[Federal Register Volume 72, Number 56 (Friday, March 23, 2007)]
[Rules and Regulations]
[Pages 13694-13706]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-5111]


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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: Final rule.

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SUMMARY: The National Park Service (NPS) is revising rules that 
regulate boating and water use activities in areas administered by the 
NPS. The 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 and to 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 final rule will eliminate many requirements which 
are ineffective or out of date and will provide flexibility in managing 
safety, resource preservation, and public use needs throughout the 
National Park System.

DATES: This regulation becomes effective April 23, 2007.

FOR FURTHER INFORMATION CONTACT: Jerry Case, Regulations Program 
Manger, National Park Service, 1849 C Street, NW., Room 7241, 
Washington, DC 20240. Phone: (202) 208-4206. E-mail: [email protected].

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, promulgated in 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 boating safety laws 
and regulations in relation to NPS specific regulations contained in 
Part 3. The required order of applicability, or hierarchy, of laws and 
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.
    Where the NPS, USCG, and State have a comparable but different 
rule, the NPS rule applies first, except where we have specifically 
adopted the more stringent rule in our regulation (See 3.10(a)(2)). The 
USCG rule will apply when no NPS rule exists and if the NPS and USCG do 
not have a rule then the State boating safety rule applies.
    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 consistency 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

[[Page 13695]]

of NPS, USCG regulations and state boating safety laws and regulations.

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 
final 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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Summary of Comments

    On August 26, 2003, the NPS issued a proposed rule requesting 
comments for 120 days (68 FR 51207). A total of 278 comments were 
received. We received ten comments from organizations, eight comments 
from government agencies, six comments from businesses and 254 comments 
from individuals. The following is a summary of the comments received 
and the NPS response to each comment.
    16 U.S.C. 1a-2(h) authorizes the NPS to promulgate and enforce 
boating and water related regulations that are complementary to, and 
not in derogation of, the authority of the USCG to regulate waters of 
the United States. For this reason the NPS has worked closely with USCG 
Boating Safety Regulations division throughout the rulemaking process. 
The USCG was provided a draft copy of the final rule for review and on 
July 25, 2005, the NPS met with the USCG to discuss their comments 
which have been included throughout the following section.

Section 1.4 Terms

    1. One commenter suggested the NPS should include the definition of 
the International Code Flag ``A'' as its use pertains to diving 
activities within NPS areas.
    NPS Response: Although the NPS recognizes that adding the 
definition of the International Code Flag ``A'' may be helpful to 
boaters operating on NPS waters, the USCG describes the International 
Code Flag ``A'' in Title 33 of the U.S. Code and therefore it would be 
redundant to re-define it in Sec.  1.4.
    Navigation Rules (NAVRULES) require the display of the 
International Code Flag ``A'' when a vessel's maneuverability is 
limited when engaged in support of diving activities on navigable 
waters. These requirements are codified in 33 U.S.C. 2027(e) and are 
applicable to navigable and non-navigable waters subject to the 
jurisdiction of the NPS as adopted through Sec.  3.2. The dive flag, 
however must be displayed when there is a diver in the water, whether 
or not the vessel's maneuverability is restricted. The dive flag 
relates to the diver and the code flag ``A'' relates to the vessel with 
restricted maneuverability. The NPS recognizes that there may be 
occasions when the International Code Flag ``A'' must be displayed on 
NPS waters in addition to complying with the requirement to display a 
dive flag.
    2. One commenter indicated the term ``Flat Wake Speed'' will cause 
confusion because a wake by definition is not flat. They further 
recommended the NPS use the term ``No Wake or Idle Speed NTE 5 mph''.
    NPS Response: The NPS considered the various terms that have been 
used to describe zones that are intended to require a slow speed. The 
determination of these zones is predicated on visitor safety needs and 
the protection of park resources. The terms include ``no wake'', 
``wakeless speed'', ``5 mph'', ``slow speed'' and idle speed. Since a 
boat underway and making way creates some wake regardless of speed, the 
term no wake and wakeless speed are not descriptive of the desired 
condition. The term 5 mph may describe the desired condition but is 
difficult for boaters to identify with since effective speedometers are 
rarely found on recreational vessels. Neither slow speed nor idle speed 
effectively addresses the desired condition as they are terms that 
allow for individual interpretation and/or variants in equipment. The 
term ``flat wake speed'' is the preferred NPS term since the desired 
condition, a minimal disturbance of water by a vessel in order to 
prevent damage or injury is described. The ability of park staff to 
understand and educate the boating public as well as take proactive 
enforcement actions is enhanced.
    3. One commenter recommended that the NPS adopt the EPA definition 
of sewage.
    NPS Response: Our definition in this rule is identical to the USCG 
definition of sewage found in 33 U.S.C. 1322 and to EPA's found in 40 
CFR 122.2.
    4. There were numerous comments concerning the definition of a 
vessel and the need for the NPS to define ``non-traditional 
watercraft''. It is apparent that commenters have concerns about the 
inclusion of non-traditional watercraft within the scope of the 
definition of a vessel, specifically float tubes, and the thought that 
users would be required to carry PFDs on these non-traditional 
watercraft. There was also considerable comment about the economic 
impact to tube rental businesses that would occur if the NPS 
implemented this definition.
    NPS Response: The NPS acknowledges the concerns raised by the 
comments related to the proposed rule definition of vessel and non-
traditional watercraft. The NPS will use the statutory definition USCG 
uses for vessel, but with an exception for seaplanes on the water: 
``The term `vessel' includes every description of watercraft or other 
artificial contrivance used, or capable of being used, as a means of 
transportation on the water'', 1 U.S.C. 3. Using this definition the 
NPS no longer believes that a separate definition is needed for ``non-
traditional watercraft''. This view reflects judicial interpretations 
of the definition of vessel that read capable as meaning practically 
capable. The Court in Evansville & Bowling Green Packet Co. v. Chero 
Cola bottling Co., 271 U.S. 19, 22, 46, S.Ct. 379, 380, 70 L.Ed. 805 
(1926), developed a test to determine whether a vessel was 
``practically capable'' of being used as a means of transportation on 
the water. The criteria included whether the craft was: (1) Used to 
carry freight from one place to another; (2) used as a means of 
transportation; (3) moved from place to place; and/or (4) exposed to 
the typical perils of navigation to which craft used for transportation 
are exposed.
    The definition of vessel does not include float tubes, inner tubes, 
water play toys, or homemade devices that float unless they are 
modified in such a way with the addition of paddles, motors, or some 
other type of propulsion device. The statement of applicability in the 
USCG regulations for PFDs at 33 CFR 175.11 provides that the 
regulations only apply to vessels

