[Federal Register Volume 85, Number 84 (Thursday, April 30, 2020)]
[Proposed Rules]
[Pages 23935-23938]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-09261]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Parts 1 and 13

[NPS-AKRO-29973; PPAKAKROZ5, PPMPRLE1Y.L00000]
RIN 1024-AE63


National Park Service Jurisdiction in Alaska

AGENCY: National Park Service, Interior.

ACTION: Proposed rule.

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SUMMARY: This rule would revise National Park Service regulations to 
comply with the decision of the U.S. Supreme Court in Sturgeon v. 
Frost. In the Sturgeon decision, the Court held that National Park 
Service regulations apply exclusively to public lands (meaning 
federally owned lands and waters) within the external boundaries of 
National Park System units in Alaska. Lands which are not federally 
owned, including submerged lands under navigable waters, are not part 
of the unit subject to the National Park Service's ordinary regulatory 
authority.

DATES: Comments on the proposed rule must be received by June 29, 2020.

ADDRESSES: You may submit comments, identified by Regulation Identifier 
Number (RIN) 1024-AE63, by either of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov and search for ``1024-AE63''. Follow the 
instructions for submitting comments.
    (2) By hard copy: Mail or hand deliver to: National Park Service, 
Regional Director, Alaska Regional Office, 240 West 5th Ave., 
Anchorage, AK 99501.
    Instructions: Comments will not be accepted by fax, email, or in 
any way other than those specified above. All submissions received must 
include the words ``National Park Service'' or ``NPS'' and must include 
the RIN 1024-AE63 for this rulemaking. Bulk comments in any format 
(hard copy or electronic) submitted on behalf of others will not be 
accepted. Comments received may be posted without change to 
www.regulations.gov, including any personal information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to www.regulations.gov and search for ``1024-
AE63''.

FOR FURTHER INFORMATION CONTACT: Donald Striker, Acting Regional 
Director, Alaska Regional Office, 240 West 5th Ave., Anchorage, AK 
99501. Phone (907) 644-3510. Email: [email protected].

SUPPLEMENTARY INFORMATION: 

Background

Sturgeon v. Frost

    In March 2019, the U.S. Supreme Court in Sturgeon v. Frost (139 S. 
Ct. 1066, March 26, 2019) unanimously determined the National Park 
Service's (NPS) ordinary regulatory authority over National Park System 
units in Alaska only applies to federally owned ``public lands'' (as 
defined in section 102 of the Alaska National Interest Lands 
Conservation Act, 16 U.S.C. 3102)--and not to State, Native, or private 
lands--irrespective of unit boundaries on a map. Lands not owned by the 
federal government, including submerged lands beneath navigable waters, 
are not deemed to be a part of the unit (slip op. 17). More 
specifically, the Court held that the NPS could not enforce a System-
wide regulation prohibiting the operation of a hovercraft on part of 
the Nation River that flows through the Yukon-Charley Rivers National 
Preserve (Preserve). A brief summary of the factual background and 
Court opinion follow, as they are critical to understanding the purpose 
of this proposed rule.
    The Preserve is a conservation system unit established by the 1980 
Alaska National Interest Lands Conservation Act (ANILCA) and 
administered by the NPS as a unit of the National Park System. The 
State of Alaska owns the submerged lands underlying the Nation River, a 
navigable waterway. In late 2007, John Sturgeon was using his 
hovercraft on the portion of the Nation River that passes through the 
Preserve. NPS law enforcement officers encountered him and informed him 
such use was prohibited within the boundaries of the Preserve under 36 
CFR 2.17(e), which states that ``[t]he operation or use of a hovercraft 
is prohibited.'' According to NPS regulations at 36 CFR 1.2(a)(3), this 
rule applies to persons within ``[w]aters subject to the jurisdiction 
of the United States located within the boundaries of the National Park 
System, including navigable waters'' without any regard to ownership of 
the submerged lands. See 54 U.S.C. 100751(b) (authorizing the Secretary 
of the Interior to regulate ``boating and other activities on or 
relating to water located within System units'').
    Mr. Sturgeon disputed that NPS regulations could apply to his 
activities on the Nation River, arguing that the river is not public 
land and is therefore exempt from NPS rules pursuant to ANILCA section 
103(c) (16 U.S.C. 3103(c)), which provides that only the public lands 
within the boundaries of a System unit are part of the unit, and that 
State-owned lands are exempt from NPS regulations, including the 
hovercraft rule. Mr. Sturgeon appealed his case through the federal 
court system.
    In its March 2019 opinion, the Court agreed with Mr. Sturgeon. The 
questions before the Court were: (1) Whether the Nation River in the 
Preserve is public land for the purposes of ANILCA, making it 
indisputably subject to NPS regulation; and (2) if not, whether NPS has 
an alternative source of authority to regulate Mr. Sturgeon's 
activities on that portion of the Nation River. The Court answered 
``no'' to both questions.
    Resolution turned upon several definitions in ANILCA section 102 
and the aforementioned section 103(c). Under ANILCA, 16 U.S.C. 3102, 
``land'' means ``lands, waters, and interests therein''; ``Federal 
land'' means ``lands the title to which is in the United States''; and 
``public lands'' are ``Federal lands,'' subject to several statutory 
exclusions that were not at issue in the Sturgeon case. As such, the 
Court found ``public lands'' are ``most but not quite all [lands, 
waters, and interests therein] that the Federal Government owns'' (slip 
op. 10). The Court held that the Nation River did not meet the 
definition of ``public land'' because: (1) ``running waters cannot be 
owned''; (2) ``Alaska, not the United States, has title to the lands 
beneath the Nation River''; and, (3) federal reserved water rights 
(``not the type of property interests to which title can be held'') do 
not ``give the Government plenary authority over the waterway'' (slip 
op 12-14).
    Regarding the second question, the Court found no alternative basis 
to support applying NPS regulations to Mr. Sturgeon's activities on the 
Nation River, concluding that, pursuant to ANILCA section 103(c), 
``only the federal property in system units is subject to the Service's 
authority'' (slip op. 19). As stated by the Court, ``non-federally 
owned waters and lands inside system units (on a map) are declared 
outside them (for the law). So those

