[Federal Register Volume 73, Number 238 (Wednesday, December 10, 2008)]
[Rules and Regulations]
[Pages 74966-74972]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29249]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 2

Fish and Wildlife Service

50 CFR Part 27

RIN 1024-AD70


General Regulations for Areas Administered by the National Park 
Service and the Fish and Wildlife Service

AGENCIES: Fish and Wildlife Service and National Park Service, 
Interior.

ACTION: Final rule.

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SUMMARY: This final rulemaking amends regulations codified in 36 CFR 
part 2 and 50 CFR part 27, which pertain to the possession and 
transportation of firearms in national park areas and national wildlife 
refuges. The final rule updates these regulations to reflect state laws 
authorizing the possession of concealed firearms, while leaving 
unchanged the existing regulatory provisions that ensure visitor safety 
and resource protection such as the prohibitions on poaching and 
limitations on hunting and target practice.

DATES: This rule becomes effective on January 9, 2009.

FOR FURTHER INFORMATION CONTACT: Lyle Laverty, 202-208-4416.

SUPPLEMENTARY INFORMATION:

I. Background

    America's parks and wildlife refuges are an important part of our 
shared national heritage, and a source of inspiration and enjoyment for 
visitors from around the world. For nearly 100 years, Congress has 
vested the Secretary of the Interior with the responsibility for 
managing these lands and resources in a manner that ensures their 
preservation and seeks to provide for the safety of visitors and 
employees. In administering these lands, Congress has enacted various 
statutes authorizing the Secretary to work closely with respective 
State and local governments in the management of these areas. In the 
following decades, the Department has worked closely with its State, 
local

[[Page 74967]]

government and Tribal neighbors, and has adopted regulations in 
appropriate circumstances that look to the laws of the state in which 
that unit is located. This final rule is intended to extend similar 
treatment to non-conflicting state laws pertaining to carrying of 
concealed weapons.
    Forty-eight States currently authorize law-abiding citizens to 
carry concealed firearms. However, existing Federal regulations 
governing firearms in national parks and national wildlife refuges, 
promulgated before the vast majority of these state laws were in 
effect, unnecessarily preclude law-abiding citizens from possessing, 
carrying, or transporting a concealed firearm that is otherwise legal 
in that state.
    On December 14, 2007, forty-seven United States Senators from both 
parties wrote to the Secretary of the Interior asking the National Park 
Service (NPS) and U.S. Fish and Wildlife Service (FWS) to ``remove 
their prohibitions on law-abiding citizens from transporting and 
carrying firearms on lands managed by these agencies'' by amending 
their regulations to allow ``firearms consistent with the state law 
where the National Park Service's sites and the National Wildlife 
Refuges are located.'' \1\ The Senators observed that the ``regulations 
infringe on the rights of law-abiding gun owners'' and that the 
``inconsistencies in firearms regulations for public lands are 
confusing, burdensome, and unnecessary.'' On February 11, 2008, four 
additional United States Senators wrote to the Secretary in support of 
the effort, adding that existing regulations ``preempt state regulatory 
frameworks for transporting and carrying firearms, thus invalidating 
concealed weapons permits and other state laws that allow law-abiding 
citizens to transport and carry firearms.'' \2\
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    \1\ See Letter to the Honorable Dirk Kempthorne, Secretary of 
the Interior, dated December 14, 2007, from Senators Crapo (ID), 
Baucus (MT), Craig (ID), Johnson (SD), Inhofe (OK), Tester (MT), 
Vitter (LA), Pryor (AR), Smith (OR), Lincoln (AR), Hatch (UT), 
Dorgan (ND), Coleman (MN), Nelson (NE), Coburn (OK), Webb (VA), 
Gregg (NH), Murkowski (AK), Ensign (NV), Sununu (NH), Stevens (AK), 
Bennett (UT), Chambliss (GA), Cochran (MS), Isakson (GA), Bunning 
(KY), Allard (CO), Thune (SD), Grassley (IA), Corker (TN), Lott 
(MS), Hutchison (TX), Roberts (KS), Martinez (FL), Cornyn (TX), 
Shelby (AL), Hagel (NE), Graham (SC), Dole (NC), Enzi (WY), McCain 
(AZ), Barrasso (WY), Brownback (KS), Domenici (NM), DeMint (SC), 
Sessions (AL), and Kyl (AZ). A copy of this letter may be accessed 
at http://www.doi.gov/issues/response_to_senators.html.
    \2\ See Letter to the Honorable Dirk Kempthorne, Secretary of 
the Interior, dated February 11, 2008, from Senators Feingold (WI), 
Specter (PA), Bond (MO), and Wicker (MS). A copy of this letter may 
be accessed at http://www.doi.gov/issues/response_to_senators.html.
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    The Department agrees with the 51 United States Senators that the 
regulations should be amended to reflect developments in state law, 
particularly where, as in this case, the deference can be achieved 
without impacting the visitors or resources the regulations are 
designed to protect. Accordingly, on April 30, 2008, the Department 
chose to address this issue proactively through the development of a 
proposed regulation, which it published in the Federal Register with a 
request for public comment. See 73 FR 23388 (April 30, 2008). The 
Department initially provided a sixty-day comment period and 
subsequently provided an additional 30-day comment period. The 
Department received more than 125,000 comments during the comment 
period and thereafter formed a working group to carefully review and 
analyze the submissions.
    We believe that in managing parks and refuges we should, as 
appropriate, make every effort to give the greatest respect to the 
democratic judgments of State legislatures with respect to concealed 
firearms. As stated in the proposed rule, Federal agencies have a 
responsibility to recognize the expertise of the States in this area, 
and Federal regulations should be developed and implemented in a manner 
that respects ``state prerogatives and authority.'' See Executive Order 
13132 of August 10, 1999 (``Federalism''). As explained herein, the 
Department believes that this rule more appropriately gives effect to 
these federalism concepts as called for in the Executive Order, while 
simultaneously maintaining protection of visitors and the values for 
which these parks and refuges were established. We discuss these 
considerations more fully below.

