[Federal Register Volume 63, Number 235 (Tuesday, December 8, 1998)]
[Proposed Rules]
[Pages 67635-67638]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32385]
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DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Part 59
RIN 1024-AC68
Land and Water Conservation Fund Program of Assistance to States:
Post Completion Compliance Responsibilities
AGENCY: National Park Service, Interior.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would modify Land and Water Conservation
Fund (L&WCF) post-completion requirements by clarifying the state
planning prerequisite for conversion approval, allowing the recipients
of a L&WCF grant to use non-recreation land they currently own, or non-
recreation land that is transferred from one public agency to another
without payment, to satisfy the replacement requirement when land
acquired with L&WCF assistance is proposed for conversion to other than
public outdoor recreation uses, assuming all other eligibility criteria
are met, eliminating the requirement that the National Park Service be
notified of all instances of obsolescence and facility use changes, and
establishing standards for resolving premature conversions to ensure
their timely resolution. These changes are necessary to implement the
recommendations of the park protection and stewardship task force which
was established by the NPS to reengineer the post-completion compliance
functions of the program and to address the recommendations of the
Department of the Interior's Office of Inspector General.
DATES: Written comments will be accepted until February 8, 1999.
ADDRESSES: Comments should be sent to the Chief, Recreation Programs
Division, National Park Service, Department of the Interior, 1849 ``C''
St., NW., Room 3624, Washington, DC 20240.
FOR FURTHER INFORMATION CONTACT: Mr. Wayne Strum (202-565-1129) or Mr.
Kenneth R. Compton (202-565-1140).
SUPPLEMENTARY INFORMATION:
Background
Section 6(f)(3) of the L&WCF Act of 1965 stipulates that changes in
use to other than public outdoor recreation at assisted sites may only
be made with the approval of the Secretary of the Interior if such a
conversion is in accord with the Statewide Comprehensive Outdoor
Recreation Plan (SCORP) and only if a converted property is replaced by
substitute property of at least equal fair market value and of
reasonably equivalent location and usefulness. On September 25, 1986,
NPS published a final rule describing the post-completion compliance
responsibilities for recipients of grants under the L&WCF grant-in-aid
program. The regulations were subsequently amended on June 15, 1987 (52
FR 22747), to implement section 303 of the Emergency Wetlands Resources
Act of 1986 which clarifies the equivalent usefulness criterion. The
conversion requirements are codified at 36 CFR 59.3.
As part of the Vice President's National Performance Review, NPS
established a park protection and stewardship task force to examine how
local, State, and Federal governments could work together to better
protect the public recreation estate created by L&WCF grant-in-aid
program from the twin challenges of increasing development and
shrinking manpower and financial resources at all levels of government.
The goal of the task force members was to simplify and streamline the
conversion review and approval process in 36 CFR part 59 without
compromising the integrity of the recreation estate established through
the L&WCF State grant program. The task force report, ``Protecting the
Legacy,'' issued in November 1996, included several recommendations
which will lighten the burden of the 56 States and Territories, the
primary recipients of L&WCF grant assistance, as well as thousands of
pass-through recipients at the local level. Some recommendations can be
implemented administratively. However, three of the recommendations
require revisions or amendments to the published regulations. This
rulemaking is also being used to clarify language in the preamble to
the 1986 rulemaking regarding the role of the SCORP in the conversion
review and approval process.
Every State must have a SCORP which has been reviewed and accepted
by NPS before it can apply for and receive grants under the L&WCF
program. In addition, the prerequisites for conversion approval found
in Sec. 59.3(b) include the requirement that a conversion and
substitution must be in accord with the then-existing SCORP or
equivalent recreation plans. In the discussion of public comments found
in the preamble to the 1986 final rule (51 FR 34182), equivalent
recreation plans are described as whatever planning effort exists after
program funding ends which most closely compares with that of the SCORP
and which the State would maintain at the impetus of State law or for
some other appropriate reason. It is possible that this language could
be misinterpreted to preclude any conversion request unless justified
by a single plan, statewide in scope and maintained by the State. The
intent of the equivalent recreation plans language was to give the
States and local project sponsors the flexibility to pursue legitimate
conversion requests in the absence of a formal SCORP as long as a
suitable planning alternative was available--whether a recreation plan
developed by a State as part of its own comprehensive planning efforts
or any local or regional plan(s) acceptable to the State for the
purpose of complying with section 6(f)(3). Such a plan may be
considered as equivalent and could serve in lieu of an official SCORP
to support (or reject) a conversion request but only if it has been
formulated with
[[Page 67636]]
benefit of public input and the existing SCORP has expired and L&WCF
grant funding has ceased.
