[Federal Register Volume 62, Number 120 (Monday, June 23, 1997)]
[Rules and Regulations]
[Pages 33749-33751]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-16193]
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DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Part 7
RIN 1024-AC46
St. Croix National Scenic Riverway, Boating Operations
AGENCY: National Park Service, Interior.
ACTION: Final rule.
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SUMMARY: The National Park Service (NPS) is adopting this final rule to
amend the special regulations for the NPS administered portion of the
St. Croix National Scenic Riverway (Riverway). This rule will provide
for the regulation of access to waters within the Riverway of vessels
and individuals in order to protect against the infestation of zebra
mussel. The purpose of this rule is to protect park aquatic natural
resources and supporting human built infrastructure.
EFFECTIVE DATE: This rule becomes effective on July 23, 1997.
FOR FURTHER INFORMATION CONTACT: Brian Adams, Chief Ranger, St. Croix
National Scenic Riverway, P.O. Box 708, Saint Croix Falls, WI 54024.
Telephone 715-483-3284.
SUPPLEMENTARY INFORMATION:
Background
The NPS is granted broad statutory authority under 16 U.S.C.
Section 1 et. seq. (National Park Service Organic Act) to ``* * *
regulate the use of the Federal areas known as national parks,
monuments, and reservations * * * by such means and measures as conform
to the fundamental purpose of the said parks * * * which purpose is to
conserve the scenery and the natural and historic objects and the
wildlife therein and to provide for the enjoyment of the same in such
manner and by such means as will leave them unimpaired for the
enjoyment of future generations'' (16 U.S.C. Sections 1a-2(h)). In
addition, the Organic Act (16 U.S.C. 3.) allows the NPS to develop
``rules and regulations * * * necessary or proper for the use and
management of the parks, monuments and reservations under the
jurisdiction of the National Park Service''.
The National Park Service Management Policies (1988) provide
overall direction in implementing the intent of this congressional
mandate and other applicable Federal legislation. The policy of the NPS
regarding protection and management of natural resources is ``The
National Park Service will manage the natural resources of the national
park system to maintain, rehabilitate, and perpetuate their inherent
integrity'' (Chapter 4:1). Where conflict arises between human use and
resource protection, where the NPS has a ``reasonable basis to believe
a resource is or would become impaired, the Park Service may, * * *
otherwise place limitations on public use'' (Chapter 1:3).
The integrity and quality of many national aquatic ecosystems, and
dependent economic values and infrastructure, are threatened by the
introduction of a variety of injurious non-indigenous aquatic species,
both flora and fauna. These exotic aquatic animals and plants cause
irreparable harm to the core values and resources for which the
national park system was created and can impose costly economic impacts
on businesses and government entities through loss of production time
and detection, mitigation, remediation and control activities. It is
estimated that six of the over 150 known exotic aquatic species found
within United States waters have alone caused over $1.5 billion in
damages since 1906 (U.S. Congress, Office of Technology Assessment).
One such example is the exotic zebra mussel (Dreissena polymorpha).
The zebra mussel is a small, fresh water, filter feeding mollusk that
attaches itself to any hard surface, human-made or natural. These
highly prolific mussels were first discovered in Lake St. Clair in 1988
and have rapidly become one of the most ecologically and economically
damaging aquatic nuisance species in North America. It is believed that
the species was accidently introduced into Great Lakes waters in 1985-
1986 by the routine practice of transferring ballast water in
commercial vessels. They have quickly spread throughout the Great Lakes
and into the major eastern and Midwestern river systems including the
Mississippi River, Ohio River, Arkansas River, Red River, Tennessee
River and Hudson River drainages.
The ecological and economic impacts of zebra mussels have been
extensive. These include effects to other organism, water quality,
water clarity, and disruption of native aquatic communities and impacts
to navigational devices, businesses and industries, municipal water
systems, utility power plants, and recreational and commercial vessel
owners.
The primary vector in the spread of the zebra mussel, like many
aquatic exotic species, is by in-water or trailered vessels transport
from infested to uninfested waters. During the summer of 1995, zebra
mussels were found on trailered vessels as far west as California.
