Jurisdiction in Alaska, 72956-72961 [2020-24899]

Download as PDF jbell on DSKJLSW7X2PROD with RULES 72956 Federal Register / Vol. 85, No. 221 / Monday, November 16, 2020 / Rules and Regulations charges related to the provision of services to, operation of, or investments of any pooled employer plan or other employee benefit plan against the pooled plan provider or any officer, director, or employee of the pooled plan provider. (4) Only one registration must be filed for each person intending to act as a pooled plan provider, regardless of the number of pooled employer plans it operates. A pooled plan provider must file updates for each pooled employer plan described in paragraph (b)(2) of this section, any change of previously reported information, and any change in circumstances listed in paragraph (b)(3) of this section, but may file a single statement to report multiple changes, as long as the timing requirements are met with respect to each reportable change. (5) If a pooled plan provider has terminated and ceased operating all pooled employer plans, the pooled plan provider must file a final supplemental filing in accordance with instructions for the Form PR. For purposes of this section, a pooled employer plan is treated as having terminated and ceased operating when a resolution has been adopted terminating the plan, all assets under the plan (including insurance/ annuity contracts) have been distributed to the participants and beneficiaries or legally transferred to the control of another plan, and a final Form 5500 has been filed for the plan. (6) For purposes of this section, a person is treated as initiating operations of a plan as a pooled employer plan when the first employer executes or adopts a participation, subscription, or similar agreement for the plan specifying that it is a pooled employer plan, or, if earlier, when the trustee of the plan first holds any asset in trust. (7) Registrations required under this section shall be filed with the Secretary electronically on the Form PR in accordance with the Form PR instructions published by the Department. (8) For purposes of this section, the term ‘‘administrative proceeding’’ or ‘‘administrative proceedings’’ means a judicial-type proceeding of public record before an administrative law judge or similar decision-maker. (9) For purposes of this section, the term ‘‘other regulatory authority’’ means Federal or State authorities and selfregulatory organizations authorized by law, but does not include any foreign regulatory authorities. (10) For purposes of paragraphs (b)(1)(ix) and (x) and (b)(3)(iii) and (v) of this section, employees of the pooled plan provider include employees of the pooled employer plan, but only if they VerDate Sep<11>2014 17:17 Nov 13, 2020 Jkt 253001 handle assets of the plan, within the meaning of section 412 of the Act, or if they are responsible for operations or investments of the pooled employer plan. (c) Transition rule. Notwithstanding paragraph (b)(1) of this section, a person intending to act as a pooled plan provider may file the Form PR on or before beginning operations as a pooled plan provider (dispensing with the 30day advance filing requirement) if the filing is made before February1, 2021. (d) Acquittals and removal of information. A pooled plan provider may file an update to remove any matter previously reported under paragraph (b)(1)(ix) or (b)(3)(v) of this section for which the defendant has received an acquittal. For this purpose, the term ‘‘acquittal’’ means a finding by a judge or jury that a defendant is not guilty or any other dismissal or judgment which the government may not appeal. Signed at Washington, DC. Jeanne Klinefelter Wilson, Acting Assistant Secretary, Employee Benefits Security Administration, Department of Labor. [FR Doc. 2020–25170 Filed 11–13–20; 8:45 am] BILLING CODE 4510–29–P DEPARTMENT OF THE INTERIOR National Park Service 36 CFR Parts 1 and 13 [NPS–AKRO–30677; PPAKAKROZ5, PPMPRLE1Y.L00000] RIN 1024–AE63 Jurisdiction in Alaska National Park Service, Interior. Final rule. AGENCY: ACTION: 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. SUMMARY: PO 00000 Frm 00058 Fmt 4700 Sfmt 4700 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. 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’’). E:\FR\FM\16NOR1.SGM 16NOR1 jbell on DSKJLSW7X2PROD with RULES Federal Register / Vol. 85, No. 221 / Monday, November 16, 2020 / Rules and Regulations 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, ‘‘nonfederally 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 VerDate Sep<11>2014 17:17 Nov 13, 2020 Jkt 253001 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 PO 00000 Frm 00059 Fmt 4700 Sfmt 4700 72957 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 E:\FR\FM\16NOR1.SGM 16NOR1 jbell on DSKJLSW7X2PROD with RULES 72958 Federal Register / Vol. 85, No. 221 / Monday, November 16, 2020 / Rules and Regulations national 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, VerDate Sep<11>2014 17:17 Nov 13, 2020 Jkt 253001 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 nonfederally 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 PO 00000 Frm 00060 Fmt 4700 Sfmt 4700 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 YukonCharley 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-a`-vis the E:\FR\FM\16NOR1.SGM 16NOR1 jbell on DSKJLSW7X2PROD with RULES Federal Register / Vol. 85, No. 221 / Monday, November 16, 2020 / Rules and Regulations protection 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 VerDate Sep<11>2014 17:17 Nov 13, 2020 Jkt 253001 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). PO 00000 Frm 00061 Fmt 4700 Sfmt 4700 72959 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 validlyselected ‘‘Federal lands within the boundaries of a conservation system unit,’’ an exception to the definition of ‘‘public lands’’ in section 102 of E:\FR\FM\16NOR1.SGM 16NOR1 72960 Federal Register / Vol. 85, No. 221 / Monday, November 16, 2020 / Rules and Regulations ANILCA (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. jbell on DSKJLSW7X2PROD with RULES 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 VerDate Sep<11>2014 17:17 Nov 13, 2020 Jkt 253001 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. 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. Small Business Regulatory Enforcement Fairness Act 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. 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. Tribal Consultation (Executive Order 13175 and Department Policy) The Department of the Interior strives to strengthen its government-togovernment relationship with Tribes and Alaska Native corporations through a commitment to consultation and recognition of their right to selfgovernance 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 PO 00000 Frm 00062 Fmt 4700 Sfmt 4700 E:\FR\FM\16NOR1.SGM 16NOR1 Federal Register / Vol. 85, No. 221 / Monday, November 16, 2020 / Rules and Regulations effect 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-bycase.’’ 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. List of Subjects jbell on DSKJLSW7X2PROD with RULES 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. For the reasons set forth in the preamble, the National Park Service amends 36 CFR parts 1 and 13 as set forth below: VerDate Sep<11>2014 17:17 Nov 13, 2020 Jkt 253001 PART 1—GENERAL PROVISIONS 1. The authority citation for part 1 continues to read as follows: ■ Authority: 54 U.S.C. 100101, 100751, 320102. 2. Amend § 1.2 by revising paragraph (a)(3) and adding paragraph (f) to read as follows: ■ § 1.2 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 nonfederally owned lands, including submerged lands and the waters flowing over them) shall not be regulated as part of the National Park System. § 13.2 72961 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. * * * * * ■ 6. Amend § 13.430 by revising paragraph (a)(1) as follows: § 13.430 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 * * * * * George Wallace, Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2020–24899 Filed 11–13–20; 8:45 am] BILLING CODE 4312–52–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R07–OAR–2020–0439; FRL–10016– 37–Region 7] PART 13—NATIONAL PARK SYSTEM UNITS IN ALASKA Air Plan Approval; Missouri; Removal of Control of Emission From Solvent Cleanup Operations 3. The authority citation for part 13 is revised to read as follows: AGENCY: ■ 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. 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: ■ § 13.1 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. * * * * * ■ 5. Amend § 13.2 by revising paragraph (a) and removing paragraph (f) to read as follows: PO 00000 Frm 00063 Fmt 4700 Sfmt 4700 Environmental Protection Agency (EPA). ACTION: Final rule. The Environmental Protection Agency (EPA) is taking final action to approve a revision to the State Implementation Plan (SIP) submitted by the State of Missouri on January 15, 2019, and supplemented by letter on July 11, 2019. In the proposal, EPA proposed removal of a rule related to the control of emissions from solvent cleanup operations in the St. Louis, Missouri area from its SIP. This removal does not have an adverse effect on air quality. The EPA’s approval of this rule revision is in accordance with the requirements of the Clean Air Act (CAA). SUMMARY: This final rule is effective on December 16, 2020. ADDRESSES: The EPA has established a docket for this action under Docket ID No. EPA–R07–OAR–2020–0439. All documents in the docket are listed on the https://www.regulations.gov website. Although listed in the index, some information is not publicly DATES: E:\FR\FM\16NOR1.SGM 16NOR1

