[Federal Register Volume 68, Number 165 (Tuesday, August 26, 2003)]
[Proposed Rules]
[Pages 51207-51219]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-21333]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Parts 1, 3 and 7

RIN 1024-AD07


Boating and Water Use Activities

AGENCY: National Park Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The National Park Service (NPS) is proposing to revise rules 
that regulate boating and water use activities in areas administered by 
the NPS. The proposed rule is intended to address changing visitor use 
patterns, changing technologies, compelling boating and water safety 
issues, and the evolution of related statutory authorities. The goal is 
to provide for greater consistency with United States Coast Guard 
(USCG) regulations and state laws and regulations, establish rules 
which will be more clearly understood by the visiting public, and which 
can be more effectively communicated and enforced by NPS personnel. 
Promulgation of the proposed rule will eliminate many requirements 
which are ineffective or out of date and apply new rules which will 
provide flexibility in managing safety, resource preservation, and 
public use needs throughout the National Park System.

DATES: Comments must be received by December 24, 2003.

ADDRESSES: Comments should be sent to Kym Hall, Special Assistant, 
National Park Service, 1849 C Street NW, Room 3145, Washington, DC 
20240. Email: [email protected]. Fax: (202) 208-4684.

FOR FURTHER INFORMATION CONTACT: Kym Hall, (202) 208-4206.

SUPPLEMENTARY INFORMATION: The regulations contained in parts 1 through 
7 of Title 36 of the Code of Federal Regulations (CFR) are the basic 
mechanisms used by the National Park Service (NPS) to protect the 
natural and cultural resources of the parks and to protect visitors and 
property within the parks. Parts 1 through 6 are general regulations 
applicable to all areas of the National Park System, with some 
exceptions, while part 7 contains special regulations, which have been 
found necessary for individual parks as supplements to the general 
regulations. Part 3 is specific to boating and water activities. The 
part 3 regulations were last revised in 1983. Although amendments and 
additions have been made from time to time since 1983, this was usually 
in response to new situations for which the existing regulations were 
not sufficient. For example, personal watercraft (PWC) were addressed 
in 36 CFR 3.24, April, 2000. Between 1983 and the present, the 
evolution of statutory authorities, changing visitor use patterns, new 
technologies, and continued boating and water safety issues coupled 
with evolving national trends to address such issues, all revealed that 
a comprehensive review of part 3 regulations was needed.
    A work group of experienced employees from a wide variety of parks 
with water-based recreation and resources management responsibilities 
was established to work on part 3. The work group included an 
experienced State Boating Law Administrator, representing the National 
Association of State Boating Law Administrators (NASBLA). Park 
superintendents were asked to provide comments regarding boating and 
water safety issues apart from those addressed in the existing part 3, 
and comments were received from sixteen parks and from the staff at the 
NPS Washington Office. All comments were evaluated by the workgroup. 
Some of the comments were incorporated into the proposed rule. Other 
comments were more appropriately addressed in section(s) of 36 CFR 
other than part 3. Some comments, specific to an individual park's 
circumstances, are more appropriately addressed as special regulations 
in part 7.
    The NPS faced several situations where parks were unclear about 
enforcing USCG regulations and/or state laws and regulations. 
Specifically, an issue arose about the applicability of USCG 
regulations on a tour boat being operated on Crater Lake which is a 
non-navigable body of water. Lake Mead was also presented with a 
requirement to provide lifeguards on beaches because of Nevada state 
water use regulations. In addition to these specific questions, there 
has been some general confusion about the order of applicability or 
hierarchy of adopting USCG regulations and state laws and regulations 
in relation to NPS specific regulations contained in part 3. The 
required order of applicability, or hierarchy, of boating and water use 
regulations on park waters is as follows:
    1. Regulations in Title 36, Code of Federal Regulations (CFR) will 
apply over any comparable law or regulation.
    2. Laws and regulations of the USCG adopted pursuant to Sec.  3.2 
(a) will apply over any comparable state law or regulation.
    3. Non-conflicting state boating safety laws and regulations that 
are not addressed by either 36 CFR or by the USCG are adopted pursuant 
to 3.2(b). The NPS is not adopting state water use laws or regulations 
unless specifically indicated in part 3.
    The work group took several factors into consideration while 
discussing regulations to be changed, deleted, or written anew. Those 
factors include compliance with the NPS mission, safety issues, 
resource protection issues, clarity of existing regulations, reducing 
NPS regulations where possible and the uniformity of regulations with 
the USCG, the states, and among units of the National Park System to 
the extent possible. As a result of the review, the proposed changes to 
part 3 are expected to be more clearly understood by the public and be 
more effectively communicated and enforced by NPS employees. In 
addition the changes will enhance the NPS focus on safety and resource 
preservation issues, provide flexibility to address changing 
technologies, maintain minimum regulation necessary to address safety 
and resource preservation and provide for greater consistency in 
enforcement of NPS, USCG regulations and state boating laws and 
regulations.

[[Page 51208]]

Section-By-Section Analysis

Organizational Summary
    The National Park Service (NPS) has prepared the following 
organizational summary to assist in the location and analysis of the 
proposed revisions.

                                Numbering
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                    Old                                  New
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3.1 Applicable Regulations.................  3.2
3.2 NPS Distinctive Identification.........  Deleted
3.4 Accidents..............................  3.5
3.5 Inspections............................  3.4
3.6 Prohibited Operations..................  3.8
3.7 Noise Abatement........................  3.14
3.20 Water Skiing..........................  3.11
3.21 Swimming and Bathing..................  3.15
3.22 Surfing...............................  Deleted
3.23 SCUBA and Snorkeling..................  3.17
3.24 Regulation of Personal Watercraft.....  3.9
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                              New sections
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3.1 Applicability and Scope
3.6 Operator Age for Power Vessels
3.7 Personal Floatation Devices (PFDs)
3.10 Operating Under the Influence
3.12 Marine Sanitation Devices
3.13 Sunken, Grounded, Disabled Vessels
3.16 Swim Beach Areas
3.18 Submersibles
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Section 1.4 What Terms Do I Need To Know?

    In order to enhance clarity and consistency, ten definitions have 
been included in this section. One, defining vessel, is a revision of 
the current definition; it has been revised to more adequately describe 
the applicability of these regulations to all craft including tubes, 
rafts and other inflatable devices; surfboards, sailboards, and other 
rigid devices, specifically when these are used as a means of 
transportation. Nine others are added in order to reduce confusion in 
interpretation of regulations or to address issues new to part 3: dive 
flag, flat wake speed, harbor, manned submersible, power-driven vessel, 
sailing vessel, sewage, underwater diving, and un-manned submersible. 
The rationale for the addition of these terms appears in the preamble 
relative to the appropriate section.

Section 3.1 What Is the Applicability and Scope of This Section?

    This section is added to include a description of the applicability 
of part 3 to all park waters. Other laws applicable have been removed 
from this section and now appear in Sec.  3.2.
    The objective of the regulations in this part is to provide for the 
proper management of boating and other water use activities within 
parks. Park waters are all waters that are subject to the jurisdiction 
of the NPS. This includes both navigable waters within the 
congressionally established boundaries of a park area and non-navigable 
waters where the United States owns or administers the lands and waters 
within the boundaries of a park area. Examples of park areas with 
navigable waters within the boundaries include Biscayne National Park, 
Assateague Island National Seashore, and Channel Islands National Park. 
Examples of park areas with non-navigable waters where the United 
States has jurisdiction over the lands and waters within the boundaries 
include Crater Lake National Park, Yellowstone National Park, and 
Glacier National Park or other areas with inland lakes and ponds.
    Section 1.2 defines the primary applicability and scope of the NPS 
regulations found in 36 CFR parts 1 through 5, and parts 7 and 13. In 
Sec.  1.2(a)(1) and (2) the NPS provides that the regulations in 
Chapter 1 apply, respectively, on lands and waters located within 
boundaries of park areas that are either federally owned or NPS-
administered. While in Sec.  1.2(a)(3) it states that the regulations 
shall apply to all waters subject to Federal jurisdiction that are 
located within National Park System boundaries.
    In addition to the general regulatory authority delegated by 
Congress in 16 U.S.C. 3, the NPS has been authorized to ``[p]romulgate 
regulations concerning boating and other activities on or relating to 
waters located within areas of the National Park System. This includes 
waters subject to the jurisdiction of the United States: provided, that 
any regulations adopted pursuant to this section shall be complementary 
to, and not in derogation of, the authority of the United States Coast 
Guard to regulate the use of waters subject to the jurisdiction of the 
United States [.]'' 16 U.S.C. 1a-2(h). Under these authorities the NPS 
has managed and regulated activities occurring on and in the waters of 
the National Park System.

Section 3.2 Do Other Boating Laws and Regulations Apply To Me When I 
Operate My Boat on Park Waters?

