[Federal Register Volume 59, Number 60 (Tuesday, March 29, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-7262]


[[Page Unknown]]

[Federal Register: March 29, 1994]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 13

RIN 1024-AC22

 

Glacier Bay National Park, AK

AGENCY: National Park Service, Interior.

ACTION: Interim rule with request for comments.

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SUMMARY: The National Park Service (NPS) is promulgating an interim 
rule to clarify a provision of the Code of Federal Regulations, general 
regulations that defines the scope and applicability of NPS regulations 
to navigable waters (i.e., waters subject to the jurisdiction of the 
United States), relative to Glacier Bay National Park. In order to 
protect the wildlife and other resources in NPS areas, including 
Glacier Bay National Park, the NPS developed general regulations 
intended to be applicable on navigable waters irrespective of ownership 
of submerged lands. However, a recent court case has revealed that a 
1987 editorial correction to the applicability and scope section, aimed 
at clarifying a separate and distinct application of the regulations, 
had the unforseen and unintended effect at Glacier Bay National Park of 
linking title to submerged lands with the exercise of management 
authority over the reach of the navigable waters above them. This 
interim rule is being promulgated to insure the continued protection of 
park wildlife in Glacier Bay National Park, and to clearly inform the 
public that hunting continues to be prohibited in the park by general 
regulations as it has been for over 50 years. As such, this interim 
rule clarifies and interprets existing NPS regulatory intent, 
practices, and policies.

DATES: This rule is effective March 29, 1994 and will expire on January 
1, 1996. However, written comments will be accepted until June 27, 
1994.

ADDRESSES: Comments should be addressed to:

Superintendent, Glacier Bay National Park and Preserve, P.O. Box 
140, Gustavus, Alaska 99826.

FOR FURTHER INFORMATION CONTACT: Marvin O. Jensen, Superintendent, 
Glacier Bay National Park and Preserve, P.O. Box 140, Gustavus, Alaska 
99826, Telephone: (907) 697-2230.

SUPPLEMENTARY INFORMATION:

Background

    Glacier Bay National Monument was established by presidential 
proclamation dated February 26, 1925. 43 Stat. 1988. The monument was 
established to protect the dynamically changing glacial environment of 
mountains, tidewater glaciers, and associated movements and development 
of flora and fauna, and to promote the scientific study of such. The 
early monument included marine waters within Glacier Bay north of a 
line running approximately from Geikie Inlet on the west side of the 
bay to the northern extent of the Beardslee Islands on the east side of 
the bay. The monument was expanded by a second presidential 
proclamation on April 18, 1939. 53 Stat. 2534. The expanded monument 
included additional lands and marine waters off: All of Glacier Bay; 
portions of Cross Sound, North Inian Pass, North Passage, Icy Passage, 
and Excursion Inlet; and Pacific coastal waters to a distance of three 
miles seaward between Cape Spencer in the south and Sea Otter Creek, 
north of Cape Fairweather. The inclusion of substantial tracts of 
marine waters within the boundaries of the monument, and present-day 
park, presents unique opportunities for the study and preservation of 
marine flora and fauna, in an unimpaired state.
    Glacier Bay National Monument was redesignated as Glacier Bay 
National Park in 1980 by the Alaska National Interest Lands 
Conservation Act (ANILCA). The new park included all lands and waters 
of the previously existing monument, plus additional land areas. 94 
Stat. 2382. The legislative history of ANILCA provides that certain NPS 
units in Alaska including Glacier Bay National Park ``are intended to 
be large sanctuaries where fish and wildlife may roam freely, 
developing their social structures and evolving over long periods of 
time as nearly as possible without the changes that extensive human 
activities would cause.'' Sen. Rep. No. 96-413, 96th Cong., 1st Sess. 
137 (1979).
    The management of Glacier Bay National Park is governed by the 
original monument proclamations mentioned above, which provided that 
the flora and fauna of Glacier Bay were to be protected, and directed 
that the NPS manage the monument in accordance with the NPS Organic Act 
of 1916. 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 same in such 
manner and by such means as will leave them unimpaired for the 
enjoyment of future generations.'' 16 U.S.C. 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. 3. In addition, the Redwood National 
Park Act of 1978 states: ``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. 1a-1.
    Under these authorities the NPS has managed and regulated 
activities occurring on and in the marine waters of Glacier Bay 
National Park since the establishment of the monument. In addition to 
regulations generally applicable in all national park areas, such as 
hunting prohibitions, special park specific regulations have been 
promulgated for, and enforced on and within, Glacier Bay waters.

