[Federal Register: August 26, 2003 (Volume 68, Number 165)]
[Proposed Rules]
[Page 51207-51219]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26au03-25]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Parts 1, 3 and 7
RIN 1024-AD07
Boating and Water Use Activities
AGENCY: National Park Service, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The National Park Service (NPS) is proposing to revise rules
that regulate boating and water use activities in areas administered by
the NPS. The proposed rule is intended to address changing visitor use
patterns, changing technologies, compelling boating and water safety
issues, and the evolution of related statutory authorities. The goal is
to provide for greater consistency with United States Coast Guard
(USCG) regulations and state laws and regulations, establish rules
which will be more clearly understood by the visiting public, and which
can be more effectively communicated and enforced by NPS personnel.
Promulgation of the proposed rule will eliminate many requirements
which are ineffective or out of date and apply new rules which will
provide flexibility in managing safety, resource preservation, and
public use needs throughout the National Park System.
DATES: Comments must be received by December 24, 2003.
ADDRESSES: Comments should be sent to Kym Hall, Special Assistant,
National Park Service, 1849 C Street NW, Room 3145, Washington, DC
20240. Email: WASO_Regulations@nps.gov. Fax: (202) 208-4684.
FOR FURTHER INFORMATION CONTACT: Kym Hall, (202) 208-4206.
SUPPLEMENTARY INFORMATION: The regulations contained in parts 1 through
7 of Title 36 of the Code of Federal Regulations (CFR) are the basic
mechanisms used by the National Park Service (NPS) to protect the
natural and cultural resources of the parks and to protect visitors and
property within the parks. Parts 1 through 6 are general regulations
applicable to all areas of the National Park System, with some
exceptions, while part 7 contains special regulations, which have been
found necessary for individual parks as supplements to the general
regulations. Part 3 is specific to boating and water activities. The
part 3 regulations were last revised in 1983. Although amendments and
additions have been made from time to time since 1983, this was usually
in response to new situations for which the existing regulations were
not sufficient. For example, personal watercraft (PWC) were addressed
in 36 CFR 3.24, April, 2000. Between 1983 and the present, the
evolution of statutory authorities, changing visitor use patterns, new
technologies, and continued boating and water safety issues coupled
with evolving national trends to address such issues, all revealed that
a comprehensive review of part 3 regulations was needed.
A work group of experienced employees from a wide variety of parks
with water-based recreation and resources management responsibilities
was established to work on part 3. The work group included an
experienced State Boating Law Administrator, representing the National
Association of State Boating Law Administrators (NASBLA). Park
superintendents were asked to provide comments regarding boating and
water safety issues apart from those addressed in the existing part 3,
and comments were received from sixteen parks and from the staff at the
NPS Washington Office. All comments were evaluated by the workgroup.
Some of the comments were incorporated into the proposed rule. Other
comments were more appropriately addressed in section(s) of 36 CFR
other than part 3. Some comments, specific to an individual park's
circumstances, are more appropriately addressed as special regulations
in part 7.
The NPS faced several situations where parks were unclear about
enforcing USCG regulations and/or state laws and regulations.
Specifically, an issue arose about the applicability of USCG
regulations on a tour boat being operated on Crater Lake which is a
non-navigable body of water. Lake Mead was also presented with a
requirement to provide lifeguards on beaches because of Nevada state
water use regulations. In addition to these specific questions, there
has been some general confusion about the order of applicability or
hierarchy of adopting USCG regulations and state laws and regulations
in relation to NPS specific regulations contained in part 3. The
required order of applicability, or hierarchy, of boating and water use
regulations on park waters is as follows:
1. Regulations in Title 36, Code of Federal Regulations (CFR) will
apply over any comparable law or regulation.
2. Laws and regulations of the USCG adopted pursuant to Sec. 3.2
(a) will apply over any comparable state law or regulation.
3. Non-conflicting state boating safety laws and regulations that
are not addressed by either 36 CFR or by the USCG are adopted pursuant
to 3.2(b). The NPS is not adopting state water use laws or regulations
unless specifically indicated in part 3.
The work group took several factors into consideration while
discussing regulations to be changed, deleted, or written anew. Those
factors include compliance with the NPS mission, safety issues,
resource protection issues, clarity of existing regulations, reducing
NPS regulations where possible and the uniformity of regulations with
the USCG, the states, and among units of the National Park System to
the extent possible. As a result of the review, the proposed changes to
part 3 are expected to be more clearly understood by the public and be
more effectively communicated and enforced by NPS employees. In
addition the changes will enhance the NPS focus on safety and resource
preservation issues, provide flexibility to address changing
technologies, maintain minimum regulation necessary to address safety
and resource preservation and provide for greater consistency in
enforcement of NPS, USCG regulations and state boating laws and
regulations.
[[Page 51208]]
Section-By-Section Analysis
Organizational Summary
The National Park Service (NPS) has prepared the following
organizational summary to assist in the location and analysis of the
proposed revisions.
Numbering
------------------------------------------------------------------------
Old New
------------------------------------------------------------------------
3.1 Applicable Regulations................. 3.2
3.2 NPS Distinctive Identification......... Deleted
3.4 Accidents.............................. 3.5
3.5 Inspections............................ 3.4
3.6 Prohibited Operations.................. 3.8
3.7 Noise Abatement........................ 3.14
3.20 Water Skiing.......................... 3.11
3.21 Swimming and Bathing.................. 3.15
3.22 Surfing............................... Deleted
3.23 SCUBA and Snorkeling.................. 3.17
3.24 Regulation of Personal Watercraft..... 3.9
------------------------------------------------------------------------
------------------------------------------------------------------------
New sections
-------------------------------------------------------------------------
3.1 Applicability and Scope
3.6 Operator Age for Power Vessels
3.7 Personal Floatation Devices (PFDs)
3.10 Operating Under the Influence
3.12 Marine Sanitation Devices
3.13 Sunken, Grounded, Disabled Vessels
3.16 Swim Beach Areas
3.18 Submersibles
------------------------------------------------------------------------
Section 1.4 What Terms Do I Need To Know?
In order to enhance clarity and consistency, ten definitions have
been included in this section. One, defining vessel, is a revision of
the current definition; it has been revised to more adequately describe
the applicability of these regulations to all craft including tubes,
rafts and other inflatable devices; surfboards, sailboards, and other
rigid devices, specifically when these are used as a means of
transportation. Nine others are added in order to reduce confusion in
interpretation of regulations or to address issues new to part 3: dive
flag, flat wake speed, harbor, manned submersible, power-driven vessel,
sailing vessel, sewage, underwater diving, and un-manned submersible.
The rationale for the addition of these terms appears in the preamble
relative to the appropriate section.
Section 3.1 What Is the Applicability and Scope of This Section?
This section is added to include a description of the applicability
of part 3 to all park waters. Other laws applicable have been removed
from this section and now appear in Sec. 3.2.
The objective of the regulations in this part is to provide for the
proper management of boating and other water use activities within
parks. Park waters are all waters that are subject to the jurisdiction
of the NPS. This includes both navigable waters within the
congressionally established boundaries of a park area and non-navigable
waters where the United States owns or administers the lands and waters
within the boundaries of a park area. Examples of park areas with
navigable waters within the boundaries include Biscayne National Park,
Assateague Island National Seashore, and Channel Islands National Park.
Examples of park areas with non-navigable waters where the United
States has jurisdiction over the lands and waters within the boundaries
include Crater Lake National Park, Yellowstone National Park, and
Glacier National Park or other areas with inland lakes and ponds.
Section 1.2 defines the primary applicability and scope of the NPS
regulations found in 36 CFR parts 1 through 5, and parts 7 and 13. In
Sec. 1.2(a)(1) and (2) the NPS provides that the regulations in
Chapter 1 apply, respectively, on lands and waters located within
boundaries of park areas that are either federally owned or NPS-
administered. While in Sec. 1.2(a)(3) it states that the regulations
shall apply to all waters subject to Federal jurisdiction that are
located within National Park System boundaries.
In addition to the general regulatory authority delegated by
Congress in 16 U.S.C. 3, the NPS has been authorized to ``[p]romulgate
regulations concerning boating and other activities on or relating to
waters located within areas of the National Park System. This includes
waters subject to the jurisdiction of the United States: provided, that
any regulations adopted pursuant to this section shall be complementary
to, and not in derogation of, the authority of the United States Coast
Guard to regulate the use of waters subject to the jurisdiction of the
United States [.]'' 16 U.S.C. 1a-2(h). Under these authorities the NPS
has managed and regulated activities occurring on and in the waters of
the National Park System.
Section 3.2 Do Other Boating Laws and Regulations Apply To Me When I
Operate My Boat on Park Waters?
