13694 Federal Register / Vol. 72, No. 56 / Friday, March 23, 2007 / Rules and Regulations 

An 18′ × 43′ construction work barge 

may be located in the channel during 

the prosecution of this bridge 

maintenance. The work barge will move 

upon request by calling the bridge 

tender either on the land line (508) 672–

5111 or on VHF channel 13 and 16. 

In accordance with 33 CFR 117.35(c), 

this work will be performed with all due 

speed in order to return the bridge to 

normal operation as soon as possible. 

Should the bridge maintenance 

authorized by this temporary deviation 

be completed before the end of the 

effective period published in this notice, 

the Coast Guard will rescind the 

remainder of this temporary deviation, 

and the bridge shall be returned to its 

normal operating schedule. Notice of 

the above action shall be provided to the 

public in the Local Notice to Mariners 

and the Federal Register, where 

practicable. 

This deviation from the operating 

regulations is authorized under 33 CFR 

117.35. 

Dated: March 15, 2007. 

Gary Kassof, 

Bridge Program Manager, First Coast Guard 

District. 

[FR Doc. E7–5376 Filed 3–22–07; 8:45 am] 

BILLING CODE 4910–15–P 

DEPARTMENT OF THE INTERIOR 

National Park Service 

36 CFR Parts 1, 3 and 7 

RIN 1024–AD07 

Boating and Water Use Activities 

AGENCY: National Park Service, Interior. 

ACTION: Final rule. 

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out of date and will provide flexibility 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 nonnavigable 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 § 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 


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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 

Old New 

3.1 Applicable Regulations ........... 3.2 

3.2 NPS Distinctive Identification Deleted 

3.4 Accidents ................................ 3.5 

3.5 Inspections ............................. 3.4 

3.6 Prohibited Operations ............. 3.8 

3.7 Noise Abatement .................... 3.14 

3.20 Water Skiing ......................... 3.11 

3.21 Swimming and Bathing ........ 3.15 

3.22 Surfing .................................. Deleted. 

3.23 SCUBA and Snorkeling ........ 3.17 

3.24 Regulation of Personal 

Watercraft.

3.9 

New Sections 

3.1 Applicability and Scope. 

3.6 Operator Age for Power Vessels. 

3.7 Personal Floatation Devices 

(PFDs). 

3.10 Operating Under the Influence. 

3.12 Marine Sanitation Devices. 

3.13 Sunken, Grounded, Disabled 

Vessels. 

3.16 Swim Beach Areas. 

3.18 Submersibles. 

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 § 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 § 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 ‘‘nontraditional 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 nontraditional 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 nontraditional 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 


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‘‘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 § 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 § 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. 


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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 

§ 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 § 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 § 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. 


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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 § 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 § 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 

§ 3.9(b)(4) is not needed because it is 

redundant with regulations found in 

§ 3.8(b). 

NPS Response: In § 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 § 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 § 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 


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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 servicewide 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 


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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 §§ 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. 

53. One commenter stated that the 

current standard of 82 dBA @ 82 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 § 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 § 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 


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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 


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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 § 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: 

§ 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? 


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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. 

§ 3.1 What is the applicability and scope of 

this part? 

The applicability of the regulations in 

this part is described in § 1 .2 of this 

chapter. 

§ 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. 

§ 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 

§§ 1.5 and 1.7, and will issue permits 

consistent with § 1.6 of this chapter. 

§ 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 § 3.15(a) of this part, may direct the 

operator to suspend further use of the 

vessel until the condition is corrected. 

§ 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. 

§ 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. 

§ 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 §§ 1.5 and 

1.7 of this chapter. 

§ 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 §§ 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. 


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(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. 

§ 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 Area ............................................................................. Impounded Lake ................ CA 

(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. 

§ 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. 

§ 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 § 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 


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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 

§ 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 § 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. 

§ 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 

§§ 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 § 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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 §§ 1.5 and 1.7 of this 

chapter. 

§ 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 §§ 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 §§ 1.5 and 1.7 of this 

chapter. 

§ 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 

§§ 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. 

§ 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 § 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). 


sroberts on PROD1PC70 with RULES
13706 Federal Register / Vol. 72, No. 56 / Friday, March 23, 2007 / Rules and Regulations 

§ 7.45 [Amended] 

■ 5. In § 7.45, remove paragraph (e)(8) 

and redesignate paragraph (e)(9) as 

paragraph (e)(8). 

§ 7.48 [Amended] 

■ 6. In § 7.48, remove paragraph (d) and 

redesignate paragraphs (e) through (g) as 

paragraphs (d) through (f), respectively. 

§ 7.57 [Amended] 

■ 7. In § 7.57, remove paragraph (c) and 

redesignate paragraphs (d) through (h) 

as paragraphs (c) through (g), 

respectively. 

§ 7.70 [Amended] 

■ 8. In § 7.70, remove paragraphs (c) and 

(d) and redesignate paragraphs (e) 

through (g) as paragraphs (c) through (e), 

respectively. 

§ 7.79 [Amended] 

■ 9. In § 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 

ARCHITECTURAL AND 

TRANSPORTATION BARRIERS 

COMPLIANCE BOARD 

36 CFR Part 1191 

RIN 3014–AA20 

Americans With Disabilities Act (ADA) 

Accessibility Guidelines for Buildings 

and Facilities; Architectural Barriers 

Act (ABA) Accessibility Guidelines; 

Supplementary Material 

AGENCY: Architectural and 

Transportation Barriers Compliance 

Board. 

