AGENCY: National Park Service. Department of the Interior

Action: Final rule

SUMMARY: This final rule amends the National Capital Region Parks regulations in § 7.96 of title 36 Code of Federal Regulations and limits the storage of property in Lafayette Park. The National Park Service has determined that Lafayette Park has become increasingly littered by the storage of assorted property such as construction materials, tarps, bedding, pillows, sleeping bags, tools, food, luggage, clothing and other similar property. The Park Service believes that the storage of such property has a negative impact on the enjoyment of the Park by the visiting public. An earlier restriction prohibiting the storage of property in Lafayette Park was imposed as a condition for a demonstration permit. This prohibition was declared invalid because it had not been published for notice and comment pursuant to the Administrative Procedure Act. 5 U.S.C. 553. This rule limits the storage of property in Lafayette Park for demonstrator and nondemonstrator alike.

EFFECTIVE DATE: April 6, 1992

FOR FURTHER INFORMATION CONTACT: Sandra Alley, Associate Regional Director, Public Affairs, 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, DC 20240, telephone: (202) 208-4338.

SUPPLEMETARY INFORMATION: the following persons participated in the writing of this rule: Richard G. Robbins and Randolph J. Myers, Office of the Solicitor, Department of the Interior

Background

The National Park Senice proposed a rule that would prohibit the storage of certain property in Lafayette Park, 55 FR 40679 (October 4,1990). Copies of the proposed rule were distributed to demonstrators in Lafayette Park on several occasions, and were mailed to the American Civil Liberties Union

Under National Park Service regulations, groups numbering over twenty-five participants must apply for a permit to demonstrate. For several years, the National Park Service imposed as a conditions for a demonstration permit a restriction on the storage of property in Lafayette Park. However, that restriction was invalidated by the United States Court of Appeals for the District of Columbia Circuit because it had not been published for notice and comment pursuant to the Administrative Procedure Act. United States v. Picciotto, 875 F.2d 345 (DC Cir.1989). The Court recognized, however, that the Park Service can promulgate, and has promulgated, regulations governing activities in all National Capital Region parks, including restrictions on demonstrations and special events, some applying to all parks in this area and some applying only to specific parks.

Analysis of Comments

The National Park Service received fifty-two written comments concerning the proposed rule (in addition to assorted photographs of Lafayette Park and five requests for the rulemaking). Comment's were received from five organizations, four representatives of the legal community, and one office within the National Park Service. Two commenters supported the proposed rule as written. One commenter opposed the proposed rule as excessively lenient. Forty-nine commenters, including one petition with approximately three thousand signatures, opposed the proposed rule.

Among those who opposed the proposed rule, several commenters stated that they believed that the rule was an attempt to enable police to oust demonstrators from Lafayette Park. One commenter stated that, while there are outstanding park resources and visitor values that need to be protected, the real problem in the park that the Park Service is trying to address is homelessness within the view of the White House. Many commenters and the petition expressed the view that the rule was a burdensome and unnecessary restriction on freedom of thought and expression and that it was a regulatory attempt to negate constitutionally protected rights under the guise of protecting aesthetics.

The National Park Service respectfuIly disagrees. The rule does not restict, and is not intended to restrict, freedom of thought or expression. Nor does it prohibit demonstrations in Lafayette Park. Demonstrators remain free to utilize Lafayette Park and to distribute literature, march, speak, hold vigils, and otherwise communicate their views.

The National Bark Service's concerns for aesthetics and park resources in Lafayette Park are proper and legitimate governmental interests. The rule is a reasonable, content-neutral limitation on property storage in order to protect park resources and the unique aesthetic quality of Lafayette Park so that visitors may continue to enjoy the history and beauty of the park. At the same time, the rule allows demonstrators to continue to enjoy ample avenues of communication in and around Lafayette Park..

Some commenters stated that stored material in Lafayette Park constitutes neither a "visual blight" nor an unsightliness." Instead, these commenters stated that the presence of demonstrators in Lafayette Park in conjunction with their assorted property and signs, is beautiful, and that a contrary characterization reflects a political bias against the demonstrators. Another commenter stated that the proposed rule was based on the content of demonstrators' "distasteful expression of political dissent." One commenter stated that "perhaps the annoyance of seeing sleeping bags all over the place will motivate tourists to pressure their representatives to push for affordable housing."