The current Sec. 3.2 pertains to ``National Park Service
distinctive identification''. This is considered an unnecessary
regulation since boat markings are addressed in NPS Director's Order 9
and Reference Manual 9. This regulation is deleted.
The proposed Sec. 3.2(a) identifies USCG laws and regulations
adopted with the addition of Title 33 and title 46 United States Code.
Proposed paragraph (b) identifies applicable state laws and regulations
adopted as non-conflicting boating safety laws and regulations, and it
is not the intent of this section to include non-boating water-use laws
and regulations including but not limited to swimming, bathing, beach
management or SCUBA diving unless specifically adopted in a section of
the part 3 regulations.
The intent of this section, a revision of the existing 3.1, is to
clarify and emphasize that the NPS is seeking to apply existing federal
and state law to its management of boating activities. Except in
situations of specific need as identified and proposed in the part 3
revision, the NPS will enforce the laws and regulations of the United
States Coast Guard and the state within whose exterior boundaries a
park area or a portion thereof is located. The NPS is encouraging each
park to develop an administrative file of all state laws and
regulations the park intends to adopt under Sec. 3.2(b).
This regulation continues to adopt USCG laws and regulations in
order to promote uniformity of boating regulations throughout the
National Park System. While the USCG's jurisdiction and therefore the
application of laws and regulations by the USCG is limited to navigable
waters, the NPS jurisdiction is not similarly restricted to navigable
waters. The NPS adoption of the laws and regulations of the USCG makes
them part of the NPS regulations and are subject to the same
applicability and scope provisions as other NPS promulgated
regulations. As such, the NPS applies pertinent USCG laws and
regulations to all waters within park areas, whether the waters are
navigable or non-navigable.
As directed by Congress in 16 U.S.C. 1a-2(h), this regulation
recognizes the USCG laws and regulations as the guiding federal
standard for regulating boating activities. However, this regulation
also provides the opportunity for individual park areas to enforce
state laws and regulations or NPS regulations where there is a specific
need for public safety reasons, or in order to protect wildlife and the
other resources, values, and purposes of a park area.
Section 3.3 Am I Required To Obtain a Permit To Operate a Vessel in a
Park Area?
This section continues to allow the superintendent to manage
boating use within park areas that may effect park resources or the
visiting public by requiring a permit to operate a vessel in park
waters. Recognizing the uniqueness of park areas, a
[[Page 51209]]
superintendent may require a permit to ensure communication of hazards,
special conditions, specific policies, closures, equipment requirements
or other restrictions (36 CFR 1.5 and 1.7). It also establishes factors
that the superintendent should consider when determining requirements
for the issuance of a permit (36 CFR 1.6).
Section 3.4 For What Purposes May My Vessel Be Inspected?
This section is changed to include the inspection of marine
sanitation devices, and other pollution and noise abatement
requirements within the authority of authorized persons, and to include
noise level as one of those violations for which a vessel's use may be
suspended.
The previous language in this section established the authority of
authorized persons to stop and board vessels for the purposes of
inspection and to terminate the voyage of vessels found in an unsafe
condition as specified. This authority is in keeping with that granted
to boarding officers of the USCG and many of the states.
The use of marine sanitation devices (MSDs) and discharge of sewage
from vessels into park waters has come under increasing scrutiny as
environmental awareness has grown. Park staff found that to simply
adopt USCG regulations or state laws and regulations was ineffective.
USCG regulations regarding the certification of MSDs give appropriate
guidance regarding the devices themselves but do not address their use
in waters of the National Park System. Park staff is increasingly
required to inspect MSDs aboard vessels and to manage their use while
on park waters.
Another issue of increasing importance faced by park management and
enforcement staff has been the regulation of noise created by some
power-driven vessels. NPS has made an attempt at such management for
some time but was hampered by its own regulations. In this proposal NPS
will enhance its ability to significantly improve this capability in
proposed Sec. 3.14.
It is the intent of this section to clearly authorize park staff to
inspect vessels for compliance with marine sanitation device use, and
with appropriate noise level requirements regardless of whether the
vessel is underway. Further, the proposed language more clearly defines
responsibilities to correct not only hazardous conditions but
conditions involving pollution of park waters and excessive noise
levels.
Section 3.5 Do I Have To Report an Accident Involving a Vessel to the
National Park Service?
This section was formerly numbered 3.4 and is renumbered here to
provide a more logical flow to the rules in Part 3 for the benefit of
both the public and NPS staff.
The language in this section is changed to include only vessel
accidents as opposed to the current term ``incidents''. Existing
paragraph (a) is divided into proposed paragraphs (a), (b), and (c) in
order to provide clarity. Proposed paragraph (a) identifies the vessel
operator as the responsible reporting party. It also identifies a total
property damage dollar value threshold for mandatory reporting of
vessel accidents to the NPS. Proposed paragraph (b) identifies that
otherwise the owner or an occupant of the vessel must assume this
responsibility if the owner is incapable of doing so. The existing
paragraph (b), which deals with ``failure to report'', is considered
unnecessary and is deleted. A person who fails to report an accident
would violate the reporting requirements of proposed paragraph (a).
Proposed paragraph (c) identifies that the NPS reporting requirements
may not fulfill the reporting requirements for the United States Coast
Guard and the state.
It is the intent of the proposed changes in this rule to clarify
for the public their responsibilities in vessel accident reporting. The
changes in language to this section more clearly define who is required
to report a vessel accident.
Section 3.6 What Age Must I Be To Operate a Power Driven Vessel?
This section is an addition to part 3. The intent of this section
is to address a minimum age requirement for the operator of a power-
driven vessel. Currently there is no NPS regulation establishing a
minimum operator age. This has become a safety issue of growing concern
as a result of changing technologies, increasingly crowded waterways,
and a more complete understanding of the development of motor skills
with age. Vessel operators can significantly impact the health, safety,
and well being of other boaters and of park resources. This section
establishes a minimum age of 16 to be the unsupervised operator of a
power-driven vessel on park waters. It also allows children between the
ages of 12 and 15 to operate power-driven vessels under the direct
supervision of an adult.
There is a national trend to establish a minimum age for vessel
operators in response to accident data. According to the NASBLA, 43
states have established a minimum age for the operation of power-driven
vessels. Those ages range from 10 to 18, with several states setting 16
as a minimum and many other states requiring an adult to be present to
supervise a child operator. In the interest of conforming with state
regulations when possible and to reduce the potential for confusion of
the boating public, this section is applicable in parks located in
states that have adopted no minimum age for the operator of a power-
driven vessel. If a park is located within a state that has different
age requirements for operators of power-driven vessels then that
state's regulation is adopted in lieu of this section.
Section 3.7 Who Must Wear a Personal Flotation Device (PFD)?
This section is an addition to part 3. The intent of this section
is to enhance visitor safety in the boating environment through
identifying circumstances when children will be required to wear PFDs
and to encourage superintendents to examine other activities that might
appropriately require wearing of PFDs.
PFDs required by this section must be USCG approved Type I, II, or
III PFDs, in serviceable condition and of the correct size for the
person wearing it, in accordance with 33 CFR 175.11-175.23. Type V are
eliminated because they are identified for specific functions and
uncommon in recreational boating.
This section requires children 12 years of age or younger to wear a
PFD when aboard a vessel underway, except while in an enclosed cabin or
below deck, and authorizes the superintendent to determine other
circumstances that require that PFDs be worn. This is not intended to
preclude children from playing on inflatable devices, without wearing a
PFD, when close to shore or the devices are not being used as a method
of transportation.
According to NASBLA, 32 of 50 states, Puerto Rico and the District
of Columbia now require children to wear PFDs. The majority of those
states require children 12 years of age and younger to wear PFDs.
NASBLA supports an age requirement of 12 years of age and younger
nationwide, and has referenced work completed by Ballestreri Consulting
Inc. involving research surrounding the physiological, emotional and
motor skill changes that occur around the age of 12. Ballestreri
Consulting's work suggests that prior to that age, children have
neither the motor skills nor the emotional skills to put on a PFD in an
emergency situation. The American Academy of Pediatrics recommends that
[[Page 51210]]
``* * * children should wear lifejackets at all times when on or near
the water.'' The National Transportation Safety Board also recommends
that children be required to wear PFDs.
The proposed rule exempts children inside an enclosed cabin or
below deck from wearing a PFD. These individuals are in a more stable
environment and risks of incidents resulting from falls overboard are
significantly reduced.
Paragraph (a)(1) is intended to alleviate confusion by the boating
public about the new regulation for children to wear PFDs. Although 32
states require children to wear PFDs, they have varying requirements.
Since the boating public would be more familiar with existing state
requirements, the NPS will defer to the state age for requiring
children to wear PFDs. In the absence of a state requirement, the NPS
requirement of age 12 or under would apply.