    The current Sec.  3.2 pertains to ``National Park Service 
distinctive identification''. This is considered an unnecessary 
regulation since boat markings are addressed in NPS Director's Order 9 
and Reference Manual 9. This regulation is deleted.
    The proposed Sec.  3.2(a) identifies USCG laws and regulations 
adopted with the addition of Title 33 and title 46 United States Code. 
Proposed paragraph (b) identifies applicable state laws and regulations 
adopted as non-conflicting boating safety laws and regulations, and it 
is not the intent of this section to include non-boating water-use laws 
and regulations including but not limited to swimming, bathing, beach 
management or SCUBA diving unless specifically adopted in a section of 
the part 3 regulations.
    The intent of this section, a revision of the existing 3.1, is to 
clarify and emphasize that the NPS is seeking to apply existing federal 
and state law to its management of boating activities. Except in 
situations of specific need as identified and proposed in the part 3 
revision, the NPS will enforce the laws and regulations of the United 
States Coast Guard and the state within whose exterior boundaries a 
park area or a portion thereof is located. The NPS is encouraging each 
park to develop an administrative file of all state laws and 
regulations the park intends to adopt under Sec.  3.2(b).
    This regulation continues to adopt USCG laws and regulations in 
order to promote uniformity of boating regulations throughout the 
National Park System. While the USCG's jurisdiction and therefore the 
application of laws and regulations by the USCG is limited to navigable 
waters, the NPS jurisdiction is not similarly restricted to navigable 
waters. The NPS adoption of the laws and regulations of the USCG makes 
them part of the NPS regulations and are subject to the same 
applicability and scope provisions as other NPS promulgated 
regulations. As such, the NPS applies pertinent USCG laws and 
regulations to all waters within park areas, whether the waters are 
navigable or non-navigable.
    As directed by Congress in 16 U.S.C. 1a-2(h), this regulation 
recognizes the USCG laws and regulations as the guiding federal 
standard for regulating boating activities. However, this regulation 
also provides the opportunity for individual park areas to enforce 
state laws and regulations or NPS regulations where there is a specific 
need for public safety reasons, or in order to protect wildlife and the 
other resources, values, and purposes of a park area.

Section 3.3 Am I Required To Obtain a Permit To Operate a Vessel in a 
Park Area?

    This section continues to allow the superintendent to manage 
boating use within park areas that may effect park resources or the 
visiting public by requiring a permit to operate a vessel in park 
waters. Recognizing the uniqueness of park areas, a

[[Page 51209]]

superintendent may require a permit to ensure communication of hazards, 
special conditions, specific policies, closures, equipment requirements 
or other restrictions (36 CFR 1.5 and 1.7). It also establishes factors 
that the superintendent should consider when determining requirements 
for the issuance of a permit (36 CFR 1.6).

Section 3.4 For What Purposes May My Vessel Be Inspected?

    This section is changed to include the inspection of marine 
sanitation devices, and other pollution and noise abatement 
requirements within the authority of authorized persons, and to include 
noise level as one of those violations for which a vessel's use may be 
suspended.
    The previous language in this section established the authority of 
authorized persons to stop and board vessels for the purposes of 
inspection and to terminate the voyage of vessels found in an unsafe 
condition as specified. This authority is in keeping with that granted 
to boarding officers of the USCG and many of the states.
    The use of marine sanitation devices (MSDs) and discharge of sewage 
from vessels into park waters has come under increasing scrutiny as 
environmental awareness has grown. Park staff found that to simply 
adopt USCG regulations or state laws and regulations was ineffective. 
USCG regulations regarding the certification of MSDs give appropriate 
guidance regarding the devices themselves but do not address their use 
in waters of the National Park System. Park staff is increasingly 
required to inspect MSDs aboard vessels and to manage their use while 
on park waters.
    Another issue of increasing importance faced by park management and 
enforcement staff has been the regulation of noise created by some 
power-driven vessels. NPS has made an attempt at such management for 
some time but was hampered by its own regulations. In this proposal NPS 
will enhance its ability to significantly improve this capability in 
proposed Sec.  3.14.
    It is the intent of this section to clearly authorize park staff to 
inspect vessels for compliance with marine sanitation device use, and 
with appropriate noise level requirements regardless of whether the 
vessel is underway. Further, the proposed language more clearly defines 
responsibilities to correct not only hazardous conditions but 
conditions involving pollution of park waters and excessive noise 
levels.

Section 3.5 Do I Have To Report an Accident Involving a Vessel to the 
National Park Service?

    This section was formerly numbered 3.4 and is renumbered here to 
provide a more logical flow to the rules in Part 3 for the benefit of 
both the public and NPS staff.
    The language in this section is changed to include only vessel 
accidents as opposed to the current term ``incidents''. Existing 
paragraph (a) is divided into proposed paragraphs (a), (b), and (c) in 
order to provide clarity. Proposed paragraph (a) identifies the vessel 
operator as the responsible reporting party. It also identifies a total 
property damage dollar value threshold for mandatory reporting of 
vessel accidents to the NPS. Proposed paragraph (b) identifies that 
otherwise the owner or an occupant of the vessel must assume this 
responsibility if the owner is incapable of doing so. The existing 
paragraph (b), which deals with ``failure to report'', is considered 
unnecessary and is deleted. A person who fails to report an accident 
would violate the reporting requirements of proposed paragraph (a). 
Proposed paragraph (c) identifies that the NPS reporting requirements 
may not fulfill the reporting requirements for the United States Coast 
Guard and the state.
    It is the intent of the proposed changes in this rule to clarify 
for the public their responsibilities in vessel accident reporting. The 
changes in language to this section more clearly define who is required 
to report a vessel accident.

Section 3.6 What Age Must I Be To Operate a Power Driven Vessel?

    This section is an addition to part 3. The intent of this section 
is to address a minimum age requirement for the operator of a power-
driven vessel. Currently there is no NPS regulation establishing a 
minimum operator age. This has become a safety issue of growing concern 
as a result of changing technologies, increasingly crowded waterways, 
and a more complete understanding of the development of motor skills 
with age. Vessel operators can significantly impact the health, safety, 
and well being of other boaters and of park resources. This section 
establishes a minimum age of 16 to be the unsupervised operator of a 
power-driven vessel on park waters. It also allows children between the 
ages of 12 and 15 to operate power-driven vessels under the direct 
supervision of an adult.
    There is a national trend to establish a minimum age for vessel 
operators in response to accident data. According to the NASBLA, 43 
states have established a minimum age for the operation of power-driven 
vessels. Those ages range from 10 to 18, with several states setting 16 
as a minimum and many other states requiring an adult to be present to 
supervise a child operator. In the interest of conforming with state 
regulations when possible and to reduce the potential for confusion of 
the boating public, this section is applicable in parks located in 
states that have adopted no minimum age for the operator of a power-
driven vessel. If a park is located within a state that has different 
age requirements for operators of power-driven vessels then that 
state's regulation is adopted in lieu of this section.

Section 3.7 Who Must Wear a Personal Flotation Device (PFD)?

    This section is an addition to part 3. The intent of this section 
is to enhance visitor safety in the boating environment through 
identifying circumstances when children will be required to wear PFDs 
and to encourage superintendents to examine other activities that might 
appropriately require wearing of PFDs.
    PFDs required by this section must be USCG approved Type I, II, or 
III PFDs, in serviceable condition and of the correct size for the 
person wearing it, in accordance with 33 CFR 175.11-175.23. Type V are 
eliminated because they are identified for specific functions and 
uncommon in recreational boating.
    This section requires children 12 years of age or younger to wear a 
PFD when aboard a vessel underway, except while in an enclosed cabin or 
below deck, and authorizes the superintendent to determine other 
circumstances that require that PFDs be worn. This is not intended to 
preclude children from playing on inflatable devices, without wearing a 
PFD, when close to shore or the devices are not being used as a method 
of transportation.
    According to NASBLA, 32 of 50 states, Puerto Rico and the District 
of Columbia now require children to wear PFDs. The majority of those 
states require children 12 years of age and younger to wear PFDs.
    NASBLA supports an age requirement of 12 years of age and younger 
nationwide, and has referenced work completed by Ballestreri Consulting 
Inc. involving research surrounding the physiological, emotional and 
motor skill changes that occur around the age of 12. Ballestreri 
Consulting's work suggests that prior to that age, children have 
neither the motor skills nor the emotional skills to put on a PFD in an 
emergency situation. The American Academy of Pediatrics recommends that

[[Page 51210]]

