[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Rules and Regulations]
[Pages 35133-35137]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17168]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Parts 1 and 13
RIN 1024-AC21
General Regulations for Areas Administered by the National Park
Service and National Park System Units in Alaska
AGENCY: National Park Service, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The National Park Service (NPS) is revising portions of its
general regulations for areas it administers that define the primary
scope and applicability and contain definitions for terms used in the
text of the regulations. NPS is also modifying regulations that relate
to National Park System units in Alaska. This revision clarifies the
applicability of those NPS regulations that apply in all National Park
System areas to waters subject to federal jurisdiction located within
park boundaries, including navigable waters.
In order to protect wildlife and the other values and purposes of
the National Park System, NPS developed general regulations intended to
be applicable on navigable waters located within park boundaries
irrespective of ownership of submerged lands. However, litigation
concerning a seal shot in the navigable waters of a national park
revealed that a 1987 editorial correction to 36 CFR 1.2(b), aimed at
clarifying a separate and distinct application of the regulations, had
the unforeseen and unintended effect of arguably linking federal title
to submerged lands with the exercise of management authority over
activities occurring on navigable waters. This rulemaking will clarify
the regulations and ensure the continued protection of wildlife and
other National Park System values and purposes on navigable waters
within parks, regardless of ownership of submerged lands. The revision
clarifies that NPS regulations continue to apply on navigable waters,
as they have for years. Two definitions, ``park area'' and
``boundary,'' are modified by this revision. This rulemaking clarifies
and interprets existing NPS regulatory intent, practices and policies,
and generally would not place new or additional regulatory controls on
the public.
EFFECTIVE DATE: August 5, 1996.
FOR FURTHER INFORMATION CONTACT: Dennis Burnett, Ranger Activities
Division, National Park Service, P.O. Box 37127, Washington, D.C.
20013-7127, Telephone (202) 208-4874.
SUPPLEMENTARY INFORMATION:
Background
The NPS Organic Act of 1916 directs the Secretary of the Interior
and the NPS to manage national parks and monuments to ``conserve the
scenery and the natural and historic objects and the wild life therein
and to provide for the enjoyment of the same in such manner and by such
means as will leave them unimpaired for the enjoyment of future
generations.'' 16 U.S.C. Sec. 1. The organic act also grants the
secretary the authority to implement ``rules and regulations as he may
deem necessary or proper for the use and management of the parks,
monuments and reservations under the jurisdiction of the National Park
Service.'' 16 U.S.C. Sec. 3. In the Redwood Expansion Act of 1978,
Congress gave further direction to the secretary to ensure that:
The authorization of activities shall be construed and the
protection, management and administration of [NPS] areas shall be
conducted in light of the high public value and integrity of the
National Park System and shall not be exercised in derogation of the
values and purposes for which these various areas have been
established, except as may have been or shall be directly and
specifically provided by Congress. 16 U.S.C. Sec. 1a-1.
In to general regulatory authority delegated in 16 U.S.C. Sec. 3,
in 1976 Congress amended the 1970 Act for Administration (known as the
General Authorities Act) and authorized NPS to ``[p]romulgate and
enforce regulations concerning boating and other activities on or
relating to waters located within areas of the National Park System,
including waters subject to the jurisdiction of the United States.* *
*'' 16 U.S.C. Sec. 1a-2(h). ``Waters subject to the jurisdiction of the
United States'' include navigable waters. See, H. Rep. No. 1569, 94th
Cong., 2nd Sess., 4292 (1976). Under these authorities the NPS has
managed and regulated activities occurring on and in the waters of the
National Park System.
Before 1966, NPS regulations for boating, sanitation, and other
water-use regulations were scattered throughout 36 CFR parts 1 and 2.
