the sidewalk.

In attempting to eliminate security concerns created by parcels and other property, the National Park Service considered several other alternatives, such as allowing parcels to be set down for a designated time period with no search requirement, retaining the current lack of regulations or promulgating a flat ban on setting down parcels. Retaining the present lack regulation leaves no enhanced security protection. Providing a designated time limit with no provision for search is administratively very difficult to enforce. To do so would require a significant increase in the number of officers necessary to have a specific watch on parcels. Prohibiting altogether the setting down of parcels, even momentary, could work a hardship, for example, on visitors who desire to set down a purse momentarily, or a demonstrator who desire to set down a duffel bag for an instance. Therefore, for administrative enforcement purposes, enhanced White House security, and accommodation of demonstrators and visitors, the National Park Service chose to prohibit all but momentary placement of property on the sidewalks contiguous with the White House.

The ACLU and WAMDLP further questioned the effectiveness of the proposed regulation in interference with pedestrian and emergency traffic. The ACLU contended that signs and property leaning against the fence by demonstrators cannot "interfere unacceptably" with the flow of traffic when current regulations allow up to 750 persons to demonstrate on the White House sidewalk.

The National Park Service believes that the reality of demonstrations on the White House sidewalk shows the contrary to be true. Large demonstrations do occur on the sidewalk. However, these are generally short-term events. On the other hand, a handful of demonstrators has occupied the White House sidewalk daily for a year and a half. A handful of demonstrators has had signs spanning the length of the sidewalk, along with personal belongings which have included wicker-baskets full of clothes, cooking utensils, foodstuff, and sleeping materials. It has been the experience of the National Park Service that signs and placards attached to and leaned against devices. Experience has indicated the illegal use to which large wooden signs can be put. Police judgement indicates the need to see through the White House fence and around signs and placards. The National Park Service had extensive discussions with the Park Police, Secret Service and park officials in formulation these regulations. It also relied heavily upon expert opinion contained in testimony and affidavits submitted by government officials in the ERA Committee case. The National Park Service believes the best method of drafting regulations that address security concerns is to rely on the opinion of those experts.

E. Women Strike for Peace and other commentators suggested that the proposed regulation would work a hardship on the elderly, the physically-impaired, and other infirm persons who wish to demonstrate on the White House sidewalk, especially any requirement that would cause them to have to carry signs. The National Park Service has reviewed the regulations carefully with an eye toward minimizing the impact on those groups of persons. The National believes that the final regulations do minimize this impact.

Changes in the final regulations eliminate any confusion as to a requirement that signs be carried outside of the center portion of the White House sidewalk. The regulations would allow an individual to set down a sign on certain portions of the sidewalk as long as the sign is no closer than three feet from the fence and is attended. Other changes allow a sign to be carried or held by more than one individual. The restriction on the materials of which a sign can b made, also results in allowable signs being lightweight and easier to carry.

WSP also suggested that the ban on the storage of property on the White House sidewalk impact these groups adversely. Because the ban on storage of property is intended to prevent means of concealment of explosives and other like devices, the National Park Service could not exempt certain groups and still maintain necessary security. In addition, the regulation allows momentary placement of property on the sidewalk to accommodate demonstrators and visitors. Further, a commentator representing the Gray Panthers indicated that the group did not disagree with restrictions on the placement of property on the White House sidewalk.

F. The White House Vigil for the ERA, the plaintiff in the chase challenging the interim regulation published in April, agreed with the prohibition against leaning very large signs constructed of wood or rigid materials against the White House fence. They agreed that unattended parcels or bundles should be banned. They also agreed that visitors should enjoy a clear view of the White House. However, they objected to any regulation that would prevent several of their members from carrying a large cloth banner on the White House sidewalk. The final regulations implemented here would allow the group to carry their banner on the sidewalk.

G. Two individual commentators suggested that space be set aside in a park area other than the White House sidewalk for demonstrations. The Court of Appeals for the D.C. Circuit has ruled on several occasions that the White House sidewalk is an especially important site for demonstrators and that restrictions on those demonstrations would be unlikely to be approved by the court. Therefore, the National Park Service believes that legal precedent in the District of Columbia Circuit would prevent prohibiting demonstrations altogether on the White House sidewalk.

H. Another commentator supported the proposed regulations but suggested prohibiting demonstrating in the central portion of the White House sidewalk. This change, also suggested by ACLU at the ERA Committee, has been incorporated, to a more limited degree, in the final regulations by the prohibiting stationary signs or placards in the central portion of the sidewalk.

IV Regulatory Changes

To accomplish the purpose of minimizing threats to the visiting public, the President and the White House, and for other purposes discussed above, the National Park Service is amending present regulations to prohibit certain signs or placards or supports on the White House sidewalk, to prohibit the attaching or leaning of permitted signs on the fence or other structures on the sidewalk, and to prohibit the holding or placing of signs in the central portion of the sidewalk.