Subsection 59.3(b)(4)(iv) of the regulation prohibits land which is
currently in public ownership from being used as replacement for land
acquired as part of a L&WCF project. This prohibition includes land
acquired from another public agency unless the selling agency is
required by law to receive payment for the land.
Before 1982, program policy dictated that replacement real property
must be newly acquired land and meet the standards for new acquisition
projects. Therefore, replacement property could not be rededicated
publicly owned lands regardless of whether the original project was for
the acquisition of land or the development of facilities. However, in
January 1982, NPS implemented a policy change which permitted
rededicated public land not currently used or dedicated to public
recreation/conservation, to be used as replacement land when a section
6(f)(3) conversion occurs within the boundaries of a L&WCF-assisted
development project.
The task force concluded that this policy could apply equally well
to acquisition projects, that there would be no diminution of the
recreation estate if project sponsors were allowed to use non-
recreation land it currently owns (or nonrecreation land that is
transferred from one public agency to another without payment) to
satisfy the replacement requirement on acquisition projects. Since
public recreation is being protected in perpetuity, the other
requirements of the L&WCF Act must still be met and the approval of a
conversion proposal remains subject to the Secretary's approval
authority, NPS concurs in the recommendation of the task force and
proposes that this subsection be removed.
Existing Sec. 59.3(d) requires NPS approval for any facility use
change which would significantly contravene the intended recreation use
of the area when the L&WCF assistance was provided. Although it does
not require NPS approval for each and every facility use change or
every time the maintenance of a park structure or use of an improvement
funded with L&WCF assistance is discontinued after outliving its useful
life (obsolescence), current regulations do require that NPS be
notified of all proposed changes in advance of their occurrence
regardless of cause. The intent of this review requirement was to
ensure that no significant change occurs, or conversion of use takes
place, without proper review and approval.
The task force recommended and NPS agreed that notification for
every facility use change or every instance of facility obsolescence or
deterioration of a L&WCF-assisted improvement requiring its removal or
replacement was an unnecessary burden on L&WCF project sponsors.
Therefore, in proposed Sec. 59.3(d), this notification requirement for
instances of obsolescence has been deleted except in the following two
situations: (1) determinations of obsolescence which occur during the
first five years after project closeout (to ensure contract compliance
and to monitor fraud, waste and abuse), and (2) any instance of
obsolescence which triggers a significant change of use. The State will
continue to maintain a record for determinations of obsolescence after
the five year period.
Facility use changes are addressed separately in new Sec. 59.3(e).
This section sets forth the requirement that NPS approval is required
only for proposed changes to an otherwise eligible facility use which
would significantly contravene the intended recreation use of the area
when the L&WCF assistance was provided. In determining whether NPS
approval is required, recipients are encouraged to review the original
project application, agreement, amendments and any other related
project documentation that would clarify the intended use of the park.
The recipient should also view the project area in the context of its
overall use and the area should be monitored in this context, e.g., a
change from developed sports and play fields to a natural area, or vice
versa, would require NPS review and approval. In addition, local
recipients may wish to consult with the State administering agency for
advice and counsel in determining the significance of a facility use
change. All changes of use, whether significant or not, must
nonetheless be public outdoor recreation uses otherwise eligible under
the L&WCF program. Changes to other than eligible public outdoor
recreation uses will constitute a conversion of use.