``* * * children should wear lifejackets at all times when on or near 
the water.'' The National Transportation Safety Board also recommends 
that children be required to wear PFDs.
    The proposed rule exempts children inside an enclosed cabin or 
below deck from wearing a PFD. These individuals are in a more stable 
environment and risks of incidents resulting from falls overboard are 
significantly reduced.
    Paragraph (a)(1) is intended to alleviate confusion by the boating 
public about the new regulation for children to wear PFDs. Although 32 
states require children to wear PFDs, they have varying requirements. 
Since the boating public would be more familiar with existing state 
requirements, the NPS will defer to the state age for requiring 
children to wear PFDs. In the absence of a state requirement, the NPS 
requirement of age 12 or under would apply.
    Paragraph (b) of this section relates to vessels that are inspected 
and certified under USCG regulations codified in Title 46 CFR to carry 
passengers for hire. These vessels are inspected annually by USCG 
personnel from a Marine Inspection Office and must be operated by a 
licensed captain. The higher standard of training, combined with the 
experience of individuals necessary to qualify for a USCG captain's 
license, and the fact that the vessels are subject to this rigorous 
inspection process, the wearing of PFDs by children is not required.
    Paragraph (c) of this section is intended to clarify the 
superintendent's authority to require PFDs be worn on designated waters 
during specific water-based activities. However, it should be noted 
that the NPS has adopted 33 CFR 175.15 which applies to the carrying of 
PFDs for all persons on board a vessel. This paragraph emphasizes the 
potential need for wearing PFDs rather than just carrying them in 
certain waters or during certain water-based activities. There was 
considerable discussion by work group members regarding wearing PFDs 
during a wide variety of activities and circumstances that might be 
involved such as use of small inflatable, i.e. inner tubes, sail-
boarding, or river rafting. It is clear that there is no uniform set of 
circumstances or conditions nationwide that allows the promulgation of 
a regulation sufficient to meet the needs of all national parks. This 
is an issue that is best left to superintendents to address through 
local restrictions utilizing Sec. Sec.  1.5 and 1.7 of this chapter.
    The part 3 work group feels strongly that with the promulgation of 
Sec.  3.7, the potential for serious injury or death would be 
significantly reduced service-wide. All requirements pertaining to 
proper size, type, serviceability and carriage requirements are adopted 
by the NPS and applicable in parks in accordance with Sec.  3.2.

Section 3.8 What Vessel Operations Are Prohibited?

    The regulations in this section are currently addressed in Sec.  
3.6. It is the intent of this section to address several issues of 
unsafe or otherwise prohibited vessel operations that are not 
effectively dealt with through the adoption of USCG laws and 
regulations or state laws and regulations since these entities either 
do not regulate the activity or there is wide disparity among the 
various regulations nationwide. These are generally activities that 
create an unsafe condition or conflict with the orderly management of 
park visitor use. The order of the violations has also changed to 
reflect the nature of the violations from those posing the least risk 
to life or property to those acts that pose the most risk.
    Paragraph (a), which solely addressed ``reckless or negligent 
operation'' has been broken into two distinct violations; negligent 
operations and grossly negligent operations under (b)(6) and (b)(7). 
This was done in order to bring boater education and park staff 
training more into concert with terminology and enforcement philosophy 
used by the USCG. It is expected that this change, along with the 
clarified language that describes the regulated activity, will 
significantly reduce the misunderstandings experienced in many parks 
regarding enforcement and education of this issue.
    The act of negligence can be distinguished by the vessel operator's 
failure to exercise care, caution or prudence. Generally, the operator 
is not willful or malicious in their actions. For example, maneuvering 
quickly, turning sharply or swerving within 100 feet of another vessel; 
weaving through congested traffic; operating a vessel in the vicinity 
of a motorized vessel in a manner that obstructs the visibility of 
either operator. A negligent act may have an increased risk of causing 
harm but usually does not result in property damage or physical injury.
    The act of gross negligence can be distinguished by the vessel 
operator's disregard for the rights of others through ``willful and 
wanton'' actions and consciousness that personal injury or property 
damage is a probable consequence of their actions. Generally, the 
operator is willful or malicious in their actions. For example, 
operating any vessel at extremely high speeds, operating a vessel 
within extremely close proximity to persons in the water, or causing a 
severe collision between vessels. A grossly negligent act has an 
increased risk of causing harm and usually results in property damage 
or physical injury; however, a person can be guilty of gross negligence 
without the damage or injury actually resulting.
    Paragraph (b) of the current Sec.  3.6, operating a vessel when 
under the influence of alcohol or controlled substance, has been 
removed from this section and is proposed as a stand-alone regulation 
in Sec.  3.10.
    Paragraph (c) is renumbered as (b)(2) with no change.
    Paragraph (d) is renumbered as (b)(3). Amends ``5 mph or creating a 
wake'' to ``flat wake speed''. Paragraph (b)(3)(ii) deletes diver's 
marker and swimmer from this paragraph and adds ``a person swimming, 
wading, fishing, or floating with the aid of a non-motorized inflatable 
or rigid buoyant device, designated launch site, and manually-
propelled, anchored, or drifting vessel.'' Since numerous states have 
``speed in proximity'' laws, this paragraph allows for the adoption of 
those laws to avoid conflict.
    The work group found that there was no consistency in describing to 
the public the desired condition in zones that were intended to require 
a slow speed. Most of these areas intend to prevent damage or injury 
resulting from boat wakes. The variety of terms used to notify the 
boating public of these zones included ``no wake'', ``wakeless speed'', 
``5 mph'', ``slow speed'', ``idle'', and ``flat wake.'' Since a boat 
underway and making way creates some wake regardless of speed, the 
terms ``no wake'' and ``wakeless speed'' are not descriptive of the 
desired condition. ``5 mph'' may or may not create the desired 
condition and, in any case, is an action many boaters may not identify 
with since effective boat speedometers are rarely found on recreational 
vessels. Neither ``slow speed'' nor ``idle'' effectively address the 
desired condition.
    ``Flat wake speed'' is proposed as the appropriate alternative 
since the desired condition, a minimal disturbance of the water by a 
vessel in order to prevent damage or injury, is described. The 
capability of park staff to educate the boater or to enforce this 
section is also enhanced.
    The additions to paragraph (b)(3)(ii) reflect the experience of the 
work group in a wide variety of water-based recreation situations 
nationwide. Accidents and visitor complaints identify these additions 
as necessary for

[[Page 51211]]

safe recreational use and for effective enforcement.
    Additionally, the prohibition of operating around a diver's marker 
needed enhancement and has been moved to paragraph (b)(1). This is a 
change that enhances the prohibition formerly found in paragraph (d)(2) 
that limits vessels ``within 100 feet of a diver's marker'' to a speed 
less than ``5 mph''. The recommended change prohibits ``operating a 
power-driven or sailing vessel within 100 feet of a diver's marker.'' 
Excepted are ``vessels in support of dive operations'' which must 
``maintain a flat wake speed''.
    This paragraph responds to a safety issue long confused in the 
minds of both boat operators and underwater divers. Under the previous 
rules, a vessel was allowed to approach a dive flag when not in excess 
of 5 mph. At the same time, divers have been taught that a boat must 
avoid a dive flag. Many boating safety classes (USCG Auxiliary for 
example) also taught that a boat must avoid a dive flag. It is the 
intent of this regulation to establish a safety zone around underwater 
diving activities in order to reduce conflict and accidents between 
underwater divers and vessels. At the same time boats in support of 
diving activities are allowed to function as intended.
    Paragraph (e) is renumbered as (b)(4). Deletes ``vessel not 
propelled by hand'' and adds ``power-driven or sailing vessel'' to the 
description of prohibited vessels. Amends ``location'' to ``shoreline'' 
designated as a swimming beach. Amends ``in excess of 5 mph or creating 
a wake'' to ``flat wake speed''.
    This will clarify for the visiting public and for park staff the 
intent of the rule regulating vessel operation in proximity to 
designated swimming beaches. The prohibition under the former 
regulation restricted the operation of a vessel, other than a manually 
propelled vessel, to beyond 500 feet of a location designated as a 
swimming beach. There has been considerable confusion regarding how to 
measure the distance of 500 feet in relation to the designated swimming 
beach. The intent of this recommended change is to clearly define the 
point at which the 500 feet distance is to be measured with the result 
of more clearly and consistently defining the safety zone at designated 
swim beaches. It is expected that a resulting consistency in 
management, education, and enforcement actions will result and will 
enhance visitor safety.
    Paragraph (f) is renumbered as (b)(5). Amends ``a vessel propelled 
by machinery'' to ``power-driven vessel''. Amends ``transom'' to ``top 
edge of the transom''. Adds ``motor cover or other unsafe positions'' 
to the description of prohibited activity. Deletes the exemption for a 
vessel ``being maneuvered for anchoring, mooring or casting off 
moorings''. Amends ``operating in excess of 5 mph'' to ``being operated 
above flat wake speed''.
    Changes recommended to this section include changing the term 
``flat wake speed'' instead of ``5 mph or creating a wake'', and 
changing ``a vessel propelled by machinery'' to ``power-driven 
vessel''.
    These are recommended in order to provide consistency in 
terminology throughout part 3. Also recommended herein is the deletion 
of the allowance for unsafe riding when a vessel ``is being maneuvered 
for anchoring, mooring, or casting off moorings'' since this is 
redundant. A vessel engaged in such maneuvers will be already in 
compliance since its speed will be at ``flat wake speed'' in order to 
complete the maneuver.
    Paragraph (g) is renumbered as (a)(5) without change.
    Paragraphs (h) and (i) are combined and renumbered as (a)(2). 
Deletes reference to ``trailers'' and to ``a vessel propelled by 
machinery''. This clarifies the condition under which vessels may be 
launched in a park by combining the former paragraphs 3.6(h) and (i). 
The superintendent must designate launch sites and if local 
circumstances require may establish further conditions. The original 
paragraphs were redundant and resulted in some confusion. The proposed 
changes reduce the potential for confusion and enhance education and 
enforcement capability.
    Paragraph (j) is renumbered as (a)(3). Amends ``vessel propelled by 
machinery'' to ``power-driven vessel''. Deletes ``directly'' from ``not 
directly accessible by road.''
    Use of the term ``power-driven vessel'' rather than ``vessel 
propelled by machinery'' provides consistency throughout part 3. It is 
the intent of this proposal that the meaning of the paragraph is not 
altered.
    Paragraph (k) is renumbered as (a)(1). Adds hovercraft. Airboats 
were previously prohibited in this section and that prohibition 
continues. The addition of hovercraft to part 3 is a result of new 
technologies increasingly available to the boating public and since 
this surface effect craft has the ability to be used on and over a 
variety of surfaces, including water. The ability to navigate into 
areas not accessible to other vessels or vehicles would open, in many 
cases, sensitive habitat to degradation and is inconsistent with the 
NPS mission. Due to the unique operating characteristics of hovercraft, 
the prohibition of hovercraft will also appear in part 2 of this 
chapter.
    Paragraph (l) is renumbered as (a)(4). Amends ``size, length or 
width restrictions'' to ``length, width, or horsepower restrictions''. 
Adds the criteria used by the USCG to measure vessel length. This 
continues the authority of the superintendent to restrict the size of 
vessels using national park waters. It is herein proposed to add 
language to this paragraph that identifies horsepower restriction as 
one of those criteria that may be established by the superintendent 
utilizing Sec. Sec.  1.5 and 1.7 of this chapter. The work group 
considered a proposal to establish these vessel size restrictions in 
part 3. However, it was clearly demonstrated that individual park needs 
vary considerably. The authority to establish size restrictions will 
remain with the park superintendent.
    This rule proposes language that identifies the USCG standard for 
measuring vessels and it is the intent of this paragraph that this 
standard be used in all NPS areas.