Specifically, the regulations prohibit signs or placards on the White House sidewalk that are not made of cardboard, posterboard, or cloth, and those having dimensions greater than 3' in with, 20' feet in length, and 1/4 " in thickness. Suggested by the ACLU at the hearing on ERA Committee, the limitation on the materials of which a sign or placard can be made addresses the concerns of the Secret Service that rigid signs may be used to facilitate the scaling of the White House fence, as occurred in March of this year. Additionally, the lightweight materials can be more easily removed in case of emergencies. The size restriction allows signs that are approximately tw0-thirds the with of the White House sidewalk and, therefore, easily seen by persons passing by. The White House Vigil for the ERA, in their comments on the proposed regulations, stated tat they had done considerable research on the sign lettering most easily read by passersby and determined that four inch lettering was the most effective. Using these as a basis, the National Park Service determined that a twenty foot long sign that was three feet wide would easily accommodate every lengthy message. The National Park Service believes, though, that signs should not span the entire with of the sidewalk so pedestrian traffic could not be maintained. The limitation on height allows security personnel, as well as White House visitors, to see above and below the signs or placards. Law enforcement opinion is that the three foot limitation represents a reasonable height to accommodate these needs. Restricting thickness of signs to one quarter of an inch prevents individuals from using hallow signs inside of which explosives or other devices can be hidden. One-quarter inches also the standard size of stiff cardboard.

The regulations also limits the size of sign supports, Large supports could also be used to facilitate the scaling to the White House fence, as well as, in the case of hollow supports, to conceal explosives. In addition, in past demonstrations, most notably, the Iranian demonstrations, large supports were used as weapons against the police, other demonstrators, and the public. Large wooden supports or metal or plastic supports, could easily become lethal weapons on the sidewalk.

Further, the regulation require signs or placards to be attended and stationary signs to be no closer than three feet from the White House fence, while they are on the White House sidewalk. (The three foot mark is easily identified as the pavement joints fron the fence on the White House sidewalk are spaced one and one-half feet an. . .then, three feet apart.) The term "attended" is defined as being in physical contact with a sign or placard. The regulations also prohibit the attachment or leaning of signs or placards on the White House fence or other structures on the sidewalk. The requirement that the sign be attended and not leaned against or attached to the fence or other structures addresses security and aesthetic concerns.

The White House fence rises out of a sloping concrete ledge ranging from one to three feet high. When signs or placards are leaned against the fence or are closer than a few feet from the fence, a substantial portion of the area behind them is concealed. Explosives or other like devices could be placed in these areas. In addition, a sign leaned against or closer to the fence completely blocks the view of the visitor of the White House. Attaching signs or placards to the fence or other structures also blocks the view of security personnel, as well as the park visitor.

The requirement that signs or placards be attended and not leaned against the fence would not prevent a demonstrator from placing a sign on the sidewalk, outside of the center portion and at least three feet from the fence, as long as the person is in physical contract with the sign. Therefore, a person confined to a wheel-chair could hold a sign in his lap, or an older person who felt the need to rest could sit, outside of the center portion of the sidewalk, and hold a sign or placard, or a demonstrator could use a sandwich-board sign.

The requirement that signs be attended, though, would prevent a demonstrator from having more signs than the can watch. Unattended signs can be used by persons other than a demonstrator to conceal explosives or other illegal devices. Unattended signs cannot always be moved quickly in cases of emergencies. At times, one or two individuals have had as many as twenty-four 4' X 8' signson the White House sidewalk. Proliferations of unattended signs can completely block the view of the White House, as well as interfere with pedestrian traffic.

The regulations prohibit stationary signs in the center portion of the White House sidewalk, defined as that space ten yards on either side of the center line of the sidewalk. This prohibition was also suggested by the ACLU at the hearing on ERA Committee to provide an area where the White House visitor could obtain an unobstructed view of 1600 Pennsylvania Avenue. The National Park Service agrees with this accommodation. Such an area is necessary for the thousands of visitors whose only view of the White House is from the White House sidewalk. In addition, this open space would allow security personnel an unobstructed view outside the fence. The regulation specifies that this prohibition would not prevent individuals from carrying signs through this area in the course of a march or picket line. The regulation does not prohibit speech in this area, but merely places reasonable restrictions on the manner of expressing views in the center portion of the White House sidewalk.

The regulations also prohibit the storage or placement of parcels, containers, bundles or other property on the sidewalk surrounding the White House. Demonstrators have brought and stored such items as chairs, suitcases, wicker-baskets full of clothes, cooking utensils and foodstuff on the White House sidewalk. Many of these items can be used to conceal explosives or other illegal devices. A flammable liquid and illegal flares were recently found in a structure used by demonstrators in front of the White House. Additionally, certain property, such as creates, or wooden boxes, could be used to facilitate the scaling of the White House fence. Also, personal property of demonstrators, when accumulated, can and has blocked the view of the White House and interfered with pedestrian traffic.

The regulation contain a proviso that permits the momentary placement in the immediate presence of the owner of personal property, such as purses, camera bags, or duffel bags, on the sidewalks surrounding the White House. The regulations also permit the carrying or holding of property on the sidewalk. It is the judgment of law enforcement officials that there is less risk of explosives being contained in a parcel being held or carried than in a parcel set down on the sidewalk. Several commentators suggested that only unattended property be prohibited on the sidewalk. However, once a parcel or package is set down on a sidewalk as busy as the White House sidewalk is, it is difficult to tell whether it is attended or not. The National Park Service has carefully considered this prohibition and has determined that security and aesthetic concerns for the general public, the President and the White House outweigh demonstrators' or visitors' desire to have a close-by and convenient spot in which to store their personal property while they are demonstrating or visiting the White House.

