Boating and Water Use Activities

[Federal Register: March 23, 2007 (Volume 72, Number 56)]
[Rules and Regulations]
[Page 13694-13706]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23mr07-15]

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DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Parts 1, 3 and 7
RIN 1024-AD07

AGENCY: National Park Service, Interior.
ACTION: Final rule.

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SUMMARY: The National Park Service (NPS) is revising rules that
regulate boating and water use activities in areas administered by the
NPS. The 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 and to 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 final rule will eliminate many requirements which
are ineffective or out of date and will provide flexibility in managing
safety, resource preservation, and public use needs throughout the
National Park System.

DATES: This regulation becomes effective April 23, 2007.

FOR FURTHER INFORMATION CONTACT: Jerry Case, Regulations Program
Manger, National Park Service, 1849 C Street, NW., Room 7241,
Washington, DC 20240. Phone: (202) 208-4206. E-mail:
Jerry_Case@nps.gov.

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, promulgated in 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 boating safety laws
and regulations in relation to NPS specific regulations contained in
Part 3. The required order of applicability, or hierarchy, of laws and
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.
Where the NPS, USCG, and State have a comparable but different
rule, the NPS rule applies first, except where we have specifically
adopted the more stringent rule in our regulation (See 3.10(a)(2)). The
USCG rule will apply when no NPS rule exists and if the NPS and USCG do
not have a rule then the State boating safety rule applies.
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 consistency 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

[[Page 13695]]

of NPS, USCG regulations and state boating safety laws and regulations.

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
final revisions.

Numbering

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Old New
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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
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New Sections
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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.
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Summary of Comments

On August 26, 2003, the NPS issued a proposed rule requesting
comments for 120 days (68 FR 51207). A total of 278 comments were
received. We received ten comments from organizations, eight comments
from government agencies, six comments from businesses and 254 comments
from individuals. The following is a summary of the comments received
and the NPS response to each comment.
16 U.S.C. 1a-2(h) authorizes the NPS to promulgate and enforce
boating and water related regulations that are complementary to, and
not in derogation of, the authority of the USCG to regulate waters of
the United States. For this reason the NPS has worked closely with USCG
Boating Safety Regulations division throughout the rulemaking process.
The USCG was provided a draft copy of the final rule for review and on
July 25, 2005, the NPS met with the USCG to discuss their comments
which have been included throughout the following section.

Section 1.4 Terms

1. One commenter suggested the NPS should include the definition of
the International Code Flag ``A'' as its use pertains to diving
activities within NPS areas.
NPS Response: Although the NPS recognizes that adding the
definition of the International Code Flag ``A'' may be helpful to
boaters operating on NPS waters, the USCG describes the International
Code Flag ``A'' in Title 33 of the U.S. Code and therefore it would be
redundant to re-define it in Sec. 1.4.
Navigation Rules (NAVRULES) require the display of the
International Code Flag ``A'' when a vessel's maneuverability is
limited when engaged in support of diving activities on navigable
waters. These requirements are codified in 33 U.S.C. 2027(e) and are
applicable to navigable and non-navigable waters subject to the
jurisdiction of the NPS as adopted through Sec. 3.2. The dive flag,
however must be displayed when there is a diver in the water, whether
or not the vessel's maneuverability is restricted. The dive flag
relates to the diver and the code flag ``A'' relates to the vessel with
restricted maneuverability. The NPS recognizes that there may be
occasions when the International Code Flag ``A'' must be displayed on
NPS waters in addition to complying with the requirement to display a
dive flag.
2. One commenter indicated the term ``Flat Wake Speed'' will cause
confusion because a wake by definition is not flat. They further
recommended the NPS use the term ``No Wake or Idle Speed NTE 5 mph''.
NPS Response: The NPS considered the various terms that have been
used to describe zones that are intended to require a slow speed. The
determination of these zones is predicated on visitor safety needs and
the protection of park resources. The terms include ``no wake'',
``wakeless speed'', ``5 mph'', ``slow speed'' and idle speed. Since a
boat underway and making way creates some wake regardless of speed, the
term no wake and wakeless speed are not descriptive of the desired
condition. The term 5 mph may describe the desired condition but is
difficult for boaters to identify with since effective speedometers are
rarely found on recreational vessels. Neither slow speed nor idle speed
effectively addresses the desired condition as they are terms that
allow for individual interpretation and/or variants in equipment. The
term ``flat wake speed'' is the preferred NPS term since the desired
condition, a minimal disturbance of water by a vessel in order to
prevent damage or injury is described. The ability of park staff to
understand and educate the boating public as well as take proactive
enforcement actions is enhanced.
3. One commenter recommended that the NPS adopt the EPA definition
of sewage.
NPS Response: Our definition in this rule is identical to the USCG
definition of sewage found in 33 U.S.C. 1322 and to EPA's found in 40
CFR 122.2.
4. There were numerous comments concerning the definition of a
vessel and the need for the NPS to define ``non-traditional
watercraft''. It is apparent that commenters have concerns about the
inclusion of non-traditional watercraft within the scope of the
definition of a vessel, specifically float tubes, and the thought that
users would be required to carry PFDs on these non-traditional
watercraft. There was also considerable comment about the economic
impact to tube rental businesses that would occur if the NPS
implemented this definition.
NPS Response: The NPS acknowledges the concerns raised by the
comments related to the proposed rule definition of vessel and non-
traditional watercraft. The NPS will use the statutory definition USCG
uses for vessel, but with an exception for seaplanes on the water:
``The term `vessel' includes every description of watercraft or other
artificial contrivance used, or capable of being used, as a means of
transportation on the water'', 1 U.S.C. 3. Using this definition the
NPS no longer believes that a separate definition is needed for ``non-
traditional watercraft''. This view reflects judicial interpretations
of the definition of vessel that read capable as meaning practically
capable. The Court in Evansville & Bowling Green Packet Co. v. Chero
Cola bottling Co., 271 U.S. 19, 22, 46, S.Ct. 379, 380, 70 L.Ed. 805
(1926), developed a test to determine whether a vessel was
``practically capable'' of being used as a means of transportation on
the water. The criteria included whether the craft was: (1) Used to
carry freight from one place to another; (2) used as a means of
transportation; (3) moved from place to place; and/or (4) exposed to
the typical perils of navigation to which craft used for transportation
are exposed.
The definition of vessel does not include float tubes, inner tubes,
water play toys, or homemade devices that float unless they are
modified in such a way with the addition of paddles, motors, or some
other type of propulsion device. The statement of applicability in the
USCG regulations for PFDs at 33 CFR 175.11 provides that the
regulations only apply to vessels

