[Federal Register Volume 85, Number 221 (Monday, November 16, 2020)]
[Rules and Regulations]
[Pages 72956-72961]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-24899]
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DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Parts 1 and 13
[NPS-AKRO-30677; PPAKAKROZ5, PPMPRLE1Y.L00000]
RIN 1024-AE63
Jurisdiction in Alaska
AGENCY: National Park Service, Interior.
ACTION: Final rule.
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SUMMARY: This rule revises 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 units
subject to the National Park Service's ordinary regulatory authority.
DATES: This rule is effective on December 16, 2020.
ADDRESSES: The comments received on the proposed rule are available on
www.regulations.gov in Docket ID: NPS-2020-0002.
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 units (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 (the Preserve). A brief summary of the factual background and
Court opinion follow, as they are critical to understanding the purpose
of this rulemaking.
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'').
[[Page 72957]]
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 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),'' and ``those `non-federally owned waters
and lands inside system units' 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. Alaska v. Babbitt, 72 F. 3d 698 (1995);
John v. United States, 247 F. 3d 1032 (2001) (en banc); John v. United
States, 720 F. 3d 1214 (2013) (Katie John cases). Because the Ninth
Circuit precedent remains valid law for purposes of NPS's subsistence
regulations, the revised definition of federally owned lands does not
upset the application of the Katie John cases to the waters listed in
36 CFR 242.3 and 50 CFR 100.3. Regulations at 36 CFR part 13, subpart
F, will be applied accordingly. The NPS primarily 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 or this rulemaking.
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
exemption 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 will not
be affected by this rulemaking. The Final Rule section below provides
more detail.
Summary of Public Comments
The NPS published a proposed rule in the Federal Register on April
30, 2020 (85 FR 23935). The NPS accepted comments on the rule through
the mail, by hand delivery, and through the Federal eRulemaking Portal
at www.regulations.gov. The comment period closed on June 29, 2020. A
summary of the pertinent issues raised in the comments and NPS
responses are provided below.
The overwhelming majority of comments expressed support for the
proposed regulatory changes, along with opposition to or concern over
the way the Federal government is implementing ANILCA and/or managing
Federal lands and waters in Alaska. Many commenters included proposals
for changes or clarifications to the wording in the proposed rule. The
NPS believes it is administering National Park System areas in Alaska
in accordance with ANILCA and other applicable laws. If it is
determined otherwise, prompt action will be taken to make any necessary
changes, as illustrated by this process. After considering public
comments and after additional review, the NPS made several changes in
the final rule, as explained below.
1. Comment: Several commenters expressed concern that the proposed
language for 36 CFR 1.2(f) focused too heavily on the concept of
``boundaries'' or was otherwise not clear on the extent of NPS
regulatory authority (or lack thereof) over non-federal lands and
waters surrounded by National Park System units established or expanded
by ANILCA. Commenters suggested modifying the proposed text in several
different ways.
NPS Response: After considering these comments, the NPS has revised
36 CFR 1.2(f) to read as follows: ``In Alaska, unless otherwise
provided, only the public lands (federally owned lands) within Park
area boundaries are deemed a part of that Park area, and non-public
lands (including state, Native, and other non-federally owned lands and
waters) shall not be regulated in this chapter as part of the National
Park System.'' This language is consistent with the original intent of
the proposed rule and the Court's decision in Sturgeon.
Focusing the language in paragraph (f) on which lands and waters
are regulated as part of the National Park System, rather than which
lands and waters are included within the boundary, will also help to
resolve a question raised by other commenters about whether persons
living on private lands within
[[Page 72958]]
national parks or monuments would still be considered within a resident
zone for purposes of eligibility to engage in subsistence activities
within that National Park System unit. Commenters raised this question
because NPS regulations at 36 CFR 13.430 define a resident zone as
including the ``area within a national park or monument'' and ``areas
near a national park or monument'' that meet certain criteria. The
concern appears to be that the proposed modifications would make
privately owned lands that are within a national park or monument
outside the resident zone for purposes of determining eligibility to
engage in subsistence.
The NPS does not intend this rule to make any changes to resident
zone determinations or to eligibility requirements for engaging in
subsistence activities. Under ANILCA, as outlined by the Supreme Court
in Sturgeon, non-federal lands and waters within the external
boundaries of a park unit in Alaska are ``deemed'' outside of the unit
and thus, may not be regulated as if they were a part of the
surrounding National Park System lands. But nothing in the Sturgeon
decisions or ANILCA would correspondingly deem local residents on those
lands to be outside the resident zone. To remove any potential
ambiguity in the regulations, in concert with the changes to paragraph
(f), a clarifying amendment has been added to Sec. 13.430(a)(1) in
this final rule responding to concerns that the language could
otherwise be interpreted to mean that private land within the external
boundaries of an NPS unit would no longer be located ``within a
national park or monument'' for purposes of this section.