II. Discussion

A. Summary of the Final Rule

    The regulations being amended by this rule are intended by the NPS 
and the FWS to protect the natural and cultural resources of park areas 
and refuges, and to protect visitors, employees and property within 
those lands. In their previous form, these regulations generally 
prohibited visitors from possessing an operable and loaded firearm in 
areas administered by these bureaus unless the firearm is used for 
lawful hunting activities, target practice in areas designated by 
special regulations, or other purposes related to the administration of 
Federal lands in Alaska. The previous regulations also allowed visitors 
to transport firearms through parks and refuges subject to limitations 
that generally required the firearm to be unloaded and rendered 
inoperable or inaccessible. See 48 FR 30282 (June 30, 1983); 49 FR 
18444 (April 30, 1984).
    The previous FWS and NPS regulations were last substantively 
updated in 1981 and 1983, respectively. The overwhelming majority of 
States now provide for the possession of concealed firearms by their 
citizens. In many States, the authority to carry loaded and operable 
concealed firearms extends to State park and refuge lands, whether 
expressly or by operation of law.
1. The Department's Purpose
    The Department's intent in adopting this final rule is to better 
reflect the decisions of the States in which parks and refuge units are 
located to determine who may lawfully possess a firearm within their 
borders, while preserving the Federal government's authority to manage 
its lands, buildings, and other facilities. Mindful of that objective, 
the Department's final rule amends the regulations to allow individuals 
to carry concealed, loaded, and operable firearms in Federal park units 
and refuges to the extent that they could lawfully do so under non-
conflicting state law. By adopting state law in this manner, this rule 
is similar in approach to that already taken by NPS and FWS in various 
regulations pertaining to hunting, fishing, motor vehicles and boating. 
Additionally, the final rule treats state law in a similar manner to 
regulations adopted by the Bureau of Land Management (BLM) and the 
United States Forest Service (USFS), both of which allow visitors to 
carry weapons consistent with applicable Federal and state laws. See 36 
CFR 261.8 (a)-(c); 43 CFR 8365.1-7.
    Under the final rule, individuals must have actual authority to 
possess those loaded and concealed firearms under state law in order to 
carry those loaded concealed firearms in Federal park areas and 
refuges. This means that the State in which the park or refuge unit is 
located must have laws that authorize the individual to possess those 
concealed and loaded firearms, and the individual must be so 
authorized. Additionally, to the extent that a State's law recognizes 
licenses issued by other States, including the applicability of 
reciprocity agreements, the final rule would similarly recognize such 
reciprocal authorities. Finally, individuals authorized to carry 
firearms under this rule will continue to be subject to all other 
applicable state and Federal laws. Accordingly, as stated in the 
preamble to the proposed rule, this rule does not authorize visitors to 
use