[[Page 13696]]

``that are propelled or controlled by machinery, sails, oars, paddles, 
poles, or another vessel.'' When they are modified with the addition of 
some type of propulsion and used as a means of transportation and/or 
moved from place to place then these devices become artificial 
contrivances and therefore, vessels in the revised NPS definition. With 
this definition, a surfboard by itself is not a vessel, but if a sail 
is attached then it is a vessel; or an inner tube by itself is not a 
vessel, but if a motor is attached then it is a vessel. Though these 
buoyant devices are not considered vessels under the regulations, the 
NPS has provided the superintendents authority in section 3.7(b) to 
regulate their use by requiring the wearing of PFDs when it is deemed 
necessary to protect the public. This management approach will allow 
individual park areas and superintendents to assess the economic 
impacts to small businesses of imposing these requirements.
    5. The NPS should define a recreational boat accident.
    NPS Response: The NPS disagrees with this comment. By adopting USCG 
regulations the NPS also adopts those definitions that are applicable 
to the regulations. By adopting USCG definitions we are seeking 
consistency in vocabulary for the boat operator.

3.2 Other Boating Laws and Regulations

    6. Some commenters suggested that the NPS would ``preempt any other 
comparable laws including USCG regulations''. The numerous cites ``may 
confuse the reader''. Some indicated that the regulations should be 
changed to reflect exemptions under 33 CFR 175.17. Some commenters 
suggested that the NPS adopt regulations for the state where the park 
area is located.
    NPS Response: Commenters were concerned with the NPS regulations 
conflicting with USCG or applicable State laws. It has always been the 
intent of the NPS to apply USCG and state laws and regulations whenever 
possible. In the adoption of these laws and regulations, it is also 
recognized that the NPS is adopting not only the regulations but the 
exemptions appearing within the regulations and that is true for 33 CFR 
175.17. It should be noted that the NPS does have a separate and 
distinct responsibility to protect the cultural, historical, natural, 
and other park resources that may not receive adequate protection from 
other regulatory agencies. Therefore it is necessary to create specific 
NPS regulations and these regulations would preempt any other 
comparable laws and regulations.

3.3 Vessel Permit

    7. One commenter was opposed to an increase in the use of permits 
on NPS waterways, and was concerned about the potential expansion of 
permit use to include private non-powered boaters.
    NPS Response: The NPS regulation codified in Sec.  3.3 does not 
deviate significantly from the existing regulation pertaining to 
permits. This regulation clarifies the superintendent's authority to 
establish permit requirements as detailed in 36 CFR Part 1 and serves 
to alert the public that permits to operate vessels may be required in 
NPS areas based upon considerations of factors in 36 CFR 3.3.
    8. A commenter suggested the NPS should clearly identify the 
superintendent's authority to establish permits related to boating.
    NPS Response: The statutory authority is 16 U.S.C. 1a-2(h) and it 
is implemented in 36 CFR parts 1 and 3, setting forth the park 
superintendent's authority to require and issue permits for the purpose 
of regulating activities consistent with applicable legislation and 
federal administrative policies. It is based upon a determination that 
such action is necessary in consideration of public health and safety, 
protection of park resources, weather and park management objectives. 
It also recognizes one of the primary missions of the NPS, the 
protection of natural, cultural, historic and other park resources. It 
also recognizes the need for scientific research, implementation of 
management objectives and responsibilities, equitable allocation and 
use of park facilities or avoidance of conflict among visitor use 
activities.
    9. One commenter suggested that the NPS should require all boating 
activity restrictions be based on an equitable balance of the needs of 
all park users and any outright prohibitions should only be approved by 
a part 7 regulation.
    NPS Response: The NPS agrees that an equitable balance of the needs 
of all park users should be considered along with other criteria 
detailed in 36 CFR part 1 in the determination of requirements for the 
issuance of a permit. Each proposed action, including all closures, 
public use limitations or restrictions by the NPS, is evaluated to 
determine appropriate publication as either a part 7 regulation or in 
the Superintendent's Compendium as required by 36 CFR 1.5(b). Among the 
factors evaluated are the significance and duration of the impact of 
the NPS action upon the public.

3.4 Vessel Inspection

    10. Some comments were received surrounding the definition of 
``authorized person'' and what authority does the NPS have to board a 
vessel ``at any time'' similar to USCG authority.
    NPS Response: Authorized person is currently defined in 36 CFR 1.4. 
This is not a change with this rulemaking. It should be noted that in 
our current regulations authorized persons have the authority to stop 
and board a vessel to examine documents, licenses or permits related to 
the operation of the vessel as well as to determine compliance with 
regulations pertaining to safety equipment and operation, 36 CFR 
3.5(a).

3.5 Boating Accidents

    11. There were several comments related to accidents, reporting of 
accidents and the threshold value of when to report an accident. The 
comments indicated that the NPS should defer to the state in which the 
park was located.
    NPS Response: By adopting USCG regulations in 33 CFR 175.51-59 the 
NPS is in concert with all applicable USCG regulations related to the 
reporting of boat accidents. The NPS is in consultation with the USCG 
regarding their requirements related to the reporting of boat accidents 
and we will ensure that necessary USCG information is captured in our 
new reporting system. Until the new system is in operation the Service 
will use the existing OMB approved form for reporting boating 
accidents. The NPS needs to receive accident reports for agency 
statistical analysis of visitor safety incidents. Therefore, each park 
unit is encouraged to develop standard operating procedures that 
include sharing of accident information with their state boating 
enforcement agencies. States are required to furnish all accident 
information to the USCG.

3.6 Operator Age

    12. One commenter stated that the language in paragraph Sec.  3.6 
was confusing and could preclude young people that have completed a 
boater education program from operating a motorboat. Another commenter 
stated that the NPS should require that all recreational boaters on NPS 
waters complete any and all mandatory state boater safety education 
requirements.
    NPS Response: The NPS agrees that the language could be 
misinterpreted and therefore has made changes to clarify that language. 
We have also provided for adoption of mandatory state boater education 
requirements for boaters of all ages. NPS boating regulations adopt 
state law. If a state law requires boater safety education, then NPS 
will enforce that requirement on park waters.

[[Page 13697]]

    13. Many of the commenters commended the NPS for establishing 
minimum age requirements for boat operation.
    NPS Response: The NPS agrees that a minimum age requirement is 
necessary for boating safety. The NPS regulations will continue to 
defer to state boater age requirements where they exist.