Applicability and Scope Provisions

    In addition to general regulatory authority (16 U.S.C. 3), the NPS 
has been delegated specific authority 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. 1a-2(h)). ``Waters subject to the jurisdiction of the United 
States'' are navigable waters. See, House Rep. 94-1569 pg. 4292. In 
1983 the NPS revised existing regulations in 36 CFR that apply in 
virtually all NPS administered areas (48 FR 30252, June 30, 1983). The 
applicability and scope provisions adopted pursuant to that 1983 
rulemaking included navigable waters. 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, June 30, 1983, 36 CFR 
1.2(a)). Like the United States Coast Guard, the NPS exercises 
authority on and within navigable waters irrespective of ownership of 
submerged lands.
    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, June 30, 1983; 36 CFR 1.2(b)). 
The 1983 promulgation of 36 CFR 1.2(b) was not intended to limit the 
applicability of park regulations on navigable waters.
    As originally promulgated in 1983, 36 CFR 1.2(b) specifically 
applied the 10 enumerated provisions to privately owned lands. However, 
it was silent as to the applicability of these 10 regulations on lands 
and waters owned by a state or other government entity. In 1987, in 
order to clarify the original NPS intent--that the 10 specifically 
enumerated provisions were meant to apply on all lands and waters 
regardless of land ownership (in areas under the legislative 
jurisdiction of the United States)--the term ``privately owned lands 
and waters'' was replaced with the term ``non-federally owned lands and 
waters''. (52 FR 35238, September 18, 1987; See also, 52 FR 12037, 
April 14, 1987).
    This editorial change cleared up one technical problem, but created 
another for the park, which the NPS seeks to rectify through this 
rulemaking. Although the 1987 rulemaking effort had nothing to do with 
navigable waters, it had the unforseen and unintended affect of 
rendering ambiguous the applicability of NPS regulations to navigable 
waters in Glacier Bay National Park.
    The NPS recognizes that regulations must provide an ordinary person 
a reasonable opportunity to know what is prohibited. Therefore, this 
interim rule is adopted to clarify that NPS regulations otherwise 
applicable within the boundaries of Glacier Bay National Park apply in 
and within the reach of navigable park waters (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 the submerged lands.

Interim Rulemaking

    This rulemaking follows a recent incident in which a person was 
cited for the taking of a seal within the boundaries of Glacier Bay 
National Park. Because of the confusion that 36 CFR 1.2(b) lent to the 
case, the NPS asked that the case be dropped. The NPS has determined 
that 36 CFR 1.2(b), as currently written, is ambiguous as to whether 
the wildlife protection regulation under which the person was cited (36 
CFR 2.2(a)) applies in the waters of Glacier Bay National Park. While 
the NPS asserts that based on the Proclamations creating Glacier Bay 
National Monument, and subsequent Congressional action, it owns the 
submerged lands of Glacier Bay National Park, this rulemaking will 
serve to clarify NPS jurisdiction and the applicability of NPS 
regulations to the waters of Glacier Bay National Park. The intended 
result of this action is the immediate and appropriate continuation of 
congressionally mandated protection of park resources and visitors, 
including the prohibition of hunting in the park by general regulations 
as it has been for over 50 years. See, United States v. Brown, 552 F.2d 
817, 822 (1977).
    The NPS is promulgating this interim rule under the ``good cause'' 
exception of the Administrative Procedure Act (5 U.S.C. 553(b)(B)) from 
general notice and comment rulemaking. As discussed above, the NPS 
believes that this exception is warranted because the recent court case 
may cause confusion in leading the public to believe that the long 
standing prohibition of hunting in Glacier Bay National Park has now 
been revoked and that the NPS will no longer prohibit persons from such 
hunting. This confusion could result in other wildlife being hunted 
within the park due to a confusion over the enforcement authority of 
the NPS to carry out the protection mandates of federal statutes for 
park resources. Based upon this discussion, and because the general 
effect and the intent of such enforcement has been consistent in 
regulations for over 50 years, the NPS finds pursuant to 5 U.S.C. 
553(b)(B) that it is unnecessary to publish a notice of proposed 
rulemaking. This interim rule simply reaffirms the intent and 
regulatory history of the applicability of regulations within Glacier 
Bay National Park. The NPS is, however, soliciting comment as discussed 
below, and will review comments and consider making changes to the rule 
based upon an analysis of comments.
    In accordance with the Administrative Procedure Act (5 U.S.C. 
553(d)(3)), the NPS has further determined that publishing this interim 
rule 30 days prior to the rule becoming effective could further confuse 
the public regarding the clear statutory authority of the NPS to 
protect park resources, and would be impracticable in that the due and 
required execution of the statutory functions of the NPS to protect 
park and public resources would be prevented by a delay in the 
effective date. This would be contrary to the public interest and the 
protection of park resources. As such, this interim rule clarifies and 
interprets existing NPS regulatory intent, practices and policies. 
Therefore, under the ``good cause'' exception of the Administrative 
Procedure Act (5 U.S.C. 553(d)(3)), and as discussed above, it has been 
determined that this interim rulemaking is excepted from the 30-day 
delay in effective date, and shall therefore become effective on the 
date published in the Federal Register.
    Because the NPS is soliciting comments as discussed above, the NPS 
plans to analyze comments received and prepare further rulemaking, as 
appropriate, that will speak to the general applicability of 
regulations in Glacier Bay National Park. Therefore, this interim rule 
will expire on January 1, 1996, unless amended or revised by future 
notice and comment rulemaking.

