Glacier Bay National Park, AK

DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 13

RIN 1024-AC22

Glacier Bay National Park, AK

AGENCY: National Park Service, Interior.

ACTION: Interim rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: The National Park Service (NPS) is promulgating an interim

rule to clarify a provision of the Code of Federal Regulations, general

regulations that defines the scope and applicability of NPS regulations

to navigable waters (i.e., waters subject to the jurisdiction of the

United States), relative to Glacier Bay National Park. In order to

protect the wildlife and other resources in NPS areas, including

Glacier Bay National Park, the NPS developed general regulations

intended to be applicable on navigable waters irrespective of ownership

of submerged lands. However, a recent court case has revealed that a

1987 editorial correction to the applicability and scope section, aimed

at clarifying a separate and distinct application of the regulations,

had the unforseen and unintended effect at Glacier Bay National Park of

linking title to submerged lands with the exercise of management

authority over the reach of the navigable waters above them. This

interim rule is being promulgated to insure the continued protection of

park wildlife in Glacier Bay National Park, and to clearly inform the

public that hunting continues to be prohibited in the park by general

regulations as it has been for over 50 years. As such, this interim

rule clarifies and interprets existing NPS regulatory intent,

practices, and policies.

DATES: This rule is effective March 29, 1994 and will expire on January

1, 1996. However, written comments will be accepted until June 27,

1994.

ADDRESSES: Comments should be addressed to:

Superintendent, Glacier Bay National Park and Preserve, P.O. Box

140, Gustavus, Alaska 99826.

FOR FURTHER INFORMATION CONTACT: Marvin O. Jensen, Superintendent,

Glacier Bay National Park and Preserve, P.O. Box 140, Gustavus, Alaska

99826, Telephone: (907) 697-2230.

SUPPLEMENTARY INFORMATION:

Background

Glacier Bay National Monument was established by presidential

proclamation dated February 26, 1925. 43 Stat. 1988. The monument was

established to protect the dynamically changing glacial environment of

mountains, tidewater glaciers, and associated movements and development

of flora and fauna, and to promote the scientific study of such. The

early monument included marine waters within Glacier Bay north of a

line running approximately from Geikie Inlet on the west side of the

bay to the northern extent of the Beardslee Islands on the east side of

the bay. The monument was expanded by a second presidential

proclamation on April 18, 1939. 53 Stat. 2534. The expanded monument

included additional lands and marine waters off: All of Glacier Bay;

portions of Cross Sound, North Inian Pass, North Passage, Icy Passage,

and Excursion Inlet; and Pacific coastal waters to a distance of three

miles seaward between Cape Spencer in the south and Sea Otter Creek,

north of Cape Fairweather. The inclusion of substantial tracts of

marine waters within the boundaries of the monument, and present-day

park, presents unique opportunities for the study and preservation of

marine flora and fauna, in an unimpaired state.

Glacier Bay National Monument was redesignated as Glacier Bay

National Park in 1980 by the Alaska National Interest Lands

Conservation Act (ANILCA). The new park included all lands and waters

of the previously existing monument, plus additional land areas. 94

Stat. 2382. The legislative history of ANILCA provides that certain NPS

units in Alaska including Glacier Bay National Park ``are intended to

be large sanctuaries where fish and wildlife may roam freely,

developing their social structures and evolving over long periods of

time as nearly as possible without the changes that extensive human

activities would cause.'' Sen. Rep. No. 96-413, 96th Cong., 1st Sess.

137 (1979).

The management of Glacier Bay National Park is governed by the

original monument proclamations mentioned above, which provided that

the flora and fauna of Glacier Bay were to be protected, and directed

that the NPS manage the monument in accordance with the NPS Organic Act

of 1916. The NPS Organic Act of 1916 directs the Secretary of the

Interior and the NPS to manage national parks and monuments to

``conserve the scenery and the natural and historic objects and the

wild life therein and to provide for the enjoyment of same in such

manner and by such means as will leave them unimpaired for the

enjoyment of future generations.'' 16 U.S.C. 1. The Organic Act also

grants the Secretary the authority to implement ``rules and regulations

as he may deem necessary or proper for the use and management of the

parks, monuments and reservations under the jurisdiction of the

National Park Service.'' 16 U.S.C. 3. In addition, the Redwood National

Park Act of 1978 states: ``The authorization of activities shall be

construed and the protection, management and administration of [NPS

areas] shall be conducted in light of the high public value and

integrity of the National Park System and shall not be exercised in

derogation of the values and purposes for which these various areas

have been established, except as may have been or shall be directly and

specifically provided by Congress.'' 16 U.S.C. 1a-1.

