[Federal Register Volume 86, Number 238 (Wednesday, December 15, 2021)]
[Rules and Regulations]
[Pages 71148-71152]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27138]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 7

[NPS-COLO-31886; GPO Deposit Account 4311H2]
RIN 1024-AE39


Colonial National Historical Park; Vessels and Commercial 
Passenger-Carrying Motor Vehicles

AGENCY: National Park Service, Interior.

ACTION: Final rule.

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SUMMARY: The National Park Service amends the special regulations for 
Colonial National Historical Park. This rule removes a regulation that 
prevents the Superintendent from designating sites within the park for 
launching and landing private vessels. The rule also removes outdated 
permit and fee requirements for commercial passenger-carrying vehicles.

DATES: This rule is effective on January 14, 2022.

ADDRESSES: The comments received on the proposed rule are available on 
www.regulations.gov in Docket ID: NPS-2020-0004.

FOR FURTHER INFORMATION CONTACT: Steven Williams, Acting 
Superintendent, Colonial National Historical Park. Phone: (757) 898-
3400; Email: [email protected].

SUPPLEMENTARY INFORMATION:

Background

    Colonial National Historical Park is located along the James and 
York Rivers and encompasses the historic Jamestown Island, Colonial 
Parkway, and the Yorktown Battlefield. There are also small, inland 
parcels of the park

[[Page 71149]]

located at Greenspring, Gloucester Point, and Fort Story. The park 
tells the story of the Colonial era from the origins of the occupancy 
of Jamestown Island in 1607 to the last major battle of the 
Revolutionary War at Yorktown in 1781. These two sites are connected by 
the Colonial Parkway, which winds 23 miles through scenic forests, over 
waterways, along river banks, and under Colonial Williamsburg. Much of 
the park is surrounded by water and includes an extensive amount of 
shoreline. All of the waterways in the area are a part of the Captain 
John Smith Chesapeake National Historic Trail that overlays the entire 
Chesapeake Bay and a large portion of its navigable tributaries. The 
park and the national historic trail are both administered by the 
National Park Service (NPS) and go hand-in-hand in this area of 
Virginia.

Final Rule

Launching and Retrieving Vessels

    Since the park was established in the 1930s, the NPS has prohibited 
the launching or landing of watercraft, except in emergency situations. 
The current prohibition at 36 CFR 7.1(a) states that, except in 
emergencies, no privately owned vessel shall be launched from land 
within the park and no privately owned vessel shall be beached or 
landed on land within the park. Consistent with the 2003 Record of 
Decision for the Jamestown Project Development Concept Plan, the NPS 
has been exploring new opportunities for boating within the park. Local 
partners and members of the community have approached the NPS to 
discuss funding the construction of potential launch sites to better 
connect a variety of visitors to the shared history of the area. The 
NPS and its partners share an interest in establishing access to the 
James and York Rivers, and thus the Captain John Smith Chesapeake 
National Historic Trail, for water-based educational and recreational 
activities.
    In order to allow the NPS to pursue these management objectives, 
this rule removes the special regulation at 36 CFR 7.1(a). Without this 
park-specific prohibition, the launching and landing of vessels will be 
governed by NPS general regulations at 36 CFR 3.8(a)(2). This 
regulation prohibits the launching or recovering (i.e., retrieval) of a 
vessel, except at launch sites designated by the Superintendent. Under 
this general regulation, the Superintendent of a park has the 
discretion to designate launch and retrieval sites within the park. 
Under NPS policy, this would only occur if the Superintendent 
determines that the use of those sites for boating activities is 
appropriate to the purpose for which the park was established and can 
be sustained without causing unacceptable impacts. See NPS Management 
Policies 8.1.1. The Superintendent would provide notice to the public 
of any such designation using one or more of the methods set forth in 
36 CFR 1.7.

Commercial Passenger-Carrying Motor Vehicles

    This rule also removes the special regulations for the park at 36 
CFR 7.1(b). These regulations require a permit for the operation of 
commercial passenger-carrying motor vehicles within the park and 
establish a fee structure for obtaining a permit. For each seat 
carrying a passenger, an annual permit costs $3.50 and a quarterly 
permit costs $1. One-day permits are available for $1 (up to 5-
passenger vehicles) or $3 (over 5 passenger vehicles). 36 CFR 7.1(b)(1) 
through (4).
    The permit requirement is unnecessary because it is redundant with 
the NPS general regulation at 36 CFR 5.3, which requires a permit, 
contract, or other written agreement in order to engage in business 
operations within a park area. The NPS uses commercial use 
authorizations (CUAs) to authorize commercial passenger-carrying motor 
vehicles. A CUA is a type of permit that allows an individual, group, 
company, or other for-profit entity to conduct commercial activities 
and provide specific visitor services within a unit of the National 
Park System.
    The fee structure in 36 CFR 7.1(b) is over 30 years old. The NPS no 
longer charges those fees because they would not come close to 
offsetting the increasing administrative costs of managing commercial 
passenger-carrying vehicles within the park. Instead, the NPS charges 
an entrance fee for commercial passenger-carrying vehicles under 
section 803 of the Federal Lands Recreation Enhancement Act (16 U.S.C. 
6802) and CUA fees under 54 U.S.C. 101925.