[[Page 74968]]

firearms, or to otherwise possess or carry concealed firearms in 
Federal facilities in national parks and wildlife refuges as such 
possession is proscribed by 18 U.S.C. 930.
    We also note that national park areas and wildlife refuges are 
often located in close proximity to state parks or wildlife management 
areas, National Forests, or public lands managed by the BLM. Visitors 
to these sites may frequently travel through a combination of Federal 
and state lands during the course of a trip or vacation. In these 
circumstances, the Department believes that adopting for these Federal 
lands the applicable state standards for the possession of firearms 
will promote uniformity of application and better visitor understanding 
and compliance with the requirements.
    During the course of the public comment process, a number of 
entities and individuals, including the State of Alaska and employees 
of the FWS, suggested that the Department's reference to ``similar 
state lands'' in the proposed regulation is ambiguous and confusing 
since individual States provide for various management regimes that 
make it difficult to determine what areas are actually similar. As 
discussed more fully below, the Department agrees with this concern and 
has deleted this language in the final rule. The modified final 
language adopts state law in a similar manner to regulations adopted by 
other Federal agencies regarding firearms on public lands, as called 
for by the 51 United States Senators who wrote to us.
    We understand that states with concealed carry laws routinely 
impose statutory prohibitions on the lawful possession of concealed 
handguns in certain locations. It is possible that a state may wish to 
prohibit an individual from possessing a concealed weapon on Federal 
lands within state boundaries. In the event a state enacts such a law, 
the Department's final rule respects the legislative judgment of the 
people of that State.
2. Constitutional Considerations
    During the pendency of our public comment period, the Supreme Court 
announced its decision in District of Columbia v. Heller, 554 U.S.---- 
, 128 S. Ct. 2783; 171 L. Ed. 2d 637; 2008 U.S. LEXIS 5268; 76 U.S.L.W. 
4631 (June 26, 2008) (``Heller''), which held that the Second Amendment 
protects an individual's right to possess a firearm unconnected with 
service in a government militia, and to use that firearm for 
traditionally lawful purposes, such as self-defense within the home. 
Several individuals, including two members of Congress, wrote the 
Department suggesting that the Court's decision in this case is of 
significance to the proposal, and that the Department should extend the 
public comment period to allow citizens to comment on the potential 
impacts of this case on the proposed rule. In our view, the Supreme 
Court's decision in Heller does not directly impact our proposal to 
revise existing Federal regulations to more closely conform our 
regulations to appropriate state laws.

