[Federal Register Volume 64, Number 91 (Wednesday, May 12, 1999)]
[Rules and Regulations]
[Pages 25708-25723]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-9762]
[[Page 25707]]
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Part III
_______________________________________________________________________
Department of the Interior
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National Park Service
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36 CFR Part 62
National Natural Landmarks Program; Final Rule
Federal Register / Vol. 64, No. 91 / Wednesday, May 12, 1999 / Rules
and Regulations
[[Page 25708]]
DERARTMENT OF THE INTERIOR
National Park Service
36 CFR Part 62
RIN 1024-AB96
National Natural Landmarks Program
AGENCY: National Park Service, Interior.
ACTION: Final rule.
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SUMMARY: This final rule revises the current regulations for the
National Natural Landmarks (NNL) Program. These revisions ensure that
owners of Potential National Natural Landmarks (PNNL) under
consideration for possible national natural landmark designation are
notified well in advance of such consideration and have the opportunity
to comment on the proposals; that the National Park System Advisory
Board reviews all future national natural landmark nominations and
provides recommendations to the Secretary of the Interior about their
qualifications for designation; and land is not included within an area
designated by the Secretary if a private property owner objects to such
a designation for his or her portion.
EFFECTIVE DATE: This rule becomes effective on June 11, 1999.
FOR FURTHER INFORMATION CONTACT: Natural Landmarks Program, under Mike
Soukup, Associate Director, Natural Resources, Stewardship and Science,
National Park Service, 1849 C Street, NW, Washington, DC, 20240-0001.
Telephone: 202-208-3884.
SUPPLEMENTARY INFORMATION:
Background
To identify the full range of geological and ecological features of
nationally significant examples of the nation's natural heritage and to
encourage their preservation, the Secretary of the Interior established
the NNL Program under the authority of the Historic Sites Act of 1935
(16 U.S.C. 461 et seq.). Potential natural landmarks are identified in
studies by the National Park Service (NPS) and from other sources,
evaluated by expert natural scientists, and, if determined nationally
significant, designated as landmarks by the Secretary of the Interior.
When designated, a landmark is included in the National Registry of
Natural Landmarks, which currently lists 587 national natural landmarks
nationwide.
The registry includes nationally significant geological and
ecological features in 48 States, American Samoa, Guam, Puerto Rico and
the Virgin Islands. Of the 587 listed landmarks, half are administered
solely by public agencies; i.e., Federal, State, county or municipal
governments. Nearly one-third are owned solely by private parties. The
remaining natural landmarks are owned or administered by a mixture of
public and private owners. Because many natural landmarks are privately
owned or not managed for public access, owner permission must be
obtained to visit them. Designation does not infer a right of public
access.
National natural landmark designation is not a land withdrawal,
does not change the ownership of an area and does not dictate activity.
However, Federal agencies should consider impacts to the unique
properties of these nationally significant areas in carrying out their
responsibilities under the National Environmental Policy Act (42 U.S.C.
4321 et seq.). Designation could result in State or local planning or
land use implications. The Secretary is required to provide an annual
report to the Congress on damaged or threatened NNLs (Section 8 of the
National Park System General Authorities Act of 1970 (90 Stat. 1940),
as amended (16 U.S.C. 1a-5)).
Natural landmark preservation is made possible by the long-term,
voluntary commitments of public and private owners to protect the
outstanding values of the areas. In revising the regulations for the
program, the NPS seeks to balance two fundamental goals: identification
and preservation of nationally significant examples of the nation's
natural heritage and the full acknowledgment and respect of owners'
interests at all times.
Since 1989, significant interest in the regulations and operation
of the NNL Program centered on three major issues: (1) Notification of
owners and other concerned individuals and organizations that PNNL were
under consideration for national natural landmark designation, (2)
owner consent or objection to designation of property as a national
natural landmark, and (3) the effects of national natural landmark
designation on private property. In response to these concerns,
proposed revisions to the program regulations were published by the NPS
as a proposed rule in the Federal Register on November 21, 1991 (56 FR
58790), for a 90-day comment period. On February 6, 1992 (57 FR 4592),
the comment period was extended to March 2, 1992. In addition, during
the comment period, the NPS held public hearings on the proposed
revised regulations at nine locations around the country. Date, time
and exact location of each hearing was announced in the Federal
Register on December 16, 1991 (56 FR 65203).
The revision of the program regulations is part of an improvement
of the operation of the NNL Program by the NPS. On November 28, 1989,
the Director of the NPS instituted a moratorium on the NNL Program,
during which the NPS did not consider new areas for NNL designation.
Because the improvements have been completed, the moratorium will be
lifted upon the effective date of the regulations.
Summary of Comments
To date, copies of the proposed revised regulations were sent to
over 500 individuals or organizations on an NPS NNL mailing list that
was made part of the rulemaking. In addition, the proposed regulations
were sent to the State Park Directors and State Historic Preservation
Officers of all 50 States. As part of NPS's ongoing corroboration and
contact with current owners of the 587 designated NNLs, the proposed
regulations were also sent to approximately 8,000 NNL owners whose
names and addresses were confirmed.
Comments were received from 236 sources, which included government
entities, private organizations, and private individuals. In addition,
894 standardized, completed questionnaires were submitted as comments,
and 70 respondents presented oral or written comments at the public
hearings. Several respondents stated that the proposed revisions of the
program regulations would not resolve the three primary issues.
However, other respondents expressed support of the objectives of the
program or of the proposed revisions. Some respondents recommended the
abolishment of the program. Other respondents stated that the proposed
revisions were too extreme for resolution of the issues and were
therefore detrimental to the objectives of the program.
Analysis of Comments
Issue 1: Comment Procedure
Comments: Several respondents suggested that the final rule not be
issued until the NPS provided owners of all the designated NNLs, as
well as owners of PNNL that had been evaluated but not designated, with
the opportunity to comment on the proposed rule. Some respondents noted
that the proposed rule was so insufficient that the NPS should make the
needed changes and issue another proposed rule for comment prior to
issuing any final rule. Some respondents suggested that the proposed
[[Page 25709]]
rule be reissued for comment and that the preamble should include a
reference to the Department of the Interior Inspector General's report
on the NNL Program (December 1991).
Service response: To date, the NPS has taken the following steps to
advise and inform owners of the 587 existing NNLs about the NNL Program
and the rulemaking process. To confirm the names and addresses of the
nationwide owners of the 587 designated NNLs, the NPS wrote to
approximately 8,000 owners and provided them with a copy of the
proposed revised regulations. Almost all of the owners who submitted
comments on the proposed regulations supported the continuation of the
NNL Program and endorsed the value of the NNL designation.
The NPS believes that NNL owners and other interested organizations
and individuals have had sufficient opportunities to participate in the
rulemaking. Additionally, all of the comments on the proposed rule were
fully considered in developing changes in the final rule. Therefore,
the revised rule is being issued as final.
Comments (major rule): Some respondents disagreed with the
Department of the Interior's determinations, as stated in the
SUPPLEMENTARY INFORMATION section of the proposed rule, of the
rulemaking as a non-major rule within the meaning of Executive Order
12291 (46 FR 13193); with the rulemaking as a categorical exclusion
from the procedural requirements of the National Environmental Policy
Act under Departmental regulations in 516 DM 6 (49 FR 21438); and with
the proposed rule as implying a taking of private property as defined
under Executive Order 12630. Some respondents questioned whether an
assessment of implied taking of private property by the proposed rule
had been completed.
Service response: The NPS completed a takings impact assessment.
The Department determined that the proposed rule did not imply taking
of private property. Executive Order 12291 was revoked by Executive
Order 12866, which is addressed in this final rule.
Comments (legislative authority): Several respondents suggested
that the legislative authority for the NNL Program was insufficient or
non-existent and that the program should be abolished. Several other
respondents noted that the NNL Program served a valuable purpose in
recognizing nationally significant natural features and therefore
should be retained.
Service Response: The NNL Program is based on direction given to
the Secretary of the Interior to identify objects of national
significance contained in Section 1 of the 1935 Historic Sites Act (49
Stat. 666; 16 U.S.C. 461 et seq.). In addition, since 1962, the
Congress has recognized the NNL Program by including specific
references to national natural landmarks in several acts. For example,
Section 8 of the National Park System General Authorities Act of 1970,
(90 Stat. 1940) as amended (16 U.S.C. 1a-5) directs the Secretary of
the Interior to prepare an annual report to the Congress which
identifies all landmarks which exhibit known or anticipated damage or
threats to the integrity of their resources. Section 9 of the 1976
Mining in the National Parks Act (90 Stat. 1342; 16 U.S.C. 1908)
mandates that whenever the Secretary determines that a landmark may be
irreparably lost or destroyed in whole or in part by any surface mining
activity, the Secretary shall notify the person conducting the activity
and prepare a report to be submitted to the Advisory Council on
Historic Preservation with a request for advice. Finally, the National
Parks and Recreation Act of 1978 authorizes appropriations for
monitoring the welfare and integrity of landmarks. Thus, the 1935 Act,
and subsequent Congressional action provide authority for administering
the NNL Program.
Other Issues
The comments received focused on three major areas of the proposed
revision of the regulations: (1) Requiring consent of owners for the
evaluations and designations of properties, (2) providing owners of
designated NNLs with a mechanism for the removal of the designation and
(3) determining the effects of NNL designation on private property.
Issue 2: Definitions
Comments (definition of prejudicial procedural error): Some
respondents requested that the term ``prejudicial procedural error,''
as a criterion for removal of the NNL designation, be defined in the
regulations.
Service response: This term is already defined in Sec. 62.2 and
Sec. 62.8(a).
Comments (glossary): One respondent suggested that the regulations
include a glossary.
Service Response: Definitions of key terms are already included in
Sec. 62.2.
Comments (definition of owner): Several respondents suggested that
the definition of owner in Sec. 62.2 include owners of partial
interests in land and owners of inholdings and that these owners should
receive the same notifications and have the same opportunity to comment
and agree with the proposed NNL designation of a PNNL. One respondent
noted that owner should specifically be defined by title search. One
respondent noted that the definition of owner should specifically
reference Native American owners.
Service Response: The definition of owner in Sec. 62.2 in the final
rule was clarified to mean holding fee simple title. A change of the
final rule was made to include in this definition Native American
beneficial owners of land held in trust by the United States. Other
persons or organizations are welcome to comment during the designation
a PNNL. Procedures for identifying owners during the second
notification stage of the designation process are specified in
Sec. 62.4(d)(1).
Comments (definition of national significance): Some respondents
questioned the definition of national significance in Sec. 62.2 and the
criteria in Sec. 62.5 as too broad and subjective. Some respondents
noted that a definition and determination of national significance by
natural region as opposed to by nation is inappropriate. One respondent
felt that no standards or guidelines were provided to determine
national significance.
