[Federal Register Volume 60, Number 233 (Tuesday, December 5, 1995)]
[Proposed Rules]
[Pages 62233-62236]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29565]



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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: Proposed rule.

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SUMMARY: The National Park Service (NPS) is proposing to revise 
portions of its general regulations for areas administered by the 
National Park Service which define the primary scope and applicability 
and contain definitions for terms used in the text of the regulations. 
NPS is also modifying regulations which 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 navigable 
waters located within park boundaries.
    In order to protect wildlife and the other values and purposes of 
the National Park System, the NPS developed general regulations 
intended 

[[Page 62234]]
to be applicable on navigable waters located within park boundaries 
irrespective of ownership of submerged lands. However, a recent court 
case 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. Rather than litigate this 
issue, this rulemaking will clarify the regulations thereby ensuring 
the continued protection of wildlife and other National Park System 
values and purposes on all navigable waters within parks, regardless of 
ownership of submerged lands. Accordingly, the revision clarifies that 
NPS regulations continue to apply on navigable waters, as they have for 
years. Two definitions, ``park area'' and ``boundary,'' would be 
modified as a part of this revision. The proposed rule clarifies and 
interprets existing NPS regulatory intent, practices and policies, and 
generally would not place new or additional regulatory controls on the 
public.

DATES: Written comments will be accepted until February 5, 1996.

ADDRESSES: Comments should be addressed to: Associate Director, 
Operations, National Park Service, Department of the Interior, 18th and 
C Streets, NW., Washington, D.C. 20240.

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 wildlife 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 Organic Act was amended in 1978 to 
provide:

    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.

In addition to general regulatory authority delegated in 16 U.S.C. 3, 
the NPS has been authorized 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'' 
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.
    Prior to 1966, NPS regulations for boating, sanitation and other 
regulations affecting waters were scattered throughout 36 CFR Parts 1 
and 2. In 1966, consolidated boating regulations were published as 36 
CFR Part 3. The regulations provided for the enforcement of U.S. Coast 
Guard regulations by the NPS ``on navigable waters of the United 
States'' located within park boundaries (31 FR 16650). In 1983, water-
use activity regulations were moved from Part 2 to Part 3 (48 FR 
30290). In addition to regulations generally applicable in all national 
park areas, special park-specific regulations have also been 
promulgated for, and enforced on and in navigable waters within the 
boundaries of National Park System units. See, e.g., 36 CFR 7.45 (f)-
(h) (Everglades National Park, fishing and boating); 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 the 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. 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 clause, not 
ownership. Like the United States Coast Guard, the NPS exercises 
authority over navigable waters irrespective of ownership of submerged 
lands. 16 U.S.C. 1a-2(h). 36 CFR 1.2(a)(2) reflects the congressional 
intent that NPS regulations will also apply 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) 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 land ownership) 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. 
The NPS recognizes that regulations must provide an ordinary person a 
reasonable opportunity to know what is prohibited. Accordingly, this 
rulemaking is proposed to clarify that NPS regulations otherwise 
applicable within the boundaries of a National Park System unit apply 
on and within waters subject 

[[Page 62235]]
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.
    This rulemaking also proposes to revise the definition of 
``boundary.'' ``Boundary,'' as revised, would better cover the many and 
diverse sites that have been placed under the care and administration 
of the NPS. The revision would afford comprehensive protection to 
persons 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 the NPS as components of 
the National Park System. The definition is also tailored to cover the 
various NPS-administered sites in the District of Columbia. The term 
``park area'' would be revised to mean the same as the term ``National 
Park System.'' The proposed definition for ``National Park System'' 
repeats the statutory definition from 16 U.S.C. 1c.
    The proposed revision to Section 13.2 serves three purposes: (1) 
Paragraph (c) is revised to clarify that Alaska National Interest Lands 
Conservation Act (ANILCA) Title VIII subsistence regulations apply ``on 
the public lands within'' those parks where subsistence is authorized; 
(2) paragraph (e) is revised to clarify that, pursuant to proposed 
Sec. 1.2(a)(3), NPS general regulations are specifically applicable 
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., ANILCA Sec. 1110(a) 
special authorization for motorboat travel to villages).