Conversions of L&WCF-assisted projects to other than public outdoor
recreation use which are underway or which have been completed without
the prior approval of the State and NPS are still subject to the
statutory requirements for conversion review including the provision of
suitable replacement property if subsequently approved; and the
responsibility for resolving these premature conversion actions has and
continues to rest with the agency responsible for administering the
L&WCF program at the State level. However, internal audits have noted
that there are no guidelines or standards for insuring that premature
conversions (including the identification of suitable replacement
property) are resolved in a timely manner. Therefore a new
Sec. 59.3(f), is added which establishes a 120-day time period from the
date of conversion discovery, before the expiration of which the State
is required to notify NPS of the actions it has taken or proposes to
take to bring the project back into compliance with the grant
agreement. It is important to note that approval of such conversions is
not guaranteed unless all the prerequisites for a conversion set forth
in Sec. 59.3(b) are fulfilled including conclusively demonstrating that
all practical alternatives which existed prior to taking the
unauthorized action were taken into consideration.
Drafting Information
The primary author of this rule is Wayne Strum, Recreation Programs
Division, National Park Service, Washington, DC 20240.
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. Accordingly, interested persons may submit written
comments regarding this proposed rule to the address noted at the
beginning of this rulemaking. The NPS will review all comments and
consider making changes to the rule based upon analysis of the
comments.
Compliance With Other Laws
1. Regulatory Planning and Review
This rule is a significant rule and has been reviewed by the Office
of Management and Budget under Executive Order 12866.
(a) This rule will not have an effect of $100 million or more on
the economy. It will not adversely affect in a material way the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local or tribal governments or communities.
(b) This rule will not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency. The
changes proposed will only affect NPS and its grant recipients.
(c) This rule does alter the budgetary effects or entitlements,
grants, user fees, or loan program or the rights or obligations of
their recipients. Grant recipients will benefit by reduced reporting
requirements and increased flexibility in identifying eligible
replacement property.
(d) This rule does not raise novel legal issues. That portion
involving eligibility
[[Page 67637]]
of replacement property represents a revision to existing policy.
2. Regulatory Flexibility Act
The Department of the Interior certifies 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 procedural changes have no economic impact; the change in the
eligibility of replacement land for conversions will have little effect
since the value of conversions involving recipients of all types of
entities (State governments, counties, cities and small communities)
totaled only $6.5 million annually for the past three fiscal years.
3. Small Business Regulatory Enforcement Fairness Act (SBREFA)
This is not a major rule under 5 U.S.C. 804(2), the Small Business
Regulatory Enforcement Fairness Act. This rule:
a. Does not have an annual effect on the economy of $100 million or
more. It clarifies a state planning requirement, eliminates a reporting
requirement, establishes a time standard for timely resolution of
after-the-fact conversions, and gives States and local units of
government increased flexibility in the identification of suitable
replacement property. The latter will result in a cost savings to the
grant recipient but as indicated above, the impact is far less than the
$100 million threshold.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions. To the contrary, State and local
governments will realize some cost savings in those instances when land
already in public ownership may be used as replacement.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises. This
rulemaking affects only the relationship between the National Park
Service and its State and local partners under the L&WCF grant program,
not U.S. commerce.
4. Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
tribal governments or the private sector of more than $100 million per
year. This rule does not have a significant or unique effect on State,
local or tribal governments or the private sector. It imposes no new
requirements in addition to those set forth in the grant contract and
the existing regulations, and, in fact, facilitates contract compliance
by the recipient (States) and sub-recipients (local units of
government).
5. Takings
In accordance with Executive Order 12630, the rule does not have
significant takings implications. This will reduce the number of
replacement acquisitions required and therefore result in less
interference with the use of private property.
6. Federalism
In accordance with Executive Order 12612, the rule does not have
significant Federalism effects. The States are the primary recipients
of L&WCF grant assistance and have been consulted during the
development of the task force report referenced above, and as a result
of the rulemaking, States and local units of government will realize
increased flexibility in the conversion process.
7. Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that the rule meets the requirements of
sections 3(a) and 3(b)(2) of the Order.
8. Paperwork Reduction Act
This regulation does not require any new information collection
requirements from 10 or more parties and a submission under the
Paperwork Reduction Act is not required.
9. National Environmental Policy Act
This rule does not constitute a major Federal action significantly
affecting the quality of the human environment. As a regulation of an
administrative nature, the environmental effects of which are too
broad, speculative or conjectural to lend them themselves to meaningful
analysis and will be subject later to the NEPA process, either
collectively or case-by-case, this rule is categorically excluded from
the NEPA process pursuant to 516 DM 2, Appendix 1 of the Departmental
Manual.