B. Summary of Comments and Responses

    The Department received approximately 125,000 comments on the 
proposed rule from a wide variety of entities, including members of 
Congress, government agencies, current and former NPS employees, 
conservation groups, coalitions, and private individuals. Most of those 
comments were form letters or cards. Many of those expressed opposition 
to a change in the rules. The majority of supporting comments were 
submitted by individuals and elected officials favoring a rule that 
would align Federal policy with the adjacent state law. In addition to 
the original 51 United States senators who originally wrote to the 
Secretary, U.S. Senators Jim Webb (VA) and Senator Lisa Murkowski (AK) 
as well as Alaska Governor Sarah Palin wrote letters in support of the 
rule during the comment period. U.S. Senators Dianne Feinstein and 
Daniel K. Akaka along with U.S. House members Norman D. Dicks and Raul 
M. Grijalva submitted a letter during the comment period opposing any 
change to the existing regulations.
    To facilitate analysis of the public comments, we formed a working 
group composed of employees from the NPS, the FWS, and the Office of 
the Assistant Secretary for Fish and Wildlife and Parks. The group was 
charged with analyzing the comments and organizing them into categories 
for further review. The working group considered all of the information 
and recommendations submitted in developing the final rule. The 
following is a summary of the comments and our responses.
    Issue 1: The Department should not rely on state law to manage 
firearms because Congress has given Federal government complete 
authority over Federal lands.
    Response 1: We recognize that Congress may enact comprehensive and 
preemptive statutes in a wide range of areas that involve national 
interests. In these instances, the Supreme Court has consistently held 
that Federal law preempts state law and does not permit further 
regulation by the States. The Property Clause of the United States 
Constitution authorizes the Congress to enact laws to maintain and 
administer the Federal lands, including the laws establishing the 
National Park System and the National Wildlife Refuge System. These 
statutes are not necessarily preemptive of the field of law in that 
they allow for Federal agencies to appropriately adopt state law in a 
range of subjects, including law enforcement and firearms. See, e.g., 
16 U.S.C. 1a-3; 1a-6; 1531(c); 1535 (cooperation with states); see also 
Coggins, George C., Wilkinson, Charles F., Leshy, John D., and 
Fischman, Robert L., Federal Public Land and Resources Law (6 Ed. 
2007), p. 181 (``In most traditionally Federal areas where uniform 
national regulation is important, such as aliens, navigation, Indian 
affairs, labor, and civil rights, the Supreme Court has been quick to 
find preemption. Federal lands have never been regarded as such an 
area. Indeed, state law has always played an important role, applying 
to much private activity on federal lands.''). We believe that this 
principle applies here.
    Issue 2: The proposed rule will not provide a uniform standard 
because state laws governing concealed firearms vary. Additionally, 
since many parks are located in two or more states with different 
licensing schemes, there is no way that visitors and park managers will 
be able to maintain clear standards and enforcement.
    Response 2: We recognize that the proposed rule means that 
permissible activities in parks and refuges may vary from state to 
state. However, this circumstance is not unique and has not presented 
significant problems in other areas where state laws are adopted. For 
example, current NPS regulations adopt such an approach for hunting, 
fishing, motor vehicles and boating. Moreover, in the relatively few 
instances where parks and refuges are located in more than one state, 
we do not believe that this presents a situation any different than 
citizens already face. As is generally the case, and is also true under 
this rule, individuals remain responsible for familiarizing themselves 
with and obeying all applicable laws, including the laws of the state 
they are located within. We see no reason why citizens who are 
authorized to carry a concealed firearm are not capable of undertaking 
this same due diligence when they cross state boundaries within parks 
or refuges. In addition, the NPS and FWS will take appropriate steps to 
inform visitors about the applicable requirements when a unit is 
located in more than one state.

[[Page 74969]]