2. Comment: Multiple commenters suggested use of the Supreme
Court's phrase ``ordinary regulatory authority'' in the preamble to the
proposed rule was too vague, calling the Court's use of the phrase
``offhand'' and proposing NPS instead limit the scope of its regulatory
authority to that contained in the NPS Organic Act. This was based on a
stated presumption that NPS would, in the future, seek to impose
regulations on non-federal lands in Alaska by claiming they were not
based on any ``ordinary'' regulatory authority.
NPS Response: There are numerous statutes that expressly provide
the NPS with regulatory authority which are not part of the Organic Act
(see 54 U.S.C. 100101 note, explaining which statutory provisions are
referred to as the ``NPS Organic Act''). Limiting this phrase just to
the Organic Act itself, as suggested in the comments, could open the
very door the commenters seek to keep closed, because it might suggest
that the NPS could use these other statutory authorities to apply its
regulations to non-federally owned lands in Alaska. The NPS does not
believe such action would be consistent with ANILCA under the Supreme
Court's ruling.
The preamble uses the phrase ``ordinary regulatory authority''
since that was the term repeatedly used by the Court, which spent a
considerable part of its opinion in Sturgeon discussing and analyzing
NPS authorities, not just the NPS Organic Act, and thus meant
``ordinary regulatory authority'' to include all existing NPS
regulatory authorities applicable to National Park System units as of
the date of the Court's decision, not just authority expressly derived
from the NPS Organic Act. The phrase is not used in the regulatory
text.
3. Comment: The NPS received several comments opposing or
questioning the merits of the Sturgeon decision or recommending certain
uses and activities be prohibited in Alaska park areas, particularly
mechanized means of access and transportation.
NPS Response: As a Federal agency, the NPS has no discretion when
it comes to promptly and reasonably implementing federal statutes and
Supreme Court decisions that affect its management authorities. In
addition to ensuring NPS regulations reflect the outcome of the
Sturgeon litigation, particularly with respect to non-federally owned
lands, ANILCA expressly requires Federal land managers permit the use
of snowmachines, motorboats, airplanes, and other mechanized means of
transportation in all conservation system units in Alaska for a variety
of purposes, including to engage in traditional activities and for
travel to and from villages and homesites. Accordingly, NPS has no
ability to respond positively to these comments.
4. Comment: Comments were supportive of language in the proposed
rule stating that the NPS participates in the regulation of subsistence
fisheries through its participation in the Federal Subsistence
Management Program, and that applicable regulations at 36 CFR part 242
and 50 CFR part 100 are unaffected by the Sturgeon decision. Comments
requested the NPS clarify that those regulations are additionally
unaffected by this regulatory change, and others requested confirmation
that regulations at 36 CFR part 13 are affected and apply only to
federally owned lands and waters in Alaska park areas.
NPS Response: Both suggested clarifications are consistent with the
Supreme Court's decision and the effect of the regulatory changes being
made here, which is limited to and includes 36 CFR parts 1-199. This
response serves to affirm those understandings. The revised definition
of federally owned lands does not upset the application of the Katie
John cases to the waters listed in 36 CFR 242.3 and 50 CFR 100.3.
Regulations at 36 CFR part 13, subpart F, will be applied accordingly.
5. Comment: Several commenters suggested that the NPS limit
regulatory changes in response to the Supreme Court's decision to
implementing the final order of the U.S. District Court, or otherwise
narrowing the scope of this rule to exempt only the Nation River within
the Preserve from the Service's hovercraft prohibition at 36 CFR
2.17(e), or alternatively, to adopt language making it clear that Wild
and Scenic Rivers are not affected by the regulatory changes.
NPS Response: The NPS disagrees with the suggestions that
regulatory changes should be limited to the Yukon-Charley Rivers
National Preserve, or to the Nation River, or to the hovercraft
transiting it. While that was the specific issue in the case, it
remains the NPS's duty to enforce the laws applicable to the lands it
manages as part of the National Park System, and the Supreme Court's
decision in Sturgeon has a broader effect on how those laws apply in
Alaska, as explained above. Regulatory changes that are limited to the
applicability of the hovercraft ban on the Nation River would be
inconsistent with the intent of this rulemaking and fail to implement
the Court's holding in Sturgeon. The final rule ensures NPS regulations
are consistent with that holding. Inasmuch as the Court expressly
declined to address how Wild and Scenic Rivers in Alaska are impacted
by its analysis of NPS authorities (slip op. 27, n. 10), these
regulations do not address that issue.
