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Rule

Jurisdiction in Alaska

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Start Preamble

AGENCY:

National Park Service, Interior.

ACTION:

Final rule.

SUMMARY:

This rule revises National Park Service regulations to comply with the decision of the U.S. Supreme Court in Sturgeon v. Frost. In the Sturgeon decision, the Court held that National Park Service regulations apply exclusively to public lands (meaning federally owned lands and waters) within the external boundaries of National Park System units in Alaska. Lands which are not federally owned, including submerged lands under navigable waters, are not part of the units subject to the National Park Service's ordinary regulatory authority.

DATES:

This rule is effective on December 16, 2020.

ADDRESSES:

The comments received on the proposed rule are available on www.regulations.gov in Docket ID: NPS-2020-0002.

Start Further Info

FOR FURTHER INFORMATION CONTACT:

Donald Striker, Acting Regional Director, Alaska Regional Office, 240 West 5th Ave., Anchorage, AK 99501. Phone (907) 644-3510. Email: AKR_Regulations@nps.gov.

End Further Info End Preamble Start Supplemental Information

SUPPLEMENTARY INFORMATION:

Background

Sturgeon v. Frost

In March 2019, the U.S. Supreme Court in Sturgeon v. Frost (139 S. Ct. 1066, March 26, 2019) unanimously determined the National Park Service's (NPS) ordinary regulatory authority over National Park System units in Alaska only applies to federally owned “public lands” (as defined in section 102 of the Alaska National Interest Lands Conservation Act, 16 U.S.C. 3102)—and not to State, Native, or private lands—irrespective of unit boundaries on a map. Lands not owned by the federal government, including submerged lands beneath navigable waters, are not deemed to be a part of the units (slip op. 17). More specifically, the Court held that the NPS could not enforce a System-wide regulation prohibiting the operation of a hovercraft on part of the Nation River that flows through the Yukon-Charley Rivers National Preserve (the Preserve). A brief summary of the factual background and Court opinion follow, as they are critical to understanding the purpose of this rulemaking.

The Preserve is a conservation system unit established by the 1980 Alaska National Interest Lands Conservation Act (ANILCA) and administered by the NPS as a unit of the National Park System. The State of Alaska owns the submerged lands underlying the Nation River, a navigable waterway. In late 2007, John Sturgeon was using his hovercraft on the portion of the Nation River that passes through the Preserve. NPS law enforcement officers encountered him and informed him such use was prohibited within the boundaries of the Preserve under 36 CFR 2.17(e), which states that “[t]he operation or use of a hovercraft is prohibited.” According to NPS regulations at 36 CFR 1.2(a)(3), this rule applies to persons within “[w]aters subject to the jurisdiction of the United States located within the boundaries of the National Park System, including navigable waters” without any regard to ownership of the submerged lands. See 54 U.S.C. 100751(b) (authorizing the Secretary of the Interior to regulate “boating and other activities on or relating to water located within System units”).Start Printed Page 72957

Mr. Sturgeon disputed that NPS regulations could apply to his activities on the Nation River, arguing that the river is not public land and is therefore exempt from NPS rules pursuant to ANILCA section 103(c) (16 U.S.C. 3103(c)), which provides that only the public lands within the boundaries of a System unit are part of the unit, and that State-owned lands are exempt from NPS regulations, including the hovercraft rule. Mr. Sturgeon appealed his case through the federal court system.

In its March 2019 opinion, the Court agreed with Mr. Sturgeon. The questions before the Court were: (1) Whether the Nation River in the Preserve is public land for the purposes of ANILCA, making it indisputably subject to NPS regulation; and (2) if not, whether NPS has an alternative source of authority to regulate Mr. Sturgeon's activities on that portion of the Nation River. The Court answered “no” to both questions.

Resolution turned upon several definitions in ANILCA section 102 and the aforementioned section 103(c). Under ANILCA, 16 U.S.C. 3102, “land” means “lands, waters, and interests therein”; “Federal land” means “lands the title to which is in the United States”; and “public lands” are “Federal lands,” subject to several statutory exclusions that were not at issue in the Sturgeon case. As such, the Court found “public lands” are “most but not quite all [lands, waters, and interests therein] that the Federal Government owns” (slip op. 10). The Court held that the Nation River did not meet the definition of “public land” because: (1) “running waters cannot be owned”; (2) “Alaska, not the United States, has title to the lands beneath the Nation River”; and, (3) federal reserved water rights do not “give the Government plenary authority over the waterway” (slip op. 12-14).