Summary of Public Comments

    The NPS published a proposed rule in the Federal Register on 
October 6, 2020 (85 FR 63062). The NPS accepted public comments on the 
proposed rule for 60 days via the mail, hand delivery, and the Federal 
eRulemaking Portal at http://www.regulations.gov. Comments were 
accepted through December 7, 2020. A total of 73 comments were 
submitted and reviewed. Many commenters supported the proposed rule and 
did not raise any issues or suggest any changes. Several commenters 
supported the potential of launch and retrieval sites to create 
recreational and educational opportunities in the park and a stronger 
connection with local communities. Some commenters raised concerns or 
questions about the proposed rule that the NPS summarizes and responds 
to below. After considering the public comments and after additional 
review, the NPS did not make any changes to the rule.
    1. Comment: Several commenters asked whether the NPS will evaluate 
potential impacts to the environment before designating launch and 
retrieval sites within the park. Commenters raised concerns that 
increased boating activity would harm wildlife and submerged 
vegetation, erode shorelines, degrade water quality and introduce 
aquatic invasive species.
    NPS Response: Decisions to construct and designate launch and 
retrieval sites will be subject to compliance with the National 
Environmental Policy Act, which means the NPS will evaluate potential 
impacts to the environment from construction activities and the 
expected use of the launch and retrieval sites prior to making such 
decisions. The Superintendent may develop sites and allow the launching 
and retrieval of vessels only if such activity is appropriate to the 
purpose for which the park was established and can be sustained without 
causing unacceptable impacts to the environment.
    2. Comment: One commenter stated that the NPS should undergo 
notice-and-comment rulemaking prior to designating launch and retrieval 
sites within the park in order to allow interested parties to comment.
    NPS Response: NPS general regulations at 36 CFR 3.8(a)(2) provide 
the Superintendent with discretionary authority to designate launch and 
retrieval sites within the park. The Superintendent may exercise this 
discretionary authority at the park level without the need to 
promulgate special regulations, which would require notice-and-comment 
rulemaking under the Administrative Procedure Act. Many NPS regulations 
give the Superintendent similar discretionary authorities to designate 
areas for visitor use activities. See, for example, regulations 
allowing the Superintendent to designate: (1) Campsites (36 CFR 2.10); 
(2) trails, routes and areas for the use of use of horses or pack 
animals (36 CFR 2.16); and (3) areas for using roller skates, 
skateboards, roller skis, coasting vehicles, or similar devices (36 CFR 
2.20). In contrast to 36 CFR 3.8(a)(2) and regulations that provide 
similar discretionary authority to

[[Page 71150]]