There is evidence that contaminated wet suits are also a vector for
accidental introduction. There is no evidence that transport by natural
means such as birds or aquatic wildlife has led to the establishment of
viable zebra mussel populations.
Exotic organisms were recognized as a problem in 1977 when, on May
24, 1977, Executive Order (EO) 11987 was signed and released. EO 11987
directed Federal agencies to restrict the importation and introduction
of exotic species into the natural ecosystems on lands and waters under
their jurisdiction. On November 29, 1990, Congress passed the
Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990, as
amended (1996) (16 U.S.C. 4701). This act, among other things, directed
Federal agencies to prevent the introduction and dispersal of
nonindigenous species into waters of the United States. On November 9,
1996, the President signed the ``National Invasive Species Act'' that
had been passed by Congress. This act calls for a more widespread
effort in looking for ways to prevent and control the increasing number
of invasions by nonindigenous species.
This final rule will allow St. Croix National Scenic Riverway to
regulate vessel and individual access to park area waters, to prevent
or minimize the risk of the unintentional introduction of zebra mussel.
Minimizing such risks is particularly important since once introduced
and established, zebra mussels are extremely costly and nearly
impossible to eliminate.
This rule will prohibit the transportation, introduction or
attempted introduction of aquatic nuisance species into park area
waters. The rule includes criteria for the decontamination of vessels
and equipment that will allow them access to park area waters. The rule
will also allow the NPS to implement a permit system outlined in the
general provisions (36 CFR 1.6) to assure vessels entering Riverway
waters are free of aquatic nuisance species.
This rule will bring the NPS into conformity with programs
currently in place in the States of Minnesota and Wisconsin and will
allow the NPS to provide an extra measure of protection
[[Page 33750]]
to the Federally administered section of the St. Croix National Scenic
Riverway. Currently there are four marinas along the St. Croix National
Scenic Riverway in both Minnesota and Wisconsin that provide inspection
and vessel cleaning services. These facilities are listed in the
Superintendent's Compendium and will be identified in the annual St.
Croix Interagency Zebra Mussel Task Force Plan. The availability of
these inspection and vessel cleaning services has also been published
in local and regional newspapers and is commonly known throughout the
regional boating community.
This rule was originally published in the Federal Register on June
24, 1996 (61 FR 32383) as a proposed Servicewide rule at 36 CFR Part 3,
Boating and Water Use Activities. However, the NPS has determined that
Servicewide regulations are not appropriate at this time and have
elected instead to limit the applicability of this final rule to St.
Croix National Scenic Riverway, located in Minnesota and Wisconsin,
only. Since this final rule is very similar to the proposed rule, but
is less broad in scope, the NPS has determined that issuance of this
rule as final is appropriate.
Analysis of Comments
NPS published proposed rules in the Federal Register on June 24,
1996 (61 FR 32383). NPS received two timely comments on the proposed
rules, one each by the States of Minnesota and Wisconsin. It needs to
be said that the States of Wisconsin and Minnesota, along with the NPS,
are involved with active aquatic nuisance species control and
prevention programs on the St. Croix River. Much mention is made by
both States regarding the St. Croix National Scenic Riverway, which is
threatened by a variety of nuisance aquatic plant and animal species
including, but not limited to, the zebra mussel, purple loosestrife and
Eurasian watermilfoil.
NPS has considered each of these comments. NPS's responses to the
comments are as follows:
Jurisdiction of the NPS To Regulate Vessel on State Waters
The comments by the State of Wisconsin focused on the jurisdiction
of the NPS to regulate or impede ``the forever free'' concept for
navigable waters as outlined in the Wisconsin State Constitution,
Article IX, section 1. The heart of the comments by the State of
Wisconsin states ``Accordingly, it is the view of the State of
Wisconsin that even though the Federal government also has jurisdiction
over navigation on federally navigable waters, any federal restrictions
on the right of navigation must take into account the concurrent state
rights including the general right of free navigation.'' The State
claims its authority through ``ownership of all submerged lands under
navigable waters vested in the State'' when Wisconsin attained
Statehood in 1848.