6. Comment: Several commenters questioned the effect of this rule
on waters within National Park System units where navigability has not
yet been determined or that overlay submerged lands where ownership is
in question. Some commenters recommended that the NPS recognize or
presume that title resides with the State, while others recommended the
NPS assert title, until adjudicated otherwise. Extensive commentary was
also provided on the issue of navigability and determining ownership of
submerged lands, and on the purposes for which conservation system
units in Alaska were established vis-[agrave]-vis the
[[Page 72959]]
protection of lakes, rivers, and streams within the units.
NPS Response: In response to both sets of comments, the NPS notes
that the existing and proposed regulations at 36 CFR Chapter I do not
address or determine, and have no impact on, whether waters in Alaska
are navigable or who maintains title to the submerged lands. Those are
not decisions that can be made by the National Park Service. As noted
in some of the comments, those decisions are made by Congress, the
Bureau of Land Management, or the courts.
7. Comment: Many commenters asked that the NPS work cooperatively
with the State of Alaska in the management of waterways, particularly
those used by commercial service providers and the public for access to
and across park areas.
NPS Response: The NPS is working to develop cooperative agreements
with the State on this and other matters and remains committed to
working closely with its partners and neighbors to promote healthy
ecosystems and provide for public use and enjoyment in Alaska park
areas.
8. Comment: Several commenters recommended additional changes to
NPS regulations to reflect the outcome of the Sturgeon litigation,
including modifying 36 CFR 1.4 to limit the ``legislative
jurisdiction'' of the NPS over private lands, or to confirm the role of
``boundaries'' in determining regulatory authority in Alaska, and
further requested the NPS clarify the relationship between the
regulations in 36 CFR part 13 and the other NPS regulations in Title
36.
NPS Response: The NPS agrees that it could clarify the language in
36 CFR 13.2(a) consistent with the intent of this rulemaking. The
revised paragraph (a) will now read: ``The regulations contained in
part 13 are prescribed for the proper use and management of park areas
in Alaska and supersede any inconsistent provisions of the general
regulations of this chapter, which apply only on federally owned lands
within the boundaries of any park area in Alaska.''
Regarding the remaining suggested edits, once ownership is taken
into account, as directed by the Supreme Court, we believe the scope of
authority in the final rule is consistent with ANILCA.
9. Comment: The State of Alaska brought to our attention that the
authorities cited in support of the proposed rule failed to include
relevant sections of ANILCA.
NPS Response: The NPS appreciates the opportunity to make the
necessary corrections and has updated the statement of authorities in
the final rule.
10. Comment: Two commenters requested that the NPS explain the
decision to use and define the term ``federally owned lands'' instead
of the terms ``Federal lands'' or ``public lands'' or other terms used
and defined in ANILCA.
NPS Response: As the commenters accurately note, the term
``federally owned lands'' is not used in ANILCA, and the relevant
distinction between the terms that are used in the statute--``Federal
lands'' and ``public lands''--will collapse over time as land
selections are conveyed and relinquished in Alaska park units. In the
interim, the NPS believed the use of the term ``federally owned lands''
would be clearer to the general public than the statutorily-defined
``public lands''. Due to the many comments and questions we have
received on the issue, we are revising the provision to use ``public
lands (federally owned lands)'' as a way of better communicating our
meaning to the general public. The definitions are not changed. More
detail on how the terms are defined in relation to ANILCA is provided
in the ``Final Rule'' section, below.
Final Rule
This rule modifies 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 clarifying NPS regulations, and in response to a petition
for rulemaking filed by the State of Alaska, the NPS is promulgating a
set of targeted amendments to ensure its regulations 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 amends 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 adds 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 lands (including waters) not federally owned ``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 new
paragraph (f) in this final rule states that, in Alaska, unless
otherwise provided, only the public lands (federally owned lands)
within National Park System unit boundaries are deemed a part of that
unit, whereas the lands, waters, and interests therein which are not
federally owned (including those owned by the State, Native
corporations, and other parties) are not a part of the unit and will
not be regulated as part of the National Park System. The language has
been modified from the proposed rule in response to public comments for
the reasons explained above (see comments 1 and 10). 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).
