83 FR 26594 - Technical and Clarifying Edits; Criminal Violations NPS Units Nationwide

DEPARTMENT OF THE INTERIOR
National Park Service

Federal Register Volume 83, Issue 111 (June 8, 2018)

This rule removes criminal penalty provisions that are outdated and unnecessary under federal statute. The rule also clarifies--consistent with recent decisions by the U.S. Supreme Court-- that, absent exigent circumstances, a search warrant is necessary to require a motor vehicle operator to submit to a blood test (rather than a breath or urine test) to measure blood alcohol and drug content.

[Federal Register Volume 83, Number 111 (Friday, June 8, 2018)]
[Rules and Regulations]
[Pages 26594-26596]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-12324]



[[Page 26594]]

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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Parts 1 and 4

[NPS-WASO-24719; PPWOVPADU0/PPMPRLE1Y.Y00000]
RIN 1024-AE43


Technical and Clarifying Edits; Criminal Violations NPS Units 
Nationwide

AGENCY: National Park Service, Interior.

ACTION: Final rule.

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SUMMARY: This rule removes criminal penalty provisions that are 
outdated and unnecessary under federal statute. The rule also 
clarifies--consistent with recent decisions by the U.S. Supreme Court--
that, absent exigent circumstances, a search warrant is necessary to 
require a motor vehicle operator to submit to a blood test (rather than 
a breath or urine test) to measure blood alcohol and drug content.

DATES: This rule is effective June 8, 2018.

FOR FURTHER INFORMATION CONTACT: Jay Calhoun, NPS Regulations Program 
Specialist, 1849 C Street NW, Washington, DC 20240, (202) 513-7112, 
[email protected].

SUPPLEMENTARY INFORMATION: 

Background

Criminal Penalty Provisions

    Paragraph (a) of 36 CFR 1.3 describes the penalties for violating a 
provision of NPS regulations contained in parts 1 through 7, part 9 
subpart B, and parts 12 and 13 of chapter I of title 36. These 
penalties are payment of a fine as provided by law or imprisonment not 
exceeding six months, or both, and payment of the costs of all 
proceedings. The authority to impose these penalties is found in the 
NPS Organic Act (54 U.S.C. 100751) and 18 U.S.C. 1865. The NPS has the 
authority to impose these penalties for a violation of any regulation 
relating to the use and management of the units of the National Park 
System.
    Paragraphs (b), (c), and (d) of 36 CFR 1.3 describe lesser 
penalties that apply to violations of NPS regulations that occur within 
units of the National Park System that originated as military parks or 
national historic sites. These additional provisions are superfluous 
because the NPS has the authority to impose greater penalties under the 
NPS Organic Act for violations of NPS regulations that occur in any 
unit of the National Park System, including those units referred to in 
paragraphs (b), (c), and (d). This rule removes these unnecessary 
provisions to reduce the chance of confusion and clarify that a uniform 
penalty structure applies to the entire National Park System.

Blood Test Procedures

    Existing NPS regulations at 36 CFR 4.23(c) state that a driver 
suspected of operating a motor vehicle while under the influence of 
alcohol or drugs must submit to a blood test (if requested) for the 
purpose of determining blood alcohol and drug content. This language 
could be misleading because it does not explicitly state that--absent 
exigent circumstances--a search warrant must be present in order to 
require a blood test. This is the Constitutional requirement under the 
Fourth Amendment following the U.S. Supreme Court decisions in Missouri 
v. McNeely (2013) and Birchfield v. North Dakota (2016). This rule 
revises section 4.23(c) to explicitly state this general requirement 
for a warrant for blood tests. Law enforcement officers will still have 
the regulatory authority to require an operator to submit to less 
intrusive tests such as the extraction of saliva, breath tests, or 
urine samples without a warrant. In practice, NPS law enforcement 
officers generally stopped requiring blood tests after the McNeely 
decision in 2013.
    Consistent with McNeely and Birchfield, this rule deletes the 
requirement that a suspected operator submit to a blood test under 36 
CFR 4.23(c)(1). This rule clarifies that 36 CFR 4.23(c)(2)'s 
prohibition on refusing tests applies to those tests allowed under 
(c)(1) (and would thus no longer apply to the refusal of a blood test, 
since blood tests have been deleted from that paragraph). This rule 
creates a new 36 CFR 4.23(c)(3) that provides that absent exigent 
circumstances, an operator cannot ordinarily be required to submit for 
a blood test unless it occurs through a search warrant. Existing 
paragraphs (c)(3) and (c)(4) are redesignated as paragraphs (c)(4) and 
(c)(5) but otherwise do not change.
Compliance With Other Laws, Executive Orders and Department Policy

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs in the Office of Management and Budget will review 
all significant rules. The Office of Information and Regulatory Affairs 
has determined that this rule is not significant.
    Executive Order 13563 reaffirms the principles of Executive Order 
12866 while calling for improvements in the nation's regulatory system 
to promote predictability, to reduce uncertainty, and to use the best, 
most innovative, and least burdensome tools for achieving regulatory 
ends. The executive order directs agencies to consider regulatory 
approaches that reduce burdens and maintain flexibility and freedom of 
choice for the public where these approaches are relevant, feasible, 
and consistent with regulatory objectives. Executive Order 13563 
emphasizes further that regulations must be based on the best available 
science and that the rulemaking process must allow for public 
participation and an open exchange of ideas. The NPS has developed this 
rule in a manner consistent with these requirements.