ACTION: Final rule; supplementary 

material. 

SUMMARY: The Architectural and 

Transportation Barriers Compliance 

Board (Access Board) revised its 

accessibility guidelines for the 

construction and alteration of buildings 

and facilities covered by the Americans 

with Disabilities Act and the 

Architectural Barriers Act in 2004. The 

Department of Transportation, General 

Services Administration, and United 

States Postal Service have adopted by 

reference the revised guidelines as 

regulatory standards. The Department of 

Transportation has modified four 

sections of the revised guidelines that 

affect entities required to comply with 

the Department of Transportation’s 

regulatory standards. This document 

adds notes to provide supplementary 

material on the agencies that have 

adopted the revised guidelines as 

regulatory standards. This document 

also adds a new appendix that reprints 

the modified sections of the revised 

guidelines adopted by the Department 

of Transportation for entities required to 

comply with the Department of 

Transportation’s regulatory standards. 

DATES: Effective March 23, 2007. 

FOR FURTHER INFORMATION CONTACT: 

James Raggio, Office of General Counsel, 

Architectural and Transportation 

Barriers Compliance Board, 1331 F 

Street, NW., Suite 1000, Washington, 

DC 20004–1111. Telephone numbers: 

(202) 272–0040 (voice); 202 272–0082 

(TTY). E-mail address: raggio@accessboard.gov. 

SUPPLEMENTARY INFORMATION: The 

Architectural and Transportation 

Barriers Compliance Board (Access 

Board) is responsible for establishing 

and maintaining guidelines to ensure 

that the construction and alteration of 

buildings and facilities covered by the 

Americans with Disabilities Act and the 

Architectural Barriers Act are accessible 

to individuals with disabilities. Other 

agencies are responsible for adopting 

the guidelines as regulatory standards. 

The agencies may modify the guidelines 

when adopting them as regulatory 

standards, provided the modifications 

are consistent with the guidelines. 

The Access Board revised its 

accessibility guidelines for the 

construction and alteration of buildings 

and facilities covered by the Americans 

with Disabilities Act and the 

Architectural Barriers Act in 2004. 69 

FR 44084, July 23, 2004. The Access 

Board published correcting amendments 

to the revised guidelines in 2005. 70 FR 

45308, August 5, 2005. The revised 

guidelines and correcting amendments 

are codified in the July 1, 2006 edition 

of the Code of Federal Regulations (36 

CFR part 1191) and consist of five 

appendices: 

Appendix A—Table of Contents. 

Appendix B—Americans with 

Disabilities Act: Scoping (ADA 

Chapters 1and 2). 

Appendix C—Architectural Barriers 

Act: Scoping (ABA Chapter 1 and 2). 

Appendix D—Technical (Chapter 3 

through 10). 

Appendix E—List of Figures and Index. 

As discussed below, three agencies 

have adopted by reference the revised 

guidelines as regulatory standards. The 

Access Board is adding notes to 

paragraphs (a) and (b) of § 1191.1 to 

provide readers supplementary material 

on the agencies that have adopted the 

revised guidelines as regulatory 

standards. 

The Department of Transportation has 

amended its regulations implementing 

the Americans with Disabilities Act, and 

has adopted by reference Appendices B 

and D to this part as the regulatory 

standards for the construction and 

alteration of transportation facilities 

subject to its regulations, effective 

November 29, 2006. 49 CFR 37.9 and 

Appendix A to 49 CFR part 37, as 

amended at 71 FR 63263, October 30, 

2006; and corrected at 72 FR 11089, 

March 12, 2007. The Department of 

Transportation has modified section 

206.3 in Appendix B to this part; and 

sections 406, 810.2.2, and 810.5.3 in 

Appendix D to this part. The Access 

Board is adding a new Appendix F to 

this part that reprints the modified 

sections adopted by the Department of 

Transportation as a convenience for 

readers. Entities that are required to 

comply with the Department of 

Transportation’s regulatory standards, 

must comply with the modified sections 

adopted by the Department of 

Transportation. The Department of 

Transportation has provided 

supplemental material on the modified 

sections in Appendix D to 49 CFR part 

37. 

The General Services Administration 

has published regulations implementing 

the Architectural Barriers Act, and has 

adopted by reference Appendices C and 

D to this part as the regulatory standards 

for buildings and facilities subject to its 

regulations. 41 CFR 102–76.65, as added 

at 70 FR 67786, November 8, 2005; 

amended at 71 FR 52498, September 6, 

2006; and further amended at 72 FR 

5942, February 8, 2007. The General 

Services Administration refers to its 

regulatory standards as the 

Architectural Barriers Act Accessibility 

Standard (ABAAS). ABAAS applies to 

the construction and alteration of 

facilities commenced after May 8, 2006; 

to leases awarded for lease construction 

buildings on or after June 30, 2006; and 

to all other leases awarded pursuant to 

solicitations issued after February 6, 

2007. The General Services 

Administration has also revised its 

Facilities Standards for the Public 

Building Service PBS—P100 (March 

2005), and has adopted ABAAS as a 

mandatory standard for the construction 

and alteration of General Services 

Administration owned buildings and 


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