Section 3.9 May I Operate a Personal Watercraft (PWC) in Park Waters?

    This section has been renumbered from 3.24 to 3.9 and replaces 3.24 
(a) and (b) with additions.
    Over the past several years the NPS has been working to propose 
personal watercraft (PWC) use in some areas of the National Park 
System. As PWC rules are finalized there will be a need to regulate 
some types of their activity. It is the intent of this section to 
provide parks having authorized PWC use, rules to govern certain 
operations of PWC that are as consistent as possible with those of the 
states. Accordingly, the work group used the NASBLA model act as its 
guide. This act was developed by NASBLA in concert with the USCG and 
the Personal Watercraft Industry Association. The NPS agrees with these 
entities that PWC are sufficiently unique in their operation and safety 
issues that some specific regulations are necessary for these vessels.
    Paragraph (a) of this section requires PWC use to be authorized 
with the promulgation of a special regulation. This requirement is 
carried over from 36 CFR 3.24(a) and (b). A PWC is defined under 
existing NPS regulations located at 36 CFR 1.4. Paragraphs (b)(1) 
through (b)(4) are designed to reduce conflicts between PWC operators 
and other vessels and improve safety. To adhere to the goal of 
consistency with the states, the NPS is proposing in paragraph (b)(5) 
that if a park area is within a state that regulates the operation of 
PWC, then the more restrictive state regulation applies

[[Page 51212]]

in lieu of paragraphs (b)(1) through (b)(4) of this section. In 
paragraph (b)(1) a person operating a PWC is required to wear rather 
than just carry a PFD. This is required because generally an operator 
or passenger rides on top of the vessel rather than in the confines of 
the hull, causing additional safety risks. In paragraph (b)(3) night 
operations are prohibited specifically for PWC.
    It is the intent of this section that paragraphs (b)(1) through 
(b)(4) are applicable in park areas that may be located in a state that 
does not have more restrictive PWC regulations. Less restrictive state 
regulations are not adopted.

Section 3.10 What Are the Regulations Regarding Operating a Vessel 
While Under the Influence of Alcohol and/or Drugs?

    This section is an amendment and expansion of the regulation found 
currently in Sec.  3.6(b).
    Operation of a vessel while under the influence of alcohol or drugs 
is proposed as a stand alone regulation due to the increased emphasis 
given this issue since part 3 was last reviewed and rewritten.
    Further, the regulation in former paragraph 3.6(b) has been found 
through experience in prosecuting violations to be ineffective. This 
problem has been experienced in parks nationwide.
    Coincident with the rise in boating under the influence awareness 
and enforcement, there has been an even greater emphasis on operation 
of a motor vehicle while under the influence. After considerable 
discussion, the work group came to realize that the regulations 
governing such activities vary considerably from state to state and 
that it was best that the NPS not rely on adopting state regulations in 
this instance.
    Through Presidential Proclamation, the federal standard for blood 
alcohol level is now established at .08 BAC, while the states vary in 
their standards. This standard is to be employed whether involving 
vessels or motor vehicles.
    With this as background, the work group examined 36 CFR 4.23 
governing the operation of motor vehicles while under the influence of 
alcohol or drugs while in a National Park area. The group found that 
Sec.  4.23 has been effective in the enforcement of motor vehicle DUI 
cases. As a result, the work group recommends adopting the language and 
methodology found in Sec.  4.23 and application of the same standards 
to the boating environment with appropriate changes to address vessels 
rather than motor vehicles. While it is true that the operation of 
vessels and motor vehicles differ in some ways, the impairment of the 
operator is established at the same level for both (.08 BAC) and the 
same standards are applicable for public education, staff training, 
enforcement, and prosecution.

Section 3.11 May I Use a Vessel To Tow a Person for Water Skiing or 
Other Similar Activities?

    This section has been renumbered from 3.20 to 3.11. The title of 
this section is amended from ``water skiing.'' This change encompasses 
the variety of recreational devices that individuals may ride on or in 
while being towed by a vessel. Examples of these devices may include 
but are not limited to water-ski, inflatables, wake boards, knee boards 
and other rigid devices.
    Paragraph (a) is amended to read, ``allowed only in designated 
waters'' instead of ``prohibited, except in designated waters.'' It 
also allows for the superintendents to identify how towing may occur 
utilizing Sec. Sec.  1.5 and 1.7 of this chapter.
    Paragraph (a)(1) is an addition to part 3 and prohibits the towing 
of persons attached to airborne devices unless allowed by the 
superintendent. Some parks have determined this to be an appropriate 
public use activity; others have found it to be inappropriate. It is 
the intent of this workgroup to provide superintendents the flexibility 
to permit this activity, if appropriate, under Sec.  1.6. This 
prohibition is not intended to include similar devices when used as a 
form of propulsion.
    Paragraph (b) is amended to read ``* * * is designated, the 
following conditions apply'' instead of ``* * * is authorized, the 
following are prohibited.''
    Paragraph (b)(1) is amended to read ``Towing is allowed only * * 
*''
    Paragraph (b)(2) is amended to read ``In addition to the boat 
operator, a person at least 12 years of age must be present'' instead 
of ``Towing without one person (other than the operator)'.
    The work group recommends the minimum age of 12 to be consistent 
with a majority of those states that have established a minimum age for 
observers. Twelve is also consistent with minimum age requirement for 
wearing of PFD's as recommended elsewhere in part 3.
    Paragraph (b)(3) is amended to require that persons being towed 
wear a ``United States Coast Guard approved personal flotation device'' 
rather than ``a personal flotation device.''
    Paragraph (b)(4) is an addition to part 3 and addresses unsafe acts 
committed by a person being towed. It was identified by the work group 
that a person being towed might commit acts that endanger others 
through manipulating skis or other devices in a manner that is outside 
of the control of the vessel operator. The intent of the work group is 
to place a burden of responsibility on a person being towed to 
participate in this activity in a safe manner. It is not the intent of 
the work group to absolve the vessel operator of responsibility for 
unsafe operation, but to not hold the vessel operator responsible for 
acts solely under the control of the person being towed.
    Paragraph (b)(5) is an addition to part 3 and is added to address 
the carrying capacity restrictions of the towing vessel. It is the 
intention of this regulation to assure compliance with the 
manufacturer's recommended capacity limits on vessels. By assuring 
compliance with capacity limits, all individuals involved in a towing 
activity (operator, observer, other passengers, and person being 
towed), are guaranteed space on or in the vessel in a safe manner. This 
is intended to include individuals being towed by personal watercraft.

Section 3.12 What Conditions Apply to Marine Sanitation and the Use of 
Marine Sanitation Devices (MSD)?

    This section is an addition to part 3. Neither the existing part 3 
nor other Title 36 CFR regulations address the issue of Marine 
Sanitation Devices (MSDs) or their use on waters of the National Park 
System.
    This section is proposed in order to clarify for the public and 
park staff the standard necessary to protect park resources with a 
consistent approach system-wide, while at the same time allowing the 
superintendent flexibility to accommodate local issues. This regulation 
provides clearer guidance, consistent with park standards, than is 
currently available in either USCG laws and regulations or state laws 
and regulations. USCG regulations regarding MSDs provide for the design 
of the devices, certification, and use in non-park waters but do not 
adequately address MSD use in park waters.
    State laws vary such that an NPS System-wide standard is imperative 
to ensure the capability to effectively protect park resources. Part 2 
regulations are not specific enough to the boating environment.
    The proposed section does not address the issue of the discharge of 
``gray-water'' from boats. The work group researched and discussed this 
issue as an agenda item brought forward as a concern for resource 
protection.