Paragraph (b) of this section relates to vessels that are inspected
and certified under USCG regulations codified in Title 46 CFR to carry
passengers for hire. These vessels are inspected annually by USCG
personnel from a Marine Inspection Office and must be operated by a
licensed captain. The higher standard of training, combined with the
experience of individuals necessary to qualify for a USCG captain's
license, and the fact that the vessels are subject to this rigorous
inspection process, the wearing of PFDs by children is not required.
Paragraph (c) of this section is intended to clarify the
superintendent's authority to require PFDs be worn on designated waters
during specific water-based activities. However, it should be noted
that the NPS has adopted 33 CFR 175.15 which applies to the carrying of
PFDs for all persons on board a vessel. This paragraph emphasizes the
potential need for wearing PFDs rather than just carrying them in
certain waters or during certain water-based activities. There was
considerable discussion by work group members regarding wearing PFDs
during a wide variety of activities and circumstances that might be
involved such as use of small inflatable, i.e. inner tubes, sail-
boarding, or river rafting. It is clear that there is no uniform set of
circumstances or conditions nationwide that allows the promulgation of
a regulation sufficient to meet the needs of all national parks. This
is an issue that is best left to superintendents to address through
local restrictions utilizing Sec. Sec. 1.5 and 1.7 of this chapter.
The part 3 work group feels strongly that with the promulgation of
Sec. 3.7, the potential for serious injury or death would be
significantly reduced service-wide. All requirements pertaining to
proper size, type, serviceability and carriage requirements are adopted
by the NPS and applicable in parks in accordance with Sec. 3.2.
Section 3.8 What Vessel Operations Are Prohibited?
The regulations in this section are currently addressed in Sec.
3.6. It is the intent of this section to address several issues of
unsafe or otherwise prohibited vessel operations that are not
effectively dealt with through the adoption of USCG laws and
regulations or state laws and regulations since these entities either
do not regulate the activity or there is wide disparity among the
various regulations nationwide. These are generally activities that
create an unsafe condition or conflict with the orderly management of
park visitor use. The order of the violations has also changed to
reflect the nature of the violations from those posing the least risk
to life or property to those acts that pose the most risk.
Paragraph (a), which solely addressed ``reckless or negligent
operation'' has been broken into two distinct violations; negligent
operations and grossly negligent operations under (b)(6) and (b)(7).
This was done in order to bring boater education and park staff
training more into concert with terminology and enforcement philosophy
used by the USCG. It is expected that this change, along with the
clarified language that describes the regulated activity, will
significantly reduce the misunderstandings experienced in many parks
regarding enforcement and education of this issue.
The act of negligence can be distinguished by the vessel operator's
failure to exercise care, caution or prudence. Generally, the operator
is not willful or malicious in their actions. For example, maneuvering
quickly, turning sharply or swerving within 100 feet of another vessel;
weaving through congested traffic; operating a vessel in the vicinity
of a motorized vessel in a manner that obstructs the visibility of
either operator. A negligent act may have an increased risk of causing
harm but usually does not result in property damage or physical injury.
The act of gross negligence can be distinguished by the vessel
operator's disregard for the rights of others through ``willful and
wanton'' actions and consciousness that personal injury or property
damage is a probable consequence of their actions. Generally, the
operator is willful or malicious in their actions. For example,
operating any vessel at extremely high speeds, operating a vessel
within extremely close proximity to persons in the water, or causing a
severe collision between vessels. A grossly negligent act has an
increased risk of causing harm and usually results in property damage
or physical injury; however, a person can be guilty of gross negligence
without the damage or injury actually resulting.
Paragraph (b) of the current Sec. 3.6, operating a vessel when
under the influence of alcohol or controlled substance, has been
removed from this section and is proposed as a stand-alone regulation
in Sec. 3.10.
Paragraph (c) is renumbered as (b)(2) with no change.
Paragraph (d) is renumbered as (b)(3). Amends ``5 mph or creating a
wake'' to ``flat wake speed''. Paragraph (b)(3)(ii) deletes diver's
marker and swimmer from this paragraph and adds ``a person swimming,
wading, fishing, or floating with the aid of a non-motorized inflatable
or rigid buoyant device, designated launch site, and manually-
propelled, anchored, or drifting vessel.'' Since numerous states have
``speed in proximity'' laws, this paragraph allows for the adoption of
those laws to avoid conflict.
The work group found that there was no consistency in describing to
the public the desired condition in zones that were intended to require
a slow speed. Most of these areas intend to prevent damage or injury
resulting from boat wakes. The variety of terms used to notify the
boating public of these zones included ``no wake'', ``wakeless speed'',
``5 mph'', ``slow speed'', ``idle'', and ``flat wake.'' Since a boat
underway and making way creates some wake regardless of speed, the
terms ``no wake'' and ``wakeless speed'' are not descriptive of the
desired condition. ``5 mph'' may or may not create the desired
condition and, in any case, is an action many boaters may not identify
with since effective boat speedometers are rarely found on recreational
vessels. Neither ``slow speed'' nor ``idle'' effectively address the
desired condition.
``Flat wake speed'' is proposed as the appropriate alternative
since the desired condition, a minimal disturbance of the water by a
vessel in order to prevent damage or injury, is described. The
capability of park staff to educate the boater or to enforce this
section is also enhanced.
The additions to paragraph (b)(3)(ii) reflect the experience of the
work group in a wide variety of water-based recreation situations
nationwide. Accidents and visitor complaints identify these additions
as necessary for
[[Page 51211]]
safe recreational use and for effective enforcement.
Additionally, the prohibition of operating around a diver's marker
needed enhancement and has been moved to paragraph (b)(1). This is a
change that enhances the prohibition formerly found in paragraph (d)(2)
that limits vessels ``within 100 feet of a diver's marker'' to a speed
less than ``5 mph''. The recommended change prohibits ``operating a
power-driven or sailing vessel within 100 feet of a diver's marker.''
Excepted are ``vessels in support of dive operations'' which must
``maintain a flat wake speed''.
This paragraph responds to a safety issue long confused in the
minds of both boat operators and underwater divers. Under the previous
rules, a vessel was allowed to approach a dive flag when not in excess
of 5 mph. At the same time, divers have been taught that a boat must
avoid a dive flag. Many boating safety classes (USCG Auxiliary for
example) also taught that a boat must avoid a dive flag. It is the
intent of this regulation to establish a safety zone around underwater
diving activities in order to reduce conflict and accidents between
underwater divers and vessels. At the same time boats in support of
diving activities are allowed to function as intended.
Paragraph (e) is renumbered as (b)(4). Deletes ``vessel not
propelled by hand'' and adds ``power-driven or sailing vessel'' to the
description of prohibited vessels. Amends ``location'' to ``shoreline''
designated as a swimming beach. Amends ``in excess of 5 mph or creating
a wake'' to ``flat wake speed''.
This will clarify for the visiting public and for park staff the
intent of the rule regulating vessel operation in proximity to
designated swimming beaches. The prohibition under the former
regulation restricted the operation of a vessel, other than a manually
propelled vessel, to beyond 500 feet of a location designated as a
swimming beach. There has been considerable confusion regarding how to
measure the distance of 500 feet in relation to the designated swimming
beach. The intent of this recommended change is to clearly define the
point at which the 500 feet distance is to be measured with the result
of more clearly and consistently defining the safety zone at designated
swim beaches. It is expected that a resulting consistency in
management, education, and enforcement actions will result and will
enhance visitor safety.
Paragraph (f) is renumbered as (b)(5). Amends ``a vessel propelled
by machinery'' to ``power-driven vessel''. Amends ``transom'' to ``top
edge of the transom''. Adds ``motor cover or other unsafe positions''
to the description of prohibited activity. Deletes the exemption for a
vessel ``being maneuvered for anchoring, mooring or casting off
moorings''. Amends ``operating in excess of 5 mph'' to ``being operated
above flat wake speed''.
Changes recommended to this section include changing the term
``flat wake speed'' instead of ``5 mph or creating a wake'', and
changing ``a vessel propelled by machinery'' to ``power-driven
vessel''.
These are recommended in order to provide consistency in
terminology throughout part 3. Also recommended herein is the deletion
of the allowance for unsafe riding when a vessel ``is being maneuvered
for anchoring, mooring, or casting off moorings'' since this is
redundant. A vessel engaged in such maneuvers will be already in
compliance since its speed will be at ``flat wake speed'' in order to
complete the maneuver.
Paragraph (g) is renumbered as (a)(5) without change.
Paragraphs (h) and (i) are combined and renumbered as (a)(2).
Deletes reference to ``trailers'' and to ``a vessel propelled by
machinery''. This clarifies the condition under which vessels may be
launched in a park by combining the former paragraphs 3.6(h) and (i).