In 1966, NPS published consolidated boating regulations as 36 CFR part
3. The regulations provided for the enforcement of U.S. Coast Guard
regulations by NPS ``on navigable waters of the United States'' located
within park boundaries (31 FR 16650). In 1983, NPS moved water-use
activity regulations from part 2 to part 3 (48 FR 30290). In addition
to regulations generally applicable in all national park areas, NPS has
promulgated special park-specific regulations that NPS enforces on and
in navigable waters within the boundaries of particular National Park
System units. See, e.g., 36 CFR 7.45(f)-(h) (Everglades National Park,
Fishing and Boating); 36 CFR 7.38(b) (Isle Royale National Park,
Underwater diving); 36 CFR 7.83(a) (Ozark National Scenic Riverways,
Boating); 36 CFR 13.65(b) (Glacier Bay National Park, Vessel
Management/Whale protection).
Applicability and Scope Provision
In 1982-83 NPS undertook a comprehensive review of general
regulations that apply in virtually all NPS administered areas (47 FR
11598). The applicability and scope provisions adopted pursuant to the
1983 rulemaking included navigable waters.
[[Page 35134]]
In that rulemaking, 36 CFR 1.2(a) provided that the regulations
contained in 36 CFR chapter 1 would apply: (1) on federally owned
waters, and (2) on waters ``controlled, * * * administered or otherwise
subject to the jurisdiction of the National Park Service. * * *'' (48
FR 30252). In some park areas, the United States holds title to the
submerged lands under navigable waters. In other park areas, the United
States does not hold title to the submerged lands beneath navigable
waters within the boundaries of the park; federal authority to regulate
within the ordinary reach of these waters is based on the commerce and
property clauses of the U.S. Constitution, not ownership. Like the
United States Coast Guard, NPS exercises authority over navigable
waters irrespective of ownership of submerged lands. 16 U.S.C. Sec. 1a-
2(h). As promulgated in 1983, 36 CFR 1.2(a)(2) reflected the
congressional intent that NPS regulations applied in these waters.
The 1983 regulations also provided that--except in park areas under
the legislative jurisdiction of the United States, where 10
specifically enumerated provisions were intended to apply regardless of
ownership--the regulations were ``not applicable on privately owned
lands and waters. * * *'' (48 FR 30252); 36 CFR 1.2(b). While 36 CFR
1.2(b) (as promulgated in 1983) was specific as to the applicability of
the 10 enumerated provisions on privately owned lands, it was silent as
to the applicability of those 10 regulations on lands and waters owned
by a state or other government entity. In 1987, in response to
questions concerning this issue, and in order to clarify the original
NPS intent (i.e., that the 10 specifically enumerated provisions were
meant to apply on all lands and waters regardless of landownership) the
term ``privately owned lands and waters'' was replaced with the term
``non-federally owned lands and waters.'' (52 FR 35238; see also, 52 FR
12037). The 1987 rulemaking emphasized that it was only an editorial
change and not a substantive change, the sole purpose of which was to
clarify the originally intended reach of the 10 enumerated provisions;
there was no change intended concerning state lands.
However, in its effort to ensure that (in areas of legislative
jurisdiction) the 10 enumerated regulations clearly apply on all ``non-
federally owned lands and waters'' within the boundaries of park areas,
the 1987 revision to section 1.2(b) inadvertently incorporated language
that seems ambiguous and could preclude park regulation of ``non-
federally owned * * * waters.'' See, 52 FR 35238, September 18, 1987.
NPS recognizes that regulations must provide an ordinary person a
reasonable opportunity to know when regulations apply. Accordingly,
this rulemaking clarifies that NPS regulations otherwise applicable
within the boundaries of a National Park System unit apply on and
within waters subject to the jurisdiction of the United States located
within that unit, including navigable waters and areas within their
ordinary reach (up to the mean high water line in places subject to the
ebb and flow of the tide, or up to the ordinary high water mark in
other places that are navigable), irrespective of ownership of
submerged lands, tidelands or lowlands, and jurisdictional status.
This rulemaking also revises the definition of ``boundary'' to
better cover the many and diverse sites that have been placed under the
care and administration of NPS. The revision provides protection to
people and property at NPS sites such as maintenance facilities and
warehouses, administrative sites, ranger stations, visitor information
centers and associated parking lots, which, though located outside a
park proper, are managed and administered by NPS as components of the
National Park System. This definition is also tailored to cover the
various NPS-administered sites in the District of Columbia. The term
``park area'' is revised to mean the same as the term ``National Park
System.'' The definition for ``National Park System'' adopted by this
rulemaking repeats the statutory definition from 16 U.S.C. Sec. 1c.