[[Page 13696]]

``that are propelled or controlled by machinery, sails, oars, paddles,
poles, or another vessel.'' When they are modified with the addition of
some type of propulsion and used as a means of transportation and/or
moved from place to place then these devices become artificial
contrivances and therefore, vessels in the revised NPS definition. With
this definition, a surfboard by itself is not a vessel, but if a sail
is attached then it is a vessel; or an inner tube by itself is not a
vessel, but if a motor is attached then it is a vessel. Though these
buoyant devices are not considered vessels under the regulations, the
NPS has provided the superintendents authority in section 3.7(b) to
regulate their use by requiring the wearing of PFDs when it is deemed
necessary to protect the public. This management approach will allow
individual park areas and superintendents to assess the economic
impacts to small businesses of imposing these requirements.
5. The NPS should define a recreational boat accident.
NPS Response: The NPS disagrees with this comment. By adopting USCG
regulations the NPS also adopts those definitions that are applicable
to the regulations. By adopting USCG definitions we are seeking
consistency in vocabulary for the boat operator.

3.2 Other Boating Laws and Regulations

6. Some commenters suggested that the NPS would ``preempt any other
comparable laws including USCG regulations''. The numerous cites ``may
confuse the reader''. Some indicated that the regulations should be
changed to reflect exemptions under 33 CFR 175.17. Some commenters
suggested that the NPS adopt regulations for the state where the park
area is located.
NPS Response: Commenters were concerned with the NPS regulations
conflicting with USCG or applicable State laws. It has always been the
intent of the NPS to apply USCG and state laws and regulations whenever
possible. In the adoption of these laws and regulations, it is also
recognized that the NPS is adopting not only the regulations but the
exemptions appearing within the regulations and that is true for 33 CFR
175.17. It should be noted that the NPS does have a separate and
distinct responsibility to protect the cultural, historical, natural,
and other park resources that may not receive adequate protection from
other regulatory agencies. Therefore it is necessary to create specific
NPS regulations and these regulations would preempt any other
comparable laws and regulations.

3.3 Vessel Permit

7. One commenter was opposed to an increase in the use of permits
on NPS waterways, and was concerned about the potential expansion of
permit use to include private non-powered boaters.
NPS Response: The NPS regulation codified in Sec. 3.3 does not
deviate significantly from the existing regulation pertaining to
permits. This regulation clarifies the superintendent's authority to
establish permit requirements as detailed in 36 CFR Part 1 and serves
to alert the public that permits to operate vessels may be required in
NPS areas based upon considerations of factors in 36 CFR 3.3.
8. A commenter suggested the NPS should clearly identify the
superintendent's authority to establish permits related to boating.
NPS Response: The statutory authority is 16 U.S.C. 1a-2(h) and it
is implemented in 36 CFR parts 1 and 3, setting forth the park
superintendent's authority to require and issue permits for the purpose
of regulating activities consistent with applicable legislation and
federal administrative policies. It is based upon a determination that
such action is necessary in consideration of public health and safety,
protection of park resources, weather and park management objectives.
It also recognizes one of the primary missions of the NPS, the
protection of natural, cultural, historic and other park resources. It
also recognizes the need for scientific research, implementation of
management objectives and responsibilities, equitable allocation and use
of park facilities or avoidance of conflict among visitor use activities.
9. One commenter suggested that the NPS should require all boating
activity restrictions be based on an equitable balance of the needs of
all park users and any outright prohibitions should only be approved by
a part 7 regulation.
NPS Response: The NPS agrees that an equitable balance of the needs
of all park users should be considered along with other criteria
detailed in 36 CFR part 1 in the determination of requirements for the
issuance of a permit. Each proposed action, including all closures,
public use limitations or restrictions by the NPS, is evaluated to
determine appropriate publication as either a part 7 regulation or in
the Superintendent's Compendium as required by 36 CFR 1.5(b). Among the
factors evaluated are the significance and duration of the impact of
the NPS action upon the public.

3.4 Vessel Inspection

10. Some comments were received surrounding the definition of
``authorized person'' and what authority does the NPS have to board a
vessel ``at any time'' similar to USCG authority.
NPS Response: Authorized person is currently defined in 36 CFR 1.4.
This is not a change with this rulemaking. It should be noted that in
our current regulations authorized persons have the authority to stop
and board a vessel to examine documents, licenses or permits related to
the operation of the vessel as well as to determine compliance with
regulations pertaining to safety equipment and operation, 36 CFR 3.5(a).

3.5 Boating Accidents

11. There were several comments related to accidents, reporting of
accidents and the threshold value of when to report an accident. The
comments indicated that the NPS should defer to the state in which the
park was located.
NPS Response: By adopting USCG regulations in 33 CFR 175.51-59 the
NPS is in concert with all applicable USCG regulations related to the
reporting of boat accidents. The NPS is in consultation with the USCG
regarding their requirements related to the reporting of boat accidents
and we will ensure that necessary USCG information is captured in our
new reporting system. Until the new system is in operation the Service
will use the existing OMB approved form for reporting boating
accidents. The NPS needs to receive accident reports for agency
statistical analysis of visitor safety incidents. Therefore, each park
unit is encouraged to develop standard operating procedures that
include sharing of accident information with their state boating
enforcement agencies. States are required to furnish all accident
information to the USCG.

3.6 Operator Age

12. One commenter stated that the language in paragraph Sec. 3.6
was confusing and could preclude young people that have completed a
boater education program from operating a motorboat. Another commenter
stated that the NPS should require that all recreational boaters on NPS
waters complete any and all mandatory state boater safety education
requirements.
NPS Response: The NPS agrees that the language could be
misinterpreted and therefore has made changes to clarify that language.
We have also provided for adoption of mandatory state boater education
requirements for boaters of all ages. NPS boating regulations adopt
state law. If a state law requires boater safety education, then NPS
will enforce that requirement on park waters.

[[Page 13697]]

13. Many of the commenters commended the NPS for establishing
minimum age requirements for boat operation.
NPS Response: The NPS agrees that a minimum age requirement is
necessary for boating safety. The NPS regulations will continue to
defer to state boater age requirements where they exist.