The superintendent must designate launch sites and if local
circumstances require may establish further conditions. The original
paragraphs were redundant and resulted in some confusion. The proposed
changes reduce the potential for confusion and enhance education and
enforcement capability.
Paragraph (j) is renumbered as (a)(3). Amends ``vessel propelled by
machinery'' to ``power-driven vessel''. Deletes ``directly'' from ``not
directly accessible by road.''
Use of the term ``power-driven vessel'' rather than ``vessel
propelled by machinery'' provides consistency throughout part 3. It is
the intent of this proposal that the meaning of the paragraph is not
altered.
Paragraph (k) is renumbered as (a)(1). Adds hovercraft. Airboats
were previously prohibited in this section and that prohibition
continues. The addition of hovercraft to part 3 is a result of new
technologies increasingly available to the boating public and since
this surface effect craft has the ability to be used on and over a
variety of surfaces, including water. The ability to navigate into
areas not accessible to other vessels or vehicles would open, in many
cases, sensitive habitat to degradation and is inconsistent with the
NPS mission. Due to the unique operating characteristics of hovercraft,
the prohibition of hovercraft will also appear in part 2 of this
chapter.
Paragraph (l) is renumbered as (a)(4). Amends ``size, length or
width restrictions'' to ``length, width, or horsepower restrictions''.
Adds the criteria used by the USCG to measure vessel length. This
continues the authority of the superintendent to restrict the size of
vessels using national park waters. It is herein proposed to add
language to this paragraph that identifies horsepower restriction as
one of those criteria that may be established by the superintendent
utilizing Sec. Sec. 1.5 and 1.7 of this chapter. The work group
considered a proposal to establish these vessel size restrictions in
part 3. However, it was clearly demonstrated that individual park needs
vary considerably. The authority to establish size restrictions will
remain with the park superintendent.
This rule proposes language that identifies the USCG standard for
measuring vessels and it is the intent of this paragraph that this
standard be used in all NPS areas.
Section 3.9 May I Operate a Personal Watercraft (PWC) in Park Waters?
This section has been renumbered from 3.24 to 3.9 and replaces 3.24
(a) and (b) with additions.
Over the past several years the NPS has been working to propose
personal watercraft (PWC) use in some areas of the National Park
System. As PWC rules are finalized there will be a need to regulate
some types of their activity. It is the intent of this section to
provide parks having authorized PWC use, rules to govern certain
operations of PWC that are as consistent as possible with those of the
states. Accordingly, the work group used the NASBLA model act as its
guide. This act was developed by NASBLA in concert with the USCG and
the Personal Watercraft Industry Association. The NPS agrees with these
entities that PWC are sufficiently unique in their operation and safety
issues that some specific regulations are necessary for these vessels.
Paragraph (a) of this section requires PWC use to be authorized
with the promulgation of a special regulation. This requirement is
carried over from 36 CFR 3.24(a) and (b). A PWC is defined under
existing NPS regulations located at 36 CFR 1.4. Paragraphs (b)(1)
through (b)(4) are designed to reduce conflicts between PWC operators
and other vessels and improve safety. To adhere to the goal of
consistency with the states, the NPS is proposing in paragraph (b)(5)
that if a park area is within a state that regulates the operation of
PWC, then the more restrictive state regulation applies
[[Page 51212]]
in lieu of paragraphs (b)(1) through (b)(4) of this section. In
paragraph (b)(1) a person operating a PWC is required to wear rather
than just carry a PFD. This is required because generally an operator
or passenger rides on top of the vessel rather than in the confines of
the hull, causing additional safety risks. In paragraph (b)(3) night
operations are prohibited specifically for PWC.
It is the intent of this section that paragraphs (b)(1) through
(b)(4) are applicable in park areas that may be located in a state that
does not have more restrictive PWC regulations. Less restrictive state
regulations are not adopted.
Section 3.10 What Are the Regulations Regarding Operating a Vessel
While Under the Influence of Alcohol and/or Drugs?
This section is an amendment and expansion of the regulation found
currently in Sec. 3.6(b).
Operation of a vessel while under the influence of alcohol or drugs
is proposed as a stand alone regulation due to the increased emphasis
given this issue since part 3 was last reviewed and rewritten.
Further, the regulation in former paragraph 3.6(b) has been found
through experience in prosecuting violations to be ineffective. This
problem has been experienced in parks nationwide.
Coincident with the rise in boating under the influence awareness
and enforcement, there has been an even greater emphasis on operation
of a motor vehicle while under the influence. After considerable
discussion, the work group came to realize that the regulations
governing such activities vary considerably from state to state and
that it was best that the NPS not rely on adopting state regulations in
this instance.
Through Presidential Proclamation, the federal standard for blood
alcohol level is now established at .08 BAC, while the states vary in
their standards. This standard is to be employed whether involving
vessels or motor vehicles.
With this as background, the work group examined 36 CFR 4.23
governing the operation of motor vehicles while under the influence of
alcohol or drugs while in a National Park area. The group found that
Sec. 4.23 has been effective in the enforcement of motor vehicle DUI
cases. As a result, the work group recommends adopting the language and
methodology found in Sec. 4.23 and application of the same standards
to the boating environment with appropriate changes to address vessels
rather than motor vehicles. While it is true that the operation of
vessels and motor vehicles differ in some ways, the impairment of the
operator is established at the same level for both (.08 BAC) and the
same standards are applicable for public education, staff training,
enforcement, and prosecution.
Section 3.11 May I Use a Vessel To Tow a Person for Water Skiing or
Other Similar Activities?
This section has been renumbered from 3.20 to 3.11. The title of
this section is amended from ``water skiing.'' This change encompasses
the variety of recreational devices that individuals may ride on or in
while being towed by a vessel. Examples of these devices may include
but are not limited to water-ski, inflatables, wake boards, knee boards
and other rigid devices.
Paragraph (a) is amended to read, ``allowed only in designated
waters'' instead of ``prohibited, except in designated waters.'' It
also allows for the superintendents to identify how towing may occur
utilizing Sec. Sec. 1.5 and 1.7 of this chapter.
Paragraph (a)(1) is an addition to part 3 and prohibits the towing
of persons attached to airborne devices unless allowed by the
superintendent. Some parks have determined this to be an appropriate
public use activity; others have found it to be inappropriate. It is
the intent of this workgroup to provide superintendents the flexibility
to permit this activity, if appropriate, under Sec. 1.6. This
prohibition is not intended to include similar devices when used as a
form of propulsion.
Paragraph (b) is amended to read ``* * * is designated, the
following conditions apply'' instead of ``* * * is authorized, the
following are prohibited.''
Paragraph (b)(1) is amended to read ``Towing is allowed only * *
*''
Paragraph (b)(2) is amended to read ``In addition to the boat
operator, a person at least 12 years of age must be present'' instead
of ``Towing without one person (other than the operator)'.
The work group recommends the minimum age of 12 to be consistent
with a majority of those states that have established a minimum age for
observers. Twelve is also consistent with minimum age requirement for
wearing of PFD's as recommended elsewhere in part 3.
Paragraph (b)(3) is amended to require that persons being towed
wear a ``United States Coast Guard approved personal flotation device''
rather than ``a personal flotation device.''
Paragraph (b)(4) is an addition to part 3 and addresses unsafe acts
committed by a person being towed. It was identified by the work group
that a person being towed might commit acts that endanger others
through manipulating skis or other devices in a manner that is outside
of the control of the vessel operator. The intent of the work group is
to place a burden of responsibility on a person being towed to
participate in this activity in a safe manner. It is not the intent of
the work group to absolve the vessel operator of responsibility for
unsafe operation, but to not hold the vessel operator responsible for
acts solely under the control of the person being towed.
Paragraph (b)(5) is an addition to part 3 and is added to address
the carrying capacity restrictions of the towing vessel. It is the
intention of this regulation to assure compliance with the
manufacturer's recommended capacity limits on vessels. By assuring
compliance with capacity limits, all individuals involved in a towing
activity (operator, observer, other passengers, and person being
towed), are guaranteed space on or in the vessel in a safe manner. This
is intended to include individuals being towed by personal watercraft.
Section 3.12 What Conditions Apply to Marine Sanitation and the Use of
Marine Sanitation Devices (MSD)?
This section is an addition to part 3. Neither the existing part 3
nor other Title 36 CFR regulations address the issue of Marine
Sanitation Devices (MSDs) or their use on waters of the National Park
System.
This section is proposed in order to clarify for the public and
park staff the standard necessary to protect park resources with a
consistent approach system-wide, while at the same time allowing the
superintendent flexibility to accommodate local issues. This regulation
provides clearer guidance, consistent with park standards, than is
currently available in either USCG laws and regulations or state laws
and regulations. USCG regulations regarding MSDs provide for the design
of the devices, certification, and use in non-park waters but do not
adequately address MSD use in park waters.