Service Response: As noted in Sec. 62.5, the natural diversity of
the nation is comprised of distinct regional patterns, correlated to
broad physiographic patterns. Therefore, the recognition of distinct
regional ecological and geological features often found in only one of
the country's natural regions, and their comparative assessment
primarily to determine a PNNL relative illustrativeness and condition,
is the approach used by the NNL Program. No change was made in the
final rule.
Comments (other definitions): Some respondents noted that the terms
scientist and evaluator had not been defined in the proposed rule.
Service Response: A definition of scientist has been added to
Sec. 62.2 in the final rule. Section 62.4(c) has been revised to
clarify that evaluators are qualified scientists.
Issue 3: Consent of Owners
Comments (written consent): Several respondents stated that the
requirement in Sec. 62.4(d)(4) for written consent from all owners for
the designation of an area was unnecessary because designation imposes
no regulatory restrictions on owners, was unreasonable because
obtaining the required written consent from all owners of most
multiple-owner properties would be difficult, and would invalidate or
damage the scientific credibility of the program. Some respondents
suggested modifying
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the requirement for affirmative responses from all owners to two-thirds
or the majority of owners. Other respondents felt that an affirmative
response was not necessary and that lack of landowner objection was
sufficient. One respondent noted that, if landowner consent was
required, provisions for protection of designated NNLs must be
stronger, such as requiring Federal agencies to avoid or mitigate
adverse impacts to NNLs.
Service Response: In response to these concerns,
Sec. 62.4(e)(2),(f), and (g)(1) were changed and a new paragraph (d)(5)
was added to show that land owned by a private property owner cannot be
designated when the private property owner involved has stated, in
writing, objection to designation. The NPS believes these changes
appropriately achieve the objectives.
Comments (owner consent for evaluation of PNNL): The proposed rule
included a provision (Sec. 62.4(b)(3)) to allow for the use of other
information sources by the NPS to evaluate a PNNL without entering onto
lands where landowner permission has not been granted. Several
respondents stated that a requirement for written landowner consent for
designation was not sufficient protection of landowner interests and
that the regulations should require written consent, in addition to
written notifications of owners, prior to evaluation of the property by
the NPS for NNL designation. One respondent noted that, if the NPS
elected to complete an evaluation without entering onto lands to which
landowners denied access, owners should be notified of the evaluation.
One respondent noted that, if the NPS elected to use other information
sources for an evaluation without entering lands to which landowners
denied access, the information should originally have been obtained
with owner consent.
Service Response: The NPS believes that the ability to
comparatively evaluate similar or related areas to determine the best
examples of certain ecological or geological features is an essential
part of the NNL Program. Restricting the ability of the NPS to use
existing information sources in completing these evaluations would
significantly impair the program. Therefore, this provision was
retained in the final rule. Section 62.4(b)(3) of the final rule was
changed to show that, when the NPS chooses to complete an evaluation
using only existing information, it informs the owners of the decision.
Comments (consent of entire region): Several respondents suggested
that the regulations require consent from every landowner in the entire
natural region containing the areas under consideration for designation
prior to PNNL evaluations. Some respondents suggested that the consent
of owners of properties adjacent to a PNNL also be required for
evaluation.
Service Response: These suggestions were not adopted in the final
rule. NNL evaluation and designation apply to specific areas, not to
adjacent properties or to entire natural regions.
Comments (notification of existing NNL owners): Several respondents
suggested that the regulations provide a mechanism to request the
removal of NNL designations by property owners. Some respondents
suggested the suspension of all 587 existing NNL designations until
owners consent. One respondent suggested the retention of only existing
NNL designations with which all owners and the appropriate State and
local governments concurred. One respondent suggested that no public
purpose would be served by allowing owners of NNLs the opportunity to
request the removal of designations and that this procedure may lead to
the destruction of some NNL's nationally significant values. One
respondent suggested the review of NPS records of all NNLs to determine
if written owner consent was obtained, whether information about the
areas was gathered by entering land without owner permission, and to
verify the removal from NPS files and destruction of information about
PNNL for which owners did not give consent for designation.
Service Response: Many of the 587 NNLs were designated before 1980,
when program regulations were first issued. Furthermore, program
funding levels during the decade prior to FY 1992 precluded the
comprehensive maintenance of updated documentation of NNL ownership.
Therefore, except as indicated below, the NPS will contact the known
owners of the existing NNLs in writing. This notice advises owners that
they can, within 90 days of this notice, inform in writing the Director
of NPS of their wish to have the NNL designations removed from their
properties. If owners do not respond within 90 days of the NPS
notification, the NNL designations of their properties will be
retained. Under these revised regulations, the properties from which
the designations are removed may be reconsidered for designation if
future changes in ownership or other circumstances warrant such action.
These provisions are reflected in a new section, Sec. 62.8(f), which
the NPS considers to be an appropriate balance between the competing
points of the described views.
For NNLs with more than 50 owners, the NPS may choose to provide a
general notice to owners in one or more newspapers in the area. In
addition, in updating its information on names and addresses of owners
of NNLs, the NPS has learned that six of the 587 NNLs have a
substantially larger and more complex ownership profile than the
remaining 581. Given this, the NPS also reserves the right to consider
boundary modifications of one or more of the six areas (Mobile-Tensaw
River Bottomlands, AL; Anza-Borrego Desert State Park, CA; Ancient
River Warren Channel, MN/SD; Nags Head Woods and Jockey Ridge, NC;
Canaan Valley, WV; and Baraboo Range, WI) as specified in Sec. 62.7 of
the regulations.
Comments (written permission): Some respondents noted that the
requirements in Sec. 62.4(a)(1) and (a)(2)(ii) for owner permission for
entry onto land should specify that this permission should be in
writing.
Service Response: This change has been made in the final rule.
Sections 62.4(a)(1), (a)(2)(ii), and (b)(3) were changed in the final
rule to clarify that the requirement for landowner permission to enter
onto land for PNNL evaluation does not apply to publicly owned lands
that are otherwise open to public visitation. Sections 62.6(c)(1) and
(c)(2) clarified the situation for monitoring landmarks.
Comment (pending designation following evaluation): Some
respondents suggested that the regulations require the NPS to notify
owners of PNNL for which an evaluation was completed, and owners of
PNNL identified in studies of natural regions but were not designated,
and give such owners the right to withdraw from the program.
Service Response: Any future evaluation of PNNL for NNL designation
will be done consistent with the program regulations, which include
specific requirements for the notification of owners and objections by
owners to ensure that owners are fully informed and that private
property owners have the option to withdraw their properties from
consideration. Therefore, no further change is necessary in the final
rule.
Comments (removal of designation): Several respondents recommended
a fourth criterion in Sec. 62.8(a) for the removal of future NNL
designations: request of the landowner to remove the designation. Other
respondents stated their opposition to granting requests for removal of
designations by owners. Several respondents suggested an
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opportunity for owners to request the removal of the NNL designations
of their properties prior to any revision in NNL Program regulations
that affect any possible regulatory obligations of the designations on
owners. Several respondents suggested that, after ownerships changes,
new owners of designated NNLs should be able to request the removal of
designations of their properties.
Service Response: Designation of a PNNL by the Secretary as an NNL
reflects a determination that the site meets the criteria for national
significance and the landowner(s) do not object to the designation.
Provisions in the final rule about landowner notification and objection
are intended to offer owners full opportunity to participate in the
designation process. A program in which an NNL was subject to de-
designation whenever an owner so wished or whenever ownership changed
would be purely honorific and of little value in achieving the program
objectives. Some of these suggestions were therefore not incorporated
into the final rule.
Comments (release of information): One respondent noted that
information on areas, as described under Sec. 62.9(b), should not be
released without private owners' consent. One respondent suggested that
Sec. 62.9(b) also include other reasons for restricted dissemination of
NNL site information, for example, when an owner does not wish
dissemination of information on an area because of concerns over
liability or lack of suitable visitor facilities. Some respondents
noted that the restriction on dissemination of information for certain
ecologically or geologically sensitive areas, as described in
Sec. 62.9(b), would be in violation of the Freedom of Information Act.
One respondent questioned the need for this provision because of the
assumption that owners are voluntarily preserving their NNL property.
Service Response: The NPS considers that Sec. 62.9(b) as proposed
represents an appropriate balance between the policy of availability of
government information, the need to restrict access to information in
certain circumstances, and the requirements of the Freedom of
Information Act and related authorities. No change has been made in the
final rule.
Issue 3: Effects of NNL Designation
Comments (restrictions on use of property): Several respondents
stated that descriptions of the possible effects of NNL designation on
property in Sec. 62.3 of the proposed rule were inaccurate and
incomplete. Several respondents stated that the mere consideration of
PNNL for NNL designation led to restrictions on the use of property in
local, State or Federal regulatory actions; and that, in agreeing to
voluntarily help conserve the area, the landowner was giving up
interests and rights to the property, which constitutes a restriction
on the use of the property.
Service Response: The NPS believes that Sec. 62.3(a) appropriately
describes the possible effects of designation. NNL designation does not
restrict the use and enjoyment of property by Federal action. The NNL
Program provides information on the location and status of important
natural features so that they can be considered in regional planning
for the use and development of a variety of resources. The NPS
encourages owners to protect the nationally significant values of their
property, but this voluntary cooperation does not restrict the owner's
use of his or her land. The voluntary involvement in the program
carries the hope that the owner will not lower the integrity of the
resource being recognized. Landmark designation seeks to assist
regional development planning and decision making by indicating which
resources are relatively significant, and which resources are of lesser
importance.
Comments (other regulations/future restrictions): Some respondents
suggested that the regulations more specifically describe the possible
State and local land use or planning implications of NNL designation on
an area referred to in Sec. 62.3(a); some respondents noted that the
word restrictions be used in place of implications. Other respondents
suggested that the regulations require the NPS to identify and advise
owners of Federal, State, or local legal or regulatory restrictions
that may apply as a result of NNL designation, including possible
future effects of such laws or regulations. Some respondents suggested
the revision of Sec. 62.3(a) to state that there will never be any
future restrictions on the use of an NNL. Several respondents suggested
that the regulations also state that, in addition to possible
implications of Federal, State, or local laws and regulations, in some
cases non-governmental third parties may use the NNL designation to
attempt to influence use or protection of the area. Other respondents
suggested that the descriptions in the regulations of effects also
clarify the benefits of designation. Other respondents stated that the
consideration of areas for NNL designation was a mechanism by the NPS
to identify new areas for addition to the National Park System. One
respondent suggested that the regulations also describe the possible
effects of designation on owners who own property near or adjacent to
the PNNL, such as being required to provide a scenic easement to allow
viewing of the landmark.