3.7 Personal Flotation Devices

14. Several commenters requested that Type V PFDs be included as
appropriate flotation devices when used in accordance with the label.
NPS Response: The NPS agrees that Type V PFDs are a USCG approved
PFD when used as intended by the manufacturer. Therefore the NPS is
adopting all USCG regulations regarding PFD wear and carriage contained
in 33 CFR part 175, including the use of Type V PFDs.
15. Several commenters were concerned that the NPS was mandating
the wearing of PFDs while floating on riverways.
NPS Response: Under the proposed rules, the wearing of PFDs would
have been required during certain boating activities like river
floating. However, the NPS will use the USCG statutory definition in 1
U.S.C. 3 but modified slightly by including an exception for seaplanes
on the water. The USCG applicability clause for PFD carriage in 33 CFR
175.11 exempts the requirement to wear or carry a PFD on some buoyant
devices such as innertubes which would be used for floating on a
riverway. The NPS in 36 CFR 3.7 specifically provides the authority for
a Superintendent to determine if the mandatory wearing or carriage of a
PFD should be required for the use of watercraft such as an innertube.
This authority may be necessary to provide for boater safety. The NPS
is adopting the USCG regulations, and where applicable, State
regulations, on wearing and carriage of PFDs.
16. One commenter felt that all children under 13 should be
required to wear PFDs on all park waters.
NPS Response: The NPS is adopting USCG regulations for wearing and
carriage of PFDs, including those regulations that apply to children
under the age of 13. We are also adopting State regulations, where they
exist, for wearing PFDs by children under 13. The NPS retains the
authority for a Superintendent to determine when the mandatory wear or
carriage of a PFD could be required, including mandatory wearing by
children under 13.
17. One commenter supported the Superintendent's authority to
require wearing of PFDs under certain conditions or during certain
activities and one commenter disagreed with this authority.
NPS Response: The NPS feels that it is necessary to provide some
flexibility to individual Superintendents at a variety of park areas to
address boating safety issues. There are a number of different
waterways throughout the National Park System and no one regulation
could address all safety concerns. Individual Superintendents are aware of
their park's issues and can address those safety concerns by establishing
specific PFD requirements as needed for the safety of park visitors.

3.8 Prohibited Operations

18. One commenter asked the NPS to clarify what a designated launch
site was under paragraph 3.8 and how it affects the launching of non-
traditional watercraft.
NPS Response: The superintendent will determine what a designated
launch site is based on resource management concerns and other factors.
Launch sites could be as specific as traditional formed concrete boat
ramps, graveled access points to a waterway or the entire shoreline of
a river. The launching of various types of watercraft will depend on
the types of areas designated for launching at individual parks.
Because of the variety of waterways throughout the National Park
System, this designation of launch sites needs to be left to the
discretion of the park Superintendent. The NPS feels it is necessary to
have ``designated'' launch sites in order to protect park resources
along the body of water.
19. One commenter indicated that in paragraph 3.8(b)(3)(ii)(B) the
NPS was inconsistent in its use of terminology for non-traditional
watercraft.
NPS Response: We agree and have changed the terminology in that
paragraph, which is now renumbered as 3.8(b)(4)(ii).
20. One commenter stated that in paragraph 3.8(b)(3)(ii)(D) (now
renumbered as 3.8(b)(4)(iv)) we replace the phrase ``manually
propelled, anchored, or drifting'' with the word ``any'' so that the
flat wake distance requirement applies to all vessels.
NPS Response: The NPS is concerned about the lack of
maneuverability in ``manually propelled, anchored, or drifting''
vessels and thus reduced other vessels' speed to flat wake within 100
feet of these vessels. Power driven vessels have the ability to
maneuver when in proximity to each other; therefore, a reduced speed
when in proximity is not required. Additionally, if other speed and
proximity regulations exist within the State regulations, the NPS
defers to the State.
21. One commenter stated that the regulations should require the
marking of swimming beaches with buoys to increase boater awareness.
They also suggested that no swimming beaches be designated in narrow
channels to avoid conflicts between boaters and swimmers.
NPS Response: The NPS agrees that swimming areas should be
delineated with buoys whenever possible. However, in some circumstances
such as swimming areas along the open ocean, buoys may not be practical
or other methods of delineating swimming areas may be used such as
poles and indicators on the beach that are visible to boaters in the
water. Additionally, in accordance with paragraphs 3.16 and 3.17, the
Superintendent may close or restrict areas such as narrow channels to
swimming for safety and other appropriate reasons.
22. One commenter asked that the NPS add language to prohibit being
on, or holding onto, a swim platform or ladder while the boat engine is
running in order to reduce exposure to carbon monoxide.
NPS Response: The NPS agrees that prohibiting this activity would
be a benefit to the public and that exposure to carbon monoxide is a
serious health issue in the boating community. According to case
incident reporting records for the National Park Service during a 9
year period (1993-2001) there were 9 attributed contributed to carbon
monoxide poisoning on Lake Powell alone. In the last 14 years there
were over 120 non-fatal carbon monoxide poison cases, all boating
related, within the National Park System. Accordingly, the language in
Sec. 3.8 has been modified to reflect this new prohibition which
prohibits holding on while the vessel is operating, not just when the
vessel is moving.
23. One commenter said that the prohibitions in Sec. 3.8 seemed
redundant with existing laws governing malicious and dangerous behaviors.
NPS Response: The NPS generally disagrees with that observation.
Most of the prohibitions identified in Sec. 3.8 are unique to NPS
areas. Those paragraphs that may be redundant were included here to
provide consistency in interpreting a variety of terms used in boating
behaviors throughout the States such as careless, negligent, grossly
negligent, etc. The NPS did review the included paragraphs and
determined that the USCG already addresses the issue of attaching to or
interfering with navigational aids in 33 CFR 70.05.

[[Page 13698]]

Therefore that paragraph has been removed.