10. Clarity of This Regulation
Executive Order 12866 requires each agency to write regulations
that are easy to understand. We invite your comments on how to make
this rule easier to understand including answers to questions such as
the following: (1) Are the requirements in the rule clearly stated? (2)
Does the rule contain technical language or jargon that interferes with
its clarity? (3) Does the format of the rule (grouping and order of
sections, use of headings, paragraphing, etc.) aid or reduce its
clarity? (4) Is the description of the rule in the Supplementary
Information section of the preamble helpful in understanding the
proposed rule? What else could we do to make the rule easier to
understand?
Send a copy of any comments that concern how we could make this
rule easier to understand to: Office of Regulatory Affairs, Department
of the Interior, Room 7229, 1849 C Street NW, Washington, DC 20240. You
may also e-mail the comments to his address: E[email protected]
List of Subjects in 36 CFR Part 59
Grant programs--recreation, Recreation and recreation areas,
Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, NPS proposes to amend 36
CFR part 59 as follows:
PART 59--LAND AND WATER CONSERVATION FUND PROGRAM OF ASSISTANCE TO
STATES; POST-COMPLETION COMPLIANCE RESPONSIBILITIES
1. The authority citation for part 59 is revised to read as
follows:
Authority: Sec. 6, Pub. L. 88-578, 78 Stat. 897 (16 U.S.C. 460l-
4 et seq.).
2. Amend Sec. 59.3 by removing paragraph (b)(4)(iv), revising
paragraph (d), and adding new paragraphs (e) and (f), to read as
follows:
Sec. 59.3 Conversion requirements.
* * * * *
(d) Does the perpetual use requirement mean that an obsolete
facility or improvement must continue to remain available for public
recreation use? (1) Recipients are not required to continue operation
of a Fund-assisted facility or improvement beyond its useful life.
(2) It is normally not necessary for the recipient to notify NPS or
seek approval to determine that a facility or improvements is obsolete.
However, NPS approval is required and must be requested in writing by
the State for any proposed obsolete facility determination which occurs
during the first 5 years after project closeout or results in a
significant change in the use of the project area from what was
intended in the original project agreement and amendments. The latter
will require review and approval in accordance with paragraph (e) of
this section.
(3) The project sponsor must maintain the entire area acquired or
developed with Fund assistance for public outdoor recreation following
discontinuance of the assisted facility or improvement.
[[Page 67638]]
Failure to do this is considered to be a conversion and requires NPS
approval and the substitution of replacement land in accordance with
section 6(f)(3) of the L&WCF Act and paragraphs (a) through (c) of this
section.
(e) Is NPS approval required for every change of use? (1)
Recipients are not required to notify or seek NPS approval for every
change in facility use.
(2) A State must request NPS approval in writing when there is a
proposed change to another otherwise eligible facility use at the same
site which will significantly contravene the original project
agreement, amendments and other project documentation. A project area
should be viewed in the context of overall use and should be monitored
in this context.
(3) In reviewing a request for changes in use, NPS will consider
the proposal's consistency with the Statewide Comprehensive Outdoor
Recreation Plan or equivalent recreation plan.
(4) Any facility use change to other than a public outdoor
recreation use is considered to be a conversion and will require NPS
approval and the substitution of replacement land in accordance with
section 6(f)(3) of the L&WCF Act and paragraphs (a) through (c) of this
section.
(f) Must conversions which have taken place prematurely satisfy the
same tests as those which have not yet occurred? Conversions of Fund-
assisted projects to other than public outdoor recreation use which are
underway or which have been completed without the prior approval of the
State and NPS are still subject to the statutory requirements for
conversion review, including the provision of suitable replacement
property if approved. To ensure that premature conversions are resolved
in a timely manner (including the identification of suitable
replacement property if retroactively approved), the State, within 120
days from the date of conversion discovery, must notify NPS of the
corrective actions it has taken or proposes take to bring the project
back into compliance with the terms of the grant agreement and
paragraphs (a) through (c) of this section. The notice must include a
schedule for the actions to be taken through completion of this
process.
Dated: August 13, 1998.
Donald J. Barry,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 98-32385 Filed 12-7-98; 8:45 am]
BILLING CODE 4310-70-P