St. Croix National Scenic Riverway, Boating Operations

DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 7

RIN 1024-AC46

St. Croix National Scenic Riverway, Boating Operations

AGENCY: National Park Service, Interior.

ACTION: Final rule.

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SUMMARY: The National Park Service (NPS) is adopting this final rule to

amend the special regulations for the NPS administered portion of the

St. Croix National Scenic Riverway (Riverway). This rule will provide

for the regulation of access to waters within the Riverway of vessels

and individuals in order to protect against the infestation of zebra

mussel. The purpose of this rule is to protect park aquatic natural

resources and supporting human built infrastructure.

EFFECTIVE DATE: This rule becomes effective on July 23, 1997.

FOR FURTHER INFORMATION CONTACT: Brian Adams, Chief Ranger, St. Croix

National Scenic Riverway, P.O. Box 708, Saint Croix Falls, WI 54024.

Telephone 715-483-3284.

SUPPLEMENTARY INFORMATION:

Background

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

Section 1 et. seq. (National Park Service Organic Act) 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 and to provide for the enjoyment of the same in such

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

enjoyment of future generations'' (16 U.S.C. Sections 1a-2(h)). In

addition, the Organic Act (16 U.S.C. 3.) allows the NPS to develop

``rules and regulations * * * necessary or proper for the use and

management of the parks, monuments and reservations under the

jurisdiction of the National Park Service''.

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 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. These

highly prolific mussels were first discovered in Lake St. Clair in 1988

and have rapidly become one of the most ecologically and economically

damaging aquatic nuisance species in North America. It is believed that

the species was accidently introduced into Great Lakes waters in 1985-

1986 by the routine practice of transferring ballast water in

commercial vessels. They have quickly spread throughout the Great Lakes

and into the major eastern and Midwestern river systems including the

Mississippi River, Ohio River, Arkansas River, Red River, Tennessee

River and Hudson River drainages.

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, businesses and industries, municipal water

systems, utility power plants, and recreational and commercial vessel

owners.

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

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

from infested to uninfested 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 natural

means such as birds or aquatic wildlife has led to the establishment of

viable zebra mussel populations.

Exotic organisms were recognized as a problem in 1977 when, on May

24, 1977, Executive Order (EO) 11987 was signed and released. EO 11987

directed Federal agencies to restrict the importation and introduction

of exotic species into the natural ecosystems on lands and waters under

their jurisdiction. On November 29, 1990, Congress passed the

Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990, as

amended (1996) (16 U.S.C. 4701). This act, among other things, directed

Federal agencies to prevent the introduction and dispersal of

nonindigenous species into waters of the United States. On November 9,

1996, the President signed the ``National Invasive Species Act'' that

had been passed by Congress. This act calls for a more widespread

effort in looking for ways to prevent and control the increasing number

of invasions by nonindigenous species.

This final rule will allow St. Croix National Scenic Riverway to

regulate vessel and individual access to park area waters, to prevent

or minimize the risk of the unintentional introduction of zebra mussel.

Minimizing such risks is particularly important since once introduced

and established, zebra mussels are extremely costly and nearly

impossible to eliminate.

This rule will prohibit the transportation, introduction or

attempted introduction of aquatic nuisance species into park area

waters. The rule includes criteria for the decontamination of vessels

and equipment that will allow them access to park area waters. The rule

will also allow the NPS to implement a permit system outlined in the

general provisions (36 CFR 1.6) to assure vessels entering Riverway

waters are free of aquatic nuisance species.

This rule will bring the NPS into conformity with programs

currently in place in the States of Minnesota and Wisconsin and will

allow the NPS to provide an extra measure of protection

[[Page 33750]]

to the Federally administered section of the St. Croix National Scenic

Riverway. Currently there are four marinas along the St. Croix National

Scenic Riverway in both Minnesota and Wisconsin that provide inspection

and vessel cleaning services. These facilities are listed in the

Superintendent's Compendium and will be identified in the annual St.

Croix Interagency Zebra Mussel Task Force Plan. The availability of

these inspection and vessel cleaning services has also been published

in local and regional newspapers and is commonly known throughout the

regional boating community.

This rule was originally published in the Federal Register on June

24, 1996 (61 FR 32383) as a proposed Servicewide rule at 36 CFR Part 3,

Boating and Water Use Activities. However, the NPS has determined that

Servicewide regulations are not appropriate at this time and have

elected instead to limit the applicability of this final rule to St.