The National Park Service has no bias against demonstrations or against the homeless, and the rule neither limits nor is intended to limit expression on any subject matter. The purpose of the rule is solely to address aesthetic and park protection concerns raised by the storage of property in Lafayette Park by any person, demonstrator and nondernortstrator alike. Further, the rule is not intended to address signs that are being displayed.

One commenter stated that the regulation would disallow signs large enough to be read by the public in Lafayette Park. The National Park Service disagrees. The regulation has no impact on, and is not intended to address signs that are being displayed. A separate existing regulation governs signs. See 36 CFR 7.96(g)(5)(x)(B) (1990).

The National Park Service has a legitimate public interest in limiting the storage of property in Lafayette Park, by demonstrators or others. Where demonstrators may be storing property in Lafayette Park, the rule limiting the storage of property is without regard to the nature of the message they may be communicating.

While there may be conflicting opinions regarding the aesthetic qualities of storing property in Lafayette Park the National Park Service, based in part on complaints from the visiting public over the years, believes that it detracts from the aesthetic values of the Park to have excessive amounts of clothing, shoes, bedding, blankets, sleeping bags, construction materials and household items stored within Lafayette Park, and that visitor enjoyment of Lafayette Park is diminished by such storage.

Further, the storage of property has caused damage to park resources in Lafayette Park. Water sprinkler systern heads have been destroyed when property was stored on top of them. Grass has been likewise destroyed and bare spots caused on the lawn when property was stored at a fixed location over several days. Paint that was stored within the park has been spilled on walkways.

The National Park Service believes that the rule does not burden expression, and that even if it were to, any burden would be indirect and insubstantial. The rule does not address expressive activity and has no direct impact on expression. Under the rule, demonstrations continue to enjoy numerous modes of expression and may engage in a wide variety of expressive conduct in Lafayette Park. The rule merely limits, to a minor degree. the ability of persons to store excessive quantities of property within Lafayet Park. Finally, the regulation is not an isolated attempt to regulate the aesthetics of the appearances of Lafayette Park. As detailed in the proposed rule, this is but one element of a continuing effort by the National Park Service to preserve and enhance Lafayette Park for the enjoyment and use of the public.

The American Civil Liberties Union (ACLU) submitted three photograrphs of property they stated was left unattended in Lafayette Park. The ACLU suggested that before the National Park Service considers any rule regarding the storage of property in Lafayette Park it should enforce the existing abandoned property regulation. Further, the ACLU quoted several Lafayette Park demonstrators, who indicated that Park Police officers paid virtually no attention to large mounds of property left in the park by "street people" while quickly confiscating the signs of demonstrators who leave the park for a "few quick minutes."

The United States Park Police have e attempted fairly and uniformly to enforce existing regulations regarding abandoned property and unattended property in Lafayette Park, regaardless of whether the property belongs to demonstrators, "street people," tourists, casual visitors or others.

Increased enforcement activity under existing regulations, as suggested by the ACLU, was attempted in Lafayette Park recently without measurable improvement in the problem of stored property. With the advent of Operation Desert Storm, and corresponding enhanced public safety concerns, the Park Police increased its presence in the White House area including Lafayette Park, Between January 16, 1991, and April 1, 1991, there was an added effort to enforce all existing regulations including the abandoned property regulation. Notwithstanding that increased enforcement effort, the problem of property storage in Lafayette Park remained, primarly because there is no current limitation which specifically relates to the storage of property in Lafayette Park. Existing regulations were not designed to address, have not cured, and cannot resolve the problem of property storage in Lafayette Park.

The ACLU, and other commenters, also criticized the three cubic fee limit on personal property, stating that as applied to a demonstrator who is conducting a 24-hour vigil, it is insufficient and would severely restrict the rights of individuals conducting such vigils. The ACLU suggested that the limit be abandoned, greatly increased, or modified to exclude literature and paper and that the 24-hour period standard be omitted. Otherwise, the ACLU stated, demonstrators conducting 24-hour vigils would be severely hampered in their ability to communicate their ideas to the public. In addition, another commenter, who identified himself as a demonstrator currently conducting a 24-hour virgil in Lafayette Park, stated that, with more than three million people visiting the park each year, the three cubic feet limit was insufficient to allow adequate quantities of literature for distribution. Along with his written comments, he enclosed approximately one cubic foot of literature, which, he stated, represented only a sample of printed material discussed and distributed during the course of his vigil; he stated that he needed to have at least nine cubic feet of literature in Lafayette Park to assure sufficient quantities for distribution.