Agencies

[Federal Register Volume 85, Number 221 (Monday, November 16, 2020)]
[Rules and Regulations]
[Pages 72956-72961]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-24899]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Parts 1 and 13

[NPS-AKRO-30677; PPAKAKROZ5, PPMPRLE1Y.L00000]
RIN 1024-AE63


Jurisdiction in Alaska

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.

FOR FURTHER INFORMATION CONTACT: Donald Striker, Acting Regional 
Director, Alaska Regional Office, 240 West 5th Ave., Anchorage, AK 
99501. Phone (907) 644-3510. Email: [email protected].

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'').

[[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

[[Page 72958]]

national 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 Sec.  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-[agrave]-vis the

[[Page 72959]]

protection 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

[[Page 72960]]

ANILCA (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

[[Page 72961]]

effect 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.

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.

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

PART 1--GENERAL PROVISIONS

0
1. The authority citation for part 1 continues to read as follows:

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


0
2. Amend Sec.  1.2 by revising paragraph (a)(3) and adding paragraph 
(f) to read as follows:


Sec.  1.2  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.

PART 13--NATIONAL PARK SYSTEM UNITS IN ALASKA

0
3. The authority citation for part 13 is revised to read as follows:

    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.


0
4. In Sec.  13.1, add a definition of ``Federally owned lands'' in 
alphabetical order and revise the definition of ``Park areas'' to read 
as follows:


Sec.  13.1  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.
* * * * *

0
5. Amend Sec.  13.2 by revising paragraph (a) and removing paragraph 
(f) to read as follows:


Sec.  13.2  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.
* * * * *

0
6. Amend Sec.  13.430 by revising paragraph (a)(1) as follows:


Sec.  13.430  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
* * * * *

George Wallace,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2020-24899 Filed 11-13-20; 8:45 am]
BILLING CODE 4312-52-P