State laws vary such that an NPS System-wide standard is imperative
to ensure the capability to effectively protect park resources. Part 2
regulations are not specific enough to the boating environment.
The proposed section does not address the issue of the discharge of
``gray-water'' from boats. The work group researched and discussed this
issue as an agenda item brought forward as a concern for resource
protection.
[[Page 51213]]
Several factors prevented its inclusion in the proposed regulations:
1. According to the EPA and the Federal Water Pollution Control
Act, gray-water is not a pollutant or contaminant.
2. Vessels are not usually constructed with holding tanks for gray-
water. Most vessels are constructed so that water generated from the
shower, bath, laundry and sinks is plumbed to a small sump that is
periodically (often automatically) discharged overboard, or is directly
discharged overboard.
3. There is no requirement in the USCG regulations for carriage or
certification of gray-water holding or a discharge device as there is
with MSDs.
4. The nature of water resources vary considerably throughout the
National Park System, and the impact of gray-water should be evaluated
in each environment by appropriate professionals such as biologists or
hydrologists.
The work group concluded that gray-water issues should be dealt
with on a case-by-case basis at the park level and that the focus of
this section is more appropriately directed toward ``black-water''
(sewage) containment aboard vessels.
Section 3.13 Am I Required To Remove a Sunken, Grounded, or Disabled
Vessel?
USCG regulations clearly cover the removal of sunken or grounded
vessels in navigable waters if the vessel poses a navigational hazard
or immediate environmental threat.
The USCG generally ensures that the owner mitigate the hazard or
threat by salvaging the vessel completely or by eliminating the object
or substance which poses the threat (i.e.; removing masts to provide
ample clear draft for vessel traffic, pumping out fuel from submerged
tanks, towing disabled vessels to deeper water where they are purposely
sunk). Depending on location, depth, insurance issues, time period
after the sinking or disabling, the owners may decide it more cost
effective to leave the vessel where it foundered (sank), grounded, or
disabled once they have taken care of the navigational or environmental
hazard.
In non-navigable waters, owners may not even be required to fully
address these factors. It should be noted that the terms founder and
sunken are synonymous with each other for the purposes of this
regulation.
In recognizing the unique natural and cultural resources of park
waters, shorelines, and submerged areas, the NPS proposes to empower
superintendents with the clear authority to order owners of these
vessels to remove them under clearly defined conditions. Removal would
also include associated equipment, debris, and cargo from the vessel.
Although the ``tradition of the sea'' has been to discard things
overboard where they are out of sight and out of mind (even the USCG
still approves of towing ships out to sea to sink them when they are no
longer salvageable in some cases), this may not be in the best interest
of park resources. Ultimately, this decision should be made by the NPS
rather than by the vessel's owner.
The wording for this regulation was taken almost verbatim from 36
CFR 2.17(c)(1-3) regarding downed aircraft. The situation of downed
aircraft in parks is very similar to that of sunken vessels, with the
main difference being that one can easily see the aircraft, but cannot
generally see the sunken vessel.
Disabled vessels were included in this regulation since they can
easily founder or ground if action by the owner is not taken
immediately. The regulation again gives authority to the superintendent
to require action by the owners, which may prevent more serious
problems later on.
Component parts, equipment and associated cargo may become detached
from the vessel during the foundering, but can pose just as much or
more problems to park resources than the vessels themselves. Therefore,
they are included in the removal requirements. Examples of this would
be lines, cables, shipping containers, lumber, vehicles, or a wide
variety of cargo transported on board vessels.
Although there was some discussion to include the term ``abandoned
vessels'' in this regulation, it was decided that this covers a wider
range of vessels than was intended for this purpose. 36 CFR 2.22
``Property'' covers the subject of abandoned property of any type
sufficiently. Some parks requested authority to recover costs
associated with vessel removal, however, we believe that authority
already exists under 36 CFR 2.22(b)(4).
Section 3.14 What Is the Maximum Noise Level for the Operation of a
Vessel?
This section is revised with the intent of updating the testing
standards for noise level enforcement to encompass more recent
standards adopted by the Society of Automotive Engineers (SAE). To
accommodate the review of part 3 in its entirety this section is
renumbered from 3.7 to 3.14.
The current testing procedures outlined in Sec. 3.7 are
appropriate for tests conducted in a laboratory or test facility but
are impractical for field law enforcement use. They are difficult and
cumbersome to use, thus rendering this regulation ineffective.
Noise abatement has not only continued as a concern on all
waterways but has grown in importance as an issue addressed by the
visiting public and park staff. According to the Reference Guide To
State Boating Laws (2001--Sixth Edition), published by NASBLA, thirty-
one states set maximum noise level for vessels. In order to meet the
stated work group objective of uniformity with state regulations
wherever possible, the rule proposed for noise testing and regulation
is modeled after the NASBLA model act. This act has also been adopted
whole or in part by many states. Since there is still some
inconsistency among the states, with some not regulating noise level, a
rule in part 3 is the most effective means to provide a standard
applicable across the National Park System. The standards adopted are
SAE J-2005 and SAE J-1970. These standards may be obtained through the
Society of Automotive Engineer's Web site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.SAE.org. These
standards are sound testing procedures that allow the measurement of
noise level for either stationary vessels or vessels underway. These
procedures are more readily used in the field than the current testing
procedures. The ease in use of these procedures places less of a burden
on the boating public and will result in more effective management of
noise level with the result of enhancing the visitor experience. The
maximum decibel levels remain the same.
Section 3.15 May I Swim or Wade in Park Waters?
This section is renumbered from the current Sec. 3.21. The title
of the regulation is amended from ``Swimming and bathing'' to
``Swimming and wading''.
The title of the section is modified by replacing the term
``bathing'' with ``wading'' in order to clarify the range of activities
intended for coverage under this rule. ``Bathing'', as used to refer to
the act of swimming, is largely an out-dated term and may have more
meaning to modern visitors as a term that addresses the act of
``cleansing'' the body using soap or cleansing agents. Bathing
violations could be addressed under 36 CFR 2.14(a)(6).
Paragraphs (a)(1) and (2) of existing Sec. 3.21 are deleted.
Paragraph (a)(3) of existing Sec. 3.21 is deleted. The work group
decided there was no uniform set of circumstances service-wide
regarding swimming from vessels underway, given the variety of water
conditions that exist throughout the National Park
[[Page 51214]]
System. It is recommended that individual parks deal with this issue on
an as-needed basis through designation of this restriction by the
superintendent utilizing Sec. Sec. 1.5 and 1.7 of this chapter.
Paragraph (b) of existing Sec. 3.21 is renumbered as a stand-alone
regulation, Sec. 3.17.
Section 3.16 What Regulations Apply to Swimming Areas and Beaches?
This section has been moved from paragraph (b) of existing Sec.
3.21. The word ``sporting'' is deleted from the description of
activities that may be restricted by the superintendent in order to
provide greater flexibility to deal with swimming beach safety issues.
These regulations distinguish between swimming areas (in the water) and
swimming beaches (on the land).
Section 3.17 May I Snorkel or Underwater Dive in Park Waters?
The part 3 work group is recommending the promulgation of a new
regulation to manage underwater activities. The title is amended from
``SCUBA and snorkeling'' to ``Snorkeling and underwater diving''.
In section 1.4, a definition of ``underwater diving'' was added to
reflect new diving technologies. It encompasses compressed air as well
as mixed gas and surface supplied air.
Paragraph (a) allows ``snorkeling and underwater diving in park
waters except where designated as closed''. This is a change from the
previous regulation that identified ``swimming, docking, or mooring
areas'' as closed to these activities. Superintendents will now have
the authority to designate waters that are closed utilizing Sec. Sec.
1.5 and 1.7 of this chapter.
In Section 1.4, the term ``dive flag'' was added. Several states'
dive flag standards were examined. If there were differences, they were
most often found in the size of the flag. Many states had no standard
and, as a result, the work group recognized a need for an NPS standard
and chose the standard most often encountered in other regulations.
Paragraph (c) establishes the relationship in horizontal distance
between a diver and the dive flag. It is not the intent of the work
group that a diver's vertical distance from the flag be considered in
this regulation. Regardless of depth, a diver must be within a 100-foot
horizontal radius of the dive flag.
Paragraph (d) allows parks to adopt state laws or regulations that
may apply a dive flag requirement to snorkeling as well as to
underwater diving. It is not the intent of this section to require a
dive flag for snorkeling in parks that are within states with no
requirement. Since section 3.2 allows only for the adoption of state
boating safety laws and regulations, this section is added to allow
parks to adopt specific state water use regulations or laws that
require dive flags for snorkelers.
Section 3.18 May I Operate a Submersible in Park Waters?