Service Response: As noted above, designation of a PNNL as an NNL
reflects the meeting of criteria for national significance and no
landowner objection. One of the objectives of the NNL Program is that
owners and Federal, State and local government agencies will take this
fact into account when making planning or other future land use
decisions. Although this may mean that the decisions may take into
account the national significance of the area, the NPS cannot describe
or predict the extent to which decisions may be influenced by such
designation on lands within or adjacent to areas receiving the NNL
designation. Language was added to Sec. 62.3(a) to clarify that,
although recognition as an NNL may be used to support certain State or
local planning or land use, such State and local actions are not
required or mandated by the Department of the Interior as a consequence
of the NNL designation. Additional language on the beneficial effects
of designation, including possible Federal income-tax benefits from
qualified conservation easement donations, was added to Sec. 62.3(b).
The title, Implications of Designation, was revised in Sec. 62.3 to
``Effects of NNL Designation.''
Designation of a PNNL as a national natural landmark is one method
used by the Department for recognizing and encouraging the preservation
of nationally significant areas as an alternative to Federal
acquisition of them for inclusion in the National Park System. Although
national natural landmarks have occasionally been subsumed in
subsequently created units of the National Park System, and national
natural landmarks can be designated in existing national park units,
natural landmark designation is not necessarily a first step that ends
in adding the area to the National Park System. In considering a
possible new addition to the National Park System, the NPS must first
determine that an area is nationally significant. While prior
designation as an NNL is one indication of national significance, there
are several other criteria that must be met before the NPS can support
a proposal for a new national park. An area must meet criteria for
suitability and feasibility to qualify as a potential addition to the
National Park System. To be suitable for inclusion in the System an
area must represent a natural
[[Page 25712]]
or cultural theme or type of recreational resource that is not already
adequately represented in the National Park System or is not comparably
represented and protected for public enjoyment by another land-managing
entity. To be feasible as a new unit of the National Park System an
area's natural landscape and or historic settings must be of sufficient
size and appropriate configuration to ensure long-term protection of
the resources and to accommodate public use. It must also have
potential for efficient administration at a reasonable cost. Other
important feasibility factors include land ownership, acquisition
costs, access, threats to the resource, and staff or development
requirements. Lastly, in all but exceptional circumstances, the
Congress must authorize by statute and then appropriate funds for the
acquisition of any new unit of the National Park System, or for the
significant expansion of existing units.
Comments (effects of designation): One respondent suggested that,
as part of the first notification in Sec. 62.4(b), the NPS specify to
the owners what consent to NNL designation entails and that a copy of
the potential owner consent agreement be provided to the owner as part
of the first notification.
Service Response: Information provided to owners as part of first
notification under Sec. 62.4(b)(1) and (2) includes an explanation of
the effects of NNL designation, as described in Sec. 62.3. A change was
also made in Sec. 62.4(b)(1) and (2) in the final rule to clarify that
the information provided at this stage also includes an explanation of
the designation process.
Issue 5: Area Information
Comments (obtaining area information): Several respondents
suggested that the NPS not retain information on PNNL at any stage in
the designation process if owners were not informed of this
consideration and had not given their consent to having their property
considered for designation. One respondent suggested that
Sec. 62.4(a)(2)(ii) be changed to specify that the NPS will not
consider information recommending a PNNL for possible NNL
consideration, when such information was obtained by entering onto land
without landowner permission, regardless of whether such information
came from NPS or non-NPS sources. Several respondents suggested that
the NPS be required to provide positive proof that all information used
in the designation process was legally obtained and that any
information when such proof did not exist be destroyed. Some
respondents suggested that the NPS retain all properly acquired
information on designated and non-designated areas.
Service Response: The NPS believes that the management and analysis
of information on NNL areas, and PNNL under consideration in the NNL
process, are important objectives of the NNL Program. This information
adds to the comparative national-level resource information base used
in identifying and comparing nationally significant resources and also
furthers informed planning and environmental review. The NPS is also
interested in ensuring that information used in the NNL Program is
obtained with the knowledge of the landowner and without entering onto
private property without permission of the owners. The NPS believes
that the final rule establishes an appropriate balance between these
property owner concerns and the information required to achieve program
objectives.
Comments (retention of area information): Several respondents
suggested that as stated in Sec. 62.4(f) the NPS not retain any
information on areas that meet the criteria of national significance
but were not designated because of owner objection. Some respondents
suggested that the NPS publish the list of PNNL that meet the criteria
for national significance but were not designated.
Service Response: A change was made in Sec. 62.4(f) of the final
rule to show that the NPS will notify owners and others of the decision
to retain information on PNNL that meet the criteria for national
significance but were not designated because of owner objection.
Comment (authority for area information retention): One respondent
requested that the NPS cite the authority for the statement made in the
SUPPLEMENTARY INFORMATION section of the proposed rule that NPS has an
affirmative responsibility to maintain information on nationally
significant resources and to make this information available for
planning and environmental review.
Service Response: General authorities for these actions are
described in the legal authorities response above. In addition Section
102(2)C of the National Environmental Policy Act (83 Stat. 852; 42
U.S.C. 4321) directs Federal agencies to consider the effects of agency
action on the environment. Information on unique resources such as
those contained in the NNL Program facilitates such planning and
evaluation. Section 9 of the Mining in National Parks Act of 1976 (90
Stat. 1342, 16 U.S.C. 1908) mandates that whenever the Secretary of the
Interior determines that an NNL may be irreparably lost or destroyed by
any surface mining activity, the Secretary shall notify the person
conducting the activity, submit a report to the Advisory Council on
Historic Preservation, and request the Council's advice concerning
means to mitigate or abate such activity. This mandate presupposes the
collection and retention of information concerning such potentially
impacted NNLs. Additionally, Section 8 of the National Park System
General Authorities Act of 1970 (90 Stat. 1970), as amended (16 U.S.C.
1a-5), specifically requires the Secretary to investigate, study and
continually monitor the welfare of areas whose resources exhibit
qualities of national significance.
Comments (area information access): One respondent suggested that
the NPS provide reasonable access to all NPS information on PNNL at any
point in the designation process, not just during specified
notification or comment periods. One respondent suggested that the
regulations require the NPS to maintain current information on owners
and to maintain complete records of all communications with owners and
proof that all notification and consent requirements were met.
Service Response: With this program, the NPS maintains records on
PNNL and NNL areas, notifications of and communications with owners,
and other program activities. This information is available to the
public, subject to requirements of the Freedom of Information Act and
other applicable statutes. No change was therefore made in the final
rule.
Issue 6: Designation Process--Suggestion
Comments: Several respondents suggested the revision of
Sec. 62.4(a)(2) to allow other (non-NPS) entities the ability to make
suggestions of only publicly owned areas for NNL consideration. Some
respondents suggested that suggestions of privately owned areas for
consideration be accepted only from owners of proposed properties and
that the appropriate government entity propose publicly owned areas
after an open public review of the suggestion. Some respondents
suggested only owners who owned all of the property could suggest an
area for consideration. Some respondents noted that areas owned by
State or local governments could be suggested by private advocacy
groups, but only in a public political process. Several respondents
suggested that all information used to suggest PNNL for possible NNL
consideration should be
[[Page 25713]]
accompanied by proof of landowner permission to enter private property.
Service Response: A fundamental aspect of the NNL Program is the
open process for suggesting areas for NNL designation by any interested
agencies, organizations or individuals. The NPS believes the provisions
for landowner notification and objection in the final rule ensure that
owners are fully informed of and involved in the consideration of their
property in the NNL process and give other interested groups and
individuals the opportunity for input into this process without
restricting the interests of the owners. Therefore, no change is made
in Sec. 62.4(a)(2) of the final rule that restricts the sources of PNNL
suggestions.
The NPS believes the requirements for the NPS or its
representatives not to enter onto private property without owner
permission as stated in these regulations are sufficient to protect
owner interests. Additional requirements for the NPS to ascertain the
origins of PNNL information in this regard would not be a prudent means
to achieve program objectives and would put the NPS in the position of
having to determine whether particular conduct constitutes trespass
under applicable law. When trespass occurs, property owners may
exercise legal remedies under State and local law. Therefore,
Sec. 62.4(a)(2)(ii) and (a)(3) were changed in the final rule to
eliminate the requirement that the NPS ascertain whether information on
PNNL under consideration was acquired by entering onto private property
without landowner permission. These changes take into account the
ability of property owners to object to designation and the
inappropriateness of a government agency ignoring factual resource
information simply because of the information's origins.
Comments (source of suggestion): Several respondents suggested
that, as part of the first notification stage described in
Sec. 62.4(b)(1), the NPS inform the owners of the source of the
suggestion of their property for NNL consideration.
Service Response: This change has been made in Sec. 62.4(b)(1) and
(2) of the final rule.
Issue 7: Designation Process--Notification
Comment (notification process): One respondent suggested that the
regulations specify that first notification of owners be by certified
mail.
Service Response: Although the NPS may elect to complete the
required notification of owners by certified mail, specification of the
type of mail for notification in the regulations is not necessary. No
change is made in the final rule.
Comment (second notification): Some respondents suggested that the
information provided to owners and others as part of the second
notification under Sec. 62.4(d) should specifically reference the
required monitoring and reporting for designated areas as specified in
Sec. 62.6.
Service Response: Section 62.4(d) includes a reference to
Sec. 62.3. As Sec. 62.3 already includes specific references to
Sec. 62.6 and the required monitoring and reporting, no change was
necessary in the final rule.
Comments (areas with 50 or more owners): Some respondents noted
that the requirement in Sec. 62.4(b)(2) for individual notifications of
owners for areas with 50 or more owners, in addition to a public notice
and possible public meeting, was excessive and that this would add
unnecessarily to the cost and time of the designation process. One
respondent misinterpreted Sec. 62.4(b)(2) to mean that the NPS would
not be providing written notifications to owners of areas with less
than 50 owners.
Service Response: First notification requirements for areas with
less than 50 owners are specified in Sec. 62.4(b)(1). A change was made
in Sec. 62.4 (b)(2) of the final rule. The NPS publishes a general
notice in one or more local newspapers. Written notice to all owners of
areas with more than 50 owners is not provided.
Comment (response time): One respondent suggested that a time
period be specified for receiving responses from owners after first
notification.
Service Response: As specified in Sec. 62.4(b)(3), the NPS or its
representative does not enter onto private property to evaluate a PNNL
without receiving permission from the owner(s) of that property. No
time limit is being set for receiving this landowner permission. No
change is made in the final rule.
Comments (comment period following second notification): Some
respondents noted that the extension of the comment period from 60 to
120 days after the second notification, as specified in Sec. 62.4(d)(3)
and (4), was excessive.
Service Response: In response to these comments, Sec. 62.4(d)(4)
and (5) were changed in the final rule to specify a 60-day comment
period. In addition, the comment period relating to designation removal
also was changed to 60 days in Sec. 62.8(c). In both cases, 60 days are
considered an adequate period that may be extended when warranted.
Comments (notification of local government): One respondent
suggested that the first notification specified in Sec. 62.4(b) be
given to the appropriate local government agency and to owners. Some
respondents suggested that the NPS hold a local public meeting or
hearing on every PNNL being considered for NNL designation.