The NPS also changes its regulations at 36 CFR part 13, which ``are
prescribed for the proper use and management of park areas in Alaska.''
In section 13.1, ``park areas'' is currently defined as ``lands and
waters administered by the National Park Service within the State of
Alaska.'' The NPS modifies this definition and adds a definition of
``federally owned lands'' (incorporating and relocating the description
formerly 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. This will not affect NPS
administration under a valid cooperative agreement, which would be
governed by the terms of the agreement. In response to public comments
and for the reasons explained above (see comment 8), the final rule
also changes the language in section 13.2(a) to clarify that part 13
regulations supersede general regulations found elsewhere in Title 36
where inconsistent.
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 ``Federal lands within the boundaries
of a conservation system unit,'' an exception to the definition of
``public lands'' in section 102 of
[[Page 72960]]
ANILCA (16 U.S.C. 3102(3)). That section notes that definitions in
Title IX are governed by the Alaska Native Claims Settlement Act
(ANCSA) and the Alaska Statehood Act. Section 3(e) of ANCSA defines
``public lands'' as ``all Federal lands and interests therein located
in Alaska'' with certain exceptions which, like the definition in
ANILCA, predominantly relate to satisfaction of outstanding land
entitlements, including section 6(g) of the Alaska Statehood Act.
However, ANILCA section 906(o)(2) uses the term ``Federal lands,''
which is not separately defined in either ANCSA or the Alaska Statehood
Act, meaning it is as defined in ANILCA section 102 to include those
lands, waters, and interests therein the title to which is in the
United States. 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. Until statutory entitlements
are satisfied in Alaska and land selections in National Park System
units are adjudicated or relinquished, the definitions in part 13, as
amended here, ensure NPS regulations are applied consistent with
direction from Congress in Alaska-specific legislation and from the
Supreme Court in Sturgeon.
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 determined that the final
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.
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 clarifies that activities
on lands in Alaska 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 impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). The costs and benefits of a regulatory
action are measured with respect to its existing baseline conditions.
Regarding the applicability of NPS regulations within the external
boundaries of National Park System units in Alaska, the baseline
conditions will be unchanged by this rule. The Supreme Court settled
this legal question when it announced the Sturgeon decision in March
2019. Compared to baseline conditions, this regulatory change will
benefit the general public by clarifying regulatory language in 36 CFR
describing where NPS regulations apply, specifically that fewer areas
in Alaska are subject to NPS regulations. 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, the agency certifies that this 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 the
use of and jurisdiction over lands and waters within the external
boundaries of NPS units as determined by the U.S. Supreme Court in a
March 2019 decision 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
clarifies that the NPS may not regulate non-public lands within the
external boundaries of NPS units in Alaska. 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
[[Page 72961]]
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 will have no legal effect beyond
what was announced by the Court. It will 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.
For the reasons set forth in the preamble, the National Park
Service amends 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) * * *
(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, only the public lands
(federally owned lands) within Park area boundaries are deemed a part
of that Park area, and non-public lands (including state, Native, and
other non-federally owned lands, including submerged lands and the
waters flowing over them) shall not be regulated as part of the
National Park System.
PART 13--NATIONAL PARK SYSTEM UNITS IN ALASKA
0
3. The authority citation for part 13 is revised to read as follows:
Authority: 16 U.S.C. 3101 et seq.; 54 U.S.C. 100101, 100751,
320102; Sec. 13.1204 also issued under Pub. L. 104-333, Sec. 1035,
110 Stat. 4240, November 12, 1996.
0
4. In Sec. 13.1, add a definition of ``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.
* * * * *
0
5. Amend Sec. 13.2 by revising paragraph (a) and removing paragraph
(f) to read as follows:
Sec. 13.2 Applicability and Scope.
(a) The regulations contained in part 13 are prescribed for the
proper use and management of park areas in Alaska and supersede any
inconsistent provisions of the general regulations of this chapter,
which apply only on federally owned lands within the boundaries of any
park area in Alaska.
* * * * *
0
6. Amend Sec. 13.430 by revising paragraph (a)(1) as follows:
Sec. 13.430 Determination of resident zones.
(a) * * *
(1) The area within a national park or monument and any lands
surrounded by a national park or monument that are not federally owned;
and
* * * * *
George Wallace,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2020-24899 Filed 11-13-20; 8:45 am]
BILLING CODE 4312-52-P