Section-by-Section Analysis

    Section 1.2 paragraph (a) is proposed as it currently exists. This 
paragraph limits the applicability of NPS regulations to within park 
boundaries and interests.
    Proposed 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 the NPS (in whole or in part) through an agreement 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. An agreement could be in the form of a lease, 
public use easement, memorandum (of agreement), or some other written 
form. Lands and waters administered under this subparagraph would 
usually be subject to the same general regulations as federally owned 
lands (Parts 1 through 5, and Parts 7 and 13 as applicable). An owner 
or party of interest who wishes to retain certain rights or uses could 
do so as part of the written agreement, otherwise NPS general 
regulations will apply equally to the owner or party of interest as 
they would to third parties. 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 applicable to lands and waters under legislative 
jurisdiction within a park); See also, 36 CFR Part 6 (59 FR 65948). Two 
other provisions that are contained in existing subparagraph (a)(2) 
are, in this rulemaking, proposed separately as subparagraphs (a)(3) 
and (a)(4).
    Proposed subparagraph (a)(3) more 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 the 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 
existing subparagraph (2) in 1986 (51 FR 37010). The less-than-fee 
interests provision, currently subparagraph (a)(3), has been revised, 
renumbered and proposed 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.
    Proposed 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, the 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.
    Proposed paragraph (d) would extend existing administrative 
exceptions to include Part 13 regulations.
    Section 1.4 proposes a revision to the definition of the terms 
``boundary'' and ``park area.'' ``Boundary,'' as revised, would afford 
comprehensive coverage to the many and diverse sites that have been 
placed under the care and administration of the NPS, particularly those 
sites located in the District of Columbia. The term ``park area'' would 
be revised to mean the same as the term ``National Park System.'' The 
proposed definition for ``National Park System'' repeats the statutory 
definition from 16 U.S.C. 1c.
    Section 13.2 proposed paragraph (c) has been revised to clarify 
that subsistence regulations for Alaska apply only ``on the public 
lands within'' those parks where subsistence is authorized. Paragraph 
(e) has been 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, D.C., and Steve Shackelton and Russel J. 
Wilson of the Alaska Field Area, National Park Service. Richard G. 
Robbins, Division of Conservation and Wildlife, Office of the 
Solicitor, Department of the Interior, Washington, D.C., 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 USC 601 et seq.). The economic effects of this 
rulemaking are local in nature and negligible in scope.
    The NPS has determined that this proposed rulemaking will not have 
a significant effect on the quality of the 

[[Page 62236]]
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 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 (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, it is proposed to amend 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; or
    (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; or
    (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; or
    (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); or
    (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 and 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) of this section 
or in regulations specifically written to be applicable on such lands 
and waters.
* * * * *
    (d) The regulations contained in parts 2 through 5 and parts 7 and 
13 of this chapter shall not be construed to prohibit administrative 
activities conducted by the National Park Service, or its agents, in 
accordance with approved general management and resources 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 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 republishing the first sentence of 
paragraph (c) and revising the second sentence of paragraph (c), and by 
revising paragraph (e) to read as follows:


Sec. 13.2  Applicability and Scope.

* * * * *
    (c) Subpart B of this part 13 contains regulations applicable to 
subsistence activities. Such regulations apply on public lands within 
park areas except Kenai Fjords National Park, Katmai National Park, 
Glacier Bay National Park, Klondike Gold Rush National Historical Park 
and parts of Denali National Park.* * *
* * * * *
    (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) Interim conveyed to a Native Corporation.

    Dated: October 20, 1995.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 95-29565 Filed 12-4-95; 8:45 am]
BILLING CODE 4310-70-P