Service Response: As part of the first notification process, notice
is provided to owners, as specified in Sec. 62.4(b)(1) and (2),
informing them that the NPS is considering their properties for
designation and requesting owner permission to conduct an on-site
evaluation. After the evaluation, when the NPS determines that an area
seems to meet the criteria for national significance, written notice of
the proposal is provided under Sec. 62.4(d)(3)(i) to the local
government executive at the second notification stage. Section
62.4(d)(2) was changed in the final rule to provide as part of the
second notification an opportunity for the NPS to hold a public
information meeting for areas with 50 or more owners if public interest
warrants or it is requested by the local governmental jurisdiction.
This provision was therefore deleted from first notification in
Sec. 62.4(b)(2).
Comment (notification of Native Americans): One respondent
suggested that the requirements for notification of local, State, and
Federal government officials and other interested parties provided
under Sec. 62.4(d)(3), Sec. 62.4(j), Sec. 62.7(b) and Sec. 62.8(e)
specifically include Native American tribal governments and communities
and native villages and corporations.
Service Response: This change has been made in the final rule.
Comments (notification mailing list): One respondent suggested that
the regulations include a provision that allows interested individuals
and organizations to request placement on a general NPS notification
mailing list to be notified of pending evaluations under
Sec. 62.4(d)(3)(vi) and of other public comment periods. This
respondent also suggested that the list of individuals and
organizations be available for public review. One respondent suggested
that the regulations require the NPS to notify all organizations
interested in protecting private property rights of all future
evaluations.
Service Response: Any individual or organization may request
placement on a mailing list to receive future notifications or other
program documents about consideration of areas for NNL designation or
of other program actions and NPS will respond if needed.
[[Page 25714]]
Issue 8: Designation Process--Area Evaluation
Comments (evaluation report): One respondent suggested that the
evaluation report, as described in Sec. 62.4(c)(1), include a proposed
boundary for the site. One respondent suggested that first, second, and
third notifications provided to owners under Sec. 62.4(b), (d) and (j)
include a full description of the area, including the size and a
detailed map of the area. One respondent suggested that the draft
evaluation report be distributed to all owners for comment within a
specified time period or the evaluation becomes null and void and must
be re-done in the future.
Service Response: Section 62.4(c)(1) was changed in the final rule
to specifically include a proposed boundary map as part of the
evaluation report. Sec. 62.4(d)(1) and (2) were changed in the final
rule to specify that, as part of the second notification process,
owners are provided a copy of the area evaluation report.
Comments (peer review): Some respondents expressed support for the
requirement in Sec. 62.4(c)(2) for three peer reviews of completed
evaluation reports. One respondent suggested that this provision be
deleted, stating that outside peer reviewers should have no role in the
NNL designation process.
Service Response: The NPS believes peer reviews can substantially
add to the objectivity of the consideration process; therefore, this
provision is retained in the final rule. One respondent suggested that
the regulations should state that peer reviewers must be qualified
scientists and not just preferably be scientists. This change has been
made in Sec. 62.4(c)(2) of the final rule.
Issue 9: Designation Process--Advisory Board
Comments (Advisory Board role and composition): Some respondents
suggested that the National Park System Advisory Board not be involved
in the consideration and recommendation of PNNL for NNL designation, as
required under Sec. 62.4(g)(1), unless the board consists of
individuals with appropriate scientific backgrounds who are qualified
to make such recommendations. Some respondents noted that the
designation process, as described particularly in Sec. 62.4(g) and (h),
included too many review levels, including the Director, Assistant
Secretary, Advisory Board and Secretary, to be effective.
Service Response: As noted in the proposed rule, section 1211 of
Public Law 101-628 (16 U.S.C. 463) requires the National Park System
Advisory Board to provide recommendations to the Secretary on NNL
designations. This law also indicates the composition of the board
include members who are competent in biology or geology. No change was
made in the final rule about the role of the Advisory Board. Sections
62.4(g), (h), and (i), and 62.7(d) were changed in the final rule to
eliminate the requirement for the Director to provide NNL materials
through the Assistant Secretary.
Comment (procedural requirements): One respondent suggested that
the Advisory Board, in addition to reviewing whether PNNL qualified for
NNL designation, also review whether procedural requirements had been
met.
Service Response: Section 62.4(g)(1) specifies that the Director
submits to the Advisory Board only areas that meet the criteria for
national significance and for areas where all procedural requirements
were met. Therefore, no change was needed in the final rule.
Comment (Advisory Board meetings): One respondent suggested the
notice of Advisory Board meetings, specified in Sec. 62.4(g)(2), in
addition to being published in the Federal Register, be mailed to the
owners of PNNL that will be considered at these meetings in addition to
being published in the Federal Register.
Service Response: This change has been made in the final rule.
Issue 10: Designation Process--Recommendation to Advisory Board
Comments (national significance): One respondent suggested a
standard of impracticality due to a large number of owners be added to
Sec. 62.5 in addition to the standard of impracticality due to physical
size of the feature. One respondent suggested that the national
significance criteria include objective standards for area boundaries.
Service Response: Considerations about area ownership are distinct
from the criteria for determining national significance; ownership
considerations are in Sec. 62.4. Area boundaries are discussed in
Sec. 62.4(c)(1).
Issue 11: Designation Process--Other Environmental Regulations
Comment (environmental and economic impact statements): One
respondent suggested that the NPS should be required to complete an
environmental impact statement and an economic impact statement for
each area considered for NNL designation.
Service Response: The development of standards for the
identification, nomination, or designation of national natural
landmarks or national historic landmarks is categorically excluded from
the National Environmental Policy Act process under the implementation
guidelines developed by the NPS under the Act. Additionally, an
economic impact statement is not required for activities related to
listing. No change was made in the final rule.
Comments (mining): Some respondents suggested that the possible
implications of the Mining in National Parks Act, as described in
Sec. 62.6(e), be more fully explained in the regulations. Some
respondents noted that the definition of surface mining under this act
was not clear. One respondent questioned whether the definition of
surface mining may include owner-authorized scientific, archeological
or paleontological excavations at the area. Some respondents noted that
what types of actions the Federal government could take to mitigate or
abate surface mining that may cause irreparable loss or destruction of
an NNL were unclear. Some respondents noted that actions to mitigate or
abate surface mining may constitute a taking of private property and
that this would be a contradiction of Sec. 62.3(b).
Service Response: The Mining in the National Park System Act (16
U.S.C. 1908) applies to mining and mineral extraction activities, not
to paleontological or archeological excavations. The act does not
directly authorize the Secretary or the Advisory Council on Historic
Preservation to take any action to mitigate or abate surface mining
activities that are found to be damaging national historic or natural
landmarks. No change was made in the final rule.
Comment (NEPA): One respondent suggested that Sec. 62.6(f), which
provides for Federal agencies to consider NNL existence and location as
part of their compliance with NEPA, be deleted.
Service Response: Federal agencies are required under NEPA to
assess the effects of their actions on the environment which include
potential impacts to exceptional natural areas like national natural
landmarks. No change was made in the final rule.
Issue 12: Designation Process--Designation
Comments (county records): Some respondents suggested that
existence of the designation be recorded as part of the county lands
records; other respondents suggested that the designation should be
recorded on the deed.
Service Response: Because the NPS has no regulatory authority over
owners regarding the NNL designation, the NPS cannot mandate that the
NNL
[[Page 25715]]
designation be recorded with property deeds or other lands records;
neither is there anything in these regulations to prevent interested
owners from recording the fact of the designation in such a fashion.
Therefore, no change was made in the final rule.
Comment (acceptance of designation implies contractual
arrangement): One respondent suggested that by accepting a certificate
or plaque from the NPS recognizing the NNL designation, as specified in
Sec. 62.4(k)(1), the landowner enters into a contractual arrangement
with the NPS that would somehow obligate the landowner to protect the
NNL.
Service Response: As suggested above, no contractual or otherwise
binding obligation is involved in a landowner's voluntary consent to
having his or her properties considered for NNL designation. Neither is
there any legal obligation on the part of the landowners to protect NNL
after having accepted a certificate or plaque. A change was made in
Sec. 62.4(k)(1) of the final rule to clarify this point.
Issue 13: Monitoring
Comment (periodic contacts): One respondent suggested that the
regulations clarify the meaning of NPS making periodic contacts with
NNL owners by defining the frequency and nature of these contacts.
Service Response: NPS contacts with owners are generally informal
letters or telephone calls to exchange information about the NNL,
provide technical assistance, update ownership name and address
information, and so on. The NPS also conducts periodic visits to an
NNL, with the permission of owner(s), for example, to inspect site
condition or meet with owner(s) in person. The exact frequencies of the
contacts cannot be specified because they depend on circumstances and
events. No change was made in the final rule.
Comment (protection guidelines): One respondent suggested that the
NPS be required to give owners guidelines or recommendations for
protecting NNLs.
Service Response: As suggested above, the NPS does not dictate or
direct landowner actions with regard to use or conservation of an NNL.
In some cases, the NPS may be able to provide technical advice about
the NNL resources and their conservation. This is done at the request
of the landowner and is subject to availability of necessary expertise
by NPS.
Comment (permission for monitoring visits): Some respondents
suggested that Sec. 62.6(c)(2) specify that written permission of
owners is required before the NPS or its representatives enter onto
land for monitoring NNL condition.
Service Response: The NPS does not believe that development of a
formal written landowner permission process is necessary for monitoring
visits. Non-written permission (e.g., via telephone) is obtained for
each visit. Section 62.6(c)(2) has been changed in the final rule to
specify that landowner permission is not required for monitoring visits
of public lands that are otherwise open to the public.
Comment (participation in monitoring visits): One respondent
suggested that owners should be allowed to participate in any NNL
monitoring visits and contribute information to the monitoring report.
Service Response: The NPS encourages owners to accompany the
individual making the monitoring visit. Contributions of information by
owners to the monitoring report are also welcomed and encouraged.
Comments (monitoring report): One respondent suggested that owners
be notified of who completed monitoring reports of their properties and
be given copies of the reports. One respondent suggested that the NPS
give copies of the entire final Section 8 report, not only pertinent
portions of the report, to owners and to other parties who requested
them.
Service Response: The respective changes were made in
Sec. 62.6(c)(2) and (d)(2). In addition, as suggested in
Sec. 62.6(d)(1), owners of NNLs listed as damaged or threatened in the
draft Section 8 Report are provided opportunities to review and comment
on the draft report.
Comments (comment period): Some respondents suggested that
Sec. 62.6(d)(1) be revised to allow a 60-day or 90-day comment period,
instead of a 30-day comment period, on the draft Section 8 report each
year.
Service Response: Because this report is prepared annually, a 60-
day or 90-day review of the draft report is impractical. No change was
made in the final rule.
Comment (transmitting comments to Congress): One respondent
suggested the Secretary transmit to the Congress any comments by owners
on the Section 8 report.