Revisions to section 13.2 in this rule serve three purposes: (1)
Paragraph (c) is revised to clarify that NPS subsistence regulations,
promulgated under the authority of the Alaska National Interest Lands
Conservation Act (ANILCA), 16 U.S.C. Sec. 3101 et seq., Titles II and
VIII, apply only ``on federally owned lands and interests therein
within park areas where subsistence is authorized;'' (2) paragraph (e)
is revised to clarify that, pursuant to proposed Sec. 1.2(a)(3), NPS
general regulations specifically apply within the reach of navigable
waters located within the boundaries of park areas in Alaska; and (3)
paragraph (e) is revised to clarify that the part 13 modifications
(that generally are relaxations of prohibitions contained in the
general regulations) also apply on the navigable waters of national
parks in Alaska (e.g., 36 CFR 13.20 (authorization for recreational
gold panning), see also, 43 CFR 36.11(d) (special authorization for
motorboat use)).
Analysis of Comments
NPS published the proposed rule in the Federal Register on December
5, 1995 (60 FR 62233). NPS received six timely comments on the proposed
rule. The State of Alaska, Office of the Attorney General and the
Alaska State Legislature; the Alaska Miners Association, Incorporated;
the International Association of Fish and Wildlife Agencies; Sierra
Club; and the National Parks and Conservation Association commented.
NPS has carefully considered each of these comments. NPS's responses to
the comments are as follows:
Legislative Jurisdiction: Ten Enumerated Regulations
One commenter supposed that adoption of this rule would make the 10
enumerated 36 CFR part 2 regulations that apply on all lands and waters
within a park that are under the legislative jurisdiction of the United
States apply on park waters (regardless of legislative jurisdiction).
Those ten regulations are:
36 CFR 2.2 Wildlife protection
36 CFR 2.3 Fishing
36 CFR 2.4 Weapons, traps and nets
36 CFR 2.13 Fires
36 CFR 2.22 (a)(2), (b) and (c) Property
36 CFR 2.30 Misappropriation of property and services
36 CFR 2.31 Trespassing, tampering and vandalism
36 CFR 2.32 Interfering with agency functions
36 CFR 2.34 Disorderly conduct
36 CFR 2.36 Gambling
NPS believes that confusion over this point stems from the fact
that the rule uses the term ``waters subject to the jurisdiction of the
United States'' in subparagraph 1.2(a)(3). NPS notes that this term may
be confused with the term ``lands and waters under the legislative
jurisdiction of the United States'' (see, e.g., 36 CFR 2.2(g); see
also, 36 CFR 4.1).
``Legislative jurisdiction'' means exclusive federal or concurrent
(state and federal) jurisdiction (see, 36 CFR Sec. 1.4 (definition of
legislative jurisdiction) and 40 U.S.C. 255 (the legislative authority
for cessions of jurisdiction)), i.e., lands and waters over which the
federal government has general lawmaking authority. The 10 enumerated
provisions of 36 CFR part 2 apply on lands and waters that are within
park boundaries and under the legislative jurisdiction of the United
States regardless of ownership (see, e.g., 36 CFR 2.2(g); see also, 36
CFR 4.1).
[[Page 35135]]
``Waters subject to the jurisdiction of the United States'' has a
different meaning, and refers to waters over which the United States
exercises federal commerce clause authority (see, H. Rep. No. 1569,
94th Cong., 2nd Sess., 4292 (1976); see also, 33 CFR parts 328-329).
This rulemaking clarifies that NPS regulations contained in 36 CFR
parts 1 through 5, part 7, and part 13 (including the 10 enumerated
regulations) apply on such waters located within park boundaries
regardless of jurisdictional status.
