ROD for COVID-19

Record of Determination for a public use limitation to prevent spread of COVID-19
Effective March 23, 2020, the National Park Service (NPS) at Antietam National Battlefield is implementing an immediate public use limitation for all permitted events and demonstrations covered by the regulations at 36 CFR 2.50 and 2.51. This closure is implemented under section 36 CFR 1.5 (a) and based upon a determination that such action is necessary for the maintenance of public health and safety. Specifically, the NPS will not accept applications for permits for demonstrations or for special events that are scheduled to occur over the next eight (8) weeks. All events currently scheduled will be cancelled or postponed to a later date, in the discretion of the applicant.

This limitation is in response to public health advisories and limitations on large events from the CDC, the National Park Service and from the State of Maryland’s Governor’s Office, and after the World Health Organization declared COVID-19 a global pandemic. Specifically, this decision, which was made after consultation with the State of Maryland, is based on CDC guidance regarding mass gatherings and events and the spread of COVID-19. https://www.cdc.gov/coronavirus/2019-ncov/community/large-events/mass-gatherings-ready-for-covid-19.html. Large events and mass gatherings can contribute to the spread of COVID-19 in the United States via travelers who attend these events and introduce the virus to new communities. Examples of large events and mass gatherings include conferences, festivals, parades, concerts, sporting events, weddings, and other types of assemblies. These events can be planned not only by organizations and communities but also by individuals.

The NPS regulations still allow small events in open areas of the park, where no permit would otherwise be required. Some park amenities that are not amenable to maintaining appropriate social distances may be closed. Events of any size, however, should only be continued if they can be carried out with adherence to guidelines for protecting vulnerable populations, hand hygiene, and social distancing. When feasible, organizers could modify events to be virtual.

The NPS has determined that allowing gatherings larger than 25 people is not reasonably consistent with the protection and use of any park areas under 7.96(g)(2)(ii), and the applicable public health orders from the local government. Consistent with our decision not to issue permits for public gatherings, no event that would require a permit under the small group exception enunciated in 7.96 (g)(2)(i) will be permitted in any area covered by the regulations at 36 CFR 7.96. The limited number of areas where a larger small group exception normally exists by regulation at 7.96 (g)(2)(ii) will operate under the small group exception at 7.96 (g)(2)(i). This closure is issued in compliance with current CDC event guidelines and the DC Public Health order limiting gatherings of more than 50 people.

Furthermore, The Governor of Maryland issued a State of Emergency and a catastrophic health emergency effective March 5, 2020. Following this, on March 19, the Governor ordered a prohibition on gatherings of more than 10 people and the closure of schools, senior centers, restaurants and bars. On March 23, the Governor expanded the closure to include all non-essential businesses and other establishments, which is broadly construed to include both indoor and outdoor recreational establishments. In addition to state advisories, the latest public health guidance available to parks advises that restrooms in areas of active community spread should be considered potentially contaminated and left to air out for up to 24 hours before cleaning and servicing.

This is an unprecedented public health emergency. The NPS will continue to coordinate and consult with Federal and local public health agencies, and will revisit this decision, as soon as circumstances change.

The use limitation will not adversely affect the park’s natural, aesthetic or cultural values; nor require significant modification to the resource management objections; nor, given the circumstances should it be of a highly controversial nature. Accordingly, the NPS determines publication as rulemaking in the Federal Register is unwarranted under 36 C.F.R. § 1.5(c). This is consistent with hundreds of earlier partial and temporary park closures or public use limitations, the legal opinion of the Office of the Solicitor, and judicial adjudications. Mahoney v. Norton, No. 02-1715 (D.D.C. August 29, 2002), plaintiff’s emergency motion for injunction pending appeal denied Mahoney v. Norton, No. 02-5275 (D.C. Cir. September 9, 2002) (per curiam); Picciotto v.United States, No. 99-2113 (D.D.C. August 6, 1999); Picciotto v. United States, No. 94-1935 (D.D.C. September 9, 1994); Picciotto v. Lujan, No. 90-1261 (D.D.C. May 30, 1990); Picciotto v. Hodel, No. 87-3290 (D.D.C. January 26, 1988); Spiegel v. Babbitt, 855 F.Supp. 402 (D.D.C.1994), aff'd in part w/o op. 56 F.3d 1531 (D.C. Cir. 1995), reported in full, 1995 US App. Lexis15200 (D.C. Cir. May 31, 1995). Pursuant to 36 C.F.R. § 1.7, notice of this public use limitation will be made through media advisories, maps, and by posting at conspicuous locations in the affected park areas. Finally, pursuant to 36 C.F.R. § 1.5(c), this determination is available to the public upon request.