[[Page 51213]]

Several factors prevented its inclusion in the proposed regulations:
    1. According to the EPA and the Federal Water Pollution Control 
Act, gray-water is not a pollutant or contaminant.
    2. Vessels are not usually constructed with holding tanks for gray-
water. Most vessels are constructed so that water generated from the 
shower, bath, laundry and sinks is plumbed to a small sump that is 
periodically (often automatically) discharged overboard, or is directly 
discharged overboard.
    3. There is no requirement in the USCG regulations for carriage or 
certification of gray-water holding or a discharge device as there is 
with MSDs.
    4. The nature of water resources vary considerably throughout the 
National Park System, and the impact of gray-water should be evaluated 
in each environment by appropriate professionals such as biologists or 
hydrologists.
    The work group concluded that gray-water issues should be dealt 
with on a case-by-case basis at the park level and that the focus of 
this section is more appropriately directed toward ``black-water'' 
(sewage) containment aboard vessels.

Section 3.13 Am I Required To Remove a Sunken, Grounded, or Disabled 
Vessel?

    USCG regulations clearly cover the removal of sunken or grounded 
vessels in navigable waters if the vessel poses a navigational hazard 
or immediate environmental threat.
    The USCG generally ensures that the owner mitigate the hazard or 
threat by salvaging the vessel completely or by eliminating the object 
or substance which poses the threat (i.e.; removing masts to provide 
ample clear draft for vessel traffic, pumping out fuel from submerged 
tanks, towing disabled vessels to deeper water where they are purposely 
sunk). Depending on location, depth, insurance issues, time period 
after the sinking or disabling, the owners may decide it more cost 
effective to leave the vessel where it foundered (sank), grounded, or 
disabled once they have taken care of the navigational or environmental 
hazard.
    In non-navigable waters, owners may not even be required to fully 
address these factors. It should be noted that the terms founder and 
sunken are synonymous with each other for the purposes of this 
regulation.
    In recognizing the unique natural and cultural resources of park 
waters, shorelines, and submerged areas, the NPS proposes to empower 
superintendents with the clear authority to order owners of these 
vessels to remove them under clearly defined conditions. Removal would 
also include associated equipment, debris, and cargo from the vessel. 
Although the ``tradition of the sea'' has been to discard things 
overboard where they are out of sight and out of mind (even the USCG 
still approves of towing ships out to sea to sink them when they are no 
longer salvageable in some cases), this may not be in the best interest 
of park resources. Ultimately, this decision should be made by the NPS 
rather than by the vessel's owner.
    The wording for this regulation was taken almost verbatim from 36 
CFR 2.17(c)(1-3) regarding downed aircraft. The situation of downed 
aircraft in parks is very similar to that of sunken vessels, with the 
main difference being that one can easily see the aircraft, but cannot 
generally see the sunken vessel.
    Disabled vessels were included in this regulation since they can 
easily founder or ground if action by the owner is not taken 
immediately. The regulation again gives authority to the superintendent 
to require action by the owners, which may prevent more serious 
problems later on.
    Component parts, equipment and associated cargo may become detached 
from the vessel during the foundering, but can pose just as much or 
more problems to park resources than the vessels themselves. Therefore, 
they are included in the removal requirements. Examples of this would 
be lines, cables, shipping containers, lumber, vehicles, or a wide 
variety of cargo transported on board vessels.
    Although there was some discussion to include the term ``abandoned 
vessels'' in this regulation, it was decided that this covers a wider 
range of vessels than was intended for this purpose. 36 CFR 2.22 
``Property'' covers the subject of abandoned property of any type 
sufficiently. Some parks requested authority to recover costs 
associated with vessel removal, however, we believe that authority 
already exists under 36 CFR 2.22(b)(4).

Section 3.14 What Is the Maximum Noise Level for the Operation of a 
Vessel?

    This section is revised with the intent of updating the testing 
standards for noise level enforcement to encompass more recent 
standards adopted by the Society of Automotive Engineers (SAE). To 
accommodate the review of part 3 in its entirety this section is 
renumbered from 3.7 to 3.14.
    The current testing procedures outlined in Sec.  3.7 are 
appropriate for tests conducted in a laboratory or test facility but 
are impractical for field law enforcement use. They are difficult and 
cumbersome to use, thus rendering this regulation ineffective.
    Noise abatement has not only continued as a concern on all 
waterways but has grown in importance as an issue addressed by the 
visiting public and park staff. According to the Reference Guide To 
State Boating Laws (2001--Sixth Edition), published by NASBLA, thirty-
one states set maximum noise level for vessels. In order to meet the 
stated work group objective of uniformity with state regulations 
wherever possible, the rule proposed for noise testing and regulation 
is modeled after the NASBLA model act. This act has also been adopted 
whole or in part by many states. Since there is still some 
inconsistency among the states, with some not regulating noise level, a 
rule in part 3 is the most effective means to provide a standard 
applicable across the National Park System. The standards adopted are 
SAE J-2005 and SAE J-1970. These standards may be obtained through the 
Society of Automotive Engineer's Web site at http://www.SAE.org. These 
standards are sound testing procedures that allow the measurement of 
noise level for either stationary vessels or vessels underway. These 
procedures are more readily used in the field than the current testing 
procedures. The ease in use of these procedures places less of a burden 
on the boating public and will result in more effective management of 
noise level with the result of enhancing the visitor experience. The 
maximum decibel levels remain the same.

Section 3.15 May I Swim or Wade in Park Waters?

    This section is renumbered from the current Sec.  3.21. The title 
of the regulation is amended from ``Swimming and bathing'' to 
``Swimming and wading''.
    The title of the section is modified by replacing the term 
``bathing'' with ``wading'' in order to clarify the range of activities 
intended for coverage under this rule. ``Bathing'', as used to refer to 
the act of swimming, is largely an out-dated term and may have more 
meaning to modern visitors as a term that addresses the act of 
``cleansing'' the body using soap or cleansing agents. Bathing 
violations could be addressed under 36 CFR 2.14(a)(6).
    Paragraphs (a)(1) and (2) of existing Sec.  3.21 are deleted. 
Paragraph (a)(3) of existing Sec.  3.21 is deleted. The work group 
decided there was no uniform set of circumstances service-wide 
regarding swimming from vessels underway, given the variety of water 
conditions that exist throughout the National Park

[[Page 51214]]

System. It is recommended that individual parks deal with this issue on 
an as-needed basis through designation of this restriction by the 
superintendent utilizing Sec. Sec.  1.5 and 1.7 of this chapter. 
Paragraph (b) of existing Sec.  3.21 is renumbered as a stand-alone 
regulation, Sec.  3.17.

Section 3.16 What Regulations Apply to Swimming Areas and Beaches?

    This section has been moved from paragraph (b) of existing Sec.  
3.21. The word ``sporting'' is deleted from the description of 
activities that may be restricted by the superintendent in order to 
provide greater flexibility to deal with swimming beach safety issues. 
These regulations distinguish between swimming areas (in the water) and 
swimming beaches (on the land).

Section 3.17 May I Snorkel or Underwater Dive in Park Waters?

    The part 3 work group is recommending the promulgation of a new 
regulation to manage underwater activities. The title is amended from 
``SCUBA and snorkeling'' to ``Snorkeling and underwater diving''.
    In section 1.4, a definition of ``underwater diving'' was added to 
reflect new diving technologies. It encompasses compressed air as well 
as mixed gas and surface supplied air.
    Paragraph (a) allows ``snorkeling and underwater diving in park 
waters except where designated as closed''. This is a change from the 
previous regulation that identified ``swimming, docking, or mooring 
areas'' as closed to these activities. Superintendents will now have 
the authority to designate waters that are closed utilizing Sec. Sec.  
1.5 and 1.7 of this chapter.
    In Section 1.4, the term ``dive flag'' was added. Several states' 
dive flag standards were examined. If there were differences, they were 
most often found in the size of the flag. Many states had no standard 
and, as a result, the work group recognized a need for an NPS standard 
and chose the standard most often encountered in other regulations.
    Paragraph (c) establishes the relationship in horizontal distance 
between a diver and the dive flag. It is not the intent of the work 
group that a diver's vertical distance from the flag be considered in 
this regulation. Regardless of depth, a diver must be within a 100-foot 
horizontal radius of the dive flag.
    Paragraph (d) allows parks to adopt state laws or regulations that 
may apply a dive flag requirement to snorkeling as well as to 
underwater diving. It is not the intent of this section to require a 
dive flag for snorkeling in parks that are within states with no 
requirement. Since section 3.2 allows only for the adoption of state 
boating safety laws and regulations, this section is added to allow 
parks to adopt specific state water use regulations or laws that 
require dive flags for snorkelers.