Regarding the second question, the Court found no alternative basis to support applying NPS regulations to Mr. Sturgeon's activities on the Nation River, concluding that, pursuant to ANILCA section 103(c), “only the federal property in system units is subject to the Service's authority” (slip op. 19). As stated by the Court, “non-federally owned waters and lands inside system units (on a map) are declared outside them (for the law),” and “those `non-federally owned waters and lands inside system units' are no longer subject to the Service's power over `System units' and the `water located within' them” (slip op. 18) (quoting 54 U.S.C. 100751(a), (b)).

There are four additional aspects of the Sturgeon opinion and ANILCA that inform this rulemaking. First, by incorporating the provisions of the Submerged Lands Act of 1953, the Alaska Statehood Act gave the State “title to and ownership of the lands beneath navigable waters” effective as of the date of Statehood. The Court recognized that a State's title to lands beneath navigable waters brings with it regulatory authority over public uses of those waters (slip op. 12-13). While the specific example cited by the Court involved the State of Alaska, the conclusion logically extends to any submerged lands owner. Thus, in cases where the United States holds title to submerged lands within the external boundaries of a System unit, the NPS maintains its ordinary regulatory authority over the waters.

Second, the Court noted but expressly declined to address Ninth Circuit precedent finding that “public lands” in ANILCA's subsistence fishing provisions include navigable waters with a reserved water right held by the federal government. Alaska v. Babbitt, 72 F. 3d 698 (1995); John v. United States, 247 F. 3d 1032 (2001) (en banc); John v. United States, 720 F. 3d 1214 (2013) (Katie John cases). Because the Ninth Circuit precedent remains valid law for purposes of NPS's subsistence regulations, the revised definition of federally owned lands does not upset the application of the Katie John cases to the waters listed in 36 CFR 242.3 and 50 CFR 100.3. Regulations at 36 CFR part 13, subpart F, will be applied accordingly. The NPS primarily participates in regulating subsistence fisheries as part of the Federal Subsistence Management Program, a joint effort between the Departments of the Interior and Agriculture implementing Title VIII of ANILCA. Applicable regulations can be found at 36 CFR part 242 and 50 CFR part 100 and are unaffected by the Sturgeon decision or this rulemaking.

Third, the Court acknowledged that NPS maintains its authority to acquire lands, enter into cooperative agreements, and propose needed regulatory action to agencies with jurisdiction over non-federal lands (slip op. 20, 28). Cooperative agreements with the State, for example, could stipulate that certain NPS regulations would apply to activities on the waters and that NPS would have authority to enforce those regulations under the terms of the agreement.

Fourth, ANILCA section 906(o)(2) contains an administrative exemption relative to State and Native corporation land selections, which are excluded from the definition of “public land” in section 102. This exemption did not feature in the Sturgeon case and will not be affected by this rulemaking. The Final Rule section below provides more detail.

Summary of Public Comments

The NPS published a proposed rule in the Federal Register on April 30, 2020 (85 FR 23935). The NPS accepted comments on the rule through the mail, by hand delivery, and through the Federal eRulemaking Portal at www.regulations.gov. The comment period closed on June 29, 2020. A summary of the pertinent issues raised in the comments and NPS responses are provided below.

The overwhelming majority of comments expressed support for the proposed regulatory changes, along with opposition to or concern over the way the Federal government is implementing ANILCA and/or managing Federal lands and waters in Alaska. Many commenters included proposals for changes or clarifications to the wording in the proposed rule. The NPS believes it is administering National Park System areas in Alaska in accordance with ANILCA and other applicable laws. If it is determined otherwise, prompt action will be taken to make any necessary changes, as illustrated by this process. After considering public comments and after additional review, the NPS made several changes in the final rule, as explained below.

