2024-27571. Hot Springs National Park; Use of Thermal Water and Commercial Passenger-Carrying Vehicles

Proposed regulation	Existing regulations
§ 7.18(b)(1) Definitions	• § 7.18(b) Use of water.
	• § 21.1 Definitions.

Existing regulations in § 21.1 define the terms “physician,” “registered physician,” “employee,” and “bathhouse”. The proposed rule would remove definitions for “physician” and “registered physician” because those terms would no longer be used in the regulations due to changes in how thermal water is used by the public. The existing definition of “employee” is any person licensed or certified by a State or territory in his or her specialty, or certified by the superintendent to perform special services in a bathhouse. The rule would remove the definition of “employee” as redundant with a provision in new paragraph (b)(3)(v) that would require bathhouses to ensure and maintain employee licenses and certifications where required by Federal or State law. The remainder of the existing definition of “employee” is outdated and unnecessary because the superintendent no longer issues such certifications.

The proposed rule would simplify the definition of “bathhouse” by removing unnecessary references to individuals, trustees, partnerships, corporations, and business entities as potential operators, which is not relevant to the issue of authorized use of thermal water. Instead, the definition would simply state that bathhouse is a facility authorized to use thermal water for any purpose pursuant to a written instrument signed by the superintendent.

The proposed rule would add a new definition of “bathing” to mean soaking in thermal water for health benefits. This definition is necessary to implement a distinction in the park's enabling act about rates charged to bathhouses for use of thermal water, explained below. The proposed rule would add a new definition of “thermal water” to mean water that emerges from springs, fountains, or other natural sources within the park. This language is similar to language in existing paragraph (b) of § 7.18 and serves to distinguish water that is subject to NPS administration, and water that is not. The rule would add a new definition of “use of thermal water” to mean heating, cooling, storing, removing from the park, combining with other substances, or otherwise altering thermal water in any manner. This definition is intentionally broad to include any possible use so that the NPS can effectively protect this resource through restrictions and conditions on the use of thermal water that appear elsewhere in the regulations. Finally, the rule would add a definition of “water treatment” to mean the introduction of any substance into thermal water, including chemicals, solutions, or other water. This type of use would be further defined because it requires specific approval by the NPS Office of Public Health (OPH), as explained below.

Paragraph (b)(2)—Use of Thermal Water

Proposed regulation	Existing regulations
§ 7.18(b)(2) Use of thermal water	• § 7.18(b) Use of water.
	• § 21.3 Use of thermal water.

Existing regulations in § 7.18(b) prohibit the carrying away of water, hot or cold, from any of the springs, fountains, or other sources of supply in the park for the purpose of sale, or for any use other than personal drinking. Existing regulations in § 21.3 prohibit the use of thermal waters for purposes other than those authorized by the superintendent. They further prohibit the heating, reheating, or otherwise increasing the temperature of thermal water, and the introduction of any substance, chemical, or other material or solution into thermal waters, except as may be prescribed by a physician for a bather or as may be directed by the superintendent.

This rule would replace these existing regulations with new paragraph (b)(2) of § 7.18. In order to continue to protect the integrity of thermal water, new paragraph (b)(2)(i) would prohibit the use of thermal water except by individuals for personal consumption or as authorized in writing by the superintendent. As explained above, the new definition of “use of thermal water” would be broad enough to include any of the specific uses of water prohibited by the existing regulations.

Under the rule, the superintendent's authority to allow use of thermal water would be limited to use that is consistent with the purposes of the park, including the protection of natural resource values. The park's Foundation Document (2022) states that the purpose of the park is to protect its geothermal spring water and associated lands for public health, wellness, and enjoyment. This regulatory provision, then, would allow the superintendent to authorize the use of thermal water for the general public welfare, to include, for example, use of thermal water for bathing, drinking, and relaxation, but not in a manner that is inconsistent with the mandate to protect the resource. The rule would more specifically prevent the superintendent from authorizing the removal of thermal water from the park for direct sale or use in products for sale. This would not prevent the superintendent from authorizing the use of thermal water by bathhouses that are commercial operations. Historic and contemporary bathhouses have and continue to operate as commercial businesses, such as spas, hotels, and (most recently) a brewery. This provision, similar to existing § 7.18(b), would prohibit the commercial exploitation of thermal water as a product that is created, packaged, and sold outside of the park or any bathhouse. These types of uses are too far removed from the establishment of the park as an in-situ reserve where the public can visit and benefit from thermal water originating in the park.