3.9 Personal Watercraft

24. Many commenters requested the NPS maintain a system-wide
prohibition on PWC operations.
NPS Response: The NPS will continue to comply with the requirements
in Sec. 3.9 which prohibit the operation of PWCs except when
authorized through special regulations.
25. One commenter said that PWC use should be authorized except
where prohibited by special regulation.
NPS Response: In regulations promulgated in April 2000, the NPS
determined that PWC use is generally inappropriate in units of the
National Park System. The NPS recognizes, however, that there are units
where PWC use may be appropriate considering the purpose for which the
area was created and other factors. The NPS will continue to comply
with the requirements in Sec. 3.9, which prohibit the operation of
PWCs except when authorized through special regulations.
26. One individual commented that the use of inflatable PFDs should
not be allowed on PWCs.
NPS Response: The NPS is adopting all USCG regulations pertaining
to the wearing and carriage of PFDs, which apply to PWCs as well as
other types of vessels. All Coast Guard approved inflatable PFDs have
on their label the statement: ``Not approved for use on personal
watercraft, for white water paddling, or for waterskiing, kneeboarding,
or similar towed uses.'' If the USCG approves inflatable PFDs for such
activities in the future, NPS regulations will allow their use.
27. One commenter said that the attaching of lanyards to the
operator should apply to all motorboats and not just PWCs.
NPS Response: The NPS strives to be consistent in its application
of regulations to all vessels. The NPS recognizes that the nature of
the configuration of a PWC is such that the operator rides on instead
of in the vessel creating a greater need for the wearing of the lanyard
to the ``cut-off'' switch for safety reasons. Currently 42 states
require the use of a lanyard on PWCs. The safety risks are not as great
with a traditional hull configuration; therefore, the NPS does not require
the use of the lanyard but encourages its use by the boating public.
28. One commenter said that Sec. 3.9(b)(4) is not needed because
it is redundant with regulations found in Sec. 3.8(b).
NPS Response: In Sec. 3.9(b)(4), the NPS recognizes that there are
certain maneuvers that PWCs can perform more easily than other vessels
that are dangerous to the operator and passengers as well as other
vessels in the area. Wake jumping and similar maneuvers are not
specifically addressed in Sec. 3.8(b).

3.10 Operating Under the Influence

29. One commenter supported the new boating under the influence
requirement.
NPS Response: The NPS agrees and those regulations are consistent
with the driving under the influence regulations found in 36 CFR Part
4. Paragraphs (a) through (c) of Sec. 3.10 address two individual
offenses. These provisions apply whether the alcohol or drugs were
obtained legally or not. The first is a standard prohibition against
operating a vessel while under the influence of alcohol or drugs. The
elements necessary to prove a violation of this provision can be
demonstrated through descriptions of observations made by the arresting
officer and witnesses, physical evidence and the results of field tests
conducted by the officer at the scene. The second offense involves
operating a vessel while the alcohol concentration in the operator's
blood 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. The elements
necessary to prove a violation of this provision can be shown only
through the results of chemical or other quantitative tests.
30. A couple of commenters said that the NPS should adopt USCG
operating under the influence regulations and/or state blood alcohol
content (BAC) levels.
NPS Response: The NPS regulations are similar to USCG regulations
found in 33 CFR Part 95. However, the USCG defers to the state blood
alcohol level even if it is a higher threshold than .08 BAC. For
consistency with a Presidential Proclamation for operating a motor
vehicle while under the influence of alcohol, the NPS will maintain a
BAC level of .08 for all boating and driving under the influence
violations. As a result, the NPS will not adopt USCG regulations for
boating under the influence.
31. One commenter said that NPS boating under the influence
regulations may be redundant to existing laws, while using inner tubes
in public while under the influence is already prohibited, along with
its accompanying behavior.
NPS Response: The NPS agrees that it is redundant in some
situations but not all operators under the influence are disorderly.
The boating under the influence regulation will apply to all operators
under the influence, even those not covered with the existing
disorderly conduct regulation.

3.12 Waterskiing

32. One commenter said that in this section, the NPS does not
provide the same option for adopting state regulations as found in
other sections. They said that setting a minimum age for observers
could be in conflict with state regulations and confuse the public.
NPS Response: The NPS agrees that this regulation could conflict
with state regulations, but we want to place a specific emphasis on
visitor safety and are concerned that a child under the age of 12 may
not be a capable observer to ensure the safety of the person being
towed. According to NASBLA, a majority of states that set a minimum age
for the observer, have 12 years of age as the minimum requirement. This
regulation will allow the NPS to be consistent with the majority of
states who have an observer age requirement.
33. One commenter recommended that the NPS have a requirement that
tow ropes be 20' or longer to reduce exposure to carbon monoxide.
NPS Response: The NPS agrees and has added this requirement to the
regulation.

3.13 Marine Sanitation Devices

34. Many comments asked that we continue the prohibition on black
water dumping while one other commenter said that we should take into
account alternative treatment processes and adequate pump out
facilities when regulating the disposal of black water.
NPS Response: The NPS is mandated to comply with various laws,
regulations and policies to protect park resources. Since water is a
significant resource for such things as wildlife habitat, drinking
water, and recreational activities, the NPS strives for the highest
water quality status. The discharge of black water is not consistent in
keeping with the mission of the NPS and the EPA does not authorize
dumping of black water in fresh water areas. In water use areas where
boaters are likely to go for several days away from a dock, and black
water accumulation would occur, the NPS provides sufficient pump-out
stations. It is not necessary to treat and discharge black water under
those circumstances.
35. Many people commented that gray water be banned. Another
commenter said that gray water discharge should not be regulated.
NPS Response: The NPS is not prohibiting the discharge of gray
water. Gray water is not defined as a pollutant in the Federal Water
Pollution Control

[[Page 13699]]

Act and does not contain the contaminants found in Marine Sanitation
Devices (MSD) that degrade water quality. The NPS will continue to
monitor additional information from EPA and USCG in assessing the
discharge of gray water.
36. One commenter recommended that the NPS adopt USCG, EPA or state
sewage or MSD requirements.
NPS Response: The NPS will adopt USCG, EPA or state sewage or MSD
requirements and/or regulations when they do not conflict with the
special provisions found in section 3.13. The NPS prohibits dumping of
sewage, treated or un-treated, into any body of fresh water and limits
accidental discharge of MSDs by requiring the locking or securing of
the mechanism. It was recommended that the NPS allow the discharge of
treated sewage into salt water areas. The discharge of untreated sewage
is prohibited under Federal law within the navigable waters of the
United States and the discharge of treated sewage by vessels is
prohibited under either Federal or State law in many bodies of water
where recreational boaters operate. The NPS understands that in some
situations vessels may traverse through park salt water areas from
areas where regulations allow the dumping of treated sewage. They would
then be out of compliance when in the park. For this reason we have
changed the final rule to reflect this concern.
In salt water areas surrounded by protected marine waters the park
superintendent has the ability to promulgate a special regulation to
modify this section.