NPS regulatory authority over waters subject to the jurisdiction of
the United States, including navigable water and areas within their
ordinary reach, however, is not based on ownership but rather on the
Commerce Clause of the U.S. Constitution. In regards to the NPS,
Congress in 1976 amended the 1970 Act for Administration (known as the
General Authorities Act) and authorized and directed the NPS to
``promulgate and enforce regulations concerning boating and other
activities on or relating to waters located within areas of the
National Park System, including waters subject to the jurisdiction of
the United States * * *'' 16 U.S.C. 1a-2(h).
This rule carries out the responsibility of the NPS, as directed by
Congress, to develop and enforce rules over waters subject to the
jurisdiction of the United States in keeping with the core mission of
the NPS, which is to ``conserve the scenery and the natural and
historic objects and the wild life therein and to provide for the
enjoyment of the same in such manner and by such means as will leave
them unimpaired for the enjoyment of future generations'' (16 U.S.C.
1).
This rule is not designed to prevent people from using Riverway
waters, but conditions the use of these waters to protect against the
danger of infestation from aquatic nuisance species.
Clarity of the Rules
The State of Minnesota generally commented on the lack of clarity
or general vagueness of the rule and made specific recommendations to
improve the language of the rule. These comments will be addressed in
the ``Section-by-Section Analysis'' to follow.
Compliance With Other Laws
The State of Minnesota questioned the last statement in paragraph
two of the proposed rule, Compliance with Other Laws section. It is
true that this statement is conjecture, as the state asserts, and was
stated as such. The NPS does not know exactly how much of a positive
secondary effect this rule may have on local business and small
entities providing vessel cleaning and decontaminating services to the
public. That is up to the private sector to determine. The NPS merely
stated that it may occur.
The State of Minnesota also questioned the last two paragraphs of
this same section. These two paragraphs deal with requirements found in
the National Environmental Policy Act (NEPA) and merely state the
determination that they are categorically excluded from the procedural
requirements of NEPA. As the State of Minnesota points out, some people
will be locally affected by this rule, but the effect of the rule does
not significantly effect the quality of the human environment, health
and safety, and satisfies the criteria set forth, and therefore neither
an Environmental Assessment (EA) nor an Environmental Impact Statement
(EIS) will be prepared.
Section-by-Section Analysis
Sections 3.6(m) of the proposed rule is promulgated with several
revisions. The revisions include moving most of the proposed rule to 36
CFR 7.9. Section 3.6 (m)(2) and (m)(4) have been removed from the final
rule.
The State of Minnesota states that this paragraph is vague, and
implies that a boat operating in infested waters is considered infested
regardless of the risk of infestation. The State is correct. The NPS
considers any vessel operating in infested waters to be contaminated,
regardless of risk, and should be inspected and cleaned prior to
placement in uninfested waters. The State expressed concern on the
liability of the State and its agents in regard to knowingly allowing a
vessel to be launched at a State facility. This rule does not imply
that the State must take any special action beyond its normal ability
to act to prevent a contaminated vessel from entering park area waters
and does not imply that the State is liable if an unknowing launch or
operation does occur at a State operated facility. NPS itself does not
have the fiscal or human resources to monitor all its launch facilities
at all times.
The State also recommended that NPS use a different term to
describe an ``undesirable exotic species''. The State is correct that
there are a variety of terms in both State and Federal law used to
identify ``undesirable exotic species''. Because of this, the NPS has
decided to narrow the scope of this final rule. For the purposes of
this rule, aquatic nuisance species is used to include zebra mussel,
purple loosestrife and Eurasian watermilfoil.
Finally, the State expressed concern that the term ``NPS waters''
was not adequately defined in the rule. The narrower scope of this rule
will make the regulation applicable only on St.
[[Page 33751]]
Croix National Scenic Riverway waters. ``Waters'', as used in this
rule, are described in 36 CFR 1.2, Applicability and Scope. The State
also expressed concern over the term ``vessel'' as found in
subparagraph (m)(5). This definition is the same as found in 36 CFR
1.4, Definitions, with the exception of seaplanes, which are considered
a vessel for this rule. The State is correct in its assumption that a
``belly boat'' or ``inflatable raft'' is a vessel, and that it should
be inspected and cleaned, as necessary, before being placed in
uninfested waters after use in infested waters.