Superintendents, other NPS regulations specifically require rulemaking. 
See, for example, regulations governing the use of: (1) Aircraft (36 
CFR 2.17); (2) snowmobiles (36 CFR 2.18); (3) personal watercraft (36 
CFR 3.9); and (3) motor vehicles off park roads and parking areas (36 
CFR 4.10).
    Even though 36 CFR 3.8(a)(2) does not require a special regulation, 
the NPS will provide interested stakeholders with an opportunity to 
review and comment on proposed launch sites through the Planning, 
Environment and Public Comment (PEPC) website (https://parkplanning.nps.gov/). All discretionary actions taken by the 
Superintendent must be compiled in writing, updated annually, and made 
available to the public upon request. 36 CFR 1.7(b). This compilation 
is referred to as the Superintendent's Compendium. The Superintendent 
will identify designated launch and retrieval sites in the 
Superintendent's Compendium for the park, which is available on the 
park's website (https://www.nps.gov/colo/learn/management/lawsandpolicies.htm).
    3. Comment: Several commenters asked the NPS to clarify the types 
of vessels that could be allowed to launch and land within the park. 
Many commenters supported the use of nonmotorized vessels only and 
suggested that motorized vessels be prohibited in order to preserve the 
visitor experience on the beaches and the pristine nature and 
soundscape of the park.
    NPS Response: NPS general regulations at 36 CFR 3.8(a)(2) allow the 
Superintendent to designate launch and retrieval sites for ``vessels,'' 
which are defined broadly in 36 CFR 1.4 to mean ``every description of 
watercraft, or other artificial contrivance used, or capable of being 
used, as a means of transportation on the water.'' As a result, the 
Superintendent will have the discretion to allow motorized vessels to 
launch and land from designated sites in the park. The Superintendent 
may limit use to nonmotorized vessels, however, if that is appropriate 
given the purpose of the park and potential impacts to the environment 
or other park visitors from motorized vessels. At this time, the NPS 
does not plan to allow motorized vessels to launch and land from 
designated sites within the park.
    4. Comment: Several commenters suggested specific launch and 
retrieval sites within the park, including sites along the York River, 
James River, College Creek, and Mill Creek. Other commenters identified 
sites that should not be considered due to the potential for adverse 
visual impacts to the historical character of certain locations within 
the park, including Jamestown Island and the Yorktown Battlefield. One 
commenter requested that the NPS select sites that would minimize trail 
and sidewalk construction.
    NPS Response: The NPS will engage with the public prior to site 
selection to better understand potential impacts to resources and 
visitors, support for, and controversy associated with a particular 
location. The NPS will evaluate existing conditions and potential 
management strategies at potential sites within the park to serve a 
diversity of visitor needs and enhance the quality of the visitor 
experience. A decision to develop a site for launch and retrieval 
facilities will take into account both primary impacts of development 
(such as noise, air, and water pollution), and secondary impacts 
(including cumulative effects over time) that recreational use 
associated with the development may have on park resources and visitor 
enjoyment. Any launch location will be carefully sited and designed to 
avoid unacceptable adverse effects on historical sites and aquatic and 
riparian habitats, and to minimize conflicts between boaters and other 
visitors who enjoy the park.
    5. Comment: Several commenters questioned the cost of constructing 
launch and retrieval sites. Some commenters stated that the NPS would 
not be able to justify the cost of building launch sites for motorized 
vessels due to the availability of nearby marinas that can be used for 
this purpose outside of the park. One commenter expressed concern that 
new boating activity could have broader cost implications for the NPS 
if it leads to increased traffic on the parkway, which the commenter 
stated is already in need of rehabilitation.
    NPS Response: The planning process for selecting launch and 
retrieval sites will consider the costs of initial construction as well 
as ongoing maintenance. Local partners and members of the community 
have approached the NPS to discuss funding the construction of 
potential launch sites to better connect a variety of visitors to the 
shared history of the area. The Superintendent is exploring different 
opportunities for cost-sharing, such as fundraising through a Friends 
Group or receiving direct support from the local county. This would 
alleviate the financial burden to the NPS associated with initial 
construction costs. The Superintendent will not select a site for 
development if the NPS would not be able to cover these costs in a 
manner that would maintain the site in good working order. The 
evaluation of costs will include those associated with the site itself 
and those associated other park facilities, including roads, that would 
be impacted by increased visitation caused by the launch and retrieval 
sites. The NPS will consider the availability of nearby launch and 
retrieval sites when determining the magnitude of potential benefits to 
park visitors from the development of sites within the park.
    6. Comment: One commenter expressed concern that increased boating 
activity will lead to commercialization and economic expansion that 
will negatively impact park values.
    NPS Response: This rule will not change the level of commercial 
activity within the park. Engaging in any business within the park is 
prohibited except in accordance with the provisions of a permit, 
contract, or other written agreement. 36 CFR 5.3. This prohibition on 
commercial activity within the park applies to commercial passenger-
carrying vessels, which are not authorized under 36 CFR 3.8(a)(2) 
without some separate written authorization. At this time, the NPS is 
not considering any written authorization that would allow commercial 
passenger-carrying vessels to operate from launch sites within the 
park.
    7. Comment: Several commenters questioned how the NPS will promote 
boating safety if launch and retrieval sites are designated by the 
Superintendent. One commenter expressed concern that designating launch 
and retrieval sites will lead to personal watercraft (PWC) use within 
the park, which would present a high risk of injury and fatality for 
park visitors.
    NPS Response: The NPS will provide information to park visitors 
about boating safety if launch and retrieval sites are developed and 
designated within the park. This information will be provided at launch 
sites and on the park's website (www.nps.gov/colo). Under no 
circumstances would PWCs be allowed to launch and land from within the 
boundary of the park. This is prohibited by NPS general regulations at 
36 CFR 3.9. PWC use that originates and occurs outside the boundary of 
the park is not subject to NPS jurisdiction.
    8. Comment: Several commenters encouraged the NPS to work with 
Indian tribes to select launch and retrieval sites and to create an 
interpretive program associated with boating activities that represents 
the experience of Virginia Indians in the shared landscape of the park.
    NPS Response: The NPS will consult with federally recognized tribes 
if and