3.15 Vessel Noise

37. Several commenters said the paragraph on vessel noise levels is
incomplete and not enforceable.
NPS Response: The NPS disagrees. The testing procedures listed are
acceptable standards found in the NSBLA Model Act for Motorboat Noise
and the National Marine Manufacturers Model Act which prescribe sound
decibel levels and testing standards. The regulation allows for either
testing while the vessel is underway or stationary. This new approach
will make it easier for field enforcement of noise standards.
38. Several commenters recommend that the NPS update noise standards
and reduce noise levels equivalent to that of four-stroke engines.
NPS Response: The NPS regulations are generally consistent with the
standards found in the NSBLA Model Act for Motorboat Noise and the
National Marine Manufacturers Model Act which prescribe sound decibel
levels and testing standards. The NPS will encourage individual parks
to more rigorously enforce these regulations to enhance the visitor
experience by reducing noise violations.
39. One commenter stated that the NPS must not adopt any boating
regulations that deviate from the authority of the USCG.
NPS Response: NPS boating regulations primarily rely upon USCG
regulations for the regulation of park waters. However there are
situations unique to park areas that are not covered by USCG
regulations. In those situations the NPS develops and adopts specific
regulations. These regulations are not a deviation from but rather
address situations necessary for protection of park resources and the
safety of park visitors.
40. A number of commenters say that where USCG regulations are not
applicable, NPS should adopt state regulations because this would be
less confusing to boaters and increases compliance.
NPS Response: The NPS agrees. Part 3 regulations adopt state
regulations with the intent of applying state regulations where USCG
regulations do not address these situations. The NPS further agrees
that this approach allows for increased compliance from the boating public.
41. Several commenters stated that USCG laws and regulations should
be at the top of the NPS boating and water use hierarchy with state law
as second and NPS regulations last.
NPS Response: It's the goal of the park service to adopt and
enforce USCG regulations when they apply and do not conflict. Before
the NPS actually develops a regulation we look to determine whether the
states have current regulations to address these situations. If state
boating laws adequately address the situation then the NPS will adopt
state law rather than creating a separate regulation. Unfortunately
there are situations in park areas not addressed by USCG or State
regulations that require the NPS to develop specific regulations.
42. One commenter stated that we should standardize regulations
with other agencies to the extent that the regulations remain compliant
with mandates of the NPS Organic Act.
NPS Response: NPS agrees. NPS will adopt and enforce the
regulations of the other agencies when this action will also satisfy
our responsibilities under the NPS Organic Act and the enabling acts
for the individual parks.
43. One commenter stated that where state regulations are applied
in NPS areas with overlapping jurisdictions of more than one state, the
stricter state requirement should apply.
NPS Response: At this time the NPS believes the appropriate
approach is to apply the law of the state in which the boating activity
is occurring. It would be confusing to the boating public to enforce
one law in an area where two conflicting state laws exist. Until we can
be assured the approach proposed by the commenter would not cause
unreasonable confusion for the park visitor, we will continue to
enforce the two different state laws.
44. One commenter stated that superintendents should not have
compendium authority to ban or restrict boating usage.
NPS Response: NPS regulations at 36 CFR 1.5 address when a
superintendent has the authority to close or restrict park visitor
activities. This regulation includes the criteria that must be
satisfied before the decision is made and provides two approaches for
implementing any restrictions. These two approaches are the
superintendent's compendium and special regulations. Under either
approach the superintendent would only have the authority to take such
action generally for the purposes of ensuring public safety and
protection of park resources as described by the regulation.
45. Several comments concern the use of two stroke engines on park
waters.
NPS Response: The NPS believes that EPA regulations prohibiting
manufacturing of carbureted and electronic fuel injected (EFI) two
stroke engines after 2006 provides generally for long-term protection
of park waters through the phasing out of selected two stroke engines.
46. One commenter stated that we failed to address permeation
losses to the atmosphere through emissions of hydrocarbons.
NPS Response: We think this issue is beyond the scope of this
rulemaking and do not have any information to support rulemaking.
47. A comment was received suggesting NPS should prohibit service-
wide certain water-based activities, such as parasailing, use of hovercraft
and the use of submersibles, as not being appropriate in NPS areas.
NPS Response: NPS is sensitive to appropriateness of activities
allowed within parks. In the case of the examples given, the NPS
evaluated the activities and determined that parasailing and the use of
submersibles may be appropriate activities but use of a hovercraft
continues to be inappropriate. The NPS will continue to evaluate
individual water-based

[[Page 13700]]