Section 3.18 May I Operate a Submersible in Park Waters?

    The part 3 work group is proposing the promulgation of a new 
regulation to manage submersibles within the national park areas. 
Definitions of manned and unmanned submersible appear in Sec.  1.4 of 
this part. The regulation is established to manage, through the permit 
process, use that is consistent with the NPS mission to protect life, 
property and park resources. It is the intent of this section to allow 
the superintendents the discretion to establish conditions for permits.
    Over the last several years, several park areas, particularly those 
with large bodies of water, have experienced an increase in the use of 
submersibles. The threat to the safety of visitors and submerged 
natural, cultural or historic resources far outweigh any inconveniences 
to the public that may result from implementation of the regulation.
    Manned recreational submersibles are appearing on the retail market 
and although somewhat expensive for the average individual, operation 
requires very little in terms of training. It should also be noted that 
an automobile easily transports some of these submersible vessels 
giving the owner ready access to national park areas.
    If the operation of these vessels remains unregulated, the 
potential for boating accidents increases significantly. For example, a 
submersible coming to the surface in front of an oncoming vessel 
without warning and without allowing either party sufficient time to 
maneuver out of harms way.
    The use of remotely operated devices is included in the proposed 
new regulation. The documented use of these devices in national park 
areas has been primarily for official search and rescue/recovery 
operations. There is no intent to preclude the use of these devices for 
administrative purposes. However, the NPS recognizes these devices can 
easily be used to locate and loot submerged natural, cultural or 
historical resources. Therefore, the NPS proposes the requirement for a 
permit for private individuals.

Superintendent's Authority

    Throughout this document, the Superintendent is given latitude to 
manage specific types of uses or activities based on local park needs 
or issues under the authority of 36 CFR 1.5 and 1.7. Exercising this 
authority may be accomplished using the authority as cited (Sec. Sec.  
1.5 and 1.7) or through promulgation of a special regulation (part 7).

Part 7

    Several parks had existing marine sanitation regulations that were 
promulgated because there were no service-wide regulations covering the 
disposal of marine waste. Since MSD regulations are being proposed, the 
park specific regulations are now redundant and are proposed for 
removal as well. Other types of boating and water-use regulations also 
became redundant and have been deleted accordingly.

Compliance With Other Laws

Regulatory Planning and Review

    In accordance with the criteria in Executive Order 12866, this rule 
is not a significant regulatory action.
    a. This rule will not have an annual economic effect of $100 
million or adversely affect an economic sector, productivity, jobs, the 
environment, or other units of government. This rule only relates to 
the general operation of vessels on park waters and other water based 
activities but does not propose changes that would alter the numbers of 
users to a particular area. No economic impacts are likely to be 
recognized as a result of these regulations.
    b. This rule will not create inconsistencies with other agencies' 
actions. These regulations only impact users of NPS areas and are 
written to provide greater consistency with the USCG and other state 
laws.
    c. This rule will not materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients.
    d. This rule will not raise novel legal or policy issues. Although 
this rule is a rewrite of the entire Part 3, it does not propose any 
significant changes to the way the public currently participates in 
water based activities. It does provide for greater consistency with 
state regulations that the public is more likely familiar with.

Regulatory Flexibility Act

    I certify that this rule will not have a significant economic 
effect on a substantial number of small entities as defined under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). This rule affects 
vessel operation and imposes requirements that are generally already 
required by most states. There are no

[[Page 51215]]

regulations proposed that would likely change the amount of users to an 
NPS unit nor are there regulations that impose any restrictions on 
concessions or other vessel or water related businesses.

Small Business Regulatory Enforcement Fairness Act

    This rule 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. This rule is not expected to have any economic affect on local 
communities or businesses because the scope of the regulations focuses 
on the way in which vessels are operated, not the amount of vessels to 
an area.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, state, or local government 
agencies, or geographic regions. This rule has no association with 
costs for consumers nor does it impose any restrictions on businesses 
or governments of any kind.
    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 
rule has no association with businesses or uses outside NPS areas.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501, 
et seq.):
    a. This rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. This rule 
has no affect on government entities, only the visiting public.
    b. This rule will not produce a Federal mandate of $100 million or 
greater in any year, i.e., it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act.

Takings

    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. A takings implication assessment is 
not required. This rule is generally focused on safety regarding water 
use and vessel activity and does not impose any regulations on lands or 
waters outside the NPS or on any private property.

Federalism

    In accordance with Executive Order 12612, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required.

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the rule does not unduly burden the 
judicial system and does not meet the requirements of sections 3(a) and 
3(b)(2) of the Order. This rule is focused on providing clearer 
interpretation of existing regulations and consistency with USCG 
regulations and state laws and regulations in order to make it easier 
for the visiting public to comply with regulations.

Paperwork Reduction Act

    This regulation does not require an information collection under 
the Paperwork Reduction Act.

National Environmental Policy Act

    We have analyzed this rule in accordance with the criteria of the 
National Environmental Policy Act and have determined that this rule is 
covered by a categorical exclusion adopted by this federal agency in 
accordance with the Council on Environmental Quality regulations, 40 
CFR 1500-1508. The DOI Manual contains the categorical exclusions 
applicable to the National Park Service and the exceptions of the use 
of a categorical exclusion. The effect of the categorical exclusion to 
identify a category of activities that individually or cumulatively do 
not have significant effect on the human environment and therefore are 
exempt from the requirements to prepare an environmental impact 
statement. The federal action proposed in this rule is described in the 
categorical exclusion listed in the Departmental Manual at 516 DM 6, 
appendix 7, section 7.4.A(10) and none of the exceptions to the use of 
the categorical exclusions listed at 516 DM 2, appendix 2 are 
applicable.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, ``Consultation and 
Coordination with Tribal Governments'', and 512 DM 2:

    We have evaluated possible effects on Federally recognized 
Indian tribes and have determined that there are no effects. This 
rule only pertains to water use and vessel operations on waters 
inside NPS boundaries and does not propose to change use patterns or 
amounts so is not likely to affect any tribes near an NPS unit with 
water use.

    Drafting Information: The primary authors of this regulation were 
Jay Lippert, Fire Island National Seashore; Art North, Delaware Water 
Gap National Recreation Area; Bonnie Foist, Everglades National Park; 
Jerry Case, Pinnacles National Monument; Bob McKeever (retired), and 
Kym Hall, Regulations Program Manager, National Park Service.
    Public Participation: If you wish to comment, you may submit your 
comments by any one of several methods. You may mail written comments 
to: Kym Hall, Regulations Program Manager, National Park Service, 1849 
C Street, NW., Room 7248, Washington, DC 20240. Email to: [email protected]. Fax: (202) 219-8835. Please include ``Part 3 
Rules'' in the subject line and your name and return address in the 
body of your message. Finally, you may hand deliver comments to Kym 
Hall, 1849 C Street NW., Room 7248, Washington, DC. Our practice is to 
make comments, including names and addresses of respondents, available 
for public review during regular business hours. Individual respondents 
may request that we withhold their home address from the rulemaking 
record which we will honor to the extent allowable by law. If you wish 
us to withhold your name and/or address, you must state this 
prominently at the beginning of your comment. However, we will not 
consider anonymous comments. We will make all submissions from 
organizations or businesses and from individuals identifying themselves 
as representatives or officials or organizations or businesses, 
available for public inspection in their entirety.

List of Subjects

36 CFR Part 1

    National Parks, Penalties, Reporting and recordkeeping 
requirements, Signs and symbols.

36 CFR Part 3

    Marine safety, National parks, Reporting and recordkeeping 
requirements.

36 CFR Part 7

    District of Columbia, National parks, Reporting and recordkeeping 
requirements.

    For the reasons stated in the preamble, the National Park Service 
proposes to amend 36 CFR Parts 1, 3 and 7 as follows:

PART 1--GENERAL PROVISIONS

    1. The authority for Part 1 continues to read as follows:

    Authority: 16 U.S.C. 1, 3, 9a, 460 1-6a(e), 462(k); D.C. Code 8-
137, 40-721 (1981).


[[Page 51216]]


    2. Amend Sec.  1.4 as follows:
    a. Add the following definitions in alphabetical order.
    b. Revise the existing definition of vessel.


Sec.  1.4  What terms do I need to know?