Croix National Scenic Riverway, located in Minnesota and Wisconsin,

only. Since this final rule is very similar to the proposed rule, but

is less broad in scope, the NPS has determined that issuance of this

rule as final is appropriate.

Analysis of Comments

NPS published proposed rules in the Federal Register on June 24,

1996 (61 FR 32383). NPS received two timely comments on the proposed

rules, one each by the States of Minnesota and Wisconsin. It needs to

be said that the States of Wisconsin and Minnesota, along with the NPS,

are involved with active aquatic nuisance species control and

prevention programs on the St. Croix River. Much mention is made by

both States regarding the St. Croix National Scenic Riverway, which is

threatened by a variety of nuisance aquatic plant and animal species

including, but not limited to, the zebra mussel, purple loosestrife and

Eurasian watermilfoil.

NPS has considered each of these comments. NPS's responses to the

comments are as follows:

Jurisdiction of the NPS To Regulate Vessel on State Waters

The comments by the State of Wisconsin focused on the jurisdiction

of the NPS to regulate or impede ``the forever free'' concept for

navigable waters as outlined in the Wisconsin State Constitution,

Article IX, section 1. The heart of the comments by the State of

Wisconsin states ``Accordingly, it is the view of the State of

Wisconsin that even though the Federal government also has jurisdiction

over navigation on federally navigable waters, any federal restrictions

on the right of navigation must take into account the concurrent state

rights including the general right of free navigation.'' The State

claims its authority through ``ownership of all submerged lands under

navigable waters vested in the State'' when Wisconsin attained

Statehood in 1848.

NPS regulatory authority over waters subject to the jurisdiction of

the United States, including navigable water and areas within their

ordinary reach, however, is not based on ownership but rather on the

Commerce Clause of the U.S. Constitution. In regards to the NPS,

Congress in 1976 amended the 1970 Act for Administration (known as the

General Authorities Act) and authorized and directed the NPS to

``promulgate 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).

This rule carries out the responsibility of the NPS, as directed by

Congress, to develop and enforce rules over waters subject to the

jurisdiction of the United States in keeping with the core mission of

the NPS, which is to ``conserve the scenery and the natural and

historic objects and the wild life therein and to provide for the

enjoyment of the same in such manner and by such means as will leave

them unimpaired for the enjoyment of future generations'' (16 U.S.C.

1).

This rule is not designed to prevent people from using Riverway

waters, but conditions the use of these waters to protect against the

danger of infestation from aquatic nuisance species.

Clarity of the Rules

The State of Minnesota generally commented on the lack of clarity

or general vagueness of the rule and made specific recommendations to

improve the language of the rule. These comments will be addressed in

the ``Section-by-Section Analysis'' to follow.

Compliance With Other Laws

The State of Minnesota questioned the last statement in paragraph

two of the proposed rule, Compliance with Other Laws section. It is

true that this statement is conjecture, as the state asserts, and was

stated as such. The NPS does not know exactly how much of a positive

secondary effect this rule may have on local business and small

entities providing vessel cleaning and decontaminating services to the

public. That is up to the private sector to determine. The NPS merely

stated that it may occur.

The State of Minnesota also questioned the last two paragraphs of

this same section. These two paragraphs deal with requirements found in

the National Environmental Policy Act (NEPA) and merely state the

determination that they are categorically excluded from the procedural

requirements of NEPA. As the State of Minnesota points out, some people

will be locally affected by this rule, but the effect of the rule does

not significantly effect the quality of the human environment, health

and safety, and satisfies the criteria set forth, and therefore neither

an Environmental Assessment (EA) nor an Environmental Impact Statement

(EIS) will be prepared.

Section-by-Section Analysis

Sections 3.6(m) of the proposed rule is promulgated with several

revisions. The revisions include moving most of the proposed rule to 36

CFR 7.9. Section 3.6 (m)(2) and (m)(4) have been removed from the final

rule.

The State of Minnesota states that this paragraph is vague, and

implies that a boat operating in infested waters is considered infested

regardless of the risk of infestation. The State is correct. The NPS

considers any vessel operating in infested waters to be contaminated,

regardless of risk, and should be inspected and cleaned prior to

placement in uninfested waters. The State expressed concern on the

liability of the State and its agents in regard to knowingly allowing a

vessel to be launched at a State facility. This rule does not imply

that the State must take any special action beyond its normal ability

to act to prevent a contaminated vessel from entering park area waters

and does not imply that the State is liable if an unknowing launch or

operation does occur at a State operated facility. NPS itself does not

have the fiscal or human resources to monitor all its launch facilities

at all times.