activities for appropriateness as visitor trends and technologies change.
48. Two commenters raised concerns that NPS has not completed PWC
special regulations.
NPS Response: The promulgation of regulations to authorize PWC use
in individual parks is not within the scope of this rulemaking, but
rather is occurring through separate rulemaking processes to promulgate
special regulations for codification in 36 CFR part 7.
49. One commenter expressed concerns about not having adequate
staffing to enforce boating regulations.
NPS Response: Staffing is always an issue and many parks will
maintain partnerships with USCG and state boating officials to provide
for increased enforcement. These regulations combined with our
enforcement partnerships will provide a higher level of enforcement, a
greater consistency in enforcement and will be more clearly understood
by the visiting public and can be more effectively communicated and
enforced by NPS personnel.
50. One commenter stated that we should address the dangers of
carbon monoxide from boats and houseboats in final rulemaking.
NPS Response: NPS agrees. This final rule addresses the dangers of
carbon monoxide while boating. Exposure to carbon monoxide is a serious
health issue in the boating community. According to case incident
reporting records for the National Park Service during a 9-year period
(1993-2001) there were 9 fatalities contributed to carbon monoxide
poisoning on Lake Powell alone. In the last 14 years there were over
120 non-fatal carbon monoxide poison cases, all boating related, within
the National Park System. Changes have been made accordingly to
Sec. Sec. 3.8 and 3.12 to reduce the public's exposure to CO while
boating.
51. One commenter stated it supported NPS changes in its method for
noise enforcement.
NPS Response: NPS agrees. The new approach will make it easier for
field enforcement of noise standards.
52. One commenter stated that the NPS needed to address amplified
noise with a ``plainly audible'' standard.
NPS Response: Amplified noise is currently regulated by 36 CFR
2.12(a)(1). We think this regulation is sufficient for amplified noise
problems on watercraft.
feet is very weak.
NPS Response: The rule proposed for noise testing is modeled after
the NASBLA model act. This act has also been adopted in whole or part
by many states. The standards adopted are SAE J-2005 and SAE J-1970.
54. A commenter stated that a dive flag should not be displayed
unless diving activity is in progress.
NPS Response: NPS agrees. The regulation has been changed accordingly.
55. A commenter stated the proposed rule does not address the use
of dive flag for night-time diving.
NPS Response: NPS agrees. The regulation has been changed to
require illumination of dive flag for any diving occurring between
sunset and sunrise. The illumination of the dive flag does not meet
NAVRULES required lighting and may not consist of lights that may be
confused with navigation lights or ATON lights.
56. A commenter expressed concerns about the use of dive flags in
narrow channels where boating activity would be unduly restricted.
NPS Response: NPS acknowledges the concern with diving in narrow
channels but believes the best approach for addressing this issue is
for superintendents to determine whether restrictions are necessary for
public safety and safe navigation.
57. Two commenters stated the proposed rule does not address the
need for displaying the international code flag A.
NPS Response: The international code flag A (Alpha) is defined, and
its use regulated, in USCG rules. In Sec. 3.2 the NPS adopts
applicable laws and regulations of the United States Coast Guard. The
USCG laws and regulations are found in Title 14 United States Code,
Title 33 United States Code, Title 46 United States Code, and 33 CFR
Chapter 1, 46 CFR Chapter I and III and 49 CFR Chapter IV. The dive
flag for the diver does not meet the NAVRULES requirement to display a
Code Flag ``A'', if the vessel's maneuverability is restricted.

Changes to the Final Rule

In response to public comments, the NPS has made the following
changes to the final regulation:
Section 1.4--There were numerous comments concerning the proposed
definition of a vessel and the need for the NPS to define ``non-
traditional watercraft''. It is apparent that commenters have concerns
about the inclusion of non-traditional watercraft within the scope of
the definition of a vessel, specifically float tubes (innertubes), and
the thought that users would be required to carry PFDs on these non-
traditional watercraft. The proposed definition deviated too much from
the widely accepted USCG definition for vessel and had the potential to
create controversial situations and confusion. Therefore the NPS will
be using the USCG statutory definition found in 1 U.S.C. 3, modified
with an exception for seaplanes on the water. In the USCG definition
for vessels all types of artificial contrivance are included if they
can be used as a means of transportation, moved from place to place
and/or exposed to perils of navigation. If the (watercraft) artificial
contrivance is equipped with a means of propulsion such as oars,
paddles, paddlewheel, motor, sail, etc. it would then be held to the
various regulations required of a vessel of that size. Superintendents
will still have the authority in Sec. 3.7(b) to regulate the use of
non-traditional watercraft not meeting the vessel definition. This
means that the Superintendent can require that a PFD be worn or carried
on any type of watercraft, on designated waters and/or during
designated water based activities. That decision is made on a park-by-
park basis.
Section 3.2--The language in paragraph (a) was changed slightly to
further clarify the intent of the paragraph and the adoption of USCG
laws and regulations.
Section 3.3--Commenters raised concerns about the ambiguity of the
term ``or other factors'' when referring to the issues the
superintendent might take into consideration when requiring a permit
for use of a vessel. Commenters asked that the factors considered by
the superintendent be specific when requiring a permit and in NPS
response the term was removed. The remaining factors were considered
specific enough by the commenters.
Section 3.5--The language was changed in paragraph (c) to require
the superintendent to forward all boating accident reports to the
appropriate reporting authority, usually the State. These reports
should be submitted within the timeframes required by 33 CFR 173.55.
All States are required to forward boating reports to the USCG. This
way accident reporting requirements can be met with a single report.
Section 3.6--The title was changed to be broader since proposed
paragraph (b) is a more general discussion of State law adoption and
not just age requirements. Paragraph (c) was added to adopt State
mandatory boater education requirements.
Section 3.7--Paragraph (a) now defers to the USCG for adoption of
their requirements for the wearing or carriage of PFDs. However, the
regulations also allow a superintendent to require the

[[Page 13701]]

wear or carriage of a PFD on park waters when the USCG does not, if a
determination is made that such wear or carriage is necessary. The
change also removes the requirement to comply with state laws on PFD
wearing or carriage in order to simplify the regulation.
Section 3.8--The term hovercraft was removed from paragraph (a)
since a commenter did not think it was appropriate to classify a
hovercraft as a ``vessel'' by addressing its use in part 3. The NPS
will pursue a clarification to part 2 that clearly states the
prohibition on hovercraft while not attempting to classify it as an
aircraft (where it is currently addressed) or as a vessel.
Paragraph (a)(5) is also removed because the regulations in 33 CFR
70.05 already address this issue sufficiently.
Paragraph (b)(4)(ii) (formerly (b)(3)(ii)(B)) was changed to state
``fishing from shore'' rather than just ``fishing'' to be clear that
even though the person fishing may not be in the water, slow speeds in
the proximity of the person fishing is still warranted.
Paragraph (b)(6) (formerly (b)(5)) was changed to expand the list
of locations on the vessels where persons may not ride or hold on to
when the vessel is moving or idling in place. These changes are in
response to concerns that certain unsafe activities be prohibited at
any speed, not just speeds above flat wake. The regulation continues to
allow for exceptions during certain maneuvering activities.
Paragraph (b)(7) (formerly (b)(6)) was added to prohibit activities
that put boaters in close proximity to vessel exhaust. This addition is
in response to comments received about possible carbon monoxide
exposure and poisoning from unsafe proximity to vessel exhaust when the
vessel engine is operating, not just when the vessel is moving.
Paragraphs (b)(6) and (7) were renumbered (b)(8) and (9).
Section 3.12--paragraph (b)(6) was added to define the minimum
length of a tow rope in response to comments regarding concerns over
carbon monoxide exposure from being towed too close to the engine of a
vessel.
Section 3.13--paragraph (a) and (b) were changed to apply to bodies
of fresh water only. USCG regulations still apply in salt water areas.
The language in paragraph (b) discussing the locking of MSD was changed
to be consistent with USCG regulations at 33 CFR 159.7(b)(1-4) to
reduce confusion to the public. Paragraph (c) was removed as being
overly restrictive and expensive for boaters and paragraph (d) was
renumbered as the new paragraph (c).
Section 3.15--this section was revised to update testing with the
most recent standards adopted by the Society of Automotive Engineers
(SAE) for noise level enforcement. This rule is modeled after the
NASBLA model act and has also been adopted whole or in part by many states.
Section 3.18--language was added in paragraph (b) to be clear that
``a dive flag must not be displayed unless dive ops are ongoing'' in
order to reduce confusion and safety risks of improperly identified
underwater operations.
Paragraph (c) was added to require that dive flags be illuminated
in reduced light conditions to provide additional diver safety.
The previous paragraph (c) was renumbered to paragraph (d) and
terminology added to clarify the proximity to flag requirement.
The previous paragraph (d) was renumbered to (e) and language was
changed to adopt all state laws or regulations pertaining to
snorkeling, not just dive flag requirements.