The final rule does not contain a 24-hour standard, although the 3 cubic feet limit is retained. The regulation neither inteferes, nor is intended to interfere, with demonstrators' exercise of their first amendment rights. The regulation seeks only to prohibit the storage of excessive property, not necessary to facilitate expressive activity within Lafayette Park. Indeed, it is less stringent than the old rule, which did not stifle free expression. It permits quantities of literature, food, clothing, blankets and a reasonable cover, so long as that property is contained within three cubic feet and is attended. Although tarps are generally prohibited because they constitute a visual blight, interfere with reasonable enforcement, and may blow away, small plastic or other reasonable covers cause fewer aesthetic problems and are therefore permitted. In addition, while blankets may be used as a camping accourtement, the National Park Service recognizes that some people use them as clothing.

Three cubic feet is the approximate size of a large duffle bag; over 13,000 sheets of letter-size paper (81/2" X 11") may be contained within three cubic feet. While a demonstrator conducting a sustained vigil may own property in excess of three cubic feet, and over the course of a period of time may wish to distribute more than three cubic feet of literature, the National Park Service believes that there is no first amendment requirement that such a demonstrator be allowed to keep all of his or her property in Lafayette Park. The Notional Park Service believes that a large duffle bag of gear, some or all of which may be literature, is more than sufficient to facilitate a demonstration for a reasonable period and would not hamper demonstrators in their ability to communicate ideas to the public. Farther, if some or all of their literature is handed out (or their food is consumed) over time, demonstrators are always free to replace such materials within the three cubic foot limitation.

Compliance with Other Laws

The National Park Service has determined that this rule is not a major rule under E.O. 12291 and certifies that this rule will not have significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et esq.)

This rule does not contain information collection requirements which require approval by the Office of Management and Budget under 44 U.S.C. 3501 et seq.

This rule does not constitute a major Federal action which significantly affects the quality of the human environment under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 e: seq.).

This rule is not a policy that has takings implications under E.O. 12630.

List of Subjects in 36 CFR Part 7

National Capital Region parks, National parks.

PART 7--NATIONAL CAPITAL PARKS REGULATIONS

In consideration of the foregoing. part 7 of title 36 of the Code of Federal Regulations is accordingIy amended.

1. The Authority citation for part, continues to read as follows:

Authority 18 U.S.C. 1. 3. 9a. 460(q). 462(k): Sec. 7 96 also issued under D.C. Code 8--137 11981) and D.C Code 40--721 (1981).

2. Section 7.96 is amended by redesignating paragraphs (j) and (k) as (k) and (I) and adding a new paragraph (j) to read as follows:

§ 7.96 National Capital Region parks.

(j) (1) In Lafayette Park the storage of construction material, tools, lumber, paint, tarps, bedding, luggage, pillows, sleeping bags, food, clothing, literature, papers and all other similar property is prohibited.

(2) Notwithstanding (j)(1) of this section, a person in Lafayette Park may have literature, papers, food, clothing, blankets and a reasonable cover to protect such property, occupying up to three (3) cubic feet of space, so long as such property is attended at all times while in the Park (the term "attended' is defined a a person being -within three (3) feet of his or her property).

Dated: November 7,1991.

Mike Hayden.

Assistant Secretary. Fish and Wildlife and Parks.

[FR Doc. 92-2763 Filed 2-5-92: 8:45 am]

BILLING CODE 4310-70-M

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 721

[OPPTS-50585C; FRL-3934-4] RIN 2070-AB27 Sulfurize Alkylphenol; Significant New Use Rule AGENCY: Environ mental Protect on Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is promulgating a significant new use rule (SNUR) under section 5(a)(2) of the Toxic Substances Control Act (TSCA) for the chemical substance described generically as sulfurized alkylphenol, which is the subject of premanufacture notice [PMN] P-89-708, and which is subject to a TSCA section 5(e) consent order issued by EPA. This rule would require certain persons who intend to manufacture, import, or process this substance for a significant new use to notify EPA at least 90 days before commencing any manufacturing or processing activities for a use designated by this SNUR as a significant new use. The required notice would provide EPA with the opportunity to evaluate the intended use and. if necessary. to prohibit or limit that activity before it can occur. DATES: The effective date of this rule is April 6. 1992 This rule shall be promulgated for purposes of judicial review at 1 p.m. Eastern Standard Time on February 20.1992.