3.7 Personal Flotation Devices

    14. Several commenters requested that Type V PFDs be included as 
appropriate flotation devices when used in accordance with the label.
    NPS Response: The NPS agrees that Type V PFDs are a USCG approved 
PFD when used as intended by the manufacturer. Therefore the NPS is 
adopting all USCG regulations regarding PFD wear and carriage contained 
in 33 CFR part 175, including the use of Type V PFDs.
    15. Several commenters were concerned that the NPS was mandating 
the wearing of PFDs while floating on riverways.
    NPS Response: Under the proposed rules, the wearing of PFDs would 
have been required during certain boating activities like river 
floating. However, the NPS will use the USCG statutory definition in 1 
U.S.C. 3 but modified slightly by including an exception for seaplanes 
on the water. The USCG applicability clause for PFD carriage in 33 CFR 
175.11 exempts the requirement to wear or carry a PFD on some buoyant 
devices such as innertubes which would be used for floating on a 
riverway. The NPS in 36 CFR 3.7 specifically provides the authority for 
a Superintendent to determine if the mandatory wearing or carriage of a 
PFD should be required for the use of watercraft such as an innertube. 
This authority may be necessary to provide for boater safety. The NPS 
is adopting the USCG regulations, and where applicable, State 
regulations, on wearing and carriage of PFDs.
    16. One commenter felt that all children under 13 should be 
required to wear PFDs on all park waters.
    NPS Response: The NPS is adopting USCG regulations for wearing and 
carriage of PFDs, including those regulations that apply to children 
under the age of 13. We are also adopting State regulations, where they 
exist, for wearing PFDs by children under 13. The NPS retains the 
authority for a Superintendent to determine when the mandatory wear or 
carriage of a PFD could be required, including mandatory wearing by 
children under 13.
    17. One commenter supported the Superintendent's authority to 
require wearing of PFDs under certain conditions or during certain 
activities and one commenter disagreed with this authority.
    NPS Response: The NPS feels that it is necessary to provide some 
flexibility to individual Superintendents at a variety of park areas to 
address boating safety issues. There are a number of different 
waterways throughout the National Park System and no one regulation 
could address all safety concerns. Individual Superintendents are aware 
of their park's issues and can address those safety concerns by 
establishing specific PFD requirements as needed for the safety of park 
visitors.

3.8 Prohibited Operations

    18. One commenter asked the NPS to clarify what a designated launch 
site was under paragraph 3.8 and how it affects the launching of non-
traditional watercraft.
    NPS Response: The superintendent will determine what a designated 
launch site is based on resource management concerns and other factors. 
Launch sites could be as specific as traditional formed concrete boat 
ramps, graveled access points to a waterway or the entire shoreline of 
a river. The launching of various types of watercraft will depend on 
the types of areas designated for launching at individual parks. 
Because of the variety of waterways throughout the National Park 
System, this designation of launch sites needs to be left to the 
discretion of the park Superintendent. The NPS feels it is necessary to 
have ``designated'' launch sites in order to protect park resources 
along the body of water.
    19. One commenter indicated that in paragraph 3.8(b)(3)(ii)(B) the 
NPS was inconsistent in its use of terminology for non-traditional 
watercraft.
    NPS Response: We agree and have changed the terminology in that 
paragraph, which is now renumbered as 3.8(b)(4)(ii).
    20. One commenter stated that in paragraph 3.8(b)(3)(ii)(D) (now 
renumbered as 3.8(b)(4)(iv)) we replace the phrase ``manually 
propelled, anchored, or drifting'' with the word ``any'' so that the 
flat wake distance requirement applies to all vessels.
    NPS Response: The NPS is concerned about the lack of 
maneuverability in ``manually propelled, anchored, or drifting'' 
vessels and thus reduced other vessels' speed to flat wake within 100 
feet of these vessels. Power driven vessels have the ability to 
maneuver when in proximity to each other; therefore, a reduced speed 
when in proximity is not required. Additionally, if other speed and 
proximity regulations exist within the State regulations, the NPS 
defers to the State.
    21. One commenter stated that the regulations should require the 
marking of swimming beaches with buoys to increase boater awareness. 
They also suggested that no swimming beaches be designated in narrow 
channels to avoid conflicts between boaters and swimmers.
    NPS Response: The NPS agrees that swimming areas should be 
delineated with buoys whenever possible. However, in some circumstances 
such as swimming areas along the open ocean, buoys may not be practical 
or other methods of delineating swimming areas may be used such as 
poles and indicators on the beach that are visible to boaters in the 
water. Additionally, in accordance with paragraphs 3.16 and 3.17, the 
Superintendent may close or restrict areas such as narrow channels to 
swimming for safety and other appropriate reasons.
    22. One commenter asked that the NPS add language to prohibit being 
on, or holding onto, a swim platform or ladder while the boat engine is 
running in order to reduce exposure to carbon monoxide.
    NPS Response: The NPS agrees that prohibiting this activity would 
be a benefit to the public and that exposure to carbon monoxide is a 
serious health issue in the boating community. According to case 
incident reporting records for the National Park Service during a 9 
year period (1993-2001) there were 9 attributed contributed to carbon 
monoxide poisoning on Lake Powell alone. In the last 14 years there 
were over 120 non-fatal carbon monoxide poison cases, all boating 
related, within the National Park System. Accordingly, the language in 
Sec.  3.8 has been modified to reflect this new prohibition which 
prohibits holding on while the vessel is operating, not just when the 
vessel is moving.
    23. One commenter said that the prohibitions in Sec.  3.8 seemed 
redundant with existing laws governing malicious and dangerous 
behaviors.
    NPS Response: The NPS generally disagrees with that observation. 
Most of the prohibitions identified in Sec.  3.8 are unique to NPS 
areas. Those paragraphs that may be redundant were included here to 
provide consistency in interpreting a variety of terms used in boating 
behaviors throughout the States such as careless, negligent, grossly 
negligent, etc. The NPS did review the included paragraphs and 
determined that the USCG already addresses the issue of attaching to or 
interfering with navigational aids in 33 CFR 70.05.

[[Page 13698]]

Therefore that paragraph has been removed.