The part 3 work group is proposing the promulgation of a new
regulation to manage submersibles within the national park areas.
Definitions of manned and unmanned submersible appear in Sec. 1.4 of
this part. The regulation is established to manage, through the permit
process, use that is consistent with the NPS mission to protect life,
property and park resources. It is the intent of this section to allow
the superintendents the discretion to establish conditions for permits.
Over the last several years, several park areas, particularly those
with large bodies of water, have experienced an increase in the use of
submersibles. The threat to the safety of visitors and submerged
natural, cultural or historic resources far outweigh any inconveniences
to the public that may result from implementation of the regulation.
Manned recreational submersibles are appearing on the retail market
and although somewhat expensive for the average individual, operation
requires very little in terms of training. It should also be noted that
an automobile easily transports some of these submersible vessels
giving the owner ready access to national park areas.
If the operation of these vessels remains unregulated, the
potential for boating accidents increases significantly. For example, a
submersible coming to the surface in front of an oncoming vessel
without warning and without allowing either party sufficient time to
maneuver out of harms way.
The use of remotely operated devices is included in the proposed
new regulation. The documented use of these devices in national park
areas has been primarily for official search and rescue/recovery
operations. There is no intent to preclude the use of these devices for
administrative purposes. However, the NPS recognizes these devices can
easily be used to locate and loot submerged natural, cultural or
historical resources. Therefore, the NPS proposes the requirement for a
permit for private individuals.
Superintendent's Authority
Throughout this document, the Superintendent is given latitude to
manage specific types of uses or activities based on local park needs
or issues under the authority of 36 CFR 1.5 and 1.7. Exercising this
authority may be accomplished using the authority as cited (Sec. Sec.
1.5 and 1.7) or through promulgation of a special regulation (part 7).
Part 7
Several parks had existing marine sanitation regulations that were
promulgated because there were no service-wide regulations covering the
disposal of marine waste. Since MSD regulations are being proposed, the
park specific regulations are now redundant and are proposed for
removal as well. Other types of boating and water-use regulations also
became redundant and have been deleted accordingly.
Compliance With Other Laws
Regulatory Planning and Review
In accordance with the criteria in Executive Order 12866, this rule
is not a significant regulatory action.
a. This rule will not have an annual economic effect of $100
million or adversely affect an economic sector, productivity, jobs, the
environment, or other units of government. This rule only relates to
the general operation of vessels on park waters and other water based
activities but does not propose changes that would alter the numbers of
users to a particular area. No economic impacts are likely to be
recognized as a result of these regulations.
b. This rule will not create inconsistencies with other agencies'
actions. These regulations only impact users of NPS areas and are
written to provide greater consistency with the USCG and other state
laws.
c. This rule will not materially affect entitlements, grants, user
fees, loan programs, or the rights and obligations of their recipients.
d. This rule will not raise novel legal or policy issues. Although
this rule is a rewrite of the entire Part 3, it does not propose any
significant changes to the way the public currently participates in
water based activities. It does provide for greater consistency with
state regulations that the public is more likely familiar with.
Regulatory Flexibility Act
I certify that this rule will not have a significant economic
effect on a substantial number of small entities as defined under the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). This rule affects
vessel operation and imposes requirements that are generally already
required by most states. There are no
[[Page 51215]]
regulations proposed that would likely change the amount of users to an
NPS unit nor are there regulations that impose any restrictions on
concessions or other vessel or water related businesses.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule:
a. Does not have an annual effect on the economy of $100 million or
more. This rule is not expected to have any economic affect on local
communities or businesses because the scope of the regulations focuses
on the way in which vessels are operated, not the amount of vessels to
an area.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, state, or local government
agencies, or geographic regions. This rule has no association with
costs for consumers nor does it impose any restrictions on businesses
or governments of any kind.
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. This
rule has no association with businesses or uses outside NPS areas.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501,
et seq.):
a. This rule will not ``significantly or uniquely'' affect small
governments. A Small Government Agency Plan is not required. This rule
has no affect on government entities, only the visiting public.
b. This rule will not produce a Federal mandate of $100 million or
greater in any year, i.e., it is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act.
Takings
In accordance with Executive Order 12630, the rule does not have
significant takings implications. A takings implication assessment is
not required. This rule is generally focused on safety regarding water
use and vessel activity and does not impose any regulations on lands or
waters outside the NPS or on any private property.
Federalism
In accordance with Executive Order 12612, the rule does not have
significant Federalism effects. A Federalism assessment is not
required.
Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that the rule does not unduly burden the
judicial system and does not meet the requirements of sections 3(a) and
3(b)(2) of the Order. This rule is focused on providing clearer
interpretation of existing regulations and consistency with USCG
regulations and state laws and regulations in order to make it easier
for the visiting public to comply with regulations.
Paperwork Reduction Act
This regulation does not require an information collection under
the Paperwork Reduction Act.
National Environmental Policy Act
We have analyzed this rule in accordance with the criteria of the
National Environmental Policy Act and have determined that this rule is
covered by a categorical exclusion adopted by this federal agency in
accordance with the Council on Environmental Quality regulations, 40
CFR 1500-1508. The DOI Manual contains the categorical exclusions
applicable to the National Park Service and the exceptions of the use
of a categorical exclusion. The effect of the categorical exclusion to
identify a category of activities that individually or cumulatively do
not have significant effect on the human environment and therefore are
exempt from the requirements to prepare an environmental impact
statement. The federal action proposed in this rule is described in the
categorical exclusion listed in the Departmental Manual at 516 DM 6,
appendix 7, section 7.4.A(10) and none of the exceptions to the use of
the categorical exclusions listed at 516 DM 2, appendix 2 are
applicable.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, ``Consultation and
Coordination with Tribal Governments'', and 512 DM 2:
We have evaluated possible effects on Federally recognized
Indian tribes and have determined that there are no effects. This
rule only pertains to water use and vessel operations on waters
inside NPS boundaries and does not propose to change use patterns or
amounts so is not likely to affect any tribes near an NPS unit with
water use.
Drafting Information: The primary authors of this regulation were
Jay Lippert, Fire Island National Seashore; Art North, Delaware Water
Gap National Recreation Area; Bonnie Foist, Everglades National Park;
Jerry Case, Pinnacles National Monument; Bob McKeever (retired), and
Kym Hall, Regulations Program Manager, National Park Service.
Public Participation: If you wish to comment, you may submit your
comments by any one of several methods. You may mail written comments
to: Kym Hall, Regulations Program Manager, National Park Service, 1849
C Street, NW., Room 7248, Washington, DC 20240. Email to: WASO_
Regulations@nps.gov. Fax: (202) 219-8835. Please include ``Part 3
Rules'' in the subject line and your name and return address in the
body of your message. Finally, you may hand deliver comments to Kym
Hall, 1849 C Street NW., Room 7248, Washington, DC. Our practice is to
make comments, including names and addresses of respondents, available
for public review during regular business hours. Individual respondents
may request that we withhold their home address from the rulemaking
record which we will honor to the extent allowable by law. If you wish
us to withhold your name and/or address, you must state this
prominently at the beginning of your comment. However, we will not
consider anonymous comments. We will make all submissions from
organizations or businesses and from individuals identifying themselves
as representatives or officials or organizations or businesses,
available for public inspection in their entirety.
List of Subjects
36 CFR Part 1
National Parks, Penalties, Reporting and recordkeeping
requirements, Signs and symbols.
36 CFR Part 3
Marine safety, National parks, Reporting and recordkeeping
requirements.
36 CFR Part 7
District of Columbia, National parks, Reporting and recordkeeping
requirements.
For the reasons stated in the preamble, the National Park Service
proposes to amend 36 CFR Parts 1, 3 and 7 as follows:
PART 1--GENERAL PROVISIONS
1. The authority for Part 1 continues to read as follows:
Authority: 16 U.S.C. 1, 3, 9a, 460 1-6a(e), 462(k); D.C. Code 8-
137, 40-721 (1981).
[[Page 51216]]
2. Amend Sec. 1.4 as follows:
a. Add the following definitions in alphabetical order.
b. Revise the existing definition of vessel.
Sec. 1.4 What terms do I need to know?
* * * * *
Dive flag means a flag not less than 12 inches square, red in
color, with a white stripe running diagonally from the top of the staff
to the opposite lower corner. The white stripe shall be one-fifth the
width of the flag.
* * * * *
Flat wake speed means the minimum required speed to leave a flat
wave disturbance close astern a moving vessel yet maintain steerageway,
but in no case in excess of 5 statute miles per.
Harbor means a natural or artificially improved body of water
providing protection for vessels, which may include anchorage, mooring
or docking facilities.
* * * * *
Manned submersible means any vessel that carries or is capable of
carrying passenger(s) within the confines of the vessel below the
surface of the water.