National Park System Units in Alaska: ANILCA Section 103
The Alaska State Legislature contends in their comments that ANILCA
Sec. 103(c) should be interpreted as superseding NPS authority to
regulate waters within park boundaries pursuant to 16 U.S.C. Sec. 1a-
2(h). The Attorney General of Alaska makes a similar contention
concerning NPS general authority to protect natural and other resources
through general regulations; the Attorney General concedes only that 16
U.S.C. Sec. 1a-2(h) permits NPS to promulgate and enforce regulations
concerning boating and related activities, and to enforce Coast Guard
regulations on navigable waters within park boundaries. In contrast,
the National Parks and Conservation Association writes that NPS has
clear authority to regulate on all waters within National Park System
areas to protect park purposes and values.
In ANILCA, Congress outlined an expansive and inclusive scope of
resource protection that was to apply within national parks in Alaska.
Congress further charged NPS to protect populations of fish and
wildlife and habitat that necessarily includes the great river systems
running through and within the parks (ANILCA Title II). NPS does not
agree with the State of Alaska's contention that ANILCA Sec. 103(c)
preempts NPS's well-established authority on navigable waters. NPS does
not think that ANILCA Sec. 103(c), which was characterized by Congress
as a minor technical provision, should be read in isolation from the
context of the whole act. ANILCA should be interpreted consistent with
its underlying protective purposes: to protect objects of ecological,
cultural, geological, historical, prehistorical, and scientific
interest.
National Park System Units in Alaska: Subsistence Uses on ``Public
Lands''
In response to a comment NPS would like to emphasize that this
rulemaking does not affect subsistence uses conducted in National Park
System units in Alaska. As adopted, subparagraph (c) of 36 CFR 13.2
provides that: ``Subpart B of this part 13 contains regulations
applicable to subsistence uses. Such regulations apply on federally
owned lands and interests therein within park areas where subsistence
is authorized.'' This revision merely moves the reference to federally
owned lands currently found in subparagraph (e) to subparagraph (c) to
maintain the status quo. Although the term ``public lands'' appeared in
the proposed rule (rather than ``federally owned lands'') NPS intended
no change. Application of Federal Subsistence Board regulations (i.e.
seasons and bag limits) to navigable waters or selected but not yet
conveyed lands is outside the scope of this rulemaking. See, 61 FR
15014, April 4, 1996.
Lands Administered Pursuant to the Terms of a Written Instrument
NPS would like to clarify that when NPS leases property and
administers the property for public-use purposes, NPS regulations
apply. If an owner/lessor wishes to retain rights or uses, the owner
should do so as part of the lease; otherwise NPS general regulations
will apply equally to the owner as they would to a third party. When
NPS administers property for public use pursuant to an easement, the
easement will define the federal interest. The scope of the acquired
federal interest will determine the regulations that would apply.
However, when NPS enters into an agreement to administer property
through a written instrument, such as a memorandum of agreement,
memorandum of understanding, or other written form (such as a national
trail certification agreement), NPS regulations will apply only to the
extent provided by the owner of the property during the term of the
agreement. The agreement document must describe the type(s) of public
use to be managed by NPS or otherwise define the scope of management
delegated by the owner to NPS. Regulations that are consistent with the
intent of the agreement will then apply.
NPS wishes to note that NPS often enters into agreements with
landowners where there is no intent by the landowner to grant--nor by
NPS to assume--regulatory control of the property.
Section-by-Section Analysis
Section 1.2 paragraph (a) is promulgated without change. This
paragraph limits the applicability of NPS regulations to within park
boundaries and interests.
Subparagraphs (a)(1) and (a)(2) provide that the regulations apply,
respectively, on lands and waters located within park system boundaries
that are federally owned, or administered as park lands by NPS (in
whole or in part) through a written instrument with the owner, party of
interest, or the person, corporation, company, organization, state or
political subdivision holding an interest in, or title to, such land. A
written instrument could be in the form of a lease or public use
easement, or a memorandum of agreement or some other written form
authorizing NPS management. Without such an agreement, NPS regulations
would not apply on non-federally owned lands within park boundaries,
the exception being particular regulations containing a provision that
makes them specifically applicable to such lands. See, e.g., 36 CFR
2.2(g) (regulation applies to lands and waters under legislative
jurisdiction within a park); see also, 36 CFR part 6 (59 FR 65948).