3.9 Personal Watercraft

    24. Many commenters requested the NPS maintain a system-wide 
prohibition on PWC operations.
    NPS Response: The NPS will continue to comply with the requirements 
in Sec.  3.9 which prohibit the operation of PWCs except when 
authorized through special regulations.
    25. One commenter said that PWC use should be authorized except 
where prohibited by special regulation.
    NPS Response: In regulations promulgated in April 2000, the NPS 
determined that PWC use is generally inappropriate in units of the 
National Park System. The NPS recognizes, however, that there are units 
where PWC use may be appropriate considering the purpose for which the 
area was created and other factors. The NPS will continue to comply 
with the requirements in Sec.  3.9, which prohibit the operation of 
PWCs except when authorized through special regulations.
    26. One individual commented that the use of inflatable PFDs should 
not be allowed on PWCs.
    NPS Response: The NPS is adopting all USCG regulations pertaining 
to the wearing and carriage of PFDs, which apply to PWCs as well as 
other types of vessels. All Coast Guard approved inflatable PFDs have 
on their label the statement: ``Not approved for use on personal 
watercraft, for white water paddling, or for waterskiing, kneeboarding, 
or similar towed uses.'' If the USCG approves inflatable PFDs for such 
activities in the future, NPS regulations will allow their use.
    27. One commenter said that the attaching of lanyards to the 
operator should apply to all motorboats and not just PWCs.
    NPS Response: The NPS strives to be consistent in its application 
of regulations to all vessels. The NPS recognizes that the nature of 
the configuration of a PWC is such that the operator rides on instead 
of in the vessel creating a greater need for the wearing of the lanyard 
to the ``cut-off'' switch for safety reasons. Currently 42 states 
require the use of a lanyard on PWCs. The safety risks are not as great 
with a traditional hull configuration; therefore, the NPS does not 
require the use of the lanyard but encourages its use by the boating 
public.
    28. One commenter said that Sec.  3.9(b)(4) is not needed because 
it is redundant with regulations found in Sec.  3.8(b).
    NPS Response: In Sec.  3.9(b)(4), the NPS recognizes that there are 
certain maneuvers that PWCs can perform more easily than other vessels 
that are dangerous to the operator and passengers as well as other 
vessels in the area. Wake jumping and similar maneuvers are not 
specifically addressed in Sec.  3.8(b).

3.10 Operating Under the Influence

    29. One commenter supported the new boating under the influence 
requirement.
    NPS Response: The NPS agrees and those regulations are consistent 
with the driving under the influence regulations found in 36 CFR Part 
4. Paragraphs (a) through (c) of Sec.  3.10 address two individual 
offenses. These provisions apply whether the alcohol or drugs were 
obtained legally or not. The first is a standard prohibition against 
operating a vessel while under the influence of alcohol or drugs. The 
elements necessary to prove a violation of this provision can be 
demonstrated through descriptions of observations made by the arresting 
officer and witnesses, physical evidence and the results of field tests 
conducted by the officer at the scene. The second offense involves 
operating a vessel while the alcohol concentration in the operator's 
blood 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. The elements 
necessary to prove a violation of this provision can be shown only 
through the results of chemical or other quantitative tests.
    30. A couple of commenters said that the NPS should adopt USCG 
operating under the influence regulations and/or state blood alcohol 
content (BAC) levels.
    NPS Response: The NPS regulations are similar to USCG regulations 
found in 33 CFR Part 95. However, the USCG defers to the state blood 
alcohol level even if it is a higher threshold than .08 BAC. For 
consistency with a Presidential Proclamation for operating a motor 
vehicle while under the influence of alcohol, the NPS will maintain a 
BAC level of .08 for all boating and driving under the influence 
violations. As a result, the NPS will not adopt USCG regulations for 
boating under the influence.
    31. One commenter said that NPS boating under the influence 
regulations may be redundant to existing laws, while using inner tubes 
in public while under the influence is already prohibited, along with 
its accompanying behavior.
    NPS Response: The NPS agrees that it is redundant in some 
situations but not all operators under the influence are disorderly. 
The boating under the influence regulation will apply to all operators 
under the influence, even those not covered with the existing 
disorderly conduct regulation.

3.12 Waterskiing

    32. One commenter said that in this section, the NPS does not 
provide the same option for adopting state regulations as found in 
other sections. They said that setting a minimum age for observers 
could be in conflict with state regulations and confuse the public.
    NPS Response: The NPS agrees that this regulation could conflict 
with state regulations, but we want to place a specific emphasis on 
visitor safety and are concerned that a child under the age of 12 may 
not be a capable observer to ensure the safety of the person being 
towed. According to NASBLA, a majority of states that set a minimum age 
for the observer, have 12 years of age as the minimum requirement. This 
regulation will allow the NPS to be consistent with the majority of 
states who have an observer age requirement.
    33. One commenter recommended that the NPS have a requirement that 
tow ropes be 20' or longer to reduce exposure to carbon monoxide.
    NPS Response: The NPS agrees and has added this requirement to the 
regulation.

3.13 Marine Sanitation Devices

    34. Many comments asked that we continue the prohibition on black 
water dumping while one other commenter said that we should take into 
account alternative treatment processes and adequate pump out 
facilities when regulating the disposal of black water.
    NPS Response: The NPS is mandated to comply with various laws, 
regulations and policies to protect park resources. Since water is a 
significant resource for such things as wildlife habitat, drinking 
water, and recreational activities, the NPS strives for the highest 
water quality status. The discharge of black water is not consistent in 
keeping with the mission of the NPS and the EPA does not authorize 
dumping of black water in fresh water areas. In water use areas where 
boaters are likely to go for several days away from a dock, and black 
water accumulation would occur, the NPS provides sufficient pump-out 
stations. It is not necessary to treat and discharge black water under 
those circumstances.
    35. Many people commented that gray water be banned. Another 
commenter said that gray water discharge should not be regulated.
    NPS Response: The NPS is not prohibiting the discharge of gray 
water. Gray water is not defined as a pollutant in the Federal Water 
Pollution Control

[[Page 13699]]

Act and does not contain the contaminants found in Marine Sanitation 
Devices (MSD) that degrade water quality. The NPS will continue to 
monitor additional information from EPA and USCG in assessing the 
discharge of gray water.
    36. One commenter recommended that the NPS adopt USCG, EPA or state 
sewage or MSD requirements.
    NPS Response: The NPS will adopt USCG, EPA or state sewage or MSD 
requirements and/or regulations when they do not conflict with the 
special provisions found in section 3.13. The NPS prohibits dumping of 
sewage, treated or un-treated, into any body of fresh water and limits 
accidental discharge of MSDs by requiring the locking or securing of 
the mechanism. It was recommended that the NPS allow the discharge of 
treated sewage into salt water areas. The discharge of untreated sewage 
is prohibited under Federal law within the navigable waters of the 
United States and the discharge of treated sewage by vessels is 
prohibited under either Federal or State law in many bodies of water 
where recreational boaters operate. The NPS understands that in some 
situations vessels may traverse through park salt water areas from 
areas where regulations allow the dumping of treated sewage. They would 
then be out of compliance when in the park. For this reason we have 
changed the final rule to reflect this concern.
    In salt water areas surrounded by protected marine waters the park 
superintendent has the ability to promulgate a special regulation to 
modify this section.