Service Response: The Secretary is required, under the National
Park System General Authorities Act (90 Stat. 1940) as amended (16
U.S.C. 1a-5), to transmit this report to the Congress. Transmission of
the landowners' comments on the report is not required. Individuals or
organizations are, of course, free to submit any materials on this or
any other issue to the Congress. No change was made in the final rule.
Comments (effect of monitoring report): One respondent suggested
the regulations clarify that a probable consequence of having an NNL
listed in the Section 8 report is condemnation of private land for
government acquisition. One respondent suggested that the regulations
explain that, as part of the Section 8 report, the Secretary is also
required to recommend NNLs listed in this report for study for addition
to the National Park System.
Service Response: Condemnation of private land for government
acquisition is not a probable consequence of listing an NNL in the
Section 8 report. The fact that the Secretary is required by 16 U.S.C.
1a-5 to provide a report of damaged or threatened NNLs to the Congress
and to recommend qualified NNLs for consideration for possible addition
to the National Park System does not require subsequent action by the
Congress or the Department. A change has been made in Sec. 62.6(b) of
the final rule to clarify this point.
Comments (third parties): Several respondents suggested that the
regulations eliminate or restrict the involvement of third party
organizations or individuals (non-landowner, non-governmental) in the
designation and monitoring process. Other respondents suggested that
the NPS must ensure the objectivity of these processes and develop
procedures to avoid possible conflicts of interest where third parties
are suggesting PNNL for consideration, completing or reviewing site
evaluations, or monitoring the conditions of designated NNLs. Several
respondents suggested the NPS not be allowed to enter into any
agreements or contracts with any other agencies, organizations, groups
or individuals as specified in Sec. 62.9(a), except when these
agencies, groups or individuals are consenting NNL owners. Other
respondents suggested that the reference in Sec. 62.6(b) to the use of
outside individuals, agencies or organizations to monitor the status of
selected NNLs be deleted. One respondent suggested that the regulations
prohibit owners from developing or having any substantive contributions
of information to the evaluations of their properties for NNL
designation because of conflict of interest.
Service Response: In administering the NNL Program, the NPS ensures
that any agreements or arrangements with non-NPS organizations or
individuals do not have possible conflict of interest implications.
Owner consent to such administrative actions is not appropriate, nor
would it be appropriate to exclude owners from the designation
[[Page 25716]]
process. No change is made in the final rule.
Issue 14: Boundary Adjustments
Comment (boundary modifications): One respondent suggested that the
provision in Sec. 62.7(a) for modifying NNL boundaries allows the NPS
to take over private land and should therefore be deleted.
Service Response: The NPS does not ``take over'' private land by
landmark designation. As noted above, the NNL Program provides
information on the location and status of important natural features.
The voluntary cooperation of private property owners does not restrict
the owner's use of his or her land. No change is made in the final rule
based on this comment.
Comment (modification of nationally-significant values): One
respondent questioned the need for a provision, as described in
Sec. 62.7(a), to allow for modifications in the description of an NNL's
nationally significant values if scientists had correctly identified
all nationally significant values during the original designation
process.
Service Response: This section is retained in the final rule
because new information may be discovered or conditions of an NNL may
change.
Comment (procedure reference): One respondent suggested that
Sec. 62.7(b) be revised to reference Sec. 62.4(b) through Sec. 62.4(j)
when referring to the expansion of the boundaries of an NNL.
Service Response: This change was made in the final rule.
Comments (minor boundary adjustments): Some respondents suggested
that what constituted a minor boundary correction under Sec. 62.8(e)
was unclear. One respondent suggested that minor be defined to mean
that boundary corrections involve only properties owned by existing,
willing NNL owners. Another respondent suggested that Sec. 62.7(e)
specify that such minor technical corrections only can be made with
owner consent. One respondent suggested that the NPS should notify
owners of any minor technical boundary corrections under Sec. 62.7(e).
Service Response: Section 62.7(e) was changed in the final rule to
include a provision for notifying owners in advance of any proposed
minor technical boundary corrections or other administrative changes in
documentation. Dependent on owner response to this notification, the
NPS will determine whether the proposed changes constitute such minor
technical corrections or whether the procedures outlined under
Sec. 62.4(d) through (j) should be followed. In addition, Sec. 62.7(e)
was changed in the final rule to define a minor boundary correction as
one that represents a change in less than five percent of the original
total land area of the NNL.
Comment (boundary delineation): One respondent suggested the
addition of a section to the regulations to provide for completion of
previously incomplete delineations of boundaries of NNLs.
Service Response: Section 62.7 provides for adjustment of NNL
boundaries, including completion of previously incomplete boundary
delineations. No change was therefore needed in the final rule.
Issue 15: Removal of Designation
Comment (peer review): One respondent suggested that, when the
removal of an NNL designation is considered under Sec. 62.8(b), one of
the three peer reviewers of any evaluation removal process be from the
NPS to eliminate bias.
Service Response: When possible, the NPS uses non-NPS evaluators
and peer reviewers to obtain objective, scientific advice for
particular areas and types of resources. In general, NPS
representatives do not serve as peer reviewers. The NPS reviews all
information available, as described in Sec. 62.8(b), before determining
that an area no longer seems to merit designation as an NNL.
Comments (area information retention): Some respondents suggested
that information on areas from which NNL designations were removed
under Sec. 62.8 not be retained by the NPS.
Service Response: The NPS maintains information as required under
Federal records management regulations. Information on areas from which
the designations were removed is also maintained to provide a
documented record of the actions, decisions, notifications and other
pertinent information for the NNL Program. No change was made in the
final rule.
Issue 16: Miscellaneous Comments
Comment (American Indians): One respondent suggested that the types
of agencies and organizations with which NPS may enter into agreements,
as described in Sec. 62.9(a), specifically include Native American
tribal governments and native villages, corporations and communities.
Service Response: This change was made in the final rule.
Comments (area information dissemination): One respondent suggested
that the dissemination of information on NNLs associated with Native
American religious or other traditional uses may reveal such sensitive
information. One respondent suggested that, although it was acceptable
for the NPS to limit information dissemination on ecologically or
geologically fragile NNLs, the NPS also make a greater effort to
disseminate educational information on other NNLs and on the NNL
Program.
Service Response: The NPS considers that its general programs and
policies about education, protection of sensitive information and
culturally significant properties are sufficient. Therefore, no change
was made in the final rule.
Comment (procedures handbook): One respondent suggested that the
NPS make the program procedures handbook, described in the
SUPPLEMENTARY INFORMATION section to the proposed rule, available for
public comment.
Service Response: The program handbook is an internal NPS
administrative manual for which public comment is not required. Copies
of the completed handbook will be available to the interested public on
request. No change was made in the final rule.
Comment (program documents): One respondent suggested that the NPS
be required to maintain and publish an updated list of all NNL Program
procedural documents.
Service Response: The already mentioned program handbook will
reference and describe other program procedural documents. No change
was made in the final rule.
Comments (lawsuits/penalties): Some respondents suggested that the
regulations include provisions for civil lawsuits to recover costs,
damages and attorney fees if their properties had been evaluated or
designated without their consents. Several respondents suggested that
the regulations provide for penalties for NPS employees who violate the
regulations or otherwise violate landowner rights.
Service Response: The NPS does not believe these measures are
necessary, or within its legal authority, and therefore no change was
made in the final rule.
Other minor editorial changes were made in the final rule. These
changes were to improve readability or clarity.
Drafting information
Authors participating in this rulemaking came from the National
Park Service, the Office of the Assistant Secretary for Fish and
Wildlife and Parks and the Office of the Solicitor.
Paperwork Reduction Act
This rule does not contain collections of information requiring
approval by the Office of Management and Budget under the Paperwork
Reduction Act of 1995. The notification letter which NPS sends
[[Page 25717]]
to landowners requesting their views about NNL designation is
specifically exempted from Paperwork Reduction considerations according
to Departmental guidelines (381 DM Chapter 2, Appendix 1) under A
certifications, consents or acknowledgments. The status form used by
NPS to monitor condition of designated NNLs for the annual Section 8
report is primarily filled out by NPS personnel. In some cases, it is
completed by NNL patrons, i.e. scientists and others who volunteer to
monitor the condition of selected NNLs on behalf of NPS. In other
cases, it is filled out by area managers of other Federal or State
agencies who own NNLs. It is NPS opinion that completion of the form is
not solicited from private individual owners of NNLs and therefore not
applicable under the Paperwork Reduction Act.
Compliance With Other Laws
This rule was reviewed by the Office of Management and Budget
review under Executive Order 12866. The Department of the Interior has
determined that this document will not have a significant economic
effect on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.) or require the preparation of a
regulatory analysis. The effect of the revisions made herein ensures
that owners, including but not limited to local governments, small
businesses, and other small organizations, are fully notified in
advance and have the opportunity to comment on the proposed National
natural landmark designation and that property is not included in a
designation where an owner objects to designation. The total estimated
economic effects of this rule on small entities are therefore
negligible.
The revisions ensure that all owners are fully notified in advance
of the agency's consideration of their properties as potential national
natural landmarks, that private properties are not entered for purposes
of evaluation without owner permission, and that property is not
designated where private property owners have indicated their objection
to the designation in a manner specified.
The 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.
The Department has determined that this rule meets the applicable
standards provided in Section 3(a) and 3(b)(2) of Executive Order
12988.
This rule is not a major rule under the Congressional review
provisions of the Small Business Regulatory Enforcement Fairness Act (5
U.S.C. 804(2)).
The 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 incompatible uses that may compromise the nature and
characteristics of the area, or cause physical damage to it;
(c) Conflict with adjacent ownerships or land uses; or
(d) Cause a nuisance to adjacent 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 (EA) nor an Environmental Impact Statement
(EIS) has been prepared.
The Department of the Interior has reviewed this rule as directed
by Executive Order 12630, Governmental Actions and Interference with
Constitutionally Protected Property Rights, to determine whether this
rule includes policies that imply the taking of private properties. The
Department determined that this rule does not imply the taking of
private properties because it does not deny economically viable use of
any distinct, legally protected property interest to its owner or to
have the effect of, or result in, a permanent or temporary physical
occupation, invasion or deprivation. National natural landmark
designation does not change ownership of property and does not dictate
use of designated property. The effects of the revisions are the
strengthening and clarification of notification of owners that
properties are being considered, the explicit preclusion of entry onto
private property for purposes of program area evaluation without owner
permission, and the preclusion of designations of areas where the
majority of the private property owners indicated their objection as
specified.
List of Subjects in 36 CFR Part 62
Natural resources.
In consideration of the foregoing, 36 CFR Chapter I is amended as
follows:
1. 36 CFR Part 62 is revised to read as follows:
PART 62--NATIONAL NATURAL LANDMARKS PROGRAM
Sec.