In drafting these regulations, the National Park Service has attempted to reach a delicate balance between security concerns and the expression of First Amendment rights. The task was exceedingly difficult, especially in attempting to arrive at the appropriate specificity. Especially in attempting to fix limitations, there were no magic numbers. The best the National Park Service could do was to consider comments from the public and relevant government agencies and attempt to arrive at reasonable numbers. In the area of sign size limitations, for example, the research done by the White House Vigil for the ERA on sign lettering, as discussed above, was very helpful. As a result, the final regulations, while perhaps not mathematically precise, represent the most reasonable provisions that the National Park Service could draft, considering the complex and competing interests involved in this area. Also, the National Park Service considered several alternatives with respect to the restrictions on parcels. The one hour "grace" period which was proposed was severely criticized and was fraught with law enforcement difficulties. After long deliberation, the ban which has been adopted appears to be the only practicable solution.

Impact Analysis

The National Park Service has determined that this document is not a major rule requiring preparation of a Regulatory Order 12291. The National Park Service has also determined that the rule will not have a significant economic impact on a substantial amount of small entities and, therefore. Does not require a small entity flexibility analysis under the Regulatory Flexibility Act, Pub. I. 96-354. The rule merely places restrictions on the use of signs or placards and the stationing of parcels and other property on sidewalks contiguous to the White House. It will have a substantial impact on any aspect of the economy.

The National Park Service has further determined that this rule is not a major Federal action significantly affecting the quality of the human environment.

List of Subjects in 36 CFR Part 50

District of Columbia, National Parks, National Capital Parks.

Data approved: June 13, 1983.

J. Craig Potter, Acting Assistant Secretary, Fish and Wildlife and Parks.

PART 50--NATIONAL CAPITAL PARKS REGULATION

In consideration of the foregoing, the interim rule amendments too 36 CFR Part 50 published April 22, 1983 at 48 FR 17352mare withdrawn and §§ 50.19 and 50.7 of Title 36 of the Code of Federal Regulations are amended.

1. The authority citation for part 50 reads as follows:

Authority section 6 of the Act if July 1, 1908 (30 Stat. 571); secs 1-3 of the Act of August 25, 1916 (39 Stat. 535 as amended); Sec 16 of the Act of March 3, 1925 (43 Stat. 1126, as amended); Act of March17, 1948 (62 Stat. 87); Act of August 8, 1953 (67 Stat. 495); Act of July 1, 1980 (94 Stat. 872) 16 U.S.C. 1-3; D.C. Code 8-137 (1982); D.C. Code 40-721 (1981).

2. Section 50.19 is amended by redesignating paragraph (e) (9) through (11) as (e) (11) through (13) and adding new paragraphs (e) (9) and (e) (10) to read as follows:

* * * *

(e)

(9) No signs or placards shall be permitted on the White House sidewalk except those made of cardboard, posterboard or cloth having dimensions no greater than three feet in width, twenty feet in length, and one-quarter inch in thickness. No support shall be permitted for signs or placards except those made of wood having cross-sectional dimensions no greater than three-quarter of an inch by three-quarter of an inch. Stationary signs or placards shall be no closer than three feet from the White House sidewalk fence. All signs and placards shall be attended at all times that they remain on the White House sidewalk. Signs or placards shall be considered to be attended only when they are in contact with a person. No signs or placard shall be tied, fastened, or otherwise attached to or leaned against the White House fence, lamp posts or other structures on the White House sidewalk. No signs or placards shall be held, placed or set down on the center portion of the White House sidewalk comprising ten yards on either side of the center portion the sidewalk: Provided, however, that individual may demonstrate while carrying signs on that portion of the sidewalk if they continue to move along the sidewalk.

(10) No parcel, container, package, bundle or other property shall be placed or stored on the White House sidewalk or on the west sidewalk of East Executive Avenue, N.W., between Pennsylvania Avenue, N. W., or E Street, N.W., or on the north sidewalk of E Street, N.W., between East and West Executive Avenues, N.W.; Provided, however, that such property, except structures may be momentarily placed or set down in the immediate presence of the owner on those sidewalks.

3. Section 50.7(h) is amended by redesigning the existing paragraph as paragraph (1) and by adding paragraph (2) to read as follows:

§ 50.7 Federal property, miscellaneous provisions

* * * * *

(h) Storage.

* * * * *

(2) No parcel, container, package, bundle or other property shall be place or stored on the White House sidewalk as that term is defined in § 50.19 (a)(5). . . this part, or on the west sidewalk of East Executive Avenue, N.W., between Pennsylvania Avenue, N.W. and E Street, N.W., or on the north side of E Street N.W., between East and West Executive Avenues, N.W.; Provided, however, that such property, except structures, may be momentarily placed or set down in the immediate presence of the owner on these sidewalks.