The last sentence of new paragraph (b)(2)(i) would state that the superintendent, in addition to any other appropriate written instrument, may use lease agreements to authorize the use of thermal water, but only those lease agreements specifically authorized by the park's enabling legislation. The NPS intends this specific reference to the park's enabling legislation to clarify that lease agreements entered into by the NPS under its general leasing authority in 54 U.S.C. 102102, as implemented by NPS regulations in 36 CFR part 18, should not be used to authorize the use of thermal water.

New paragraph (b)(2)(ii) would require all water treatment to be approved by the OPH, and be limited to the minimum amount and type necessary for the maintenance of public health and safety, as determined by the OPH.^[1] This provision would codify an additional level of protection for thermal water in NPS regulations. This is consistent with existing practice, as NPS staff at the park work closely with OPH officers to maintain the health and safety of thermal water. The rule would not include the allowance in existing § 7.18(b) that physicians can prescribe the introduction of substances into thermal water for a bather. Bathing for medicinal purposes is not a ( print page 93534) contemporary use of thermal water and the employees of the OPH are more appropriate subject matter experts than personal physicians to determine the potential impacts of water treatment on public health.

New paragraphs (b)(2)(iii)-(v) would codify in NPS regulations, for the first time, provisions in the park's enabling act that establish priority uses of thermal water by bathhouses located within and outside of the park. Restating these provisions in a more accessible format would benefit the NPS and existing and prospective bathhouses. Bathhouses would better understand how the park's enabling act prioritizes the use of thermal water among authorized users. Bathhouses also would better understand the requirement that there be a surplus of thermal water before the superintendent can authorize bathhouses located outside of the park, except for the Arlington Hotel, to use thermal water. New paragraph (b)(2)(iii) would restate the order of priority for using thermal water, consistent with 16 U.S.C. 362:

1. Bathhouses located within the park, in the order in which they were authorized to use thermal water.

2. Arlington Hotel.

3. Bathhouses located outside of the park, in the order in which they were authorized to use thermal water, and only when the Superintendent has determined that there is a surplus of thermal water.

The park's enabling act refers to the “Army and Navy hospital bathhouse” and the “public bathhouse” as having priority use before any of the bathhouses identified in the rule. These entities are not listed in the rule, however, because the Army and Navy hospital bathhouse ceased operation in 1959 and the public bathhouse, which referred to the Libbey Physical Medicine Center, ceased operation in 2005. In the future, if new bathhouses are established in either location, they would be categorized as bathhouses located within the park, and have priority use relative to other bathhouses within the park in the order in which they were authorized to use thermal water, but always before the Arlington Hotel and other bathhouses located outside of the park. The Arlington Hotel is located outside of the park and is specifically named in the park's enabling act as having priority use of thermal water in the order identified in the rule. Although it is located outside of the park, the superintendent is not required to determine there is a surplus of thermal water before authorizing the Arlington Hotel to use thermal water pursuant to a written instrument due to its specific mention in the enabling act. Currently, Levi Hospital is the only other bathhouse located outside of the park that is authorized to use thermal water. Levi Hospital is not named in the enabling act and its use of thermal water is conditioned upon the superintendent determining there is a surplus of thermal water. As long as it remains in continuous operation, its use of thermal water will have priority over other bathhouses located outside of the park that may be authorized to use thermal water in the future.

New paragraph (b)(2)(iv) would explain that a surplus of thermal water exists when, after accounting for all of the thermal water that bathhouses located within the park and the Arlington Hotel are authorized to use, the superintendent determines that additional thermal water may be used by other bathhouses located outside of the park in a manner that would not conflict with the requirements of applicable Federal laws and policies, including those that require the NPS to preserve the resources of the park. When the superintendent evaluates whether there is a surplus, the relevant value is the full amount of thermal water that may be used by bathhouses within the park and the Arlington Hotel, not the amount of thermal water actually used by those bathhouses at any time. The superintendent then must evaluate whether there is any remaining thermal water that could be used by other bathhouses, and whether such use would violate any applicable Federal laws ( e.g., the park's enabling act and the NPS Organic Act) or any applicable Federal policies ( e.g., NPS Management Policies 2006). This includes an evaluation of whether additional use of thermal water will cause impairment of park resources, including wildlife and other natural features in the park that use or depend on the water. The superintendent must determine there is a surplus of water before signing a written instrument authorizing the use of thermal water by a bathhouse located outside of the park.