Public Participation

    It is the policy of the Department of the Interior, whenever 
practicable, to afford the public an opportunity to participate in the 
rulemaking process. However, in accordance with the above discussion, 
and because of the urgent need to ensure the protection of park 
resources and wildlife, it has been determined that it is impracticable 
to delay the effective date of this interim rule pending public 
comment. Nevertheless, interested persons are invited to submit written 
comments, suggestions or objections regarding the proposed regulations 
to the address noted at the beginning of this rulemaking. Comments must 
be received on or before June 27, 1994. The NPS will review comments 
and consider making changes to the rule based upon an analysis of 
comments.

Drafting Information

    This interim rule was written by Russel J. Wilson of the Alaska 
Regional Office, National Park Service.

Paperwork Reduction Act

    This rule does not contain collections of information which require 
approval by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq.

Compliance With Other Laws

    In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et 
seq., which became effective January 1, 1981, the NPS has determined 
that this interim rule will not have a significant economic effect on a 
substantial number of small entities, nor does it require a preparation 
of a regulatory analysis.
    This rule was not subject to Office of Management and Budget (OMB) 
review under Executive Order 12866.
    The NPS has determined that this proposed 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 noncompatible uses which might 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 proposed rulemaking is 
categorically excluded from the procedural requirements of the National 
Environmental Policy Act (NEPA) by Departmental guidelines in 516 DM 6 
(49 FR 21438). As such, neither an Environmental Assessment nor an 
Environmental Impact Statement has been prepared.

List of Subjects in 36 CFR Part 13

    Alaska, National parks.
    In consideration of the foregoing, 36 CFR part 13 is amended as 
follows:

PART 13--[AMENDED]

Subpart C--Special Regulations--Specific Park Areas In Alaska

    1. The authority citation for part 13 is revised to read as 
follows:

    Authority: 16 U.S. C. 1, 3, 462(k), 3101 et seq.; Sec. 13.65 
also issued under 16 U.S.C. 1a-2(h), 1361, 1531.

    2. By adding a new paragraph (a) to Sec. 13.65 to read as follows:


Sec. 13.65  Glacier Bay National Park and Preserve.

    (a) Applicability and Scope. (1) Notwithstanding Sec. 1.2(b) and 
Sec. 13.2(e) of this chapter, the regulations contained in parts 1 
through 6 and 13 of this chapter that are applicable on federally owned 
lands and waters within the boundaries of Glacier Bay National Park 
shall also apply on and within the navigable waters located within the 
boundaries of Glacier Bay National Park.
    (2) Paragraph (a) shall remain in effect until January 1, 1996.
* * * * *
    Dated: February 26, 1994.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 94-7262 Filed 3-28-94; 8:45 am]
BILLING CODE 4310-70-P