1. Comment: Several commenters expressed concern that the proposed language for 36 CFR 1.2(f) focused too heavily on the concept of “boundaries” or was otherwise not clear on the extent of NPS regulatory authority (or lack thereof) over non-federal lands and waters surrounded by National Park System units established or expanded by ANILCA. Commenters suggested modifying the proposed text in several different ways.

NPS Response: After considering these comments, the NPS has revised 36 CFR 1.2(f) to read as follows: “In Alaska, unless otherwise provided, only the public lands (federally owned lands) within Park area boundaries are deemed a part of that Park area, and non-public lands (including state, Native, and other non-federally owned lands and waters) shall not be regulated in this chapter as part of the National Park System.” This language is consistent with the original intent of the proposed rule and the Court's decision in Sturgeon.

Focusing the language in paragraph (f) on which lands and waters are regulated as part of the National Park System, rather than which lands and waters are included within the boundary, will also help to resolve a question raised by other commenters about whether persons living on private lands within Start Printed Page 72958national parks or monuments would still be considered within a resident zone for purposes of eligibility to engage in subsistence activities within that National Park System unit. Commenters raised this question because NPS regulations at 36 CFR 13.430 define a resident zone as including the “area within a national park or monument” and “areas near a national park or monument” that meet certain criteria. The concern appears to be that the proposed modifications would make privately owned lands that are within a national park or monument outside the resident zone for purposes of determining eligibility to engage in subsistence.

The NPS does not intend this rule to make any changes to resident zone determinations or to eligibility requirements for engaging in subsistence activities. Under ANILCA, as outlined by the Supreme Court in Sturgeon, non-federal lands and waters within the external boundaries of a park unit in Alaska are “deemed” outside of the unit and thus, may not be regulated as if they were a part of the surrounding National Park System lands. But nothing in the Sturgeon decisions or ANILCA would correspondingly deem local residents on those lands to be outside the resident zone. To remove any potential ambiguity in the regulations, in concert with the changes to paragraph (f), a clarifying amendment has been added to § 13.430(a)(1) in this final rule responding to concerns that the language could otherwise be interpreted to mean that private land within the external boundaries of an NPS unit would no longer be located “within a national park or monument” for purposes of this section.

2. Comment: Multiple commenters suggested use of the Supreme Court's phrase “ordinary regulatory authority” in the preamble to the proposed rule was too vague, calling the Court's use of the phrase “offhand” and proposing NPS instead limit the scope of its regulatory authority to that contained in the NPS Organic Act. This was based on a stated presumption that NPS would, in the future, seek to impose regulations on non-federal lands in Alaska by claiming they were not based on any “ordinary” regulatory authority.

NPS Response: There are numerous statutes that expressly provide the NPS with regulatory authority which are not part of the Organic Act (see 54 U.S.C. 100101 note, explaining which statutory provisions are referred to as the “NPS Organic Act”). Limiting this phrase just to the Organic Act itself, as suggested in the comments, could open the very door the commenters seek to keep closed, because it might suggest that the NPS could use these other statutory authorities to apply its regulations to non-federally owned lands in Alaska. The NPS does not believe such action would be consistent with ANILCA under the Supreme Court's ruling.

The preamble uses the phrase “ordinary regulatory authority” since that was the term repeatedly used by the Court, which spent a considerable part of its opinion in Sturgeon discussing and analyzing NPS authorities, not just the NPS Organic Act, and thus meant “ordinary regulatory authority” to include all existing NPS regulatory authorities applicable to National Park System units as of the date of the Court's decision, not just authority expressly derived from the NPS Organic Act. The phrase is not used in the regulatory text.

3. Comment: The NPS received several comments opposing or questioning the merits of the Sturgeon decision or recommending certain uses and activities be prohibited in Alaska park areas, particularly mechanized means of access and transportation.

NPS Response: As a Federal agency, the NPS has no discretion when it comes to promptly and reasonably implementing federal statutes and Supreme Court decisions that affect its management authorities. In addition to ensuring NPS regulations reflect the outcome of the Sturgeon litigation, particularly with respect to non-federally owned lands, ANILCA expressly requires Federal land managers permit the use of snowmachines, motorboats, airplanes, and other mechanized means of transportation in all conservation system units in Alaska for a variety of purposes, including to engage in traditional activities and for travel to and from villages and homesites. Accordingly, NPS has no ability to respond positively to these comments.