62.1 Purpose.
62.2 Definitions.
62.3 Effects of designation.
62.4 Natural landmark designation and recognition process.
62.5 Natural landmark criteria.
62.6 Natural landmark monitoring.
62.7 Natural landmark modifications.
62.8 Natural landmark designation removal.
62.9 General provisions.
Authority: 16 U.S.C. 1a-5, 461 et seq., 463, 1908.
Sec. 62.1 Purpose
The procedures in this part set forth the processes and criteria
for the identification, evaluation, designation and monitoring of
national natural landmarks.
(a) The National Natural Landmarks Program focuses attention on
areas of exceptional natural value to the nation as a whole rather than
to one particular State or locality. The program recognizes areas
preserved by Federal, State and local agencies as well as private
organizations and individuals and encourages the owners of national
natural landmarks to voluntarily observe preservation precepts.
(b) The National Natural Landmarks Program identifies and preserves
natural areas that best illustrate the biological and geological
character of the United States, enhances the scientific and educational
values of preserved areas, strengthens public appreciation of natural
history, and fosters a greater concern for the conservation of the
nation's natural heritage.
Sec. 62.2 Definitions.
The following definitions apply to this part:
National Natural Landmark is an area designated by the Secretary of
the Interior as being of national significance to the United States
because it is an outstanding example(s) of major biological and
geological features found within the boundaries of the United States or
its Territories or on the Outer Continental Shelf.
National Registry of Natural Landmarks is the official listing of
all designated national natural landmarks.
National significance describes an area that is one of the best
examples of a biological community or geological feature within a
natural region of the United States, including terrestrial communities,
landforms, geological features and processes, habitats of native plant
and animal species, or fossil evidence of the development of life.
[[Page 25718]]
Natural region is a distinct physiographic province having similar
geologic history, structures, and landforms. The basic physiographic
characteristics of a natural region influence its vegetation, climate,
soils, and animal life. Examples include the Atlantic Coastal Plain,
Great Basin, and Brooks Range natural regions.
Owner means the individual(s), corporation(s), or partnership(s)
holding fee simple title to property, or the head of the public agency
or subordinate employee of the public agency to whom such authority was
delegated and who is responsible for administering publicly owned land.
Owner does not include individuals, partnerships, corporations, or
public agencies holding easements or less than fee interests (including
leaseholds) of any form. A Native American tribe that is the beneficial
fee simple owner of lands, with the United States as trustee, will be
considered as owner of private property for the purposes of this part.
Similarly, individual member(s) of a Native American tribe who are
beneficial owner(s) of property, allottee(s) held in trust by the
United States, will be considered as owner(s) of private property for
the purposes of this part.
Potential national natural landmark means an area that, based on
recommendation or initial comparison with other areas in the same
natural region, seems to merit further study of its merits for possible
national natural landmark designation.
Prejuducial procedural error is one that reasonably may be
considered to have affected the outcome of the designation process.
Representative refers to any public or private individual, agency,
or organization that is performing actions related to the
identification, evaluation, designation or monitoring of national
natural landmarks on behalf of or in cooperation with the National Park
Service (NPS), either under a contractual agreement or as a volunteer.
Scientist refers to an individual whose combination of academic
training and professional field experience in the natural region
qualifies him/her to identify and comparatively evaluate natural areas
at the regional or national level.
Sec. 62.3 Effects of designation.
(a) Designation of an area by the Secretary as a national natural
landmark is not a land withdrawal, does not change the ownership of an
area, and does not dictate activity. However, Federal agencies consider
the unique properties of designated national natural landmarks and of
areas that meet the criteria for national significance in their
planning and impact analysis (see Sec. 62.6(f)), and there may be State
or local planning or land use implications. Designation as a national
natural landmark does not require or mandate under Federal law any
further State or local planning, zoning or other land-use action or
decision. Owners who agree to have their lands designated as a national
natural landmark do not give up under Federal law any legal rights and
privileges of ownership or use of the area. The Department does not
gain any property interests in these lands.
(b) Benefits of national natural landmark designation include the
positive recognition and appreciation of nationally significant
resources and the ability of public agencies and private individuals
and organizations to make more informed development and planning
decisions early in regional planning processes. In addition, some
private owners of commercially operated national natural landmarks that
are open to public visitation may choose to recognize and emphasize the
national significance of the areas by providing descriptive information
to the public. Under section 170(h) of the United States Internal
Revenue Code, some owners of national natural landmarks may be eligible
to claim a charitable contribution deduction on their Federal income
tax for qualified interests in their natural landmark property donated
for a qualified conservation purpose to a qualified conservation
organization.
(c) The Secretary will provide an annual report to the Congress on
damaged or threatened designated national natural landmarks (see
Sec. 62.6(b)). The Secretary will also report to the Advisory Council
on Historic Preservation any designated national natural landmarks that
may be irreparably lost or destroyed by surface mining activity (see
Sec. 62.6(e)).
Sec. 62.4 Natural landmark designation and recognition process.
(a) Identification. Potential national natural landmarks are
identified in the following manner.
(1) Natural region studies. The NPS conducts inventories of the
characteristic biological and geological features in each natural
region to provide a scientific basis for identifying potential national
natural landmarks. The NPS is responsible for the completion of these
studies, which are generally done by qualified scientists under
contract. A study provides a classification and description of
biological and geological features in that natural region and an
annotated list of areas that illustrate those features. During a study,
the NPS or any representative of the NPS may enter onto land only after
receiving written permission from the owner(s) of that land, except
when the land is publicly owned land and otherwise open to the public.
(2) Other entities. (i) Any public or private entity may suggest an
area for study and possible national natural landmark designation. The
entities include:
(A) Federal agency programs that conduct inventories in order to
identify areas of special interest, for example, essential wildlife
habitat, research natural areas, and areas of critical environmental
concern; and
(B) State natural area programs that systematically and
comprehensively classify, identify, locate and assess the protective
status of the biological and geological features located in a State.
(ii) If an individual, agency or organization that suggests an area
for national natural landmark consideration is not the owner of the
area, written permission of the owner(s) is required to enter onto the
PNNL to gather information, except when the land is publicly owned and
otherwise open to the public.
(3) After receiving the suggestions from a natural region study and
suggestions from other sources, the NPS determines which PNNL merit
further study for possible national natural landmark designation. This
determination is based on comparison with existing national natural
landmarks in the natural region, the national natural landmark criteria
(see Sec. 62.5) and other information.
(b) First Notification. (1) Before a potential national natural
landmark is evaluated by scientists as described in paragraph (c) of
this section, the NPS notifies the owner(s) in writing, except as
specified in paragraph (b)(2) of this section.
(i) This notice advises the owner(s) that the PNNL is being
considered for study for possible national natural landmark designation
and provides information on the National Natural Landmarks Program,
including an explanation of the effects of national natural landmark
designation as described in Sec. 62.3.
(ii) The notice also provides the owner with available information
on the area and its tentatively identified significance, solicits the
owner's comments on the area, including any information on current or
anticipated land use or activities that may affect the area's natural
values, integrity, or other matters of concern, and informs the
[[Page 25719]]
owner of the source of the suggestion for consideration.
(iii) The notice also requests owner permission to enter the
property, unless the area is otherwise open to the public, so the NPS
or its representative can conduct an on-site evaluation of the PNNL as
described under paragraph (c) of this section, and advises the owner of
the procedures the NPS will follow in considering the PNNL for possible
designation.
(2) Before a potential national natural landmark having 50 or more
owners is evaluated by scientists as described in paragraph (c) of this
section, the NPS provides general notice to property owners. This
general notice is published in one or more local newspapers of general
circulation in the area in which the potential national natural
landmark is located. The notice provides the same information listed
under paragraph (b)(1) of this section.
(3) During an on-site evaluation as described in paragraph (c) of
this section, the NPS or any representative of the NPS will not enter
onto land without permission from the owner(s), except when the land is
publicly owned and otherwise open to the public. The NPS may complete
evaluations of PNNL by using other information, including information
that was previously gathered by other Federal or State agencies or
gained from other scientific studies. The NPS notifies owners if areas
are evaluated from existing information not requiring land entry.
(4) The described procedures for providing written notification to
owners and receiving responses from owners about the first notification
are the responsibility of the NPS and cannot be delegated to any
representative of the NPS.
(c) Evaluation. (1) The NPS uses the national natural landmark
criteria in Sec. 62.5 to evaluate the potential natural landmark.
Potential national natural landmarks are evaluated on a natural region
basis; i.e., similar areas that represent a particular type of feature
located in the same natural region are compared to identify examples
that are most illustrative and have the most intact, undisturbed
integrity.
(2) Evaluations are done by qualified scientists who are familiar
with the natural region and its types of biological and geological
features. Evaluators make a detailed description of the area, including
a proposed boundary map, and assess its regional standing using the
national natural landmark criteria (see Sec. 62.5) and any additional
information provided by the NPS. Evaluation reports must have been
completed or updated within the previous 2 years in order to be
considered by the NPS.
(3) Completed evaluation reports are reviewed by no fewer than
three peer reviewers, who are scientists familiar with the biological
or geological features of the area or natural region. These reviewers
provide the NPS with information on the scientific merit and strength
of supportive documentation in the evaluation report. On the basis of
evaluation report(s) and the findings of the peer reviewers, the NPS
makes a determination that:
(i) The PNNL does or does not appear to qualify for national
natural landmark designation; or
(ii) Additional information is required before a decision can be
made about the status of the PNNL.
(4) When a PNNL does not seem to qualify for national natural
landmark designation, the NPS notifies the owner(s) as prescribed in
paragraphs (b)(1) and (2) of this section.
(d) Second Notification. (1) When the Director determines that an
area meets the criteria for national significance, the NPS notifies the
owner(s) in writing, except as specified in paragraph (d)(2) of this
section.
(i) The notice references the rules in this part, advises the
owners of the procedures the NPS follows and of the effects of national
natural landmark designation as described in Sec. 62.3, provides the
owner(s) with a copy of the evaluation report, and provides the
owner(s) with the opportunity to comment. The list of owners must be
obtained from official land or tax records, whichever is most
appropriate, within 90 days before issuing the second notification.
(ii) If in any State the land or tax records are not helpful, the
NPS can seek alternative sources to identify the owners.
(iii) The NPS is responsible for notifying only owners whose names
appear on the list.
(2) If an area has more than 50 owners, the NPS provides a general
notice to the property owners. NPS will publish a general notice in one
or more local newspapers of general circulation in the region in which
the area is located. A copy of the evaluation report is made available
on request. In addition, the NPS may conduct a public information
meeting, if widespread local public interest warrants it or if
requested by the executive of the local governmental jurisdiction in
which the area is located.
(3) In addition, NPS notifies appropriate authorities,
organizations and individuals. The notices reference these rules and
advise the recipient of the proposed action, of the procedures the NPS
follows, and of the effects of national natural landmark designation as
described in Sec. 62.3. Notice of the proposed action is published also
in the Federal Register. NPS will notify:
(i) The executive of the local governmental jurisdiction in which
the area (PNNL) is located;
(ii) The governor of the State;
(iii) Other appropriate State officials;
(iv) Senators and members of Congress who represent the district in
which the area is located;
(v) Native American tribal governments and native villages and
corporations in the region; and
(vi) Other interested authorities, organizations and individuals as
deemed appropriate.