[[Page 71151]]

when launching and retrieval sites for vessels are proposed for 
designation. The NPS recognizes that the Pamunkey Tribe may be 
particularly interested in siting decisions because of the potential 
for increased water access to the shorelines of Jamestown Island which 
is a traditional area and has historical significance for the tribe.
    9. Comment: Several commenters expressed concern that removing the 
permit requirement for commercial passenger-carrying motor vehicles 
would result in less revenue for the NPS and more commercial vehicle 
use of the parkway, which would harm park resources.
    NPS Response: Revenue to the NPS from commercial passenger-carrying 
vehicles will not be affected by this rule. The fee structure being 
removed is over 30 years old and is no longer implemented by the NPS 
because the stated fees would not come close to offsetting the 
increasing administrative costs of managing commercial passenger-
carrying vehicles within the park. In order to offset these costs, the 
NPS charges an entrance fee for commercial passenger-carrying vehicles 
under section 803 of the Federal Lands Recreation Enhancement Act (16 
U.S.C. 6802) and CUA fees under 54 U.S.C. 101925. The NPS does not 
expect the rule to change the level of commercial vehicle use of the 
parkway because the NPS has not used the permit and fee structure in 
the special regulations for many years.

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 this rule is 
not significant.
    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.

Regulatory Flexibility Act

    This rulemaking 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.). This certification is based on information 
contained in the economic analyses found in the report entitled ``Cost-
Benefit and Regulatory Flexibility Analyses: Regulations for Vessels 
and Commercial Passenger-Carrying Motor Vehicles at Colonial National 
Historical Park.'' The document may be viewed at www.regulations.gov by 
searching for ``1024-AE39.''

Congressional Review Act

    This rulemaking is not a major rule under 5 U.S.C. 804(2), the CRA. 
This rulemaking:
    (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 rulemaking does not impose an unfunded mandate on State, 
local, or tribal governments or the private sector of more than $100 
million per year. The rulemaking 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 rulemaking 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 
rulemaking does not have sufficient federalism implications to warrant 
the preparation of a Federalism summary impact statement. This 
rulemaking only affects use of federally-administered lands and waters. 
It has no outside effects on other areas. A Federalism summary impact 
statement is not required.

Civil Justice Reform (Executive Order 12988)

    This rulemaking complies with the requirements of Executive Order 
12988. This rulemaking:
    (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.

Consultation With Indian Tribes (Executive Order 13175 and Department 
Policy)

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Indian Tribes through a 
commitment to consultation with Indian tribes and recognition of their 
right to self-governance and tribal sovereignty. The NPS has evaluated 
this rulemaking under the criteria in Executive Order 13175 and under 
the Department's tribal consultation policy and have determined that 
tribal consultation is not required because the rule will have no 
substantial direct effect on federally recognized Indian tribes. During 
a scheduled formal consultation about park issues with the Chiefs of 
the Chickahominy, Eastern Chickahominy, Mattaponi, Nansemond, Pamunkey, 
Rappahannock, and Upper Mattaponi, the NPS briefed them on the proposed 
change for launching and landing private vessels at the park. All of 
the Chiefs expressed their support for the rule and the opportunity it 
would provide for the tribes to expand their interpretative programs to 
tell Native stories in Native places. The NPS will consult with 
federally recognized tribes if and when launching and retrieval sites 
for vessels are designated.

Paperwork Reduction Act

    This rulemaking 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.

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National Environmental Policy Act

    This rulemaking 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 rulemaking is covered by a 
categorical exclusion. The NPS has determined the rule is categorically 
excluded under 43 CFR 46.210(i). The environmental effects of removing 
36 CFR 7.1(a) are too broad, speculative, or conjectural to lend 
themselves to meaningful analysis. Decisions to construct and designate 
launching and retrieval sites will later be subject to the NEPA 
process, either collectively or case-by-case. The nature of the 
proposal to remove 36 CFR 7.1(b) is administrative, financial and 
legal. The NPS has determined the rulemaking 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 rulemaking is not a significant energy action under the 
definition in Executive Order 13211. The rule is not likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy, and the rule has not otherwise been designated by the 
Administrator of OIRA as a significant energy action. A Statement of 
Energy Effects in not required.

List of Subjects in 36 CFR Part 7

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

    In consideration of the foregoing, the National Park Service amends 
36 CFR part 7 as set forth below:

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

0
1. The authority citation for part 7 continues to read as follows:

    Authority:  54 U.S.C. 100101, 100751, 320102; Sec. 7.96 also 
issued under D.C. Code 10-137 and D.C. Code 50-2201.07.


Sec.  7.1   [Removed and Reserved]

0
2. Remove and reserve Sec.  7.1.

Shannon A. Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2021-27138 Filed 12-14-21; 8:45 am]
BILLING CODE 4312-52-P