4. Comment: Comments were supportive of language in the proposed rule stating that the NPS participates in the regulation of subsistence fisheries through its participation in the Federal Subsistence Management Program, and that applicable regulations at 36 CFR part 242 and 50 CFR part 100 are unaffected by the Sturgeon decision. Comments requested the NPS clarify that those regulations are additionally unaffected by this regulatory change, and others requested confirmation that regulations at 36 CFR part 13 are affected and apply only to federally owned lands and waters in Alaska park areas.

NPS Response: Both suggested clarifications are consistent with the Supreme Court's decision and the effect of the regulatory changes being made here, which is limited to and includes 36 CFR parts 1-199. This response serves to affirm those understandings. The revised definition of federally owned lands does not upset the application of the Katie John cases to the waters listed in 36 CFR 242.3 and 50 CFR 100.3. Regulations at 36 CFR part 13, subpart F, will be applied accordingly.

5. Comment: Several commenters suggested that the NPS limit regulatory changes in response to the Supreme Court's decision to implementing the final order of the U.S. District Court, or otherwise narrowing the scope of this rule to exempt only the Nation River within the Preserve from the Service's hovercraft prohibition at 36 CFR 2.17(e), or alternatively, to adopt language making it clear that Wild and Scenic Rivers are not affected by the regulatory changes.

NPS Response: The NPS disagrees with the suggestions that regulatory changes should be limited to the Yukon-Charley Rivers National Preserve, or to the Nation River, or to the hovercraft transiting it. While that was the specific issue in the case, it remains the NPS's duty to enforce the laws applicable to the lands it manages as part of the National Park System, and the Supreme Court's decision in Sturgeon has a broader effect on how those laws apply in Alaska, as explained above. Regulatory changes that are limited to the applicability of the hovercraft ban on the Nation River would be inconsistent with the intent of this rulemaking and fail to implement the Court's holding in Sturgeon. The final rule ensures NPS regulations are consistent with that holding. Inasmuch as the Court expressly declined to address how Wild and Scenic Rivers in Alaska are impacted by its analysis of NPS authorities (slip op. 27, n. 10), these regulations do not address that issue.

6. Comment: Several commenters questioned the effect of this rule on waters within National Park System units where navigability has not yet been determined or that overlay submerged lands where ownership is in question. Some commenters recommended that the NPS recognize or presume that title resides with the State, while others recommended the NPS assert title, until adjudicated otherwise. Extensive commentary was also provided on the issue of navigability and determining ownership of submerged lands, and on the purposes for which conservation system units in Alaska were established vis-à-vis the Start Printed Page 72959protection of lakes, rivers, and streams within the units.

NPS Response: In response to both sets of comments, the NPS notes that the existing and proposed regulations at 36 CFR Chapter I do not address or determine, and have no impact on, whether waters in Alaska are navigable or who maintains title to the submerged lands. Those are not decisions that can be made by the National Park Service. As noted in some of the comments, those decisions are made by Congress, the Bureau of Land Management, or the courts.

7. Comment: Many commenters asked that the NPS work cooperatively with the State of Alaska in the management of waterways, particularly those used by commercial service providers and the public for access to and across park areas.

NPS Response: The NPS is working to develop cooperative agreements with the State on this and other matters and remains committed to working closely with its partners and neighbors to promote healthy ecosystems and provide for public use and enjoyment in Alaska park areas.

8. Comment: Several commenters recommended additional changes to NPS regulations to reflect the outcome of the Sturgeon litigation, including modifying 36 CFR 1.4 to limit the “legislative jurisdiction” of the NPS over private lands, or to confirm the role of “boundaries” in determining regulatory authority in Alaska, and further requested the NPS clarify the relationship between the regulations in 36 CFR part 13 and the other NPS regulations in Title 36.

NPS Response: The NPS agrees that it could clarify the language in 36 CFR 13.2(a) consistent with the intent of this rulemaking. The revised paragraph (a) will now read: “The regulations contained in part 13 are prescribed for the proper use and management of park areas in Alaska and supersede any inconsistent provisions of the general regulations of this chapter, which apply only on federally owned lands within the boundaries of any park area in Alaska.”