Compliance With Other Laws

Regulatory Planning and Review (Executive Order 12866)

This document is a significant rule and the Office of Management
and Budget has reviewed this rule under Executive Order 12866.

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 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 (SBREFA)

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 (Executive Order 12630)

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 (Executive Order 13132)

NPS has examined today's final rule pursuant to Executive Order
13132 and concluded that no additional consultation with States, local
governments or their representatives is mandated beyond the rulemaking
process. The agency has concluded that the rule does not have
federalism implications because the rule does not have ``substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
Further, no consultation is needed to discuss the preemptive effect
of today's rule. Rules of the U.S. Coast Guard can have preemptive
effect in at least two ways. First, applicable statutes may contain
express preemption provisions. In that circumstance, consultation would
be inappropriate because the statutory command would preempt State law,
not this rulemaking. Second, in addition to express preemption the
Supreme Court has also recognized that

[[Page 13702]]

authoritative federal determinations that an area is best left
unregulated have as much preemptive force as a decision to regulate.
Sprietsma v. Mercury Marine, 537 U.S.51 (2002). While NPS has not
identified specific State requirements that may be preempted by such
determination by the U.S. Coast Guard, as such conflicts can arise in
varied contexts in different States, NPS generally acknowledges that
such conflicts may exist. As these conflicts arise outside of the
context of this rulemaking consultation is not appropriate.

Civil Justice Reform (Executive Order 12988)

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 parts 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 is
to identify a category of activities that individually or cumulatively
do not have significant effects 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;
Kym Hall, Coronado National Monument; Mike Tiernan, Solicitor's Office,
DOI and Jerry Case, Regulations Program Manager, National Park Service.

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
amends 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).

? 2. Amend Sec. 1.4 as follows:
? A. Add the following terms in alphabetical order.
? B. Revise the definition of ``vessel.''
The additions and revisions read as follows:

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 hour.
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, can 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 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 description of watercraft, or other artificial
contrivance used, or capable of being used, as a means of
transportation on the water. This definition does not apply to a
seaplane on the water.

PART 3--BOATING AND WATER USE ACTIVITIES

? 3. Revise part 3 to read as follows:

PART 3--BOATING AND WATER USE ACTIVITIES

Sec.
3.1 What is the applicability and scope of this part?

[[Page 13703]]

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 are the requirements to operate a power driven vessel?
3.7 What are the NPS Personal Flotation Device (PFD) requirements?
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 When is testing for alcohol or drugs required?
3.12 May I use a vessel to tow a person for water skiing or other
similar activities?
3.13 What conditions apply to the use of Marine Sanitation Devices (MSD)?
3.14 Am I required to remove a sunken, grounded, or disabled vessel?
3.15 What is the maximum noise level for the operation of a vessel?
3.16 May I swim or wade in park waters?
3.17 What regulations apply to swimming areas and beaches?
3.18 May I snorkel or underwater dive in park waters?
3.19 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, the NPS
adopts applicable laws and regulations of the United States Coast
Guard. The USCG laws and regulations are found in Title 14 United
States Code, Title 33 United States Code, Title 46 United States Code,
and 33 CFR chapter I, 46 CFR chapter I and III and 49 CFR chapter IV.
NPS applies the adopted laws and regulations to vessels and their
operation on all waters (navigable and non-navigable) subject to NPS
jurisdiction. 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) Except to the extent that directives of the United States Coast
Guard have expressly or implicitly preempted inconsistent state laws
and regulations or as otherwise provided by subsection (a), 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, and weather
and park management objectives, the superintendent may require a permit
for use of a vessel within a park area, under Sec. Sec. 1.5 and 1.7,
and will issue permits 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 must report
the accident to the superintendent as soon as practical, but in any
event within 24 hours of the accident, if the accident involves:
(1) Total property damage of $2000 or more; or
(2) Injury, or death or disappearance of a person
(b) If the operator is physically incapable of making the report,
the owner or an occupant of the vessel must report the accident to the
superintendent.
(c) Filing a report with the superintendent may satisfy applicable
United States Coast Guard, State, and local accident reporting
requirements. Superintendents will forward the accident report to the
appropriate reporting authority in a timely manner that complies with
the requirements of 33 CFR 173.55.

Sec. 3.6 What are the requirements to operate a power driven vessel?

(a) To operate a power-driven vessel on park waters, a person must
be either:
(1) At least 16 years old; or
(2) Between 12 and 15 years old and accompanied on the vessel by a
person at least 18 years old.
(b) If a park area is located within a State having different age
requirements, then the applicable State law is adopted in lieu of
paragraph (a) of this section.
(c) If a park area is located within a State having a mandatory
boater education requirement, then that State requirement is adopted.

Sec. 3.7 What are the NPS Personal Floatation Device (PFD) requirements?

(a) All requirements in Title 33 CFR part 175 related to PFDs are
adopted.
(b) The Superintendent may require that a PFD be worn or carried on
designated waters, at designated times and/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.
(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 33 CFR chapter I.
(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 in designated areas.
(4) Operating a vessel in excess of flat wake speed within 100 feet of:
(i) A downed water skier;
(ii) A person swimming, wading, fishing from shore or floating with
the aid of a flotation device;
(iii) A designated launch site; or
(iv) A manually propelled, anchored or drifting vessel. If the park
is located within a State specifying different conditions, then that
State law is adopted in lieu of this paragraph.