Under these authorities the NPS has managed and regulated

activities occurring on and in the marine waters of Glacier Bay

National Park since the establishment of the monument. In addition to

regulations generally applicable in all national park areas, such as

hunting prohibitions, special park specific regulations have been

promulgated for, and enforced on and within, Glacier Bay waters.

Applicability and Scope Provisions

In addition to general regulatory authority (16 U.S.C. 3), the NPS

has been delegated specific authority to ``[p]romulgate and enforce

regulations concerning boating and other activities on or relating to

waters located within areas of the National Park System, including

waters subject to the jurisdiction of the United States * * *'' (16

U.S.C. 1a-2(h)). ``Waters subject to the jurisdiction of the United

States'' are navigable waters. See, House Rep. 94-1569 pg. 4292. In

1983 the NPS revised existing regulations in 36 CFR that apply in

virtually all NPS administered areas (48 FR 30252, June 30, 1983). The

applicability and scope provisions adopted pursuant to that 1983

rulemaking included navigable waters. In that rulemaking, 36 CFR 1.2(a)

provided that the regulations contained in 36 CFR chapter 1 would

apply: (1) On federally owned waters, and (2) on waters ``controlled, *

* * administered or otherwise subject to the jurisdiction of the

National Park Service * * *'' (48 FR 30252, June 30, 1983, 36 CFR

1.2(a)). Like the United States Coast Guard, the NPS exercises

authority on and within navigable waters irrespective of ownership of

submerged lands.

The 1983 regulations also provided that--except in park areas under

the legislative jurisdiction of the United States, where 10

specifically enumerated provisions were intended to apply regardless of

ownership--the regulations were ``not applicable on privately owned

lands and waters * * *'' (48 FR 30252, June 30, 1983; 36 CFR 1.2(b)).

The 1983 promulgation of 36 CFR 1.2(b) was not intended to limit the

applicability of park regulations on navigable waters.

As originally promulgated in 1983, 36 CFR 1.2(b) specifically

applied the 10 enumerated provisions to privately owned lands. However,

it was silent as to the applicability of these 10 regulations on lands

and waters owned by a state or other government entity. In 1987, in

order to clarify the original NPS intent--that the 10 specifically

enumerated provisions were meant to apply on all lands and waters

regardless of land ownership (in areas under the legislative

jurisdiction of the United States)--the term ``privately owned lands

and waters'' was replaced with the term ``non-federally owned lands and

waters''. (52 FR 35238, September 18, 1987; See also, 52 FR 12037,

April 14, 1987).

This editorial change cleared up one technical problem, but created

another for the park, which the NPS seeks to rectify through this

rulemaking. Although the 1987 rulemaking effort had nothing to do with

navigable waters, it had the unforseen and unintended affect of

rendering ambiguous the applicability of NPS regulations to navigable

waters in Glacier Bay National Park.

The NPS recognizes that regulations must provide an ordinary person

a reasonable opportunity to know what is prohibited. Therefore, this

interim rule is adopted to clarify that NPS regulations otherwise

applicable within the boundaries of Glacier Bay National Park apply in

and within the reach of navigable park waters (up to the mean high

water line in places subject to the ebb and flow of the tide, or up to

the ordinary high water mark in other places that are navigable),

irrespective of ownership of the submerged lands.

Interim Rulemaking

This rulemaking follows a recent incident in which a person was

cited for the taking of a seal within the boundaries of Glacier Bay

National Park. Because of the confusion that 36 CFR 1.2(b) lent to the

case, the NPS asked that the case be dropped. The NPS has determined

that 36 CFR 1.2(b), as currently written, is ambiguous as to whether

the wildlife protection regulation under which the person was cited (36

CFR 2.2(a)) applies in the waters of Glacier Bay National Park. While

the NPS asserts that based on the Proclamations creating Glacier Bay

National Monument, and subsequent Congressional action, it owns the

submerged lands of Glacier Bay National Park, this rulemaking will

serve to clarify NPS jurisdiction and the applicability of NPS

regulations to the waters of Glacier Bay National Park. The intended

result of this action is the immediate and appropriate continuation of

congressionally mandated protection of park resources and visitors,

including the prohibition of hunting in the park by general regulations

as it has been for over 50 years. See, United States v. Brown, 552 F.2d

817, 822 (1977).

The NPS is promulgating this interim rule under the ``good cause''

exception of the Administrative Procedure Act (5 U.S.C. 553(b)(B)) from

general notice and comment rulemaking. As discussed above, the NPS

believes that this exception is warranted because the recent court case

may cause confusion in leading the public to believe that the long

standing prohibition of hunting in Glacier Bay National Park has now

been revoked and that the NPS will no longer prohibit persons from such

hunting. This confusion could result in other wildlife being hunted

within the park due to a confusion over the enforcement authority of

the NPS to carry out the protection mandates of federal statutes for

park resources. Based upon this discussion, and because the general

effect and the intent of such enforcement has been consistent in

regulations for over 50 years, the NPS finds pursuant to 5 U.S.C.