Regarding the remaining suggested edits, once ownership is taken into account, as directed by the Supreme Court, we believe the scope of authority in the final rule is consistent with ANILCA.

9. Comment: The State of Alaska brought to our attention that the authorities cited in support of the proposed rule failed to include relevant sections of ANILCA.

NPS Response: The NPS appreciates the opportunity to make the necessary corrections and has updated the statement of authorities in the final rule.

10. Comment: Two commenters requested that the NPS explain the decision to use and define the term “federally owned lands” instead of the terms “Federal lands” or “public lands” or other terms used and defined in ANILCA.

NPS Response: As the commenters accurately note, the term “federally owned lands” is not used in ANILCA, and the relevant distinction between the terms that are used in the statute—“Federal lands” and “public lands”—will collapse over time as land selections are conveyed and relinquished in Alaska park units. In the interim, the NPS believed the use of the term “federally owned lands” would be clearer to the general public than the statutorily-defined “public lands”. Due to the many comments and questions we have received on the issue, we are revising the provision to use “public lands (federally owned lands)” as a way of better communicating our meaning to the general public. The definitions are not changed. More detail on how the terms are defined in relation to ANILCA is provided in the “Final Rule” section, below.

Final Rule

This rule modifies NPS regulations at 36 CFR parts 1 and 13 to conform to the U.S. Supreme Court's decision in Sturgeon. In the interest of clarifying NPS regulations, and in response to a petition for rulemaking filed by the State of Alaska, the NPS is promulgating a set of targeted amendments to ensure its regulations reflect the outcome of the Sturgeon case and provide fair notice of where regulations in 36 CFR Chapter I apply and where they do not in System units in Alaska.

Regulations at 36 CFR 1.2 address the “Applicability and Scope” of regulations found in 36 CFR Chapter I, which “provide for the proper use, management, government, and protection of persons, property, and natural and cultural resources within areas under the jurisdiction of the National Park Service” (36 CFR 1.1(a)). Section 1.2(a) identifies where the regulations apply unless otherwise stated. In order to reflect the Court's holding in Sturgeon, the NPS amends 36 CFR 1.2(a)(3) to add the words “except in Alaska” before “without regard to the ownership of submerged lands, tidelands, or lowlands.” This ensures that, consistent with the Court's holding, NPS regulations “will apply exclusively to public lands (meaning federally owned lands and waters) within system units” (slip op. 19).

The NPS adds a new 36 CFR 1.2(f) to clarify that, under ANILCA, “ `[o]nly the `public lands' (essentially, the federally owned lands)” within unit boundaries in Alaska are “ `deemed' a part of that unit,” and lands (including waters) not federally owned “may not be regulated as part of the park” (slip op. 16-17). As stated by the Court, “[g]eographic inholdings thus become regulatory outholdings, impervious to the Service's ordinary authority” (slip op. 19). The new paragraph (f) in this final rule states that, in Alaska, unless otherwise provided, only the public lands (federally owned lands) within National Park System unit boundaries are deemed a part of that unit, whereas the lands, waters, and interests therein which are not federally owned (including those owned by the State, Native corporations, and other parties) are not a part of the unit and will not be regulated as part of the National Park System. The language has been modified from the proposed rule in response to public comments for the reasons explained above (see comments 1 and 10). The definition of “boundary” in 36 CFR 1.4 has limited operation in Alaska, as NPS published legal descriptions for each unit boundary in 1992 and modifications must be consistent with ANILCA sections 103(b) and 1302(c) and (h).

The NPS also changes its regulations at 36 CFR part 13, which “are prescribed for the proper use and management of park areas in Alaska.” In section 13.1, “park areas” is currently defined as “lands and waters administered by the National Park Service within the State of Alaska.” The NPS modifies this definition and adds a definition of “federally owned lands” (incorporating and relocating the description formerly at 36 CFR 13.2(f)), to reflect ANILCA's limitations on the lands and waters that are administered by the NPS in Alaska, as outlined in the Sturgeon decision. This will not affect NPS administration under a valid cooperative agreement, which would be governed by the terms of the agreement. In response to public comments and for the reasons explained above (see comment 8), the final rule also changes the language in section 13.2(a) to clarify that part 13 regulations supersede general regulations found elsewhere in Title 36 where inconsistent.