FOR FURTHER INFORMATION CONTACT: David Kling, Acting Director. Environmental Assistance Division (TS-799), Office of Pollution Prevention and Toxics. Envi ronmental Protection Agency. rm. EB 543-B. 401 M St., S - , Washington. DC 20460. Telephone: (202) 554 1404. TDD: (202) 554 0551.

SUPPLEMENTARY INFORMATION: This SNUR would require persons to notify EPA at least 90 days before commencing manufacture. import. or processing of P-89-708 for the significant new uses designated herein. The required notice would provide EPA with information with which to evaluate an intended use and associated activities.

I. Authority

Section 5(a)(2) of TSCA (15 U.S.C. 2604(a)(2)) authorizes EPA to dee.m:ne that a use of a chemical substance is a 'significant new use. ' EPA must make this determination by rule after considering all relevant factors. including those listed in, section 5(a)(2). Once EPA determines that a use of a chemical substance is a significant new use. section 5(a)(1)(B) of TSCA requires es persons to submit a notice to EPA at least 90 days before they manufacture, impart, or process the chemical substance for that use. Section 26(c) of TSCA authorizes EPA to take action under section 5(a)(2) with respect to a category of chemical substances

Persons subject to this SNUR would comply with the same notice requirements and EPA regulatory procedures as submitters of premanufacture notices under section 5(a)(1) of TSCA. In particular, these requirements include the information submission requirements of section 5(b) and (d)(1), the exemptions authorized by section 5(h)(l), (h)(2), (h)(3). and (h)(5). and the regulations at 40 CFR part, 20. Once EPA receives a SNUR police. EPA may take regulatory action under section 5(e). 5(f). B. or 7 to control the activities for which it has received a SNUR notice. If EPA does not take action. section 5(g) of TSCA requires EPA to explain in the Federal Register its reasons for not taking action.

Persons who intend to export a substance identified in a proposed or final SNUR are subject to the export notification provisions of TSCA section 12(b). The regulations that interpret section 12(b) appear at 40 CFR part 707.

II. Applicability of General Provisions

General regulatory provisions applicable to SNURs are codified at 40 CFR part 721, subpart A. On July 27, 1988 (53 FR 28354), and July 27, 1989 -(54 FR 31298). and October 31,1990 (55 FR 45994), EPA promulgated amendments to the general provisions which apply to this SNUR. In the Federal Register of August 17, 1988 (53 FR 31252), EPA promulgated a "User Fee Rule" (40 CFR part 700) under the authority of TSCA section 26(b). Provisions requiring persons submitting significant new use notices to submit certain fees to EPA are discussed in detail in that Federal Register document. Interested persons should refer to these documents for further information.

III. Background

EPA published a direct final SNUR for the chemical substance which was the subject of PMN P - }708 in the Federal Register of September 28, 1990, at 55 FR 39892. EPA received notice of intent to submit adverse comments during the 30 days following publication. Therefore, as required by 721.160, the direct final SNUR for P-89-708 was withdrawn in the Federal Register of May 21, 1991 (56 FR 23227). and a proposed SNUR published in the Federal Register of Slay 21, 1991 (56 FR 23257). EPA received comments from one person, the original PMN submitter of the substance subject to this SNUR.

The comment provided was that the recordkeeping requirements of 72l.l25(b) and (c) were too-broad and burdensome on manufacturers and processors. Specifically. 721.125(b) requires: Records documenting volumes of the substance purchased in the United States by processors of the substance. names and addresses of suppliers. and the corresponding dates. Similarly. 721.125(c) requires: Records documenting the names and addresses (including shipment destination address. if different) of all persons outside the site of manufacture, importation. or processing to whom the manufacturer, importer, or processor directly sells or transfers the substance, the date of each sale or transfer, and the quantity of the substance sold or transferred on such date. Given that for P-89-708 processors may include distributors and