* * * * *
Power-driven vessel means any vessel propelled by machinery.
* * * * *
Sailing vessel means any vessel under sail provided, if propelling
machinery is fitted, it is not being used.
* * * * *
Sewage means human body waste or the waste from a toilet or other
receptacle intended to receive or retain body waste.
* * * * *
Underwater diving means the use of any apparatus, whether self
contained or connected to a distant source of air or other gas, whereby
a person wholly or partially submerged in water, enabling that person
to obtain or reuse air or any other gas or gasses for breathing without
returning to the surface of the water. Underwater diving would include,
but is not to be limited to use of SCUBA; surface supplied air, mixed
gas, or re-breathers.
* * * * *
Un-manned submersible means any device operated by remote control,
used or capable of being used, to search or collect below the surface
of the water. This definition does not apply to a device being used
lawfully for fishing.
* * * * *
Vessel means every type or description of craft capable of free
flotation, other than a seaplane on the water, used or capable of being
used as a means of transportation on or through the water. Non-
traditional vessels such as a tube, raft or other inflatable device;
surf board, sailboard, and other rigid device are vessels when being
used as a means of transportation on or through the water.
* * * * *
PART 3--BOATING AND WATER USE ACTIVITIES
3.-4. Part 3 is revised to read as follows:
Sec.
3.1 What is the applicability and scope of this part?
3.2 Do other boating laws and regulations apply to me when I operate
my boat on park waters?
3.3 Am I required to obtain a permit to operate a vessel in a park
area?
3.4 For what purposes may my vessel be inspected?
3.5 Do I have to report an accident involving a vessel to the
National Park Service?
3.6 What age must I be to operate a power driven vessel?
3.7 Who must wear a Personal Flotation Device (PFD)?
3.8 What vessel operations are prohibited?
3.9 May I operate my personal watercraft (PWC) in park waters?
3.10 What are the regulations regarding operating a vessel while
under the influence of alcohol and/or drugs?
3.11 May I use a vessel to tow a person for water skiing or other
similar activities?
3.12 What conditions apply to the use of Marine Sanitation Devices
(MSD)?
3.13 Am I required to remove a sunken, grounded, or disabled vessel?
3.14 What is the maximum noise level for the operation of a vessel?
3.15 May I swim or wade in park waters?
3.16 What regulations apply to swimming areas and beaches?
3.17 May I snorkel or underwater dive in park waters?
3.18 May I operate a submersible within park waters?
Authority: 16 U.S.C. 1, 1a-2(h), 3.
Sec. 3.1 What is the applicability and scope of this part?
The applicability of the regulations in this part is described in
Sec. 1.2 of this chapter.
Sec. 3.2 Do other boating laws and regulations apply to me when I
operate my boat on park waters?
(a) In addition to the regulations contained in this part,
applicable laws and regulations of the United States Coast Guard apply
to govern vessels and their operation on all waters (navigable and non-
navigable) subject to NPS jurisdiction. Title 14 United States Code,
Title 33 United States Code, Title 46 United States Code, and the
United States Coast Guard regulations in 33 CFR Chapter I, 46 CFR
Chapter I and III, and 49 CFR Chapter IV apply to such operation.
Therefore, Federal regulations authorizing an action by the ``captain
of the port'' or another officer or employee of the United States Coast
Guard, authorize a like action by the superintendent.
(b) Unless specifically addressed by the regulation in paragraph
(a) of this section, vessels and their operation on all waters subject
to NPS jurisdiction are governed by non-conflicting boating safety laws
and regulations of the state within whose interior boundaries a park
area or portion thereof is located.
Sec. 3.3 Am I required to obtain a permit to operate a vessel in a
park area?
Generally, you are not required to obtain a permit to operate a
vessel in a park area. However, in certain circumstances, taking into
consideration public safety, protection of park resources, weather and
park management objectives or other factors, the superintendent may
require a permit for use of a vessel within a park area, pursuant to
Sec. Sec. 1.5 and 1.7 and consistent with Sec. 1.6 of this chapter.
Sec. 3.4 For what purposes may my vessel be inspected?
(a) An authorized person may at any time stop and/or board a vessel
to examine documents, licenses or permits relating to operation of the
vessel, and to inspect the vessel to determine compliance with
regulations pertaining to safety equipment, vessel capacity, marine
sanitation devices, and other pollution and noise abatement
requirements.
(b) An authorized person who identifies a vessel being operated
without sufficient life saving or firefighting devices, in an
overloaded or other unsafe condition, as defined in United States Coast
Guard regulations, or in violation of a noise level specified in Sec.
3.15(a) of this part, may direct the operator to suspend further use of
the vessel until the condition is corrected.
Sec. 3.5 Do I have to report an accident involving a vessel to the
National Park Service?
(a) The operator of a vessel involved in an accident involving
total property damage exceeding $2000, injury, or death or
disappearance of a person must report the accident to the
superintendent as soon as practical, but in any event within 24 hours
of the accident.
(b) If the operator is physically incapable of making the report,
the owner or an occupant of the vessel must
[[Page 51217]]
report the accident to the superintendent.
(c) Filing a report with the superintendent may not satisfy
applicable United States Coast Guard, state or local accident reporting
requirements.
Sec. 3.6 What age must I be to operate a power driven vessel?
(a) No person under the age of sixteen (16) years may operate a
power-driven vessel on park waters except that a person twelve (12) to
fifteen (15) years of age may operate a power-driven vessel if a person
at least eighteen (18) years of age is on board the vessel.
(b) If a park area is located within a state having a similar
requirement specifying a different age or having different conditions,
then the applicable state law is adopted in lieu of paragraph (a) of
this section.
Sec. 3.7 Who must wear a Personal Floatation Device (PFD)?
(a) Any child 12 years of age or younger must wear USCG approved
Type I, II, or III PFD when aboard a vessel underway, except while
inside an enclosed cabin. If a park area is located within a state
having a similar requirement specifying a different age or with
different conditions, then applicable state law applies in lieu of this
paragraph (a).
(b) Paragraph (a) does not apply to a vessel that requires
inspection by the U.S. Coast Guard when that vessel is certified for
carrying passengers for hire pursuant to 46 CFR Chapter I or III.
(c) The Superintendent may require that a PFD be worn on designated
waters or during designated water based activities in accordance with
Sec. Sec. 1.5 and 1.7 of this chapter.
Sec. 3.8 What vessel operations are prohibited?
(a) The following operations are prohibited:
(1) Launching or operating an airboat or hovercraft.
(2) Launching or recovering a vessel, except at a launch site
designated by the superintendent.
(3) Operating a power-driven vessel on waters not accessible by
road.
(4) Operating a vessel in excess of a length, width or horsepower
restriction established by the superintendent in accordance with
Sec. Sec. 1.5 and 1.7 of this chapter. For the purposes of this
paragraph, vessel length is measured according to criteria established
in 46 CFR Chapter I or III.
(5) Attaching a vessel to or interfering with a marker, navigation
buoy or other navigational aid.
(b) The following operations are inherently unsafe and therefore
prohibited:
(1) Operating a power-driven or sailing vessel within 100 feet of a
diver's flag except a vessel in support of dive operations, which may
not be operated in excess of flat wake speed.
(2) Failing to observe restriction(s) established by a regulatory
marker.
(3) Operating a vessel in excess of flat wake speed:
(i) In designated areas, or
(ii) Within 100 feet of:
(A) A downed water skier, (B) Person swimming, wading, fishing or
floating with the aid of a non-motorized inflatable or rigid buoyant
device;
(C) Designated launch site; or
(D) Manually propelled, anchored or drifting vessel unless the park
is located within a state specifying different conditions then that
state law is adopted in lieu of this paragraph.
(4) Unless a designated area is marked otherwise, operating a
power-driven or sailing vessel within 500 feet of a shoreline
designated as a swimming beach. This prohibition does not apply in
locations such as a river, channel, or narrow cove where passage is
restricted to less than 500 feet. In such restrictive locations where
swim beaches are designated, the operation of a vessel in excess of a
flat wake speed is prohibited.
(5) Operating a power-driven vessel while a person is riding on the
decking over the bow, gunwales, top edge of the transom, motor cover,
or in any other unsafe position when the vessel is being operated above
a flat wake speed. Provided however, that this provision does not apply
when that portion of the vessel is designed and constructed for the
purpose of carrying passengers safely at all speeds.
(6) Operating a vessel, or knowingly allowing another person to
operate a vessel in a negligent manner, by failing to exercise that
degree of care which a reasonable person, under like circumstances,
would demonstrate in order to prevent the endangering of the life,
limb, or property of a person(s) through the operator's lack of
knowledge, inattention, or general carelessness.