    Issue 3: The Department's reference to ``similar state lands'' in 
the text of the proposed regulation is ambiguous and confusing since 
individual states appear to define their parks and refuge lands in 
different ways, and may regulate these lands differently within the 
same state. The text could be clarified by simply making a more general 
reference to state law as the governing standard which, by implication, 
will also include more specific regulations or policies adopted by the 
state with regard to the possession of a concealed firearm in a state 
park or wildlife refuge. The rule should be modified to cure this 
ambiguity.
    Response 3: We agree with the commenters that the reference to 
``similar state lands'' in the proposed rule was ambiguous and led to 
confusion as to what rules would apply to particular Federal park areas 
and national wildlife refuges. A very diverse range of commenters 
raised these concerns, including the National Parks Conservation 
Association (NPCA), senior employees of the FWS, the State of Alaska, 
and the West Virginia Citizens Defense League (WVCDL). Several 
commenters suggest that the ambiguities in the proposed language may be 
readily cured by amending the language of the proposed rule and simply 
making a more general reference to state law.
    We have given consideration to this issue and have revised the 
proposed language to delete the references to ``similar lands'' and to 
more succinctly state that we are applying the rules established by the 
applicable state laws. First, by adopting this revision, the final rule 
more closely resembles the regulatory approach used by BLM and the 
USFS. Second, we believe the final rule will lessen or eliminate 
confusion about the application of the various Federal rules because 
the primary Federal land managers will now have a similar approach to 
addressing the issue. Finally, no State separately commented in 
opposition to permitting loaded firearms to be carried in Federal 
parks--whether such rules were related to ``similar state lands'' or 
any other state law standard. The only State to comment on the proposed 
rule was Alaska, which supported an amendment to existing regulations 
that would authorize loaded firearms in Federal parks consistent with 
state law.
    Issue 4: There is no reason to allow visitors to carry a concealed 
firearm for personal safety since visitors to a national park area or 
wildlife refuge are statistically unlikely to be a victim of violent 
crime or criminal assault.
    Response 4: The available data indicates that National Parks and 
Wildlife Refuges are less prone to criminal activity than other areas 
in the United States. However, we also recognize that current 
statistics show an alarming increase in criminal activity on certain 
Federal lands managed by the Department of the Interior, especially in 
areas close to the border and in lands that are not readily accessible 
by law enforcement authorities. In 2007, for instance, the NPS reported 
8 murders, 43 forcible rapes, 57 robberies, and 274 instances of 
aggravated assault. The fact that these crime rates may be lower than 
the national average does not mean that parks are free from violence, 
nor do these figures suggest that people should be less cautious or 
prepared when visiting a national park unit or national wildlife 
refuge. Congress recognized this fact in 1994 when it enacted a statute 
which requires the Department to (1) ``compile a list of areas within 
the National Park System with the highest rates of violent crime'' and 
(2) ``make recommendations concerning capital improvements, and other 
measures, needed within the National Park System to reduce the rates of 
violent crime, including the rate of sexual assault.'' 16 U.S.C. 1a-
7a(b)(1)-(2).
    The Department has recently proposed substantial budget increases 
to resolve some of these problems, and our law enforcement officials 
will continue to work with their colleagues in tribal, state, and local 
law enforcement to prevent criminal activities on Federal lands. We do 
not believe it is appropriate to decline to recognize state laws simply 
because a person enters the boundaries of a national park or wildlife 
refuge, or because there is a lesser chance that a visitor will be 
harmed or potentially killed by a criminal in a national park unit or 
wildlife refuge.
    Issue 5: Visitors should not carry a concealed firearm for self-
defense because NPS and FWS law enforcement officers are more than 
adequate to protect individuals from harm.
    Response 5: The Department believes that NPS and FWS law 
enforcement officers work hard and perform valiant public service in 
their respective capacities. We also recognize that the NPS and FWS 
together employ approximately 3,000 full and part-time law enforcement 
officers who are responsible for patrolling and securing millions of 
acres of land, a substantial portion of which is remote wilderness. In 
these circumstances, NPS and FWS law enforcement officers are in no 
position to guarantee a specific level of public safety on their lands, 
and cannot prevent all violent offenses and crimes against visitors. 
See, e.g., Bowers v. DeVito, 686 F.2d 616 (7th Cir. 1982) (no Federal 
Constitutional requirement that police provide protection); Warren v. 
District of Columbia, 444 A.2d 1 (D.C. 1981) (``the government and its 
agents are under no general duty to provide public services, such as 
police protection, to any particular individual citizen'').
    Issue 6: Once a visitor sets up camp in a campground, the site 
becomes a temporary dwelling subject to legal protections. For that 
reason, the rule should recognize that a visitor has the right to 
possess an operable firearm in the campsite for self-defense.
    Response 6: We understand that a number of Federal courts of 
appeal, as well as the Idaho Supreme Court, have concluded that 
citizens have a right under the Fourth Amendment to be free from 
unreasonable searches and seizures from government officials within 
tents and other temporary structures on public lands. United States v. 
Sandoval, 200 F.3d 659 (9th Cir. 2000), citing United States v. Gooch, 
6 F.3d 673, 677 (9th Cir. 1993) (reasonable expectation of privacy in 
tent on public land). See also State v. Pruss, 181 P.3d 1231 (Idaho 
2008) (``If the travel trailer is protected against government 
intrusion, then so is the tent.''). However, we are not aware of any 
cases that have extended this reasoning to the Second Amendment and 
determined that an individual has a constitutional right to keep and 
bear arms in a tent or trailer located on Federal public lands. Until 
such a precedent is clearly established, the Department will continue 
to assume that the Supreme Court's decision in Heller applies to a 
person's residential dwelling and not to a temporary dwelling on public 
land. See Heller, Slip Opinion at 56 (the Second Amendment proscribes 
the way the Federal government may place limits upon a citizen's 
``inherent right of self-defense [which is] central to the Second 
Amendment right.''); see also 36 CFR 2.4(a)(2) (``weapons * * * may be 
carried, possessed, or used'' within a ``residential dwelling''); cf. 
Pruss, 181 P.3d at 1231 (``The respect for the sanctity of the home 
does not depend upon whether it is a mansion or hut, or whether it is a 
permanent or a temporary structure''); see also Miller v. United 
States, 357 U.S. 301, 307 (1958) (same).
    Issue 7: A visitor with a concealed firearm may not be well-trained 
to use a firearm and thus be given a false sense security against 
potential attackers.
    Response 7: Many individuals authorized under State law to carry