Subparagraph (a)(3) clearly defines and includes waters subject to
federal jurisdiction that are located within National Park System
boundaries, including navigable waters, within the scope of NPS
regulations. Subparagraph (a)(4) contains a provision for NPS to
administer lands and waters in the District of Columbia (pursuant to
the Act of March 17, 1948 (62 Stat. 81)), that was added to the former
subparagraph (2) in 1986 (51 FR 37010). The less-than-fee interests
provision, formerly subparagraph (a)(3), has been revised, renumbered
and adopted as subparagraph (a)(5). This provision encompasses scenic
easements (sometimes referred to as negative easements) and other
federal interests where NPS administration of the site is shared or
limited.
Paragraph (b) continues to limit the applicability of NPS general
regulations to federally owned lands in the absence of an agreement or
a superseding provision. Similarly, in order for NPS general
regulations to apply on Indian tribal trust lands located within
National Park System boundaries, NPS must enter into an agreement with
the benefiting Indian nation, tribe, band, or pueblo (pursuant to
proposed subparagraph (a)(2)). Without such an agreement, and
regardless of jurisdictional status, NPS authority on Indian lands
located within National Park System units is limited to federal laws
and implementing regulations made applicable at the express direction
of Congress. Paragraph (d) extends existing administrative exceptions
to include part 13 regulations.
[[Page 35136]]
Section 1.4 adopts revisions to the definitions ``boundary'' and
``park area.'' ``Boundary,'' as revised, affords comprehensive coverage
to the many and diverse sites that have been placed under the care and
administration of NPS, including those sites located in the District of
Columbia. The term ``park area'' is revised to mean the same as the
term ``National Park System.'' The definition for ``National Park
System'' repeats the statutory definition from 16 U.S.C. 1c.
Section 13.2 paragraph (c) has been revised to clarify that NPS
general subsistence regulations for Alaska apply on federally owned
lands and interests therein within park areas where subsistence is
authorized. The final rule refers to subsistence uses rather than
subsistence activities to standardize part 13 text. The term
``subsistence uses'' is defined at section 13.42(c) and used throughout
section 13, subpart B. The omission of Sitka National Historical Park
from the list of subsistence-excepted parks in the proposed rule was an
oversight that this rulemaking corrects. ANILCA does not authorize
subsistence uses in Sitka National Historical Park. Paragraph (e) is
revised to clarify that NPS general regulations (e.g., part 2), as
modified by part 13, apply to waters subject to federal jurisdiction,
including navigable waters, located within the boundaries of park areas
in Alaska.
Drafting Information
The primary authors of this revision are Michael Tiernan, Division
of Conservation and Wildlife, Office of the Solicitor, Department of
the Interior, Washington, DC, and Steve Shackelton and Russel J. Wilson
of the Alaska System Support Office and Alaska Field Office, National
Park Service. Richard G. Robbins, Division of Conservation and
Wildlife, Office of the Solicitor, Department of the Interior,
Washington, DC, also contributed.
Paperwork Reduction Act
This rule does not contain collections of information requiring
approval by the Office of Management and Budget under 44 U.S.C. 3501 et
seq.
Compliance With Other Laws
This rule was not subject to 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.). The economic effects of this
rulemaking are local in nature and negligible in scope.
NPS has determined and certifies pursuant to the Unfunded Mandates
Reform Act, 2 U.S.C. 1502 et seq., that this rule will not impose a
cost of $100 million or more in any given year on local, state, or
tribal governments or private entities.
NPS has determined that this rulemaking will not have a significant
effect on the quality of the human environment, health and safety
because it is not expected to:
(a) Increase public use to the extent of compromising the nature
and character of the area or causing physical damage to it;
(b) Introduce 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.
List of Subjects
36 CFR Part 1
National parks. Reporting and recordkeeping requirements.
36 CFR Part 13
Alaska, National parks, Reporting and recordkeeping requirements.