[[Page 23936]]

areas are no longer subject to the Service's power over `System units' 
and the `water located within' them'' (slip op. 18) (quoting 54 U.S.C. 
100751(a), (b)).
    There are four additional aspects of the Sturgeon opinion and 
ANILCA that inform this rulemaking. First, by incorporating the 
provisions of the Submerged Lands Act of 1953, the Alaska Statehood Act 
gave the State ``title to and ownership of the lands beneath navigable 
waters'' effective as of the date of Statehood. The Court recognized 
that a State's title to lands beneath navigable waters brings with it 
regulatory authority over public uses of those waters (slip op. 12-13). 
While the specific example cited by the Court involved the State of 
Alaska, the conclusion logically extends to any submerged lands owner. 
Thus, in cases where the United States holds title to submerged lands 
within the external boundaries of a System unit, the NPS maintains its 
ordinary regulatory authority over the waters.
    Second, the Court noted but expressly declined to address Ninth 
Circuit precedent finding that ``public lands'' in ANILCA's subsistence 
fishing provisions include navigable waters with a reserved water right 
held by the federal government. The NPS participates in regulating 
subsistence fisheries as part of the Federal Subsistence Management 
Program, a joint effort between the Departments of the Interior and 
Agriculture implementing Title VIII of ANILCA. Applicable regulations 
can be found at 36 CFR part 242 and 50 CFR part 100 and are unaffected 
by the Sturgeon decision.
    Third, the Court acknowledged that NPS maintains its authority to 
acquire lands, enter into cooperative agreements, and propose needed 
regulatory action to agencies with jurisdiction over non-federal lands 
(slip op. 20, 28). Cooperative agreements with the State, for example, 
could stipulate that certain NPS regulations would apply to activities 
on the waters and that NPS would have authority to enforce those 
regulations under the terms of the agreement.
    Fourth, ANILCA section 906 (o)(2) contains an administrative 
exception relative to State and Native corporation land selections, 
which are excluded from the definition of ``public land'' in section 
102. This exemption did not feature in the Sturgeon case and would not 
be affected by this rulemaking.