3.15 Vessel Noise

    37. Several commenters said the paragraph on vessel noise levels is 
incomplete and not enforceable.
    NPS Response: The NPS disagrees. The testing procedures listed are 
acceptable standards found in the NSBLA Model Act for Motorboat Noise 
and the National Marine Manufacturers Model Act which prescribe sound 
decibel levels and testing standards. The regulation allows for either 
testing while the vessel is underway or stationary. This new approach 
will make it easier for field enforcement of noise standards.
    38. Several commenters recommend that the NPS update noise 
standards and reduce noise levels equivalent to that of four-stroke 
engines.
    NPS Response: The NPS regulations are generally consistent with the 
standards found in the NSBLA Model Act for Motorboat Noise and the 
National Marine Manufacturers Model Act which prescribe sound decibel 
levels and testing standards. The NPS will encourage individual parks 
to more rigorously enforce these regulations to enhance the visitor 
experience by reducing noise violations.
    39. One commenter stated that the NPS must not adopt any boating 
regulations that deviate from the authority of the USCG.
    NPS Response: NPS boating regulations primarily rely upon USCG 
regulations for the regulation of park waters. However there are 
situations unique to park areas that are not covered by USCG 
regulations. In those situations the NPS develops and adopts specific 
regulations. These regulations are not a deviation from but rather 
address situations necessary for protection of park resources and the 
safety of park visitors.
    40. A number of commenters say that where USCG regulations are not 
applicable, NPS should adopt state regulations because this would be 
less confusing to boaters and increases compliance.
    NPS Response: The NPS agrees. Part 3 regulations adopt state 
regulations with the intent of applying state regulations where USCG 
regulations do not address these situations. The NPS further agrees 
that this approach allows for increased compliance from the boating 
public.
    41. Several commenters stated that USCG laws and regulations should 
be at the top of the NPS boating and water use hierarchy with state law 
as second and NPS regulations last.
    NPS Response: It's the goal of the park service to adopt and 
enforce USCG regulations when they apply and do not conflict. Before 
the NPS actually develops a regulation we look to determine whether the 
states have current regulations to address these situations. If state 
boating laws adequately address the situation then the NPS will adopt 
state law rather than creating a separate regulation. Unfortunately 
there are situations in park areas not addressed by USCG or State 
regulations that require the NPS to develop specific regulations.
    42. One commenter stated that we should standardize regulations 
with other agencies to the extent that the regulations remain compliant 
with mandates of the NPS Organic Act.
    NPS Response: NPS agrees. NPS will adopt and enforce the 
regulations of the other agencies when this action will also satisfy 
our responsibilities under the NPS Organic Act and the enabling acts 
for the individual parks.
    43. One commenter stated that where state regulations are applied 
in NPS areas with overlapping jurisdictions of more than one state, the 
stricter state requirement should apply.
    NPS Response: At this time the NPS believes the appropriate 
approach is to apply the law of the state in which the boating activity 
is occurring. It would be confusing to the boating public to enforce 
one law in an area where two conflicting state laws exist. Until we can 
be assured the approach proposed by the commenter would not cause 
unreasonable confusion for the park visitor, we will continue to 
enforce the two different state laws.
    44. One commenter stated that superintendents should not have 
compendium authority to ban or restrict boating usage.
    NPS Response: NPS regulations at 36 CFR 1.5 address when a 
superintendent has the authority to close or restrict park visitor 
activities. This regulation includes the criteria that must be 
satisfied before the decision is made and provides two approaches for 
implementing any restrictions. These two approaches are the 
superintendent's compendium and special regulations. Under either 
approach the superintendent would only have the authority to take such 
action generally for the purposes of ensuring public safety and 
protection of park resources as described by the regulation.
    45. Several comments concern the use of two stroke engines on park 
waters.
    NPS Response: The NPS believes that EPA regulations prohibiting 
manufacturing of carbureted and electronic fuel injected (EFI) two 
stroke engines after 2006 provides generally for long-term protection 
of park waters through the phasing out of selected two stroke engines.
    46. One commenter stated that we failed to address permeation 
losses to the atmosphere through emissions of hydrocarbons.
    NPS Response: We think this issue is beyond the scope of this 
rulemaking and do not have any information to support rulemaking.
    47. A comment was received suggesting NPS should prohibit service-
wide certain water-based activities, such as parasailing, use of 
hovercraft and the use of submersibles, as not being appropriate in NPS 
areas.
    NPS Response: NPS is sensitive to appropriateness of activities 
allowed within parks. In the case of the examples given, the NPS 
evaluated the activities and determined that parasailing and the use of 
submersibles may be appropriate activities but use of a hovercraft 
continues to be inappropriate. The NPS will continue to evaluate 
individual water-based

[[Page 13700]]