In consideration of the foregoing, NPS amends 36 CFR chapter I,
parts 1 and 13, as follows:
PART 1--GENERAL PROVISIONS
1. The authority citation for part 1 continues to read as follows:
Authority: 16 U.S.C. 1, 3, 9a, 460 l-6a(e), 462(k); D.C. Code 8-
137, 40-721 (1981).
2. Section 1.2 is amended by revising paragraphs (a), (b) and (d)
to read as follows:
Sec. 1.2 Applicability and scope.
(a) The regulations contained in this chapter apply to all persons
entering, using, visiting, or otherwise within:
(1) The boundaries of federally owned lands and waters administered
by the National Park Service;
(2) The boundaries of lands and waters administered by the National
Park Service for public-use purposes pursuant to the terms of a written
instrument;
(3) Waters subject to the jurisdiction of the United States located
within the boundaries of the National Park System, including navigable
waters and areas within their ordinary reach (up to the mean high water
line in places subject to the ebb and flow of the tide and up to the
ordinary high water mark in other places) and without regard to the
ownership of submerged lands, tidelands, or lowlands;
(4) Lands and waters in the environs of the District of Columbia,
policed with the approval or concurrence of the head of the agency
having jurisdiction or control over such reservations, pursuant to the
provisions of the Act of March 17, 1948 (62 Stat. 81);
(5) Other lands and waters over which the United States holds a
less-than-fee interest, to the extent necessary to fulfill the purpose
of the National Park Service administered interest and compatible with
the nonfederal interest.
(b) The regulations contained in parts 1 through 5, part 7, and
part 13 of this chapter do not apply on non-federally owned lands and
waters or on Indian tribal trust lands located within National Park
System boundaries, except as provided in paragraph (a) or in
regulations specifically written to be applicable on such lands and
waters.
* * * * *
(d) The regulations contained in parts 2 through 5, part 7, and
part 13 of this section shall not be construed to prohibit
administrative activities conducted by the National Park Service, or
its agents, in accordance with approved general management and resource
management plans, or in emergency operations involving threats to life,
property, or park resources.
* * * * *
3. Section 1.4 is amended in paragraph (a) by revising the
definition of Boundary, by adding a definition for National Park
System, and by revising the definition of Park area to read as follows:
Sec. 1.4 Definitions.
(a) * * *
Boundary means the limits of lands or waters administered by the
National Park Service as specified by Congress, or denoted by
presidential proclamation, or recorded in the records of a state or
political subdivision in accordance with applicable law, or published
pursuant to law, or otherwise published or posted by the National Park
Service.
* * * * *
National Park System (Park area) means any area of land and water
now
[[Page 35137]]
or hereafter administered by the Secretary of the Interior through the
National Park Service for park, monument, historic, parkway,
recreational, or other purposes.
* * * * *
Park area. See the definition for National Park System in this
section.
* * * * *
PART 13--NATIONAL PARK SYSTEM UNITS IN ALASKA
4. The authority citation for part 13 continues to read as follows:
Authority: 16 U.S.C. 1, 3, 462(k), 3101 et seq.; subpart D also
issued under 16 U.S.C. 20, 3197; Sec. 13.65(b) also issued under 16
U.S.C. 1361, 1531.
5. Section 13.2 is amended by revising paragraphs (c) and (e), to
read as follows:
Sec. 13.2 Applicability and scope.
* * * * *
(c) Subpart B of this part 13 contains regulations applicable to
subsistence uses. Such regulations apply on federally owned lands and
interests therein within park areas where subsistence is authorized.
Subsistence uses are not allowed in Kenai Fjords National Park, Katmai
National Park, Glacier Bay National Park, Klondike Gold Rush National
Historical Park, Sitka National Historical Park, and parts of Denali
National Park. The regulations in subpart B amend in part the general
regulations contained in this chapter and the regulations contained in
subpart A of this part 13.
* * * * *
(e) For purposes of this chapter, ``federally owned lands'' does
not include those land interests:
(1) Tentatively approved to the State of Alaska; or
(2) Conveyed by an interim conveyance to a Native corporation.
Dated: June 21, 1996.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 96-17168 Filed 7-3-96; 8:45 am]
BILLING CODE 4310-70-P