The State also recommended that NPS use a different term to

describe an ``undesirable exotic species''. The State is correct that

there are a variety of terms in both State and Federal law used to

identify ``undesirable exotic species''. Because of this, the NPS has

decided to narrow the scope of this final rule. For the purposes of

this rule, aquatic nuisance species is used to include zebra mussel,

purple loosestrife and Eurasian watermilfoil.

Finally, the State expressed concern that the term ``NPS waters''

was not adequately defined in the rule. The narrower scope of this rule

will make the regulation applicable only on St.

[[Page 33751]]

Croix National Scenic Riverway waters. ``Waters'', as used in this

rule, are described in 36 CFR 1.2, Applicability and Scope. The State

also expressed concern over the term ``vessel'' as found in

subparagraph (m)(5). This definition is the same as found in 36 CFR

1.4, Definitions, with the exception of seaplanes, which are considered

a vessel for this rule. The State is correct in its assumption that a

``belly boat'' or ``inflatable raft'' is a vessel, and that it should

be inspected and cleaned, as necessary, before being placed in

uninfested waters after use in infested waters.

Section 3.6(m) is renumbered as 36 CFR 7.9(c) and promulgated as

proposed, except for changing the words ``park waters'' to ``park area

waters'' and changing ``injurious nonindigenous aquatic nuisance

species'' to ``aquatic nuisance species''.

The definitions at Sec. 3.6(m)(3) and (m)(5) have been amended and

renumbered 36 CFR 7.9 (f)(1) and (f)(2), respectively.

Section 3.6(n) is removed.

Section 3.6 (o) is renumbered as 36 CFR 7.9(d) and promulgated as

proposed, with the addition of the words ``is prohibited''.

Section 3.23(c) is renumbered as 36 CFR 7.9(e) and promulgated as

proposed, with the addition of the words ``is prohibited''.

Drafting Information

The primary authors of this rule are Brian R. Adams, Chief Ranger,

St. Croix National Scenic Riverway; James A. Loach, Superintendent,

Great Lakes System Support Office, Midwest Field Area; and Dennis

Burnett, Washington Office of Ranger Activities, National Park Service.

Paperwork Reduction Act

This final 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 is not a significant rule requiring review by the Office

of Management and Budget under Executive Order 12866. The Department of

the Interior has determined that this rule will not have a significant

economic effect on a small number of small entities under the

Regulatory Flexibility Act (5 U.S.C. 601 et. seq.). The economic

effects of this rulemaking are local in nature and negligible in scope.

NPS has determined and certifies pursuant to the Unfunded Mandates

Reform Act, 2 U.S.C. 1502 et seq., that this rule will not impose a

cost of $100 million or more in any given year on local, state, or

tribal governments or private entities.

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, this 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 7

District of Columbia, National parks, Reporting and recordkeeping

requirements.

In consideration of the foregoing, 36 CFR Chapter I is amended as

follows:

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

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

Authority: 16 U.S.C. 1, 3, 9a, 460(q), 462(k); Sec. 7.96 also

issued under D.C. Code 8-137(1981) and D.C. code 40-721(1981).

2. Section 7.9 is amended by adding paragraphs (c), (d), (e) and

(f) to read as follows:

Sec. 7.9 St. Croix National Scenic Rivers.

* * * * *

(c) Vessels.

(1) 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 park area waters when

that vessel or the trailer or the carrier of that vessel has been in

water infested or contaminated with aquatic nuisance species, except as

provided in paragraph (c)(2) of this section is prohibited.

(2) Vessels, trailers or other carriers of vessels wishing to enter

park area waters from aquatic nuisance species contaminated or infested

waters may enter after being inspected and cleaned using the technique

or process appropriate to the nuisance species.

(d) Placing or dumping, or attempting to place or dump, bait

containers, live wells, or other water-holding devises that are or were

filled with waters holding or contaminated by aquatic nuisance species

is prohibited.

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

previously used in waters infested with aquatic nuisance species prior

to being inspected and cleaned using a process appropriate to the

nuisance species is prohibited.

(f) For the purpose of this section:

(1) The term aquatic nuisance species means the zebra mussel,

purple loosestrife and Eurasian watermilfoil;

(2) The term vessel means every type or description of craft on the

water used or capable of being used as a means of transportation,

including seaplanes, when on the water, and buoyant devises permitting

or capable of free flotation.

Dated: June 9, 1997.

William Leary,

Acting Deputy Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 97-16193 Filed 6-20-97; 8:45 am]

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