[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