[[Page 74970]]

concealed firearms are in possession of permits, the acquisition of 
which is conditioned on some form of training in the use and storage of 
firearms. Moreover, there is no data before us that would suggest that 
these citizens lack the requisite skills and/or training to properly 
use their firearms for self-defense. In fact, statistics maintained by 
the Justice Department show that from 1987-92 about 83,000 crime 
victims per year used a firearm to defend themselves or their property, 
and a majority of these individuals used their firearms during a 
violent crime. See United States Department of Justice, Office of 
Justice Programs, Bureau of Justice Statistics, Guns and Crime: Handgun 
Victimization, Firearm Self-Defense, and Firearm Theft (1994); see also 
National Research Council, Committee on Law and Justice, Firearms and 
Violence: A Critical Review (Washington, DC: The National Academies 
Press, 2004), pp. 7.
    Issue 8: Visitors who carry a concealed firearm permitted under 
state law are likely to use their handguns to shoot or injure wildlife.
    Response 8: The Bureau of Land Management and the U.S. Forest 
Service and a number of state parks and refuges currently authorize the 
possession of concealed firearms consistent with the laws of the state 
in which they are located. The available data does not suggest that 
visitors to these lands misuse their legally permitted firearms for 
poaching or illegal shooting, or that there is additional danger posed 
to the public from lawfully carried concealed firearms. See, e.g., 
National Research Council, Committee on Law and Justice, Firearms and 
Violence: A Critical Review (Washington, DC: The National Academies 
Press, 2004), p.6; Dodenhoff, David, Concealed Carry Legislation: An 
Examination of the Facts, Wisconsin Public Policy Research Institute 
(2006), p. 5; see also, Jeffrey Snyder, Fighting Back: Crime, Self-
Defense, and the Right to Carry a Handgun (October 1997); Kopel, David, 
et al., Policy Review No. 78 (July & August 1996).
    Issue 9: The rule will inhibit the ability of park rangers to halt 
poaching because brandishing a firearm would no longer be probable 
cause to search for evidence of wildlife parts.
    Response 9: We disagree. The final rule continues to maintain 
existing prohibitions on poaching, unauthorized target shooting, and 
other illegal uses of firearms, including laws against brandishing a 
firearm in public. As with any other law or regulation, we expect 
visitors to obey those requirements. Individuals who break the law by 
using illegally their concealed firearms will be subjected to arrest 
and/or prosecution.
    Issue 10: The proposed rule is too narrow and should be expanded to 
allow visitors to carry all forms of firearms, including shotguns and 
rifles.
    Response 10: The Department recognizes that long guns are an 
important part of America's hunting and recreation tradition, and that 
many individuals use these arms for self-defense of their home and 
person. Although we understand that there may be good reasons to update 
our policies with regard to these firearms, we have decided at this 
time to adopt a narrowly-tailored rule to give greater respect to state 
laws which authorize law-abiding citizens to possess and carry 
concealed firearms.
    Issue 11: The proposed rule should have been subjected to a full 
environmental review under the National Environmental Policy Act so 
that the public could comment on the impacts of the rule on the 
environment.
    Response 11: The Department agrees that policies and rules which 
have a significant effect on the environment must be fully analyzed 
under the provisions of the National Environmental Policy Act of 1969 
(NEPA) (42 U.S.C. 4321-4347). Consistent with this commitment, we have 
analyzed the final rule under NEPA and concluded that (i) the action is 
subject to a categorical exclusion under 43 CFR 46.210 since the final 
regulation is in the nature of a legal change to existing regulations, 
and (ii) no ``extraordinary circumstances'' exist which would prevent 
the proposed action from being classified as categorically excluded. 
Id. This decision is fully described in our decision document dated 
November 18, 2008, which is available to the public at http://www.doi.gov/.
    Issue 12: The proposed rule should have been subjected to study and 
consultation under Section 7 of the Endangered Species Act.
    Response 12: Section 7 of the Endangered Species Act (ESA) of 1972, 
as amended (16 U.S.C. 1531 et seq.), provides that Federal agencies 
shall ``insure that any action authorized, funded or carried out * * * 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of (critical) habitat.'' We have analyzed the final rule 
and have concluded that it is solely a legal amendment to existing 
rules, and that it does not authorize any new uses or activities that 
may affect endangered or threatened species or designated critical 
habitat. See 50 CFR 402.14(a). For this reason, we have determined that 
the final rule has ``no effect'' on listed species or on designated 
critical habitat. Accordingly, we are not required to conduct a Section 
7 consultation under the ESA for the final rule.
    Issue 13: National Parks and Wildlife Refuges are designed to be 
havens of peace and safety. In this respect, visitors who do not like 
guns will not fully enjoy their visit to a National Park or Wildlife 
Refuge if they know that another visitor in close proximity is carrying 
a loaded and operable firearm permitted by the state.
    Response 13: The Department seeks to provide opportunities for all 
those who visit national park areas and national wildlife refuges to 
enjoy their experience. Insofar as the final rule adopts the State law 
that also governs outside the national park or refuge area, the 
Department believes that its applicability to these Federal areas will 
not diminish the experience of most visitors, particularly where, as 
here, NPS and FWS law enforcement officers already carry firearms which 
are visible to the public.

