National Park Service; Boating and Water Use Activities, Prohibited Operations

DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 3

RIN 1024-AC46

National Park Service; Boating and Water Use Activities,

Prohibited Operations

AGENCY: National Park Service, Interior.

ACTION: Proposed rule.

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

SUMMARY: The National Park Service (NPS) is proposing to amend its

boating regulations to include the authority to regulate the access to

NPS waters of individuals and vessels that have recently operated in

waters infested with injurious non-indigenous aquatic plant and animal

species. The purpose of the proposed rule is to protect park aquatic

natural resources and supporting built infrastructure. This proposed

rule includes criteria for decontamination of vessels and equipment to

allow access to park waters. In addition, these rules identify how

vessels may be allowed to operate under a permit system outlined in the

general regulations. These rules will allow the NPS to regulate

individual and vessel access to park waters to prevent the accidental

introduction of injurious exotic aquatic nuisance species into park

waters.

The NPS will use lists developed by other Federal agencies like the

U.S. Fish and Wildlife Service and various State departments of natural

resources to identify targeted prohibited species. The NPS may,

however, develop its own lists based upon sound scientific research.

Any species identified by the NPS will be listed and identified through

the public notice process. Various States have active aquatic exotic

species prevention programs and regularly identify and mark infested

bodies of water. The NPS will, through its Resource Education programs,

ensure that all park users are informed and warned about targeted

species and the proper way to control their spread by decontaminating

their vessels and associated gear. This proposed rule will bring the

NPS into conformity with programs currently in place in several states.

DATES: Written comments will be accepted through August 23, 1996.

ADDRESSES: All comments should be addressed to: Superintendent, Great

Lakes Systems Support Office, Midwest Field Area, National Park

Service, 1709 Jackson Street, Omaha, Nebraska 68102. Attention: John

Townsend.

FOR FURTHER INFORMATION CONTACT: John Townsend at the above address or

by calling 402-221-3475.

SUPPLEMENTARY INFORMATION:

Background

The NPS is granted broad statutory authority under 16 U.S.C.

Section 1 et seq. (National Park Service Organic Act) and 16 U.S.C.

Sections 1a-2(h) to ``* * * regulate the use of the Federal areas known

as national parks, monuments, and reservations * * * by such means and

measures as conform to the fundamental purpose of the said parks * * *

which purpose is to conserve the scenery and the natural and historic

objects and the wildlife therein * * *''.

[[Page 32384]]

The National Park Service Management Policies (1988) provide

overall direction in implementing the intent of this Congressional

mandate and other applicable Federal legislation. The policy of the NPS

regarding protection and management of natural resources is ``The

National Park Service will manage the natural resources of the national

park system to maintain, rehabilitate, and perpetuate their inherent

integrity'' (Chapter 4:1). Where conflict arises between human use and

resource protection, where the NPS has a ``reasonable basis to believe

a resource is or would become impaired, the Park Service may, * * *

otherwise place limitations on public use'' (Chapter 1:3).

The integrity and quality of many national park waters and aquatic

ecosystems, and dependent economic values and infrastructure, are

threatened by the introduction of a variety of injurious non-indigenous

aquatic species, both flora and fauna. These exotic aquatic animals and

plants cause irreparable harm to the core values and resources for

which the National Park System was created and can impose costly

economic impacts on businesses and government entities through loss of

production time and detection, mitigation, remediation and control

activities. It is estimated that six of the over 150 known exotic

aquatic species found within United States waters have alone caused

over $1.5 billion in damages since 1906 (U.S. Congress, Office of

Technology Assessment).

One such example is the exotic zebra mussel (Dreissena polymorpha).

The zebra mussel is a small, fresh water, filter feeding mollusk that

attaches itself to any hard surface, human-made or natural. This

species was accidently introduced into North American waters in 1986

and has since spread throughout the Great Lakes and into the major

eastern and Midwestern river systems. The ecological and economic

impacts of zebra mussels have been extensive. These include effects to

other organism, water quality, water clarity, and disruption of native

aquatic communities and impacts to navigational devices, municipal

water systems, sewage treatment plants, utility power plants, marinas

and recreational and commercial vessel owners.

The primary vector in the spread of the zebra mussel, like most

aquatic exotic species, is by in-water or trailered vessel transport

from infested to unifested waters. During the summer of 1995 zebra

mussels were found on trailered vessels as far west as California.

There is evidence that contaminated wet suits are also a vector for

accidental introduction. There is no evidence that transport by

naturals such as birds or aquatic wildlife has led to the establishment

of viable zebra mussel populations.

Additionally, on November 29, 1990, Congress passed the

``Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990''

(16 U.S.C. 4701) to do just what this regulation proposes--to prevent

introductions or control infestations of injurious non-indigenous

aquatic nuisance species.

This proposed rule will allow the NPS to regulate individual and

vessel access to park waters to prevent or minimize the risk of

unintentional introduction of injurious non-indigenous aquatic species

into park waters. Minimizing such risks is particularly important since

once introduced and established, many exotic species are extremely

costly and nearly impossible to eliminate. This proposed rule also

prohibits the transportation, introduction or attempted introduction of

injurious non-indigenous aquatic species into park waters.