Proposed Rule

    This rule would modify NPS regulations at 36 CFR parts 1 and 13 to 
conform to the U.S. Supreme Court's decision in Sturgeon. In the 
interest of making the regulations unambiguous, and in response to a 
petition for rulemaking filed by the State of Alaska, the NPS is 
proposing a set of targeted amendments to ensure its regulations 
accurately reflect the outcome of the Sturgeon case and provide fair 
notice of where regulations in 36 CFR Chapter I apply and where they do 
not in System units in Alaska.
    Regulations at 36 CFR 1.2 address the ``Applicability and Scope'' 
of regulations found in 36 CFR Chapter I, which ``provide for the 
proper use, management, government, and protection of persons, 
property, and natural and cultural resources within areas under the 
jurisdiction of the National Park Service'' (36 CFR 1.1(a)). Section 
1.2(a) identifies where the regulations apply unless otherwise stated. 
In order to reflect the Court's holding in Sturgeon, the NPS proposes 
to amend 36 CFR 1.2(a)(3) to add the words ``except in Alaska'' before 
``without regard to the ownership of submerged lands, tidelands, or 
lowlands.'' This ensures that, consistent with the Court's holding, NPS 
regulations ``will apply exclusively to public lands (meaning federally 
owned lands and waters) within system units'' (slip op. 19).
    The NPS proposes to add a new 36 CFR 1.2(f) to clarify that, under 
ANILCA, ```[o]nly the `public lands' (essentially, the federally owned 
lands)'' within unit boundaries in Alaska are ```deemed' a part of that 
unit,'' and non-public lands (including waters) ``may not be regulated 
as part of the park'' (slip op. 16-17). As stated by the Court, 
``[g]eographic inholdings thus become regulatory outholdings, 
impervious to the Service's ordinary authority'' (slip op. 19). The 
proposed addition states that, except as otherwise provided, the 
boundaries of National Park System units in Alaska do not include non-
federally owned lands, including submerged lands, irrespective of 
external unit boundaries. The definition of ``boundary'' in 36 CFR 1.4 
has limited operation in Alaska, as NPS published legal descriptions 
for each unit boundary in 1992 and modifications must be consistent 
with ANILCA sections 103(b) and 1302(c) and (h).
    NPS also proposes changes to its regulations at 36 CFR part 13, 
which ``are prescribed for the proper use and management of park areas 
in Alaska'' and as a ``supplement'' to general NPS regulations found 
elsewhere in Chapter I (36 CFR 13.2(a), (b)). In section 13.1, ``park 
areas'' is currently defined as ``lands and waters administered by the 
National Park Service within the State of Alaska.'' NPS proposes to 
modify this definition, and to add a definition of ``federally owned 
lands'' (incorporating and relocating the description at 36 CFR 
13.2(f)), to reflect ANILCA's limitations on the lands and waters that 
are administered by the NPS in Alaska, as outlined in the Sturgeon 
decision. As stated above, this would not affect NPS administration 
under a valid cooperative agreement, which would be governed by the 
terms of the agreement.
    The term ``federally owned lands'' is used instead of ``public 
lands'' to account for the authority granted by ANILCA section 
906(o)(2) over validly selected lands, an exception to the definition 
of ``public lands'' in ANILCA (16 U.S.C. 3102(3)). As before, selected 
lands are not considered ``federally owned lands'' once they are 
subject to a tentative approval or an interim conveyance; title has 
been transferred although it is not recordable until the lands are 
surveyed.

Compliance With Other Laws, Executive Orders and Department Policy

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. The OIRA has waived review of this 
proposed rule and, at the final rule stage, will make a separate 
decision as to whether the rule is a significant regulatory action as 
defined by Executive Order 12866.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. Executive Order 13563 emphasizes 
further that regulations must be based on the best available science 
and that the rulemaking process must allow for public participation and 
an open exchange of ideas. The NPS has developed this rule in a manner 
consistent with these requirements.

[[Page 23937]]

Reducing Regulation and Controlling Regulatory Costs (Executive Order 
13771)

    Enabling regulations are considered deregulatory under guidance 
implementing E.O. 13771 (M-17-21). This rule would clarify that 
activities on lands which are not federally owned, including submerged 
lands under navigable waters, are not subject to the NPS's ordinary 
regulatory authority.

Regulatory Flexibility Act

    This rule will not have a significant economic effect on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). The proposed rule would modify NPS 
regulations at 36 CFR parts 1 and 13 to conform to the U.S. Supreme 
Court's decision in Sturgeon. These proposed changes are considered 
legal in nature with the intent to provide clarification to existing 
regulations pertinent to the U.S. Supreme Court's decision. The costs 
and benefits of a regulatory action are measured with respect to its 
existing baseline conditions. Since this regulatory action is legal in 
nature, changes are not anticipated compared to baseline conditions. In 
addition, this action will not impose restrictions on local businesses 
in the form of fees, training, record keeping, or other measures that 
would increase costs. Given those findings, this proposed regulatory 
action will not impose a significant economic impact on a substantial 
number of small entities.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2). 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.
    (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. It addresses public 
use of national park lands and imposes no requirements on other 
agencies or governments. A statement containing the information 
required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is 
not required.

Takings (Executive Order 12630)

    This rule does not effect a taking of private property or otherwise 
have takings implications under Executive Order 12630. A takings 
implication assessment is not required.

Federalism (Executive Order 13132)

    Under the criteria in section 1 of Executive Order 13132, the rule 
does not have sufficient federalism implications to warrant the 
preparation of a Federalism summary impact statement. This rule only 
affects public use of federally-administered lands. It has no outside 
effects on other areas. A Federalism summary impact statement is not 
required.