III. Required Determinations

Regulatory Planning and Review (Executive Order 12866)

    This document is a significant rule and is subject to review by the 
Office of Management and Budget (OMB) under Executive Order 12866.
    (1) This rule will not have an effect of $100 million or more on 
the economy. It will not adversely affect in a material way the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities.
    (2) This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency.
    (3) This rule does not alter the budgetary effects of entitlements, 
grants, user fees, or loan programs or the rights or obligations of 
their recipients.
    (4) This rule raises novel legal or policy issues.

Regulatory Flexibility Act

    The Department of the Interior certifies that this document will 
not have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business

[[Page 74971]]

Regulatory Enforcement Fairness Act. This rule:
     a. Does not have an annual effect on the economy of $100 million 
or more;
     b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions; and
     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.

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local, or tribal governments or the private sector.

Takings (Executive Order 12630)

    In accordance with Executive Order 12630, the rule does not have 
significant takings implications.

Federalism (Executive Order 13132)

    In accordance with Executive Order 13132, the rule does not require 
the preparation of a federalism assessment.

Civil Justice Reform (Executive Order 12988)

    This regulation meets the applicable standards set forth in 
Sections 3(a) and 3(b)(2) of Executive Order 12988 Civil Justice 
Reform.

Paperwork Reduction Act

    This regulation does not contain information collection 
requirements, and a submission under the Paperwork Reduction Act is not 
required.

National Environmental Policy Act

    The Department has analyzed the final rule under NEPA and 
determined that the action is subject to a categorical exclusion under 
applicable regulations. See 43 CFR 46.210. First, the rulemaking is in 
the nature of a legal change to existing rules that will not have any 
actual effects on the environment. And second, the Department has 
determined that no ``extraordinary circumstances'' exist which would 
prevent the proposed action from being classified as categorically 
excluded. Id. This decision is fully described in our decision document 
dated November 18, 2008, which is available to the public at http://www.doi.gov/.

Government-to-Government Relationship With Tribes

    In accordance with Executive Order 13175 ``Consultation and 
Coordination with Indian Tribal Governments'' (65 FR 67249), the 
President's memorandum of April 29, 1994, ``Government-to-Government 
Relations with Native American Tribal Governments'' (59 FR 22961), and 
512 DM 2, the Department has invited federally recognized tribal 
governments to jointly evaluate and address the potential effects, if 
any, of the proposed regulatory action.