* * * * *
    Dive flag means a flag not less than 12 inches square, red in 
color, with a white stripe running diagonally from the top of the staff 
to the opposite lower corner. The white stripe shall be one-fifth the 
width of the flag.
* * * * *
    Flat wake speed means the minimum required speed to leave a flat 
wave disturbance close astern a moving vessel yet maintain steerageway, 
but in no case in excess of 5 statute miles per.
    Harbor means a natural or artificially improved body of water 
providing protection for vessels, which may include anchorage, mooring 
or docking facilities.
* * * * *
    Manned submersible means any vessel that carries or is capable of 
carrying passenger(s) within the confines of the vessel below the 
surface of the water.
* * * * *
    Power-driven vessel means any vessel propelled by machinery.
* * * * *
    Sailing vessel means any vessel under sail provided, if propelling 
machinery is fitted, it is not being used.
* * * * *
    Sewage means human body waste or the waste from a toilet or other 
receptacle intended to receive or retain body waste.
* * * * *
    Underwater diving means the use of any apparatus, whether self 
contained or connected to a distant source of air or other gas, whereby 
a person wholly or partially submerged in water, enabling that person 
to obtain or reuse air or any other gas or gasses for breathing without 
returning to the surface of the water. Underwater diving would include, 
but is not to be limited to use of SCUBA; surface supplied air, mixed 
gas, or re-breathers.
* * * * *
    Un-manned submersible means any device operated by remote control, 
used or capable of being used, to search or collect below the surface 
of the water. This definition does not apply to a device being used 
lawfully for fishing.
* * * * *
    Vessel means every type or description of craft capable of free 
flotation, other than a seaplane on the water, used or capable of being 
used as a means of transportation on or through the water. Non-
traditional vessels such as a tube, raft or other inflatable device; 
surf board, sailboard, and other rigid device are vessels when being 
used as a means of transportation on or through the water.
* * * * *

PART 3--BOATING AND WATER USE ACTIVITIES

    3.-4. Part 3 is revised to read as follows:
Sec.
3.1 What is the applicability and scope of this part?
3.2 Do other boating laws and regulations apply to me when I operate 
my boat on park waters?
3.3 Am I required to obtain a permit to operate a vessel in a park 
area?
3.4 For what purposes may my vessel be inspected?
3.5 Do I have to report an accident involving a vessel to the 
National Park Service?
3.6 What age must I be to operate a power driven vessel?
3.7 Who must wear a Personal Flotation Device (PFD)?
3.8 What vessel operations are prohibited?
3.9 May I operate my personal watercraft (PWC) in park waters?
3.10 What are the regulations regarding operating a vessel while 
under the influence of alcohol and/or drugs?
3.11 May I use a vessel to tow a person for water skiing or other 
similar activities?
3.12 What conditions apply to the use of Marine Sanitation Devices 
(MSD)?
3.13 Am I required to remove a sunken, grounded, or disabled vessel?
3.14 What is the maximum noise level for the operation of a vessel?
3.15 May I swim or wade in park waters?
3.16 What regulations apply to swimming areas and beaches?
3.17 May I snorkel or underwater dive in park waters?
3.18 May I operate a submersible within park waters?

    Authority: 16 U.S.C. 1, 1a-2(h), 3.


Sec.  3.1  What is the applicability and scope of this part?

    The applicability of the regulations in this part is described in 
Sec.  1.2 of this chapter.


Sec.  3.2  Do other boating laws and regulations apply to me when I 
operate my boat on park waters?

    (a) In addition to the regulations contained in this part, 
applicable laws and regulations of the United States Coast Guard apply 
to govern vessels and their operation on all waters (navigable and non-
navigable) subject to NPS jurisdiction. Title 14 United States Code, 
Title 33 United States Code, Title 46 United States Code, and the 
United States Coast Guard regulations in 33 CFR Chapter I, 46 CFR 
Chapter I and III, and 49 CFR Chapter IV apply to such operation. 
Therefore, Federal regulations authorizing an action by the ``captain 
of the port'' or another officer or employee of the United States Coast 
Guard, authorize a like action by the superintendent.
    (b) Unless specifically addressed by the regulation in paragraph 
(a) of this section, vessels and their operation on all waters subject 
to NPS jurisdiction are governed by non-conflicting boating safety laws 
and regulations of the state within whose interior boundaries a park 
area or portion thereof is located.


Sec.  3.3  Am I required to obtain a permit to operate a vessel in a 
park area?

    Generally, you are not required to obtain a permit to operate a 
vessel in a park area. However, in certain circumstances, taking into 
consideration public safety, protection of park resources, weather and 
park management objectives or other factors, the superintendent may 
require a permit for use of a vessel within a park area, pursuant to 
Sec. Sec.  1.5 and 1.7 and consistent with Sec.  1.6 of this chapter.


Sec.  3.4  For what purposes may my vessel be inspected?

    (a) An authorized person may at any time stop and/or board a vessel 
to examine documents, licenses or permits relating to operation of the 
vessel, and to inspect the vessel to determine compliance with 
regulations pertaining to safety equipment, vessel capacity, marine 
sanitation devices, and other pollution and noise abatement 
requirements.
    (b) An authorized person who identifies a vessel being operated 
without sufficient life saving or firefighting devices, in an 
overloaded or other unsafe condition, as defined in United States Coast 
Guard regulations, or in violation of a noise level specified in Sec.  
3.15(a) of this part, may direct the operator to suspend further use of 
the vessel until the condition is corrected.


Sec.  3.5  Do I have to report an accident involving a vessel to the 
National Park Service?

    (a) The operator of a vessel involved in an accident involving 
total property damage exceeding $2000, injury, or death or 
disappearance of a person must report the accident to the 
superintendent as soon as practical, but in any event within 24 hours 
of the accident.
    (b) If the operator is physically incapable of making the report, 
the owner or an occupant of the vessel must

[[Page 51217]]

report the accident to the superintendent.
    (c) Filing a report with the superintendent may not satisfy 
applicable United States Coast Guard, state or local accident reporting 
requirements.


Sec.  3.6  What age must I be to operate a power driven vessel?

    (a) No person under the age of sixteen (16) years may operate a 
power-driven vessel on park waters except that a person twelve (12) to 
fifteen (15) years of age may operate a power-driven vessel if a person 
at least eighteen (18) years of age is on board the vessel.
    (b) If a park area is located within a state having a similar 
requirement specifying a different age or having different conditions, 
then the applicable state law is adopted in lieu of paragraph (a) of 
this section.


Sec.  3.7  Who must wear a Personal Floatation Device (PFD)?

    (a) Any child 12 years of age or younger must wear USCG approved 
Type I, II, or III PFD when aboard a vessel underway, except while 
inside an enclosed cabin. If a park area is located within a state 
having a similar requirement specifying a different age or with 
different conditions, then applicable state law applies in lieu of this 
paragraph (a).
    (b) Paragraph (a) does not apply to a vessel that requires 
inspection by the U.S. Coast Guard when that vessel is certified for 
carrying passengers for hire pursuant to 46 CFR Chapter I or III.
    (c) The Superintendent may require that a PFD be worn on designated 
waters or during designated water based activities in accordance with 
Sec. Sec.  1.5 and 1.7 of this chapter.


Sec.  3.8  What vessel operations are prohibited?

    (a) The following operations are prohibited:
    (1) Launching or operating an airboat or hovercraft.
    (2) Launching or recovering a vessel, except at a launch site 
designated by the superintendent.
    (3) Operating a power-driven vessel on waters not accessible by 
road.
    (4) Operating a vessel in excess of a length, width or horsepower 
restriction established by the superintendent in accordance with 
Sec. Sec.  1.5 and 1.7 of this chapter. For the purposes of this 
paragraph, vessel length is measured according to criteria established 
in 46 CFR Chapter I or III.
    (5) Attaching a vessel to or interfering with a marker, navigation 
buoy or other navigational aid.
    (b) The following operations are inherently unsafe and therefore 
prohibited:
    (1) Operating a power-driven or sailing vessel within 100 feet of a 
diver's flag except a vessel in support of dive operations, which may 
not be operated in excess of flat wake speed.
    (2) Failing to observe restriction(s) established by a regulatory 
marker.
    (3) Operating a vessel in excess of flat wake speed:
    (i) In designated areas, or
    (ii) Within 100 feet of:
    (A) A downed water skier, (B) Person swimming, wading, fishing or 
floating with the aid of a non-motorized inflatable or rigid buoyant 
device;
    (C) Designated launch site; or
    (D) Manually propelled, anchored or drifting vessel unless the park 
is located within a state specifying different conditions then that 
state law is adopted in lieu of this paragraph.
    (4) Unless a designated area is marked otherwise, operating a 
power-driven or sailing vessel within 500 feet of a shoreline 
designated as a swimming beach. This prohibition does not apply in 
locations such as a river, channel, or narrow cove where passage is 
restricted to less than 500 feet. In such restrictive locations where 
swim beaches are designated, the operation of a vessel in excess of a 
flat wake speed is prohibited.
    (5) Operating a power-driven vessel while a person is riding on the 
decking over the bow, gunwales, top edge of the transom, motor cover, 
or in any other unsafe position when the vessel is being operated above 
a flat wake speed. Provided however, that this provision does not apply 
when that portion of the vessel is designed and constructed for the 
purpose of carrying passengers safely at all speeds.
    (6) Operating a vessel, or knowingly allowing another person to 
operate a vessel in a negligent manner, by failing to exercise that 
degree of care which a reasonable person, under like circumstances, 
would demonstrate in order to prevent the endangering of the life, 
limb, or property of a person(s) through the operator's lack of 
knowledge, inattention, or general carelessness.
    (7) Operating a vessel or knowingly allowing another person to 
operate a vessel in a grossly negligent manner, by willfully and 
wantonly creating an unreasonable risk of harm to person(s) or 
property, regardless of whether the operator intended to cause harm.