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. Accordingly, interested persons may submit written

comments regarding this proposed rule to the address noted at the

beginning of this rulemaking. The NPS will review all comments and

consider making changes to the rule based upon analysis of the

comments.

Drafting Information: The primary authors of this proposed rule are

James A. Loach, Superintendent, Great Lakes System Support Office,

Midwest Field Area Office; Brian R. Adams, Chief Ranger, St. Croix

National Scenic Riverway; and Dennis Burnett, Washington Office of

Ranger Activities, National Park Service.

Paperwork Reduction Act

This proposed rule does not contain collections of information

requiring approval by the Office of Management and Budget under the

Paperwork Reduction Act of 1995.

Compliance With Other Laws

This rule was not subject to Office of Management and Budget review

under Executive Order 12866. The Department of the Interior has

determined that this document will not have a significant economic

effect on a substantial number of small entities under the Regulatory

Flexibility Act (5 U.S.C. 601 et seq.). To the contrary, this

rulemaking will lessen the possible economic impacts to businesses and

industry should exotics like the zebra mussel become established in NPS

waterways.

In fact, the NPS and other entities will incur substantially

increased costs over time as a result of monitoring, mitigation,

remediation and control activities if these rules are not implemented.

These rules seek to prevent a growing problem by moving away from a

reliance on both short and longer term, costly, and often

environmentally unsound, control methods. Prevention appears to be the

only cost effective approach. There is also the prospect that these

regulations may have a positive secondary effect on local businesses

and small entities providing cleaning and decontamination services to

the public.

The NPS has determined that this 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 non-compatible uses that may compromise the nature

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

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

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

Based on this determination, the regulation 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 (EA) nor an Environmental

Impact Statement (EIS) has been prepared.

List of Subjects in 36 CFR Part 3

National parks, Reporting and recordkeeping requirements.

In consideration of the foregoing, it is proposed to amend 36 CFR

Chapter I as follows:

PART 3--BOATING AND WATER USE ACTIVITIES

1. The authority citation for Part 3 continues to read as follows:

Authority: 16 U.S.C. 1, 1a-2(h), 3.

2. Section 3.6 is amended by adding paragraphs (m) through (o) to

read as follows:

Sec. 3.6 Prohibited operations.

* * * * *

(m) Entering by vessel, launching a vessel, operating a vessel, or

knowingly allowing another person to enter, launch or operate a vessel,

or attempting to do any of these activities, in NPS waters, when that

vessel or the trailer or the

[[Page 32385]]

carrier of that vessel has been in water contaminated or infested with

injurious non-indigenous aquatic nuisance species, except as provided

in paragraghs (m)(1) and (m)(2).

(1) Vessels, trailers or other carriers of vessels entering NPS

waters from contaminated waters will be cleaned using the technique

specific to the aquatic nuisance species.

(2) The superintendent may allow for limited or restricted access

to park waters under a permit system in accordance with the criteria

and procedures of Sec. 3.3 of this chapter.

(i) Violating a term or condition of a permit issued in accordance

with Sec. 3.3 is prohibited.

(ii) Violating a term or condition of a permit issued pursuant to

Sec. 3.3 of this chapter may also result in the suspension or

revocation of the permit by the superintendent.

(3) For this section, an injurious non-indigenous aquatic nuisance

species means a species that threatens the diversity or abundance of

native species or the stability of an aquatic ecosystem, or that

threatens the commercial, agricultural, aquacultural or recreational

development dependent on such an ecosystem, and includes only those

organisms that pose a substantial risk to native species and the

development and infrastructure dependent upon such aquatic resources.

Species include those listed by Federal, State or local agencies as

injurious non-indigenous aquatic nuisance species.

(4) For this section, contaminated or infested waters means any

waters supporting viable or reproducing populations of injurious non-

indigenous aquatic nuance species as identified by any Federal, State,

or local agency.

(5) For paragraph (m) of this section, vessel means every type or

description of craft, including seaplanes on the water, used or capable

of being used as a means of transportation on water, including a

buoyant devise permitting or capable of free flotation.

(n) Transporting in any way, an injurious non-indigenous aquatic

nuisance species on park waters or roads.

(o) Placing or dumping into park waters, or attempting to place or

dump, bait containers, live wells or other water-holding devices that

are or were filled with waters holding or contaminated by injurious

non-indigenous aquatic nuisance species.

3. Section 3.23 is amended by adding paragraph (c) to read as

follows:

Sec. 3.23 SCUBA and snorkeling.

* * * * *

(c) Using a wet suit or associated water use and diving equipment

used in waters infested with injurious non-indigenous aquatic nuisance

species prior to decontamination by a process appropriate to the

nuisance species.

Dated: March 15, 1996.

George T. Frampton, Jr.,

Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 96-15973 Filed 6-21-96; 8:45 am]

BILLING CODE 4310-70-P