IV. Section-by-Section Analysis

36 CFR Part 2

Section 2.4--Weapons, Traps, and Nets
    Previously, Section 2.4 generally prohibited visitors from 
possessing an operable and loaded firearm in national park areas unless 
the firearm is used for lawful hunting activities, target practice in 
areas designated by special regulations, or other purposes related to 
the administration of Federal lands in Alaska. Under the final rule, an 
individual may possess, carry, and transport concealed, loaded, and 
operable firearms within a national park area in the same manner, and 
to the same extent, that a person may lawfully possess, carry, and 
transport concealed, loaded and operable firearms in the state in which 
the Federal park, or that portion thereof, is located. Possession of 
concealed firearms in national parks as authorized by this section must 
also conform to applicable Federal laws. Accordingly, nothing in this 
regulation shall be construed to authorize concealed carry of firearms 
in any Federal facility or Federal court facility as defined in 18 
U.S.C. 930.

50 CFR Part 27

Section 27.42--Firearms
    The previous regulation in Section 27.42 generally prohibited 
visitors from possessing an operable and loaded firearm in a national 
wildlife refuge unless the firearm is used for lawful hunting 
activities. Under the final rule, an individual may possess, carry, and 
transport concealed, loaded, and operable firearms within a national 
wildlife refuge in the same manner, and to the same extent, that a 
person may lawfully possess, carry, and transport concealed, loaded and 
operable firearms in the state in which the national wildlife refuge, 
or that portion thereof, is located. Possession of concealed firearms 
in national wildlife refuges as authorized by this section must also 
conform to applicable Federal laws. Accordingly, nothing in this 
regulation shall be construed to authorize concealed carry of firearms 
in any Federal facility or Federal court facility as defined in 18 
U.S.C. 930.

List of Subjects

36 CFR Part 2

    National parks.

50 CFR Part 27

    Wildlife refuges.

0
For the reasons discussed in the preamble, we amend part 2 of title 36 
and part 27 of title 50 of the Code of Federal Regulations as follows:

Title 36--Parks, Forests, and Public Property

CHAPTER I--NATIONAL PARK SERVICE, DOI

PART 2--RESOURCE PROTECTION, PUBLIC USE AND RECREATION

0
1. The authority citation for part 2 continues to read as follows:

    Authority: 16 U.S.C. 1, 3, 9a, 17j-2, 462.


0
2. Amend Sec.  2.4 by adding a new paragraph (h) to read as follows:


Sec.  2.4  Weapons traps and nets.

* * * * *
    (h) Notwithstanding any other provision in this Chapter, a person 
may possess, carry, and transport concealed, loaded, and operable 
firearms within a national park area in accordance with the laws of the 
state in which the national park area, or that portion thereof, is 
located, except as otherwise prohibited by applicable Federal law.

Title 50--Wildlife and Fisheries

CHAPTER I--UNITED STATES FISH AND WILDLIFE SERVICE, DOI

PART 27--PROHIBITED ACTS

0
1. The authority citation for part 27 continues to read as follows:

    Authority: Sec. 2, 33 Stat. 614, as amended (16 U.S.C. 685); 
Sec. 5, 43 Stat. 651 (16 U.S.C. 725); Sec. 5, Stat. 449 (16 U.S.C. 
690d); Sec. 10, 45 Stat. 1224 (16 U.S.C. 715i); Sec. 4, 48 Stat. 
402, as amended (16 U.S.C. 664); Sec. 2, 48 Stat. 1270 (43 U.S.C. 
315a); 49 Stat. 383 as amended; Sec. 4, 76 Stat. (16 U.S.C. 460k); 
Sec. 4, 80 Stat. 927 (16 U.S.C. 668dd) (5 U.S.C. 685, 752, 690d); 16 
U.S.C. 715s).]

Subpart D--Disturbing Violations: With Weapons

0
2. Amend Sec.  27.42 by adding a new paragraph (e) to read as follows:


Sec.  27.42  Firearms.

* * * * *
    (e) Notwithstanding any other provision in this Chapter, persons 
may

[[Page 74972]]

possess, carry, and transport concealed, loaded, and operable firearms 
within a national wildlife refuge in accordance with the laws of the 
state in which the wildlife refuge, or that portion thereof, is 
located, except as otherwise prohibited by applicable Federal law.

    Dated: December 5, 2008.
Lyle Laverty,
Assistant Secretary of the Interior for Fish and Wildlife and Parks.
[FR Doc. E8-29249 Filed 12-9-08; 8:45 am]
BILLING CODE 4312-52-P