activities for appropriateness as visitor trends and technologies 
change.
    48. Two commenters raised concerns that NPS has not completed PWC 
special regulations.
    NPS Response: The promulgation of regulations to authorize PWC use 
in individual parks is not within the scope of this rulemaking, but 
rather is occurring through separate rulemaking processes to promulgate 
special regulations for codification in 36 CFR part 7.
    49. One commenter expressed concerns about not having adequate 
staffing to enforce boating regulations.
    NPS Response: Staffing is always an issue and many parks will 
maintain partnerships with USCG and state boating officials to provide 
for increased enforcement. These regulations combined with our 
enforcement partnerships will provide a higher level of enforcement, a 
greater consistency in enforcement and will be more clearly understood 
by the visiting public and can be more effectively communicated and 
enforced by NPS personnel.
    50. One commenter stated that we should address the dangers of 
carbon monoxide from boats and houseboats in final rulemaking.
    NPS Response: NPS agrees. This final rule addresses the dangers of 
carbon monoxide while boating. Exposure to carbon monoxide is a serious 
health issue in the boating community. According to case incident 
reporting records for the National Park Service during a 9-year period 
(1993-2001) there were 9 fatalities contributed to carbon monoxide 
poisoning on Lake Powell alone. In the last 14 years there were over 
120 non-fatal carbon monoxide poison cases, all boating related, within 
the National Park System. Changes have been made accordingly to 
Sec. Sec.  3.8 and 3.12 to reduce the public's exposure to CO while 
boating.
    51. One commenter stated it supported NPS changes in its method for 
noise enforcement.
    NPS Response: NPS agrees. The new approach will make it easier for 
field enforcement of noise standards.
    52. One commenter stated that the NPS needed to address amplified 
noise with a ``plainly audible'' standard.
    NPS Response: Amplified noise is currently regulated by 36 CFR 
2.12(a)(1). We think this regulation is sufficient for amplified noise 
problems on watercraft.
    53. One commenter stated that the current standard of 82 dBA @ 82 
feet is very weak.
    NPS Response: The rule proposed for noise testing is modeled after 
the NASBLA model act. This act has also been adopted in whole or part 
by many states. The standards adopted are SAE J-2005 and SAE J-1970.
    54. A commenter stated that a dive flag should not be displayed 
unless diving activity is in progress.
    NPS Response: NPS agrees. The regulation has been changed 
accordingly.
    55. A commenter stated the proposed rule does not address the use 
of dive flag for night-time diving.
    NPS Response: NPS agrees. The regulation has been changed to 
require illumination of dive flag for any diving occurring between 
sunset and sunrise. The illumination of the dive flag does not meet 
NAVRULES required lighting and may not consist of lights that may be 
confused with navigation lights or ATON lights.
    56. A commenter expressed concerns about the use of dive flags in 
narrow channels where boating activity would be unduly restricted.
    NPS Response: NPS acknowledges the concern with diving in narrow 
channels but believes the best approach for addressing this issue is 
for superintendents to determine whether restrictions are necessary for 
public safety and safe navigation.
    57. Two commenters stated the proposed rule does not address the 
need for displaying the international code flag A.
    NPS Response: The international code flag A (Alpha) is defined, and 
its use regulated, in USCG rules. In Sec.  3.2 the NPS adopts 
applicable laws and regulations of the United States Coast Guard. The 
USCG laws and regulations are found in Title 14 United States Code, 
Title 33 United States Code, Title 46 United States Code, and 33 CFR 
Chapter 1, 46 CFR Chapter I and III and 49 CFR Chapter IV. The dive 
flag for the diver does not meet the NAVRULES requirement to display a 
Code Flag ``A'', if the vessel's maneuverability is restricted.

Changes to the Final Rule

    In response to public comments, the NPS has made the following 
changes to the final regulation:
    Section 1.4--There were numerous comments concerning the proposed 
definition of a vessel and the need for the NPS to define ``non-
traditional watercraft''. It is apparent that commenters have concerns 
about the inclusion of non-traditional watercraft within the scope of 
the definition of a vessel, specifically float tubes (innertubes), and 
the thought that users would be required to carry PFDs on these non-
traditional watercraft. The proposed definition deviated too much from 
the widely accepted USCG definition for vessel and had the potential to 
create controversial situations and confusion. Therefore the NPS will 
be using the USCG statutory definition found in 1 U.S.C. 3, modified 
with an exception for seaplanes on the water. In the USCG definition 
for vessels all types of artificial contrivance are included if they 
can be used as a means of transportation, moved from place to place 
and/or exposed to perils of navigation. If the (watercraft) artificial 
contrivance is equipped with a means of propulsion such as oars, 
paddles, paddlewheel, motor, sail, etc. it would then be held to the 
various regulations required of a vessel of that size. Superintendents 
will still have the authority in Sec.  3.7(b) to regulate the use of 
non-traditional watercraft not meeting the vessel definition. This 
means that the Superintendent can require that a PFD be worn or carried 
on any type of watercraft, on designated waters and/or during 
designated water based activities. That decision is made on a park-by-
park basis.
    Section 3.2--The language in paragraph (a) was changed slightly to 
further clarify the intent of the paragraph and the adoption of USCG 
laws and regulations.
    Section 3.3--Commenters raised concerns about the ambiguity of the 
term ``or other factors'' when referring to the issues the 
superintendent might take into consideration when requiring a permit 
for use of a vessel. Commenters asked that the factors considered by 
the superintendent be specific when requiring a permit and in NPS 
response the term was removed. The remaining factors were considered 
specific enough by the commenters.
    Section 3.5--The language was changed in paragraph (c) to require 
the superintendent to forward all boating accident reports to the 
appropriate reporting authority, usually the State. These reports 
should be submitted within the timeframes required by 33 CFR 173.55. 
All States are required to forward boating reports to the USCG. This 
way accident reporting requirements can be met with a single report.
    Section 3.6--The title was changed to be broader since proposed 
paragraph (b) is a more general discussion of State law adoption and 
not just age requirements. Paragraph (c) was added to adopt State 
mandatory boater education requirements.
    Section 3.7--Paragraph (a) now defers to the USCG for adoption of 
their requirements for the wearing or carriage of PFDs. However, the 
regulations also allow a superintendent to require the

[[Page 13701]]

wear or carriage of a PFD on park waters when the USCG does not, if a 
determination is made that such wear or carriage is necessary. The 
change also removes the requirement to comply with state laws on PFD 
wearing or carriage in order to simplify the regulation.
    Section 3.8--The term hovercraft was removed from paragraph (a) 
since a commenter did not think it was appropriate to classify a 
hovercraft as a ``vessel'' by addressing its use in part 3. The NPS 
will pursue a clarification to part 2 that clearly states the 
prohibition on hovercraft while not attempting to classify it as an 
aircraft (where it is currently addressed) or as a vessel.
    Paragraph (a)(5) is also removed because the regulations in 33 CFR 
70.05 already address this issue sufficiently.
    Paragraph (b)(4)(ii) (formerly (b)(3)(ii)(B)) was changed to state 
``fishing from shore'' rather than just ``fishing'' to be clear that 
even though the person fishing may not be in the water, slow speeds in 
the proximity of the person fishing is still warranted.
    Paragraph (b)(6) (formerly (b)(5)) was changed to expand the list 
of locations on the vessels where persons may not ride or hold on to 
when the vessel is moving or idling in place. These changes are in 
response to concerns that certain unsafe activities be prohibited at 
any speed, not just speeds above flat wake. The regulation continues to 
allow for exceptions during certain maneuvering activities.
    Paragraph (b)(7) (formerly (b)(6)) was added to prohibit activities 
that put boaters in close proximity to vessel exhaust. This addition is 
in response to comments received about possible carbon monoxide 
exposure and poisoning from unsafe proximity to vessel exhaust when the 
vessel engine is operating, not just when the vessel is moving.
    Paragraphs (b)(6) and (7) were renumbered (b)(8) and (9).
    Section 3.12--paragraph (b)(6) was added to define the minimum 
length of a tow rope in response to comments regarding concerns over 
carbon monoxide exposure from being towed too close to the engine of a 
vessel.
    Section 3.13--paragraph (a) and (b) were changed to apply to bodies 
of fresh water only. USCG regulations still apply in salt water areas. 
The language in paragraph (b) discussing the locking of MSD was changed 
to be consistent with USCG regulations at 33 CFR 159.7(b)(1-4) to 
reduce confusion to the public. Paragraph (c) was removed as being 
overly restrictive and expensive for boaters and paragraph (d) was 
renumbered as the new paragraph (c).
    Section 3.15--this section was revised to update testing with the 
most recent standards adopted by the Society of Automotive Engineers 
(SAE) for noise level enforcement. This rule is modeled after the 
NASBLA model act and has also been adopted whole or in part by many 
states.
    Section 3.18--language was added in paragraph (b) to be clear that 
``a dive flag must not be displayed unless dive ops are ongoing'' in 
order to reduce confusion and safety risks of improperly identified 
underwater operations.
    Paragraph (c) was added to require that dive flags be illuminated 
in reduced light conditions to provide additional diver safety.
    The previous paragraph (c) was renumbered to paragraph (d) and 
terminology added to clarify the proximity to flag requirement.
    The previous paragraph (d) was renumbered to (e) and language was 
changed to adopt all state laws or regulations pertaining to 
snorkeling, not just dive flag requirements.