The term “federally owned lands” is used instead of “public lands” to account for the authority granted by ANILCA section 906(o)(2) over validly-selected “Federal lands within the boundaries of a conservation system unit,” an exception to the definition of “public lands” in section 102 of Start Printed Page 72960ANILCA (16 U.S.C. 3102(3)). That section notes that definitions in Title IX are governed by the Alaska Native Claims Settlement Act (ANCSA) and the Alaska Statehood Act. Section 3(e) of ANCSA defines “public lands” as “all Federal lands and interests therein located in Alaska” with certain exceptions which, like the definition in ANILCA, predominantly relate to satisfaction of outstanding land entitlements, including section 6(g) of the Alaska Statehood Act.

However, ANILCA section 906(o)(2) uses the term “Federal lands,” which is not separately defined in either ANCSA or the Alaska Statehood Act, meaning it is as defined in ANILCA section 102 to include those lands, waters, and interests therein the title to which is in the United States. As before, selected lands are not considered “federally owned lands” once they are subject to a tentative approval or an interim conveyance; title has been transferred although it is not recordable until the lands are surveyed. Until statutory entitlements are satisfied in Alaska and land selections in National Park System units are adjudicated or relinquished, the definitions in part 13, as amended here, ensure NPS regulations are applied consistent with direction from Congress in Alaska-specific legislation and from the Supreme Court in Sturgeon.

Compliance With Other Laws, Executive Orders and Department Policy

Regulatory Planning and Review (Executive Orders 12866 and 13563)

Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. The OIRA has determined that the final rule is a significant regulatory action as defined by Executive Order 12866.

Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. The NPS has developed this rule in a manner consistent with these requirements.

Reducing Regulation and Controlling Regulatory Costs (Executive Order 13771)

Enabling regulations are considered deregulatory under guidance implementing E.O. 13771 (M-17-21). This rule clarifies that activities on lands in Alaska which are not federally owned, including submerged lands under navigable waters, are not subject to the NPS's ordinary regulatory authority.

Regulatory Flexibility Act

This rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The costs and benefits of a regulatory action are measured with respect to its existing baseline conditions. Regarding the applicability of NPS regulations within the external boundaries of National Park System units in Alaska, the baseline conditions will be unchanged by this rule. The Supreme Court settled this legal question when it announced the Sturgeon decision in March 2019. Compared to baseline conditions, this regulatory change will benefit the general public by clarifying regulatory language in 36 CFR describing where NPS regulations apply, specifically that fewer areas in Alaska are subject to NPS regulations. In addition, this action will not impose restrictions on local businesses in the form of fees, training, record keeping, or other measures that would increase costs. Given those findings, the agency certifies that this regulatory action will not impose a significant economic impact on a substantial number of small entities.

Small Business Regulatory Enforcement Fairness Act

This rule is not a major rule under 5 U.S.C. 804(2). This rule:

(a) Does not have an annual effect on the economy of $100 million or more.

(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

Unfunded Mandates Reform Act

This rule does not impose an unfunded mandate on State, local, or Tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or Tribal governments or the private sector. It addresses the use of and jurisdiction over lands and waters within the external boundaries of NPS units as determined by the U.S. Supreme Court in a March 2019 decision and imposes no requirements on other agencies or governments. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.

Takings (Executive Order 12630)

This rule does not effect a taking of private property or otherwise have takings implications under Executive Order 12630. A takings implication assessment is not required.

Federalism (Executive Order 13132)

Under the criteria in section 1 of Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism summary impact statement. This rule clarifies that the NPS may not regulate non-public lands within the external boundaries of NPS units in Alaska. It has no outside effects on other areas. A Federalism summary impact statement is not required.

Civil Justice Reform (Executive Order 12988)

This rule complies with the requirements of Executive Order 12988. This rule:

(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

Tribal Consultation (Executive Order 13175 and Department Policy)

The Department of the Interior strives to strengthen its government-to-government relationship with Tribes and Alaska Native corporations through a commitment to consultation and recognition of their right to self-governance and tribal sovereignty. The NPS has evaluated this rule under the criteria in Executive Order 13175 and under the Department's Tribal consultation policy and has determined that consultation is not required because the rule will have no substantial direct Start Printed Page 72961effect on federally recognized Tribes or Alaska Native corporations.