Sec.  3.9  May I operate my personal watercraft (PWC) in park waters?

    (a) A person may operate a PWC in park areas only where authorized 
by special regulation.
    (b) Where authorized, operation of a PWC on park waters is subject 
to the following conditions:
    (1) No person may operate a PWC unless each person aboard is 
wearing a type I, II, or III PFD approved by the United States Coast 
Guard.
    (2) A person operating a PWC equipped by the manufacturer with a 
lanyard-type engine cut-off switch must attach such lanyard to his 
person, clothing, or PFD, as appropriate for the specific vessel.
    (3) No person may operate a PWC anytime between sunset and sunrise.
    (4) No person may operate a PWC by jumping the wake, becoming 
partially airborne or completely leaving the water while crossing the 
wake of another vessel within 100 feet of the vessel creating the wake.
    (5) If a park area is located within a state that has more 
restrictive regulations for the operation of PWC, then applicable state 
law applies in lieu of paragraphs (b)(1) through (b)(4) of this 
section.


Sec.  3.10  What are the regulations regarding operating a vessel while 
under the influence of alcohol and/or drugs?

    (a) Operating or being in actual physical control of a vessel is 
prohibited while:
    (1) Under the influence of alcohol or a drug or drugs or any 
combination thereof, to a degree that renders the operator incapable of 
safe operation; or
    (2) The alcohol concentration in the operator's blood or breath is 
0.08 grams or more of alcohol per 100 milliliters of blood or 0.08 
grams or more of alcohol per 210 liters of breath. Provided, however, 
that if state law that applies to operating a vessel while under the 
influence of alcohol establishes more restrictive limits of alcohol 
concentration in the operator's blood or breath, those limits apply 
rather than the limits specified in this paragraph.
    (3) These provisions also apply to an operator who is or has been 
legally entitled to use alcohol or drugs.
    (b) At the request or direction of an authorized person who has 
probable cause to believe that an operator of a vessel has violated 
provisions of paragraph (a) of this section, the operator must submit 
to one or more testing procedures of the blood, breath, saliva or urine 
for the purpose of determining blood alcohol and/or drug content.
    (1) Refusal by an operator to submit to a test is prohibited and 
proof of

[[Page 51218]]

refusal may be admissible in any related judicial proceeding.
    (2) Any test or tests for the presence of alcohol and drugs shall 
be determined by and administered at the direction of an authorized 
person.
    (3) Any test shall be conducted by using accepted scientific 
methods and equipment of proven accuracy and reliability operated by 
personnel certified in its use.
    (c) The results of chemical or other quantitative tests are 
intended to supplement the elements of probable cause used as the basis 
for the arrest of an operator charged with a violation of paragraph 
(a)(1) of this section. If the alcohol concentration in the operator's 
blood or breath at the time of testing is less than alcohol 
concentrations specified in paragraph (a)(2) of this section, this fact 
does not give rise to any presumption that the operator is or is not 
under the influence of alcohol.
    (d) The provisions of paragraph (c) of this section are not 
intended to limit the introduction of any other competent evidence 
bearing upon the question of whether the operator, at the time of the 
alleged violation, was under the influence of alcohol, or a drug, or 
drugs, or any combination thereof.


Sec.  3.11  May I use a vessel to tow a person for water skiing or 
other similar activities?

    (a) The towing of a person by a vessel is allowed only in 
designated waters, and in accordance with conditions established by the 
superintendent pursuant to Sec. Sec.  1.5 and 1.7 of this chapter.
    (b) Towing a person using a parasail, hang-glider or other airborne 
device may be allowed only in accordance with a permit issued by the 
superintendent pursuant to Sec.  1.6 of this chapter.
    (c) Where towing is designated, the following conditions apply:
    (1) Towing is allowed only between the hours of sunrise and sunset.
    (2) In addition to the boat operator, a person at least 12 years of 
age must be present to observe the action of the person being towed.
    (3) A person being towed must wear a United States Coast Guard 
approved type I, II, or III PFD.
    (4) A person being towed may not commit any act in a manner that 
endangers, or is likely to endanger, any person or damage property.
    (5) Operating a vessel that does not have the capacity to carry the 
person(s) being towed in addition to the operator and observer is 
prohibited.


Sec.  3.12  What conditions apply to the use of Marine Sanitation 
Devices (MSD)?

    (a) Discharging sewage from any vessel, whether treated or not, in 
park waters is prohibited.
    (b) The owner or operator of any vessel that is equipped with 
toilet facilities and/or an MSD that is capable of discharge into park 
waters, must lock or otherwise secure the valves or mechanism of the 
device in a manner that prevents discharge while within the boundaries 
of park area waters. For the purposes of this section, a deck mounted 
pump-out fitting is not considered to be an overboard discharge outlet 
and is not subject to these requirements, when used in conjunction with 
an approved pump-out facility.
    (c) The superintendent may require the owner and/or operator of the 
vessel to have all discharge outlets disconnected from through-hull 
fittings and have both ends of the disconnected line(s) capped or 
plugged in order to prevent the ability to discharge, pursuant to 
Sec. Sec.  1 .5 and 1 .7 of this chapter.
    (d) The superintendent may modify the requirements of this section 
through a special regulation.


Sec.  3.13  Am I required to remove a sunken, grounded or disabled 
vessel?

    (a) Except as provided in paragraph (b) of this section, the owners 
or authorized salvager of a sunken, grounded, or disabled vessel must 
remove the vessel, all component parts and equipment, and all 
associated cargo thereof in accordance with procedures established by 
the superintendent. In establishing removal procedures, the 
superintendent is authorized to:
    (1) Establish a reasonable date by which vessel removal operations 
must be complete;
    (2) Determine times and means of access to and from the vessel, and
    (3) Specify the manner or method of removal.
    (b) The superintendent may waive the requirements of paragraph (a) 
of this section or prohibit removal of the vessel, equipment or cargo 
upon a written determination that:
    (1) The removal would constitute an unacceptable risk to human 
life;
    (2) The removal would result in extensive resource damage; or
    (3) The removal is impracticable or impossible.


Sec.  3.14  What is the maximum noise level for the operation of a 
vessel?

    (a) A person may not operate a vessel at a noise level exceeding:
    (1) 75dB(A) measured utilizing test procedures applicable to 
vessels underway (Society of Automotive Engineers SAE--J1970); or
    (2) 88dB(A) measured utilizing test procedures applicable to 
stationary vessels (Society of Automotive Engineers SAE--J2005).
    (b) An authorized person who has reason to believe that a vessel is 
being operated in excess of the noise levels established in paragraph 
(a) of this section, may direct the operator of the vessel to submit 
the vessel to an on-site test to measure the noise level.


Sec.  3.15  May I swim or wade in park waters?

    Swimming or wading is allowed in waters, subject to closures or 
restrictions designated by the superintendent in accordance with 
Sec. Sec.  1.5 and 1.7 of this chapter.


Sec.  3.16  What regulations apply to swimming areas and beaches?

    (a) The superintendent may designate areas as swimming areas or 
swimming beaches pursuant to Sec. Sec.  1.5 and 1.7 of this chapter.
    (b) Within designated swimming areas, the use of a surfboard or 
similar rigid device is prohibited.
    (c) The superintendent may prohibit the use or possession of 
flotation devices, glass containers, kites, or incompatible activities 
in swimming areas or swimming beaches pursuant to Sec. Sec.  1.5 and 
1.7 of this chapter.


Sec.  3.17  May I snorkel or underwater dive in park waters?

    (a) Snorkeling and underwater diving is allowed in park waters, 
subject to closures or restrictions designated by the superintendent in 
accordance with Sec. Sec.  1.5 and 1.7 of this chapter.
    (b) In waters open to the use of vessels, a diver must prominently 
display a dive flag.
    (c) A diver must remain within a 100' horizontal radius of the dive 
flag.
    (d) If applicable state law or regulation requires a snorkler to 
display a dive flag, that provision of state law or regulation applies.


Sec.  3.18  May I operate a submersible within park waters?

    The use of manned or unmanned submersibles may only occur in 
accordance with a permit issued by the superintendent pursuant to Sec.  
1.6 of this chapter.

PART 7--SPECIAL REGULATIONS, AREAS OF THE NATIONAL PARK SYSTEM

    5. The authority citation for Part 7 continues to read as follows:

    Authority: 16 U.S.C. 1, 3, 9a, 460(q), 462(k); Sec. 7.96 also 
issued under DC Code 8-137 (1981) and DC Code 40-721 (1981).

[[Page 51219]]

    6. Section 7.45 is amended by removing and reserving paragraph 
(e)(8).
    7. Section 7.48 is amended by removing and reserving paragraph (d).
    8. Section 7.57 is amended by removing and reserving paragraph (c).
    9. Section 7.70 is amended by removing and reserving paragraph (c).
    10. Section 7.79 is amended by removing paragraph (c).

    Dated: August 14, 2003.
Craig Manson,
Assistant Secretary for Fish and Wildlife, and Parks.
[FR Doc. 03-21333 Filed 8-21-03; 4:26 pm]
BILLING CODE 4312-52-P