Compliance With Other Laws

Regulatory Planning and Review (Executive Order 12866)

    This document is a significant rule and the Office of Management 
and Budget has reviewed this rule under Executive Order 12866.

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 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 (SBREFA)

    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 (Executive Order 12630)

    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 (Executive Order 13132)

    NPS has examined today's final rule pursuant to Executive Order 
13132 and concluded that no additional consultation with States, local 
governments or their representatives is mandated beyond the rulemaking 
process. The agency has concluded that the rule does not have 
federalism implications because the rule does not have ``substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    Further, no consultation is needed to discuss the preemptive effect 
of today's rule. Rules of the U.S. Coast Guard can have preemptive 
effect in at least two ways. First, applicable statutes may contain 
express preemption provisions. In that circumstance, consultation would 
be inappropriate because the statutory command would preempt State law, 
not this rulemaking. Second, in addition to express preemption the 
Supreme Court has also recognized that

[[Page 13702]]

authoritative federal determinations that an area is best left 
unregulated have as much preemptive force as a decision to regulate. 
Sprietsma v. Mercury Marine, 537 U.S.51 (2002). While NPS has not 
identified specific State requirements that may be preempted by such 
determination by the U.S. Coast Guard, as such conflicts can arise in 
varied contexts in different States, NPS generally acknowledges that 
such conflicts may exist. As these conflicts arise outside of the 
context of this rulemaking consultation is not appropriate.

Civil Justice Reform (Executive Order 12988)

    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 parts 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 is 
to identify a category of activities that individually or cumulatively 
do not have significant effects 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; 
Kym Hall, Coronado National Monument; Mike Tiernan, Solicitor's Office, 
DOI and Jerry Case, Regulations Program Manager, National Park Service.

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.


0
For the reasons stated in the preamble, the National Park Service 
amends 36 CFR parts 1, 3 and 7 as follows:

PART 1--GENERAL PROVISIONS

0
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).


0
2. Amend Sec.  1.4 as follows:
0
A. Add the following terms in alphabetical order.
0
B. Revise the definition of ``vessel.''
    The additions and revisions read as follows:


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 hour.
    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, can 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 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 description of watercraft, or other artificial 
contrivance used, or capable of being used, as a means of 
transportation on the water. This definition does not apply to a 
seaplane on the water.

PART 3--BOATING AND WATER USE ACTIVITIES

0
3. Revise part 3 to read as follows:

PART 3--BOATING AND WATER USE ACTIVITIES

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

[[Page 13703]]

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 are the requirements to operate a power driven vessel?
3.7 What are the NPS Personal Flotation Device (PFD) requirements?
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 When is testing for alcohol or drugs required?
3.12 May I use a vessel to tow a person for water skiing or other 
similar activities?
3.13 What conditions apply to the use of Marine Sanitation Devices 
(MSD)?
3.14 Am I required to remove a sunken, grounded, or disabled vessel?
3.15 What is the maximum noise level for the operation of a vessel?
3.16 May I swim or wade in park waters?
3.17 What regulations apply to swimming areas and beaches?
3.18 May I snorkel or underwater dive in park waters?
3.19 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, the NPS 
adopts applicable laws and regulations of the United States Coast 
Guard. The USCG laws and regulations are found in Title 14 United 
States Code, Title 33 United States Code, Title 46 United States Code, 
and 33 CFR chapter I, 46 CFR chapter I and III and 49 CFR chapter IV. 
NPS applies the adopted laws and regulations to vessels and their 
operation on all waters (navigable and non-navigable) subject to NPS 
jurisdiction. 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) Except to the extent that directives of the United States Coast 
Guard have expressly or implicitly preempted inconsistent state laws 
and regulations or as otherwise provided by subsection (a), 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, and weather 
and park management objectives, the superintendent may require a permit 
for use of a vessel within a park area, under Sec. Sec.  1.5 and 1.7, 
and will issue permits 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 must report 
the accident to the superintendent as soon as practical, but in any 
event within 24 hours of the accident, if the accident involves:
    (1) Total property damage of $2000 or more; or
    (2) Injury, or death or disappearance of a person
    (b) If the operator is physically incapable of making the report, 
the owner or an occupant of the vessel must report the accident to the 
superintendent.
    (c) Filing a report with the superintendent may satisfy applicable 
United States Coast Guard, State, and local accident reporting 
requirements. Superintendents will forward the accident report to the 
appropriate reporting authority in a timely manner that complies with 
the requirements of 33 CFR 173.55.


Sec.  3.6  What are the requirements to operate a power driven vessel?

    (a) To operate a power-driven vessel on park waters, a person must 
be either:
    (1) At least 16 years old; or
    (2) Between 12 and 15 years old and accompanied on the vessel by a 
person at least 18 years old.
    (b) If a park area is located within a State having different age 
requirements, then the applicable State law is adopted in lieu of 
paragraph (a) of this section.
    (c) If a park area is located within a State having a mandatory 
boater education requirement, then that State requirement is adopted.


Sec.  3.7  What are the NPS Personal Floatation Device (PFD) 
requirements?

    (a) All requirements in Title 33 CFR part 175 related to PFDs are 
adopted.
    (b) The Superintendent may require that a PFD be worn or carried on 
designated waters, at designated times and/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.
    (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 33 CFR chapter I.
    (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 in designated 
areas.
    (4) Operating a vessel in excess of flat wake speed within 100 feet 
of:
    (i) A downed water skier;
    (ii) A person swimming, wading, fishing from shore or floating with 
the aid of a flotation device;
    (iii) A designated launch site; or
    (iv) A manually propelled, anchored or drifting vessel. If the park 
is located within a State specifying different conditions, then that 
State law is adopted in lieu of this paragraph.