Section 3.6(m) is renumbered as 36 CFR 7.9(c) and promulgated as
proposed, except for changing the words ``park waters'' to ``park area
waters'' and changing ``injurious nonindigenous aquatic nuisance
species'' to ``aquatic nuisance species''.
The definitions at Sec. 3.6(m)(3) and (m)(5) have been amended and
renumbered 36 CFR 7.9 (f)(1) and (f)(2), respectively.
Section 3.6(n) is removed.
Section 3.6 (o) is renumbered as 36 CFR 7.9(d) and promulgated as
proposed, with the addition of the words ``is prohibited''.
Section 3.23(c) is renumbered as 36 CFR 7.9(e) and promulgated as
proposed, with the addition of the words ``is prohibited''.
Drafting Information
The primary authors of this rule are Brian R. Adams, Chief Ranger,
St. Croix National Scenic Riverway; James A. Loach, Superintendent,
Great Lakes System Support Office, Midwest Field Area; and Dennis
Burnett, Washington Office of Ranger Activities, National Park Service.
Paperwork Reduction Act
This final rule does not contain collections of information
requiring approval by the Office of Management and Budget under the
Paperwork Reduction Act of 1995.
Compliance With Other Laws
This rule is not a significant rule requiring review by the Office
of Management and Budget under Executive Order 12866. The Department of
the Interior has determined that this rule will not have a significant
economic effect on a small number of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601 et. seq.). The economic
effects of this rulemaking are local in nature and negligible in scope.
NPS has determined and certifies pursuant to the Unfunded Mandates
Reform Act, 2 U.S.C. 1502 et seq., that this rule will not impose a
cost of $100 million or more in any given year on local, state, or
tribal governments or private entities.
NPS has determined that this 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 non-compatible uses that may compromise the nature and
characteristic of the area, or cause physical damage to it;
c. Conflict with adjacent ownerships or land uses; or
d. Cause a nuisance to adjacent land owners or occupants.
Based on this determination, this rulemaking is categorically
excluded from the procedural requirements of the National Environmental
Policy Act (NEPA) by Departmental guidelines in 516 DM 6 (49 FR 21438).
As such, neither an Environmental Assessment nor an Environmental
Impact Statement has been prepared.
List of Subjects in 36 CFR Part 7
District of Columbia, National parks, Reporting and recordkeeping
requirements.
In consideration of the foregoing, 36 CFR Chapter I is amended as
follows:
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 7.9 is amended by adding paragraphs (c), (d), (e) and
(f) to read as follows:
Sec. 7.9 St. Croix National Scenic Rivers.
* * * * *
(c) Vessels.
(1) Entering by vessel, launching a vessel, operating a vessel, or
knowingly allowing another person to enter, launch or operate a vessel,
or attempting to do any of these activities in park area waters when
that vessel or the trailer or the carrier of that vessel has been in
water infested or contaminated with aquatic nuisance species, except as
provided in paragraph (c)(2) of this section is prohibited.
(2) Vessels, trailers or other carriers of vessels wishing to enter
park area waters from aquatic nuisance species contaminated or infested
waters may enter after being inspected and cleaned using the technique
or process appropriate to the nuisance species.
(d) Placing or dumping, or attempting to place or dump, bait
containers, live wells, or other water-holding devises that are or were
filled with waters holding or contaminated by aquatic nuisance species
is prohibited.
(e) Using a wet suit or associated water use and diving equipment
previously used in waters infested with aquatic nuisance species prior
to being inspected and cleaned using a process appropriate to the
nuisance species is prohibited.
(f) For the purpose of this section:
(1) The term aquatic nuisance species means the zebra mussel,
purple loosestrife and Eurasian watermilfoil;
(2) The term vessel means every type or description of craft on the
water used or capable of being used as a means of transportation,
including seaplanes, when on the water, and buoyant devises permitting
or capable of free flotation.
Dated: June 9, 1997.
William Leary,
Acting Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 97-16193 Filed 6-20-97; 8:45 am]
BILLING CODE 4310-70-P