New paragraph (b)(2)(v) would require the NPS to provide adequate notice to bathhouses that have lower priority use authorizations before it authorizes a bathhouse higher in the order of priority to use thermal water. This paragraph would further require the NPS to provide adequate notice to bathhouses located outside of the park, other than the Arlington Hotel, if the superintendent's determination that there is a surplus of thermal water changes in a manner that will impact their authorizations to use thermal water. These provisions would help ensure that bathhouses have reasonable notice about potential decreases in the amount of thermal water they are authorized to use. This would allow them to adjust operations and notify customers about impacts to offered products and services. The superintendent may change the amount of thermal water bathhouses are authorized to use based upon determinations of surplus or determinations that use would be inconsistent with the purposes of the park, notwithstanding the terms and conditions of any written instrument authorizing use of thermal water.

New paragraph (b)(2)(vi) would require bathhouses to have a thermal water management plan approved by the superintendent and the OPH, with an additional requirement that thermal water management plans for bathhouses located outside of the park also must be approved by the Arkansas Department of Health, as required by State law. Thermal water management plans are already required as a term and condition of all written instruments authorizing bathhouses to use thermal water. Including this requirement in the regulations would provide additional notice and transparency for bathhouses.

The park's enabling act vests full power to the Secretary, acting through the NPS, to promulgate regulations that authorize the superintendent to examine and inspect at any time the manner of using thermal water in any bathtub. 16 U.S.C. 363. Consistent with this authority, new paragraph (b)(2)(vii) would give the superintendent (or someone with delegated authority) the right to examine and inspect the use of thermal water by a bathhouse at reasonable times to determine whether the bathhouse is being operated in accordance with the terms and conditions of the written instrument authorizing the use of thermal water, the approved thermal water management plan, and with the provisions of the regulations.

Paragraph (b)(3)—Prohibited Acts

Proposed regulation	Existing regulations
§ 7.18(b)(3) Prohibited acts	• § 21.1 Definitions.
	• § 21.2 Penalties
	• § 21.8 Employee certification.

The park's enabling act authorizes the Secretary, acting through the NPS, to provide penalties for the violation of any regulation as to the use of thermal water, including the cancellation of any lease for the use of such water. 16 U.S.C. 363. Consistent with this authorization, ( print page 93535) new paragraphs (b)(3)(i)-(v) would identify prohibited acts and state that they may result in the revocation or suspension of a written authorization to use thermal water. Prohibited acts would be failures to:

• comply with a written instrument authorizing the use of thermal water;
• comply with a provision of an approved water management plan;
• make a required payment;
• operate a pool or spa without appropriate certification, as determined by the OPH;
• ensure and maintain employee licenses and certifications where required by Federal or State law; and
• comply with any regulations addressing the use of thermal water.

This list of prohibited acts would provide notice and transparency to bathhouses about the repercussions of certain actions. Existing regulations in § 21.1 and § 21.8 require persons performing special services in bathhouses, such as physical therapy, massage, and attending to baths, to be licensed or certified by a State or U.S. territory, or by the superintendent upon completion of examinations and (for bath attendants) an apprenticeship. Individuals who provide special services in bathhouses are already subject to licensing and certification requirements under applicable law. Rather than imposing those requirements again in NPS regulations, new paragraph (b)(3)(v) would instead hold bathhouses accountable for the services they offer their customers by requiring bathhouses to ensure and maintain employee licenses and certifications where required by Federal or State law. The superintendent no longer examines or certifies bathhouse employees. As a result, those provisions also would be removed.

Existing regulations in § 21.2 state that any person convicted of violating any regulation in part 21 shall be punished by a fine not exceeding $100 and be adjudged to pay all costs of the proceedings. Existing regulations in 36 CFR 1.3 state that a person convicted of violating any regulation in parts 1 through 7, part 9 subpart B, and parts 12 and 13, shall be subject to the criminal penalties provided under 18 U.S.C. 1865. As a result of moving all regulations about the use of thermal water to § 7.18, a violation of any provision of the rule would result in criminal penalties under § 1.3. New paragraph (b)(3)(vi) would state this explicitly for additional notice and transparency.

Paragraph (b)(4)—Rates and Cost Recovery

Proposed regulation	Existing regulation
§ 7.18(b)(4) Rates and cost recovery	N/A.