[[Page 13704]]

    (5) 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.
    (6) 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. 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 or when the vessel is maneuvering for anchoring, docking or 
mooring.
    (7) Operating a power driven vessel engine/s or generator with a 
person sitting, riding or hanging on to a swim platform or swim ladder.
    (8) 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.
    (9) 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 only in park areas where authorized 
by special regulation. Special regulations may only be promulgated in 
the 21 parks listed in the following table:

----------------------------------------------------------------------------------------------------------------
                      Name                                        Water type                        State
----------------------------------------------------------------------------------------------------------------
Amistad National Recreation Area................  Impounded Lake...........................  TX
Assateague Island National Seashore.............  Open Ocean/Bay...........................  MD/VA
Bighorn Canyon National Recreation Area.........  Impounded Lake...........................  MT
Big Thicket National Preserve...................  River....................................  TX
Cape Cod National Seashore......................  Open Ocean/Bay...........................  MA
Cape Lookout National Seashore..................  Open Ocean/Bay...........................  NC
Chickasaw National Recreation Area..............  Impounded Lake...........................  OK
Cumberland Island National Seashore.............  Open Ocean/Bay...........................  GA
Curecanti National Recreation Area..............  Impounded Lake...........................  CO
Delaware Water Gap..............................  River....................................  PA/NJ
Fire Island National Seashore...................  Open Ocean/Bay...........................  NY
Gateway National Recreation Area................  Open Ocean/Bay...........................  NY
Glen Canyon National Recreation Area............  Impounded Lake...........................  AZ/UT
Gulf Islands National Seashore..................  Open Ocean/Bay...........................  FL/MS
Indiana Dunes National Lakeshore................  Natural Lake.............................  IN
Lake Mead National Recreation Area..............  Impounded Lake...........................  AZ/NV
Lake Meredith National Recreation Area..........  Impounded Lake...........................  TX
Lake Roosevelt National Recreation Area.........  Impounded Lake...........................  WA
Padre Island National Seashore..................  Open Ocean/Bay...........................  TX
Pictured Rocks National Lakeshore...............  Natural Lake.............................  MI
Whiskeytown-Shasta-Trinity National Recreation    Impounded Lake...........................  CA
 Area.
----------------------------------------------------------------------------------------------------------------

    (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, III, or V 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, 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.
    (b) 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 paragraph (a) of this section.
    (c) The provisions of this section also apply to an operator who is 
or has been legally entitled to use alcohol or drugs.


Sec.  3.11  When is testing for alcohol or drugs required?

    (a) 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 Sec.  13.10, 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 refusal may be admissible in any related judicial proceeding.
    (2) Any test or tests for the presence of alcohol and drugs must be 
determined by and administered at the direction of an authorized 
person.
    (3) Any test must be conducted by using accepted scientific methods 
and equipment of proven accuracy and

[[Page 13705]]

reliability operated by personnel certified in its use.
    (b) 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 Sec.  13.10. 
If the alcohol concentration in the operator's blood or breath at the 
time of testing is less than alcohol concentrations specified in Sec.  
13.10(a)(2), this fact does not give rise to any presumption that the 
operator is or is not under the influence of alcohol.
    (c) The provisions of paragraph (b) 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.  3.12  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 under 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 under 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, III, or V 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.
    (6) No person shall operate a power driven vessel using a tow rope 
20 feet or less in length when towing a person.


Sec.  3.13  What conditions apply to the use of Marine Sanitation 
Devices (MSD)?

    (a) Discharging sewage from any vessel, whether treated or not, in 
any body of fresh water is prohibited.
    (b) The owner or operator of any vessel on park fresh water that is 
equipped with toilet facilities and/or a MSD that is capable of 
discharge, must lock or otherwise secure the valves or mechanism of the 
device. Acceptable methods of securing the device include:
    (1) Closing the seacock and removing the handle;
    (2) Padlocking the seacock in the closed position;
    (3) Using a non-releasable wire-tie to hold the seacock in the 
closed position; or
    (4) Locking the door to the space enclosing the toilets with a 
padlock or door handle key lock.
    (c) The superintendent may modify the requirements of this section 
through a special regulation.


Sec.  3.14  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.  3.15  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.  3.16  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.  3.17  What regulations apply to swimming areas and beaches?

    (a) The superintendent may designate areas as swimming areas or 
swimming beaches in accordance with 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 in accordance with Sec. Sec.  1.5 
and 1.7 of this chapter.


Sec.  3.18  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 during dive operations. A dive flag must not be 
displayed unless dive operations are ongoing.
    (c) The dive flag must be illuminated when dive operations take 
place between sunset and sunrise. The dive flag illumination may not 
consist of lights that may be confused with navigation lights or aids 
to navigation lights.
    (d) While on the surface, submerging or surfacing the diver must 
remain within a 100 feet horizontal radius of the diver flag.
    (e) If State laws or regulations exist concerning snorkeling 
activities, those provisions of State law or regulation are adopted.


Sec.  3.19  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 under Sec.  1.6 
of this chapter.

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

0
4. 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 D.C. Code 8-137 (1981) and D.C. Code 40-721 (1981).

[[Page 13706]]

Sec.  7.45  [Amended]

0
5. In Sec.  7.45, remove paragraph (e)(8) and redesignate paragraph 
(e)(9) as paragraph (e)(8).


Sec.  7.48  [Amended]

0
6. In Sec.  7.48, remove paragraph (d) and redesignate paragraphs (e) 
through (g) as paragraphs (d) through (f), respectively.


Sec.  7.57  [Amended]

0
7. In Sec.  7.57, remove paragraph (c) and redesignate paragraphs (d) 
through (h) as paragraphs (c) through (g), respectively.


Sec.  7.70  [Amended]

0
8. In Sec.  7.70, remove paragraphs (c) and (d) and redesignate 
paragraphs (e) through (g) as paragraphs (c) through (e), respectively.


Sec.  7.79  [Amended]

0
9. In Sec.  7.79, remove paragraph (c) and redesignate paragraph (d) as 
(c).

    Dated: August 3, 2006.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.

    Editorial Note: This document was received at the Office of the 
Federal Register, National Archives and Records Administration, 
Washington, DC, on March 15, 2007.
 [FR Doc. E7-5111 Filed 3-22-07; 8:45 am]
BILLING CODE 4312-52-P