(7) Operating a vessel or knowingly allowing another person to
operate a vessel in a grossly negligent manner, by willfully and
wantonly creating an unreasonable risk of harm to person(s) or
property, regardless of whether the operator intended to cause harm.
Sec. 3.9 May I operate my personal watercraft (PWC) in park waters?
(a) A person may operate a PWC in park areas only where authorized
by special regulation.
(b) Where authorized, operation of a PWC on park waters is subject
to the following conditions:
(1) No person may operate a PWC unless each person aboard is
wearing a type I, II, or III PFD approved by the United States Coast
Guard.
(2) A person operating a PWC equipped by the manufacturer with a
lanyard-type engine cut-off switch must attach such lanyard to his
person, clothing, or PFD, as appropriate for the specific vessel.
(3) No person may operate a PWC anytime between sunset and sunrise.
(4) No person may operate a PWC by jumping the wake, becoming
partially airborne or completely leaving the water while crossing the
wake of another vessel within 100 feet of the vessel creating the wake.
(5) If a park area is located within a state that has more
restrictive regulations for the operation of PWC, then applicable state
law applies in lieu of paragraphs (b)(1) through (b)(4) of this
section.
Sec. 3.10 What are the regulations regarding operating a vessel while
under the influence of alcohol and/or drugs?
(a) Operating or being in actual physical control of a vessel is
prohibited while:
(1) Under the influence of alcohol or a drug or drugs or any
combination thereof, to a degree that renders the operator incapable of
safe operation; or
(2) The alcohol concentration in the operator's blood or breath is
0.08 grams or more of alcohol per 100 milliliters of blood or 0.08
grams or more of alcohol per 210 liters of breath. Provided, however,
that if state law that applies to operating a vessel while under the
influence of alcohol establishes more restrictive limits of alcohol
concentration in the operator's blood or breath, those limits apply
rather than the limits specified in this paragraph.
(3) These provisions also apply to an operator who is or has been
legally entitled to use alcohol or drugs.
(b) At the request or direction of an authorized person who has
probable cause to believe that an operator of a vessel has violated
provisions of paragraph (a) of this section, the operator must submit
to one or more testing procedures of the blood, breath, saliva or urine
for the purpose of determining blood alcohol and/or drug content.
(1) Refusal by an operator to submit to a test is prohibited and
proof of
[[Page 51218]]
refusal may be admissible in any related judicial proceeding.
(2) Any test or tests for the presence of alcohol and drugs shall
be determined by and administered at the direction of an authorized
person.
(3) Any test shall be conducted by using accepted scientific
methods and equipment of proven accuracy and reliability operated by
personnel certified in its use.
(c) The results of chemical or other quantitative tests are
intended to supplement the elements of probable cause used as the basis
for the arrest of an operator charged with a violation of paragraph
(a)(1) of this section. If the alcohol concentration in the operator's
blood or breath at the time of testing is less than alcohol
concentrations specified in paragraph (a)(2) of this section, this fact
does not give rise to any presumption that the operator is or is not
under the influence of alcohol.
(d) The provisions of paragraph (c) of this section are not
intended to limit the introduction of any other competent evidence
bearing upon the question of whether the operator, at the time of the
alleged violation, was under the influence of alcohol, or a drug, or
drugs, or any combination thereof.
Sec. 3.11 May I use a vessel to tow a person for water skiing or
other similar activities?
(a) The towing of a person by a vessel is allowed only in
designated waters, and in accordance with conditions established by the
superintendent pursuant to Sec. Sec. 1.5 and 1.7 of this chapter.
(b) Towing a person using a parasail, hang-glider or other airborne
device may be allowed only in accordance with a permit issued by the
superintendent pursuant to Sec. 1.6 of this chapter.
(c) Where towing is designated, the following conditions apply:
(1) Towing is allowed only between the hours of sunrise and sunset.
(2) In addition to the boat operator, a person at least 12 years of
age must be present to observe the action of the person being towed.
(3) A person being towed must wear a United States Coast Guard
approved type I, II, or III PFD.
(4) A person being towed may not commit any act in a manner that
endangers, or is likely to endanger, any person or damage property.
(5) Operating a vessel that does not have the capacity to carry the
person(s) being towed in addition to the operator and observer is
prohibited.
Sec. 3.12 What conditions apply to the use of Marine Sanitation
Devices (MSD)?
(a) Discharging sewage from any vessel, whether treated or not, in
park waters is prohibited.
(b) The owner or operator of any vessel that is equipped with
toilet facilities and/or an MSD that is capable of discharge into park
waters, must lock or otherwise secure the valves or mechanism of the
device in a manner that prevents discharge while within the boundaries
of park area waters. For the purposes of this section, a deck mounted
pump-out fitting is not considered to be an overboard discharge outlet
and is not subject to these requirements, when used in conjunction with
an approved pump-out facility.
(c) The superintendent may require the owner and/or operator of the
vessel to have all discharge outlets disconnected from through-hull
fittings and have both ends of the disconnected line(s) capped or
plugged in order to prevent the ability to discharge, pursuant to
Sec. Sec. 1 .5 and 1 .7 of this chapter.
(d) The superintendent may modify the requirements of this section
through a special regulation.
Sec. 3.13 Am I required to remove a sunken, grounded or disabled
vessel?
(a) Except as provided in paragraph (b) of this section, the owners
or authorized salvager of a sunken, grounded, or disabled vessel must
remove the vessel, all component parts and equipment, and all
associated cargo thereof in accordance with procedures established by
the superintendent. In establishing removal procedures, the
superintendent is authorized to:
(1) Establish a reasonable date by which vessel removal operations
must be complete;
(2) Determine times and means of access to and from the vessel, and
(3) Specify the manner or method of removal.
(b) The superintendent may waive the requirements of paragraph (a)
of this section or prohibit removal of the vessel, equipment or cargo
upon a written determination that:
(1) The removal would constitute an unacceptable risk to human
life;
(2) The removal would result in extensive resource damage; or
(3) The removal is impracticable or impossible.
Sec. 3.14 What is the maximum noise level for the operation of a
vessel?
(a) A person may not operate a vessel at a noise level exceeding:
(1) 75dB(A) measured utilizing test procedures applicable to
vessels underway (Society of Automotive Engineers SAE--J1970); or
(2) 88dB(A) measured utilizing test procedures applicable to
stationary vessels (Society of Automotive Engineers SAE--J2005).
(b) An authorized person who has reason to believe that a vessel is
being operated in excess of the noise levels established in paragraph
(a) of this section, may direct the operator of the vessel to submit
the vessel to an on-site test to measure the noise level.
Sec. 3.15 May I swim or wade in park waters?
Swimming or wading is allowed in waters, subject to closures or
restrictions designated by the superintendent in accordance with
Sec. Sec. 1.5 and 1.7 of this chapter.
Sec. 3.16 What regulations apply to swimming areas and beaches?
(a) The superintendent may designate areas as swimming areas or
swimming beaches pursuant to Sec. Sec. 1.5 and 1.7 of this chapter.
(b) Within designated swimming areas, the use of a surfboard or
similar rigid device is prohibited.
(c) The superintendent may prohibit the use or possession of
flotation devices, glass containers, kites, or incompatible activities
in swimming areas or swimming beaches pursuant to Sec. Sec. 1.5 and
1.7 of this chapter.
Sec. 3.17 May I snorkel or underwater dive in park waters?
(a) Snorkeling and underwater diving is allowed in park waters,
subject to closures or restrictions designated by the superintendent in
accordance with Sec. Sec. 1.5 and 1.7 of this chapter.
(b) In waters open to the use of vessels, a diver must prominently
display a dive flag.
(c) A diver must remain within a 100' horizontal radius of the dive
flag.
(d) If applicable state law or regulation requires a snorkler to
display a dive flag, that provision of state law or regulation applies.
Sec. 3.18 May I operate a submersible within park waters?
The use of manned or unmanned submersibles may only occur in
accordance with a permit issued by the superintendent pursuant to Sec.
1.6 of this chapter.
PART 7--SPECIAL REGULATIONS, AREAS OF THE NATIONAL PARK SYSTEM
5. 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 DC Code 8-137 (1981) and DC Code 40-721 (1981).
[[Page 51219]]
6. Section 7.45 is amended by removing and reserving paragraph
(e)(8).
7. Section 7.48 is amended by removing and reserving paragraph (d).
8. Section 7.57 is amended by removing and reserving paragraph (c).
9. Section 7.70 is amended by removing and reserving paragraph (c).
10. Section 7.79 is amended by removing paragraph (c).
Dated: August 14, 2003.
Craig Manson,
Assistant Secretary for Fish and Wildlife, and Parks.
[FR Doc. 03-21333 Filed 8-21-03; 4:26 pm]
BILLING CODE 4312-52-P