[[Page 13704]]

(5) 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.
(6) 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. 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 or when the vessel is maneuvering for anchoring, docking or mooring.
(7) Operating a power driven vessel engine/s or generator with a
person sitting, riding or hanging on to a swim platform or swim ladder.
(8) 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.
(9) 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 only in park areas where authorized
by special regulation. Special regulations may only be promulgated in
the 21 parks listed in the following table:

----------------------------------------------------------------------------------------------------
Name Water type State
----------------------------------------------------------------------------------------------------
Amistad National Recreation Area................ Impounded Lake........................... TX
Assateague Island National Seashore............. Open Ocean/Bay........................... MD/VA
Bighorn Canyon National Recreation Area......... Impounded Lake........................... MT
Big Thicket National Preserve................... River.................................... TX
Cape Cod National Seashore...................... Open Ocean/Bay........................... MA
Cape Lookout National Seashore.................. Open Ocean/Bay........................... NC
Chickasaw National Recreation Area.............. Impounded Lake........................... OK
Cumberland Island National Seashore............. Open Ocean/Bay........................... GA
Curecanti National Recreation Area.............. Impounded Lake........................... CO
Delaware Water Gap.............................. River.................................... PA/NJ
Fire Island National Seashore................... Open Ocean/Bay........................... NY
Gateway National Recreation Area................ Open Ocean/Bay........................... NY
Glen Canyon National Recreation Area............ Impounded Lake........................... AZ/UT
Gulf Islands National Seashore.................. Open Ocean/Bay........................... FL/MS
Indiana Dunes National Lakeshore................ Natural Lake............................. IN
Lake Mead National Recreation Area.............. Impounded Lake........................... AZ/NV
Lake Meredith National Recreation Area.......... Impounded Lake........................... TX
Lake Roosevelt National Recreation Area......... Impounded Lake........................... WA
Padre Island National Seashore.................. Open Ocean/Bay........................... TX
Pictured Rocks National Lakeshore............... Natural Lake............................. MI
Whiskeytown-Shasta-Trinity National Recreation Impounded Lake........................... CA
Area.
----------------------------------------------------------------------------------------------------

(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, III, or V 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, 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.
(b) 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 paragraph (a) of this section.
(c) The provisions of this section also apply to an operator who is
or has been legally entitled to use alcohol or drugs.

Sec. 3.11 When is testing for alcohol or drugs required?

(a) 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 Sec. 13.10, 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 refusal may be admissible in any related judicial proceeding.
(2) Any test or tests for the presence of alcohol and drugs must be
determined by and administered at the direction of an authorized person.
(3) Any test must be conducted by using accepted scientific methods
and equipment of proven accuracy and

[[Page 13705]]

reliability operated by personnel certified in its use.
(b) 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 Sec. 13.10.
If the alcohol concentration in the operator's blood or breath at the
time of testing is less than alcohol concentrations specified in Sec.
13.10(a)(2), this fact does not give rise to any presumption that the
operator is or is not under the influence of alcohol.
(c) The provisions of paragraph (b) 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. 3.12 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 under 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 under 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, III, or V 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.
(6) No person shall operate a power driven vessel using a tow rope
20 feet or less in length when towing a person.

Sec. 3.13 What conditions apply to the use of Marine Sanitation
Devices (MSD)?

(a) Discharging sewage from any vessel, whether treated or not, in
any body of fresh water is prohibited.
(b) The owner or operator of any vessel on park fresh water that is
equipped with toilet facilities and/or a MSD that is capable of
discharge, must lock or otherwise secure the valves or mechanism of the
device. Acceptable methods of securing the device include:
(1) Closing the seacock and removing the handle;
(2) Padlocking the seacock in the closed position;
(3) Using a non-releasable wire-tie to hold the seacock in the
closed position; or
(4) Locking the door to the space enclosing the toilets with a
padlock or door handle key lock.
(c) The superintendent may modify the requirements of this section
through a special regulation.

Sec. 3.14 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. 3.15 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. 3.16 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. 3.17 What regulations apply to swimming areas and beaches?

(a) The superintendent may designate areas as swimming areas or
swimming beaches in accordance with 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 in accordance with Sec. Sec. 1.5
and 1.7 of this chapter.

Sec. 3.18 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 during dive operations. A dive flag must not be
displayed unless dive operations are ongoing.
(c) The dive flag must be illuminated when dive operations take
place between sunset and sunrise. The dive flag illumination may not
consist of lights that may be confused with navigation lights or aids
to navigation lights.
(d) While on the surface, submerging or surfacing the diver must
remain within a 100 feet horizontal radius of the diver flag.
(e) If State laws or regulations exist concerning snorkeling
activities, those provisions of State law or regulation are adopted.

Sec. 3.19 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 under Sec. 1.6
of this chapter.

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

? 4. The authority citation for part 7 continues to read as follows:

Authority: 16 U.S.C. 1, 3, 9a, 460(q), 462(k); Sec. 7.96 also
issued under D.C. Code 8-137 (1981) and D.C. Code 40-721 (1981).

[[Page 13706]]

Sec. 7.45 [Amended]

? 5. In Sec. 7.45, remove paragraph (e)(8) and redesignate paragraph
(e)(9) as paragraph (e)(8).

Sec. 7.48 [Amended]

? 6. In Sec. 7.48, remove paragraph (d) and redesignate paragraphs (e)
through (g) as paragraphs (d) through (f), respectively.

Sec. 7.57 [Amended]

? 7. In Sec. 7.57, remove paragraph (c) and redesignate paragraphs (d)
through (h) as paragraphs (c) through (g), respectively.

Sec. 7.70 [Amended]

? 8. In Sec. 7.70, remove paragraphs (c) and (d) and redesignate
paragraphs (e) through (g) as paragraphs (c) through (e), respectively.

Sec. 7.79 [Amended]

? 9. In Sec. 7.79, remove paragraph (c) and redesignate paragraph (d) as
(c).

Dated: August 3, 2006.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.

Editorial Note: This document was received at the Office of the
Federal Register, National Archives and Records Administration,
Washington, DC, on March 15, 2007.
[FR Doc. E7-5111 Filed 3-22-07; 8:45 am]
BILLING CODE 4312-52-P

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