553(b)(B) that it is unnecessary to publish a notice of proposed

rulemaking. This interim rule simply reaffirms the intent and

regulatory history of the applicability of regulations within Glacier

Bay National Park. The NPS is, however, soliciting comment as discussed

below, and will review comments and consider making changes to the rule

based upon an analysis of comments.

In accordance with the Administrative Procedure Act (5 U.S.C.

553(d)(3)), the NPS has further determined that publishing this interim

rule 30 days prior to the rule becoming effective could further confuse

the public regarding the clear statutory authority of the NPS to

protect park resources, and would be impracticable in that the due and

required execution of the statutory functions of the NPS to protect

park and public resources would be prevented by a delay in the

effective date. This would be contrary to the public interest and the

protection of park resources. As such, this interim rule clarifies and

interprets existing NPS regulatory intent, practices and policies.

Therefore, under the ``good cause'' exception of the Administrative

Procedure Act (5 U.S.C. 553(d)(3)), and as discussed above, it has been

determined that this interim rulemaking is excepted from the 30-day

delay in effective date, and shall therefore become effective on the

date published in the Federal Register.

Because the NPS is soliciting comments as discussed above, the NPS

plans to analyze comments received and prepare further rulemaking, as

appropriate, that will speak to the general applicability of

regulations in Glacier Bay National Park. Therefore, this interim rule

will expire on January 1, 1996, unless amended or revised by future

notice and comment rulemaking.

Public Participation

It is the policy of the Department of the Interior, whenever

practicable, to afford the public an opportunity to participate in the

rulemaking process. However, in accordance with the above discussion,

and because of the urgent need to ensure the protection of park

resources and wildlife, it has been determined that it is impracticable

to delay the effective date of this interim rule pending public

comment. Nevertheless, interested persons are invited to submit written

comments, suggestions or objections regarding the proposed regulations

to the address noted at the beginning of this rulemaking. Comments must

be received on or before June 27, 1994. The NPS will review comments

and consider making changes to the rule based upon an analysis of

comments.

Drafting Information

This interim rule was written by Russel J. Wilson of the Alaska

Regional Office, National Park Service.

Paperwork Reduction Act

This rule does not contain collections of information which require

approval by the Office of Management and Budget under 44 U.S.C. 3501 et

seq.

Compliance With Other Laws

In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et

seq., which became effective January 1, 1981, the NPS has determined

that this interim rule will not have a significant economic effect on a

substantial number of small entities, nor does it require a preparation

of a regulatory analysis.

This rule was not subject to Office of Management and Budget (OMB)

review under Executive Order 12866.

The NPS has determined that this proposed rulemaking will not have

a significant effect on the quality of the human environment, health

and safety because it is not expected to:

(a) Increase public use to the extent of compromising the nature and

character of the area or causing physical damage to it;

(b) Introduce noncompatible uses which might compromise the nature

and characteristics of the area, or cause physical damage to it;

(c) Conflict with adjacent ownerships or land uses; or

(d) Cause a nuisance to adjacent owners or occupants.

Based on this determination, this proposed rulemaking is

categorically excluded from the procedural requirements of the National

Environmental Policy Act (NEPA) by Departmental guidelines in 516 DM 6

(49 FR 21438). As such, neither an Environmental Assessment nor an

Environmental Impact Statement has been prepared.

List of Subjects in 36 CFR Part 13

Alaska, National parks.

In consideration of the foregoing, 36 CFR part 13 is amended as

follows:

PART 13--[AMENDED]

Subpart C--Special Regulations--Specific Park Areas In Alaska

1. The authority citation for part 13 is revised to read as

follows:

Authority: 16 U.S. C. 1, 3, 462(k), 3101 et seq.; Sec. 13.65

also issued under 16 U.S.C. 1a-2(h), 1361, 1531.

2. By adding a new paragraph (a) to Sec. 13.65 to read as follows:

Sec. 13.65 Glacier Bay National Park and Preserve.

(a) Applicability and Scope. (1) Notwithstanding Sec. 1.2(b) and

Sec. 13.2(e) of this chapter, the regulations contained in parts 1

through 6 and 13 of this chapter that are applicable on federally owned

lands and waters within the boundaries of Glacier Bay National Park

shall also apply on and within the navigable waters located within the

boundaries of Glacier Bay National Park.

(2) Paragraph (a) shall remain in effect until January 1, 1996.

* * * * *

Dated: February 26, 1994.

George T. Frampton, Jr.,

Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 94-7262 Filed 3-28-94; 8:45 am]

BILLING CODE 4310-70-P