(4) All notified entities, including non-owners, have 60 days to
provide comments before NPS decides whether the area meets the criteria
for national significance. To assist in the evaluation of a area,
comments should, among other factors, discuss the area's features and
integrity. Information is also welcome on current or anticipated land
use or threats that could effect the area. Any party may request a
reasonable extension of the comment period when additional time is
required to study and comment on a landmark proposal. The Director may
grant these requests if he or she determines they are in the public
interest. All comments received are considered in the national natural
landmark designation process.
(5) Upon individual or general notification, any owner of private
property within a PNNL who wishes to object to national natural
landmark designation must submit a notarized statement to the Director
to certify that he or she is the sole or partial owner of record and he
or she objects to the designation. These statements will be submitted
during the 60-day comment period. Upon receipt of objections to the
designation of a PNNL consisting of multiple parcels of land, the NPS
must determine how much of it consists of owners who object to
designation. If an owner whose name is not on the ownership list
developed by the NPS certifies in a notarized statement that he or she
is the sole or partial owner of the area, NPS will take into account
his or her views about designation. In circumstances where a single
parcel of land within a PNNL has more than one fee simple owner, an
objection to designation of that property must be submitted by a
majority of the owners.
(6) All described procedures for the notification of owners and
receiving responses from owners in the second notification process are
the
[[Page 25720]]
responsibility of the NPS and cannot be delegated to any representative
of the NPS.
(e) Significance determination. (1) NPS will review all
documentation including, but not limited to, evaluation reports, peer
reviews, and received comments. If NPS determines that a PNNL does not
meet the criteria for national significance (see Sec. 62.5), the NPS
will notify the owner(s) in writing that their land is no longer under
consideration for national natural landmark designation. If PNNL are
owned by 50 or more parties, the NPS will publish a general notice as
described in paragraph (d)(2) of this section. In addition, the NPS
will notify in writing officials, individuals and organizations
notified under paragraph (d)(3) of this section.
(2) When the NPS determines that a PNNL meets the criteria for
national significance, the NPS determines whether any private property
owners submitted valid written objection to designation.
(f) Areas meeting criteria. When the Director of NPS determines by
all available information that a PNNL meets the criteria for national
significance, but some private property owners submitted written
objections to the proposed national natural landmark designation, the
NPS maintains all this information about the area and which shall be
available as part of the environmental analysis for any major federal
action for purposes of NEPA which impacts the NNL or these other lands.
Notice of this action is provided by the NPS to the owners as specified
in paragraphs (d)(1) and (2) of this section and to officials,
individuals and organizations notified under paragraph (d)(3) of this
section. If some but not all of the property owners within a PNNL
object to designation, the NPS will exclude the objecting properties
and proceed with the process only if enough area remains of non-
objecting properties to allow sufficient representation of the
significant natural features.
(g) National Park System Advisory Board. (1) The Director of the
NPS reviews the documentation of each area that meets the criteria for
national significance. When the Director determines that the
requirements of this part were met and that enough non-objecting valid
private property owners exist to encompass an adequate portion of the
nationally significant features, the Director submits the information
on the area (PNNL) to the National Park System Advisory Board. The
board reviews the information and recommends whether or not the land
with consenting owners qualifies for national natural landmark
designation.
(2) Notice of Advisory Board meetings to review national natural
landmark nominations and meeting agendas are provided at least 60 days
in advance of the meeting by publication in the Federal Register. The
NPS also mails copies of the notice directly to consenting owners of
areas that are to be considered at each meeting. Interested parties are
encouraged to submit written comments and recommendations that will be
presented to the board. Interested parties may also attend the board
meeting and upon request may address the board concerning an area's
national significance.
(h) Submission to the Secretary. The Director submits the
recommendation of the Advisory Board and materials that the Director
developed to the Secretary for consideration of the nominated area for
national natural landmark designation.
(i) Designation. The Secretary reviews the materials that the
Director submitted and any other documentation and makes a decision on
national natural landmark designation. Areas that the Secretary
designates as national natural landmarks are added to the National
Registry of Natural Landmarks.
(j) Third notification. When the Secretary designates an area as a
national natural landmark, the Secretary notifies in writing the
landmark owner(s) of areas with fewer than 50 owners. A general notice
of designated areas with 50 or more owners is published in one or more
local newspapers of general circulation in the area. The Secretary also
notifies the executive of the local governmental jurisdiction in which
the landmark is located, Native American tribal governments and native
villages and corporations in the area, the governor of the State, the
congressional members who represent the district and State in which the
landmark is located, and other interested authorities, organizations
and individuals as deemed appropriate. The NPS prepares the
notifications and is responsible for their distribution. Notices of new
designations are also published in the Federal Register.
(k) Presentation of plaque and certificate. (1) After the Secretary
designates an area as a national natural landmark, the NPS may provide
each owner who so requests with a certificate signed by the Secretary
of the Interior and the Director of the NPS at no cost to the owner(s).
This certificate recognizes the owner's interest in protecting and
managing the area in a manner that prevents the loss or deterioration
of the natural values on which landmark designation is based.
(2) If appropriate, NPS may also provide without charge a bronze
plaque for display in or near the national natural landmark. Upon
request, and to the extent NPS resources permit, the NPS may help
arrange and participate in a presentation ceremony. In accepting a
plaque or certificate, owners give up none of the rights and privileges
of ownership or use of the landmark and the Department of the Interior
does not acquire any interest in the designated property. After a
presentation, the plaque remains the property of NPS. If the landmark
designation is removed in accordance with the procedures in Sec. 62.8,
NPS may reclaim the plaque.
Sec. 62.5 Natural landmark criteria.
(a) Introduction. (1) National significance describes an area that
is one of the best examples of a biological or geological feature known
to be characteristic of a given natural region. Such features include
terrestrial and aquatic ecosystems; geologic structures, exposures and
landforms that record active geologic processes or portions of earth
history; and fossil evidence of biological evolution. Because the
general character of natural diversity is regionally distinct and
correlated with broad patterns of physiography, many types of natural
features are entirely inside one of the 33 physiographic provinces of
the nation, as defined by Fenneman (Physiographic Divisions of the
United States, 1928) and modified as needed by the NPS.
(2) Because no uniform, nationally applicable classification scheme
for biological communities or geological features is accepted and used
by the majority of organizations involved in natural-area inventories,
a classification system for each inventory of a natural region was
developed to identify the types of regionally characteristic natural
features sought for representation on the National Registry of Natural
Landmarks. Most types represent the scale of distinct biological
communities or individual geological, paleontological, or physiographic
features, most of which can be mapped at the Earth's surface at
1:24,000 scale or are traceable in the subsurface. In some cases, the
NPS may further evaluate only a significant segment of a given natural
feature, where the segment is biologically or geologically
representative and where the entire feature is so large as to be
impracticable for natural landmark consideration (e.g., a mountain
range). Almost two-thirds of all national natural landmarks range from
about 10 to 5,000 acres, but some
[[Page 25721]]
are larger or smaller because of the wide variety of natural features
recognized by the National Natural Landmarks Program.
(b) Criteria. NPS uses the following criteria to evaluate the
relative quality of areas as examples of regionally characteristic
natural features:
(1) Primary criteria. Primary criteria for a specific type of
natural feature are the main basis for selection and are described in
the following table:
----------------------------------------------------------------------------------------------------------------
Criterion Description Example
----------------------------------------------------------------------------------------------------------------
Illustrative character................ Area exhibits a combination of well- Alpine glacier with classic
developed components that are shape, unusual number of
recognized in the appropriate glaciological structures like
scientific literature as characteristic crevasses, and well-developed
of a particular type of natural bordering moraine sequences.
feature. Should be unusually
illustrative, rather than merely
statistically representative.
Present condition..................... Area has been less disturbed by humans Large beech maple forest, only
than other areas. a small portion of which has
been logged.
----------------------------------------------------------------------------------------------------------------
(2) Secondary criteria. Secondary criteria are provided for
additional consideration, if two or more similar area cannot be ranked
using the primary criteria. Secondary criteria are described in the
following table:
----------------------------------------------------------------------------------------------------------------
Criterion Description Example
----------------------------------------------------------------------------------------------------------------
Diversity............................. In addition to its primary natural Composite volcano that also
feature, area contains high quality illustrates geothermal
examples of other biological and/or phenomena.
geological features or processes.
Rarity................................ In addition to its primary natural Badlands, including strata
feature, area contains rare geological that contain rare fossils.
or paleontological feature or
biological community or provides high
quality habitat for one or more rare,
threatened, or endangered species.
Value for Science and Education....... Area contains known or potential Dunes landscape where process
information as a result of its of ecological succession was
association with significant scientific noted for first time.
discovery, concept, or exceptionally
extensive and long term record of on-
site research and therefore offers
unusual opportunities for public
interpretation of the natural history
of the United States.
----------------------------------------------------------------------------------------------------------------
Sec. 62.6 Natural landmark monitoring.
(a) Owner contact. The Field Offices of the NPS maintain periodic
contacts with the owners of designated national natural landmarks to
determine whether the landmarks retain the values that qualified them
for landmark designation and to update administrative records on the
areas.
(b) Section 8 Report. (1) The Secretary, through the NPS, prepares
an annual report to the Congress on all designated national natural
landmarks with known or anticipated damage or threats to one or more of
the resources that made them nationally significant. This report is
mandated by Section 8 of the National Park System General Authorities
Act of 1970, as amended, (16 U.S.C. 1a-5).
(2) A landmark is included in this report if it has lost or is in
imminent danger of losing all or part of its natural character to such
a degree that one or more of the values that made it nationally
significant are or will be irreversibly damaged or destroyed. In
assessing the status of a landmark, NPS considers the condition of the
landmark at the time of designation, including any changes that have
occurred and any threats that could impact it in the future.
(3) Section 8 also requires the Secretary to make recommendations
to the Congress on qualified areas for consideration as additions to
the National Park System. No legal mandate requires that the Congress
take further action about national natural landmarks listed as damaged
or threatened or about areas that are recommended for possible future
additions to the National Park System.
(4) NPS Regional Offices are responsible for monitoring the
condition of, and for completing status reports on, all designated
national natural landmarks in their regions. In some cases, the NPS may
arrange with outside individuals, agencies or organizations to monitor
the status of selected national natural landmarks. NPS or its
representative usually monitors national natural landmark condition and
status during a visit.
(c) Monitoring. (1) The NPS or its representative notifies the
owner(s) of a national natural landmark of his or her pending visit to
the area to determine its status and condition, and informs the
owner(s) of the purposes of monitoring and its relation to the
Secretary's annual report on threatened or damaged landmarks.