Civil Justice Reform (Executive Order 12988)

    This rule complies with the requirements of Executive Order 12988. 
This rule:
    (a) Meets the criteria of section 3(a) requiring that all 
regulations be reviewed to eliminate errors and ambiguity and be 
written to minimize litigation; and
    (b) Meets the criteria of section 3(b)(2) requiring that all 
regulations be written in clear language and contain clear legal 
standards.

Tribal Consultation (Executive Order 13175 and Department Policy)

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Tribes and Alaska Native 
corporations through a commitment to consultation and recognition of 
their right to self-governance and tribal sovereignty. The NPS has 
evaluated this rule under the criteria in Executive Order 13175 and 
under the Department's Tribal consultation policy and has determined 
that consultation is not required because the rule will have no 
substantial direct effect on federally recognized Tribes or Alaska 
Native corporations.

Paperwork Reduction Act

    This rule does not contain information collection requirements, and 
a submission to the Office of Management and Budget under the Paperwork 
Reduction Act is not required. The NPS may not conduct or sponsor and 
you are not required to respond to a collection of information unless 
it displays a currently valid OMB control number.

National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. A detailed statement 
under the National Environmental Policy Act of 1969 (NEPA) is not 
required because the rule is covered by a categorical exclusion. The 
NPS has determined the rule is categorically excluded under 43 CFR 
46.210(i) which applies to ``policies, directives, regulations, and 
guidelines: that are of an administrative, financial, legal, technical, 
or procedural nature; or whose environmental effects are too broad, 
speculative, or conjectural to lend themselves to meaningful analysis 
and will later be subject to the NEPA process, either collectively or 
case-by-case.'' This rule is legal in nature. The Sturgeon decision has 
governed how the NPS administers lands and waters in Alaska since it 
was issued in March 2019. This rule would have no legal effect beyond 
what was announced by the Court. It would revise NPS regulations to be 
consistent with the decision and make no additional changes. The NPS 
has determined that the rule does not involve any of the extraordinary 
circumstances listed in 43 CFR 46.215 that would require further 
analysis under NEPA.

Effects on the Energy Supply (Executive Order 13211)

    This rule is not a significant energy action under the definition 
in Executive Order 13211. A Statement of Energy Effects in not 
required.

List of Subjects

36 CFR Part 1

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

36 CFR Part 13

    Alaska, National Parks, Reporting and recordkeeping requirements.

    In consideration of the foregoing, the National Park Service 
proposes to amend 36 CFR parts 1 and 13 as set forth below:

PART 1--GENERAL PROVISIONS

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

    Authority: 54 U.S.C. 100101, 100751, 320102.

0
2. Amend Sec.  1.2 by revising paragraph (a)(3) and adding paragraph 
(f) to read as follows:


Sec.  1.2   Applicability and scope.

    (a) * * *

[[Page 23938]]

    (3) Waters subject to the jurisdiction of the United States located 
within the boundaries of the National Park System, including navigable 
waters and areas within their ordinary reach (up to the mean high water 
line in places subject to the ebb and flow of the tide and up to the 
ordinary high water mark in other places) and, except in Alaska, 
without regard to the ownership of submerged lands, tidelands, or 
lowlands;
* * * * *
    (f) In Alaska, unless otherwise provided, the boundaries of the 
National Park System include only federally owned lands, as defined in 
36 CFR. 13.1, regardless of external unit boundaries.

PART 13--NATIONAL PARK SYSTEM UNITS IN ALASKA

0
3. The authority citation for part 13 continues to read as follows:

    Authority:  16 U.S.C. 3124; 54 U.S.C. 100101, 100751, 320102; 
Sec. 13.1204 also issued under Sec. 1035, Pub. L. 104-333, 110 Stat. 
4240.

0
4. In Sec.  13.1, add a definition for ``Federally owned lands'' in 
alphabetical order and revise the definition of ``Park areas'' to read 
as follows:


Sec.  13.1  Definitions.

* * * * *
    Federally owned lands means lands, waters, and interests therein 
the title to which is in the United States, and does not include those 
land interests tentatively approved to the State of Alaska; or conveyed 
by an interim conveyance to a Native corporation.
* * * * *
    Park areas means federally owned lands administered by the National 
Park Service in Alaska.
* * * * *


Sec.  13.2  [Amended]

0
5. In Sec.  13.2, remove paragraph (f).

George Wallace,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2020-09261 Filed 4-29-20; 8:45 am]
 BILLING CODE 4312-52-P