Paperwork Reduction Act

This rule does not contain information collection requirements, and a submission to the Office of Management and Budget under the Paperwork Reduction Act is not required. The NPS may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.

National Environmental Policy Act

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required because the rule is covered by a categorical exclusion. The NPS has determined the rule is categorically excluded under 43 CFR 46.210(i) which applies to “policies, directives, regulations, and guidelines: That are of an administrative, financial, legal, technical, or procedural nature; or whose environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis and will later be subject to the NEPA process, either collectively or case-by-case.” This rule is legal in nature. The Sturgeon decision has governed how the NPS administers lands and waters in Alaska since it was issued in March 2019. This rule will have no legal effect beyond what was announced by the Court. It will revise NPS regulations to be consistent with the decision and make no additional changes. The NPS has determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.

Effects on the Energy Supply (Executive Order 13211)

This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects in not required.

Start List of Subjects

List of Subjects

36 CFR Part 1

  • National parks
  • Penalties
  • Reporting and recordkeeping requirements
  • Signs and symbols

36 CFR Part 13

  • Alaska
  • National Parks
  • Reporting and recordkeeping requirements
End List of Subjects

For the reasons set forth in the preamble, the National Park Service amends 36 CFR parts 1 and 13 as set forth below:

Start Part

PART 1—GENERAL PROVISIONS

End Part Start Amendment Part

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

End Amendment Part Start Authority

Authority: 54 U.S.C. 100101, 100751, 320102.

End Authority Start Amendment Part

2. Amend § 1.2 by revising paragraph (a)(3) and adding paragraph (f) to read as follows:

End Amendment Part
Applicability and scope.

(a) * * *

(3) Waters subject to the jurisdiction of the United States located within the boundaries of the National Park System, including navigable waters and areas within their ordinary reach (up to the mean high water line in places subject to the ebb and flow of the tide and up to the ordinary high water mark in other places) and, except in Alaska, without regard to the ownership of submerged lands, tidelands, or lowlands;

* * * * *

(f) In Alaska, unless otherwise provided, only the public lands (federally owned lands) within Park area boundaries are deemed a part of that Park area, and non-public lands (including state, Native, and other non-federally owned lands, including submerged lands and the waters flowing over them) shall not be regulated as part of the National Park System.

Start Part

PART 13—NATIONAL PARK SYSTEM UNITS IN ALASKA

End Part Start Amendment Part

3. The authority citation for part 13 is revised to read as follows:

End Amendment Part Start Authority

Authority: 16 U.S.C. 3101 et seq.; 54 U.S.C. 100101, 100751, 320102; Sec. 13.1204 also issued under Pub. L. 104-333, Sec. 1035, 110 Stat. 4240, November 12, 1996.

End Authority Start Amendment Part

4. In § 13.1, add a definition of “Federally owned lands” in alphabetical order and revise the definition of “Park areas” to read as follows:

End Amendment Part
Definitions.
* * * * *

Federally owned lands means lands, waters, and interests therein the title to which is in the United States, and does not include those land interests tentatively approved to the State of Alaska; or conveyed by an interim conveyance to a Native corporation.

* * * * *

Park areas means federally owned lands administered by the National Park Service in Alaska.

* * * * *
Start Amendment Part

5. Amend § 13.2 by revising paragraph (a) and removing paragraph (f) to read as follows:

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Applicability and Scope.

(a) The regulations contained in part 13 are prescribed for the proper use and management of park areas in Alaska and supersede any inconsistent provisions of the general regulations of this chapter, which apply only on federally owned lands within the boundaries of any park area in Alaska.

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Start Amendment Part

6. Amend § 13.430 by revising paragraph (a)(1) as follows:

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Determination of resident zones.

(a) * * *

(1) The area within a national park or monument and any lands surrounded by a national park or monument that are not federally owned; and

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Start Signature

George Wallace,

Assistant Secretary for Fish and Wildlife and Parks.

End Signature End Supplemental Information

[FR Doc. 2020-24899 Filed 11-13-20; 8:45 am]

BILLING CODE 4312-52-P