(2) While monitoring conditions of designated national natural
landmarks, neither NPS nor its representative will enter onto private
property or onto public lands that are not otherwise open to the public
without first obtaining permission from the owner(s) or
administrator(s). The NPS may monitor landmark condition without
entering onto lands where required permission has not been granted by
using other existing information, including telephone conversations
with the owner(s) or manager(s) of the area, written materials provided
by the owner or manager, or information previously developed by other
Federal or State agencies or other scientific studies. The NPS provides
owners with copies of monitoring reports on their property, which will
include the name and affiliation of the individual(s) who completed the
report.
(d) Section 8 report preparation. (1) After completion of landmark
monitoring, the NPS Regional Offices forward their findings and
recommendations to the NPS Washington Office. The NPS Washington Office
reviews the Regional Office findings and recommendations and prepares a
draft report listing only the national natural landmarks with
significant known or anticipated damage or threats to the integrity of
one or more of the resources that made the area nationally significant.
(2) Pertinent portions of this draft report, including any
executive summary, are provided to the owner(s) or administrator(s) of
national natural landmarks listed as is feasible, as well as to other
interested authorities,
[[Page 25722]]
organizations and individuals. All individuals have 30 days to provide
written comments to the NPS on the draft report. Comments may include
additional information on the condition of landmarks or on the nature
or imminence of reported damage or threats to these landmarks. Owners
are also asked to indicate whether they would like to receive a copy of
the final report, as described in paragraph (d)(3) of this section.
(3) The NPS reviews all comments on the draft report and prepares a
final report, which the Director transmits to the Secretary for
submission to the Congress. Upon release of the final report, the NPS
will provide a copy of the report to the owner(s) of landmarks who are
listed in the report and have requested copies and to other interested
authorities, organizations and individuals.
(e) Mining in the Parks Act. If the NPS determines that an entire
or partial national natural landmark may be irreparably lost or
destroyed by surface mining activity, including exploration for or
removal or production of minerals or materials, NPS notifies the person
that is conducting the activity and prepares a report that identifies
the basis for the finding that the activity may cause irreparable loss
or destruction. The NPS also notifies the owner(s) of the national
natural landmark in writing of its finding. The NPS submits to the
Advisory Council on Historic Preservation the report and a request for
advice about alternative measures that may be taken by the United
States to mitigate or abate the activity. The authority for this action
is contained in Section 9 of the Mining in the Parks Act of 1976 (16
U.S.C. 1908).
(f) National Environmental Policy Act. Federal agencies should
consider the existence and location of designated national natural
landmarks, and of areas found to meet the criteria for national
significance, in assessing the effects of their activities on the
environment under section 102(2)(c) of the National Environmental
Policy Act (42 U.S.C. 4321). The NPS is responsible for providing
requested information about the National Natural Landmarks Program for
these assessments.
Sec. 62.7 Natural landmark modifications.
(a) Determination of need for modifications. After designation, the
modification of the boundaries of a natural landmark, and/or revision
of information about it, may be appropriate. For example, because of
new information or changes in the condition of an NNL, the boundary may
have to be reduced or expanded or information about the NNL may have to
be revised. Additional study may reveal that the area has nationally
significant values that had not been previously documented. The NPS
determines that landmark modifications are necessary through
administration of the program. In addition, the NPS may receive
suggestions for landmark modifications from other Federal agencies,
State natural area programs, and other public and private organizations
or individuals. The NPS determines the validity of these suggestions by
applying the natural landmark criteria or by conducting additional
study.
(b) Boundary expansion. (1) Three justifications exist for
enlarging the boundary of a national natural landmark: better
documentation of the extent of nationally significant features,
professional error in the original designation, or additional
landowners with nationally significant features on their property
desiring the designation.
(2) If the NPS determines that an expansion of the boundary of the
national natural landmark is appropriate, it will use the designation
process outlined in Sec. 62.4(b) through (j). If a boundary is
expanded, only the owners in the newly considered but as yet not
designated portion of the area are notified and asked if they object to
designation.
(c) Boundary reduction. Two justifications exist for reducing the
boundary of a national natural landmark: Loss of integrity of the
natural features or professional error in the original designation. If
the NPS determines that a reduction in the national natural landmark
boundary is indicated, the designation removal process outlined in
Sec. 62.8 is used.
(d) Change in description of values. If the NPS determines that a
change in the description of the national natural landmark's nationally
significant values is warranted, the NPS prepares the recommended
changes and the Director submits the changes and all supportive
documentation to the National Park System Advisory Board. The Advisory
Board reviews the information submitted by the Director and makes
recommendations to the Secretary. The Secretary reviews the supportive
documentation and the recommendations of the board, and may approve
changes in the description of a landmark's nationally significant
values.
(e) Minor technical corrections. Minor technical corrections to a
national natural landmark boundary and other administrative changes in
landmark documentation not covered under paragraphs (a) through (d) of
this section may be approved by the Director without a review by the
Advisory Board or the approval by the Secretary. Minor technical
boundary corrections are defined as those that involve a change in less
than five percent of the total area of the national natural landmark.
The NPS notifies owners of proposed minor technical boundary
corrections or other administrative changes in documentation, as
described in this paragraph (e). Based upon owner response to this
notification, the NPS determines whether the proposed change is a minor
technical correction to landmark documentation that can be made
administratively or whether the procedures outlined in Sec. 62.4(d)
through (j) must be followed.
Sec. 62.8 Natural landmark designation removal.
(a) Criteria for removal. (1) Except as provided in paragraph (f)
of this section, national natural landmark designation is removed from
an area:
(i) When it can be shown that an error in professional judgment was
made such that the site did not meet the criteria for national
significance at the time of designation;
(ii) When the values which originally qualified it for designation
have been lost or destroyed; or
(iii) When applicable designation procedures were not followed
because of prejudicial failure.
(2) Any affected owner of a designated national natural landmark
may initiate the removal by submitting to the Director a request for
removal of designation, stating the grounds for this removal and
specifying the error in professional judgment, loss of natural values
or prejudicial procedural error. A prejudicial procedural error is one
that reasonably may be considered to have affected the outcome of the
designation process.
(3) Within 60 days of receiving a removal request, the NPS notifies
the party submitting the request of whether the NPS considers the
documentation sufficient to consider removal of the natural landmark
designation.
(b) Review of removal information. The NPS reviews the information
outlining the grounds for removal. When necessary, an on-site
evaluation of the area may be made, as outlined in Sec. 62.4(c). Based
on all available information, the NPS determines whether the area no
longer merits designation as a national natural landmark.
(c) Notifications. When NPS has determined that area no longer
merits designation as a national natural landmark, the NPS notifies the
owner(s) and other interested parties as specified
[[Page 25723]]
in Sec. 62.4(d)(1)-(3). Notice of the proposed removal is also
published in the Federal Register. The notified individuals may comment
within 60 days of the date of the notice before a recommendation for
removal is submitted to the Secretary. All comments received will be
considered in the review and in the decision to remove the national
natural landmark designation.
(d) Removal from the registry. (1) The Director reviews the
information about a recommended removal from the Registry and
determines whether the procedural requirements in this section have
been met. If the Director confirms the findings, he or she submits a
recommendation for removal to the National Park System Advisory Board.
The Advisory Board reviews the submitted information and recommends the
removal from or retention of the area in the registry.
(2) The recommendations of the Advisory Board and the Director are
submitted by the Director to the Secretary for his or her
consideration. If the Secretary concurs, he or she directs the removal
of the landmark from the National Registry of Natural Landmarks. Any
area from which designation is withdrawn solely because of procedural
error as described in paragraph (a)(1)(iii) of this section continues
to meet the criteria for national significance.
(e) Notification of removal from the registry. When the Secretary
removes a landmark from the National Registry of Natural Landmarks, the
Secretary will notify the national natural landmark owner(s), the
executive of the local government jurisdiction in which the area is
located, Native American tribal governments and native villages and
corporations in the area, the governor of the State, Congressional
members who represent the Congressional District and State in which the
area is located, and other interested authorities, organizations, and
individuals, as outlined in Sec. 62.4(d)(1), (2) and (3). The NPS is
responsible for preparing and distributing the written notices. The NPS
periodically publishes notice(s) of removal in the Federal Register.
The NPS may reclaim the natural landmark plaque when a landmark is
removed from the National Registry of Natural Landmarks.
(f) Previously designated landmarks. (1) NPS will notify owners of
national natural landmarks designated before the effective date of
these regulations to give them an opportunity within 90 days of the
notice to request the removal of a national natural landmark
designation from their property by writing to the Director. If owners
do not respond within 90 days of the notification, the national natural
landmark designations of their properties will be retained.
(2) When only some owners of a national natural landmark in
multiple ownership request the removal of a national natural landmark
designation from their portions, the NPS determines whether, after
removal of these portions, a sufficient acreage of the national natural
landmark remains to demonstrate the original nationally significant
features without undue compromise. If so, the boundaries of the
national natural landmark are adjusted to remove the properties of
owners who object to the designation. If not, the entire national
natural landmark designation is removed and the area is removed from
the National Registry of Natural Landmarks.
(3) Any removals of existing national natural landmark designations
and related recommended boundary adjustments, must be presented by the
Director to the National Park System Advisory Board for review before
being presented to the Secretary who formally removes a national
natural landmark from the national registry or approves changes in the
national natural landmark boundary. Areas from which the designation
has been removed may be reconsidered for designation under these
regulations if ownership or other circumstances change.
Sec. 62.9 General provisions.
(a) Agreements. The NPS may enter into contracts, memoranda of
agreement, cooperative agreements, or other types of agreements with
other Federal agencies, States, counties, local communities, private
organizations, owners, Native American tribal governments, or other
interested individuals or groups to assist in administering the
National Natural Landmarks Program. The agreements may include but are
not limited to provisions about identification, evaluation, monitoring
or protecting national natural landmarks.
(b) Information dissemination. The NPS may conduct educational and
scientific activities to disseminate information on national natural
landmarks, the National Natural Landmarks Program, and the benefits
derived from systematic surveys of significant natural features to the
general public and to interested local, State and Federal agencies and
private groups. Dissemination of information on ecologically or
geologically fragile or sensitive areas may be restricted when release
of the information may endanger or harm the sensitive resources.
(c) Procedural requirements. Any individual, agency, or
organization acting as a representative of the NPS in the
identification, evaluation, monitoring or protection of national
natural landmarks is required to follow this part.
(d) Additional program information. Further guidance on the
operation of the National Natural Landmarks Program, as based on this
part, may be found in other program documents that are available from
the NPS.
(e) Administrative recourse. Any person has the right to insist
that NPS take into account all the provisions in this part for national
natural landmark designation or removal.
Note: This document was received at the Office of the Federal
Register on April 14, 1999.
Dated: June 10, 1998.
William Leary,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 99-9762 Filed 5-11-99; 8:45 am]
BILLING CODE 4310-70-P