Reducing Regulation and Controlling Regulatory Costs (Executive Order 
13771)

    This rule is an E.O. 13771 deregulatory action because, once 
finalized, it will impose less than zero costs by removing unnecessary 
criminal penalty provisions and clarifying the current law regarding 
the valid use of blood tests to measure blood alcohol and drug content.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    (a) Does not have an annual effect on the economy of $100 million 
or more.
    (b) Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    (c) Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local or tribal governments or the private sector. It addresses public 
use of national park lands, and imposes no requirements on other 
agencies or governments. A statement containing the information 
required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is 
not required.

[[Page 26595]]

Takings (Executive Order 12630)

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

Federalism (Executive Order 13132)

    Under the criteria in section 1 of Executive Order 13132, the rule 
does not have sufficient federalism implications to warrant the 
preparation of a Federalism summary impact statement. This rule only 
affects use of federally-administered lands and waters. It has no 
outside effects on other areas. A Federalism summary impact statement 
is not required.

Administrative Procedure Act (Notice of Proposed Rulemaking and 
Effective Date)

    We recognize that under 5 U.S.C. 553(b) and (c), notice of proposed 
rules ordinarily must be published in the Federal Register and the 
agency must give interested parties an opportunity to submit their 
views and comments. We have determined under 5 U.S.C. 553(b) and 318 DM 
HB 5.3, however, that notice and public comment for this rule are not 
required. We find good cause to treat notice and comment as 
unnecessary. As discussed above, the penalty provisions being removed 
are superfluous and not used by the NPS. The clarification that the NPS 
must obtain a warrant to require a blood sample is settled law and 
comports with NPS practice since 2013. These regulatory changes will 
not benefit from public comment, and further delaying them is contrary 
to the public interest.
    We also recognize that rules ordinarily do not become effective 
until at least 30 days after their publication in the Federal Register. 
We have determined, however, that good cause exists for this rule to be 
effective immediately upon publication for the reasons stated above.

Civil Justice Reform (Executive Order 12988)

    This rule complies with the requirements of Executive Order 12988. 
This rule:
    (a) Meets the criteria of section 3(a) requiring that all 
regulations be reviewed to eliminate errors and ambiguity and be 
written to minimize litigation; and
    (b) Meets the criteria of section 3(b)(2) requiring that all 
regulations be written in clear language and contain clear legal 
standards.

Consultation With Indian Tribes (Executive Order 13175 and Department 
Policy)

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

Paperwork Reduction Act

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

National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. A detailed statement 
under the National Environmental Policy Act of 1969 (NEPA) is not 
required because the rule is covered by a categorical exclusion. We 
have determined the rule is categorically excluded under 43 CFR 
46.210(i) because it is administrative, legal, and technical in nature. 
We also have determined the rule does not involve any of the 
extraordinary circumstances listed in 43 CFR 46.215 that would require 
further analysis under NEPA.

Effects on the Energy Supply (Executive Order 13211)

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

List of Subjects

36 CFR Part 1

    National parks, Penalties, Reporting and recordkeeping 
requirements, Signs and symbols.

36 CFR Part 4

    National parks, Traffic regulations.

    The National Park Service amends 36 CFR parts 1 and 4 as follows:

PART 1--GENERAL PROVISIONS

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

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


0
2. Revise Sec.  1.3 to read as follows:


Sec.  1.3   Penalties.

    (a) A person convicted of violating a provision of the regulations 
contained in parts 1 through 7, part 9 subpart B, and parts 12 and 13 
of this chapter shall be subject to the criminal penalties provided 
under 18 U.S.C. 1865.
    (b) [Reserved]

PART 4--VEHICLES AND TRAFFIC SAFETY

0
3. The authority citation for part 4 continues to read as follows:

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


0
4. In Sec.  4.23, revise paragraph (c) to read as follows:


Sec.  4.23   Operating under the influence of alcohol or drugs.

* * * * *
    (c) Tests. (1) At the request or direction of an authorized person 
who has probable cause to believe that an operator of a motor vehicle 
within a park area has violated a provision of paragraph (a) of this 
section, the operator shall submit to one or more tests of the breath, 
saliva, or urine for the purpose of determining blood alcohol and drug 
content.
    (2) Refusal by an operator to submit to a test under paragraph 
(c)(1) is prohibited and proof of refusal may be admissible in any 
related judicial proceeding.
    (3) Absent exigent circumstances, an operator cannot ordinarily be 
required to submit blood samples for the purpose of determining blood 
alcohol and drug content unless it occurs through a search warrant. An 
authorized person who has probable cause to believe that an operator of 
a motor vehicle within a park area has violated a provision of 
paragraph (a) of this section shall get a search warrant, except when 
exigent circumstances exist, to obtain any blood samples from the 
operator for the purpose of determining blood alcohol and drug content.
    (4) Any test or tests for the presence of alcohol and drugs shall 
be determined by and administered at the direction of an authorized 
person.
    (5) Any test shall be conducted by using accepted scientific 
methods and equipment of proven accuracy and

[[Page 26596]]

reliability operated by personnel certified in its use.
* * * * *

Susan Combs,
Senior Advisor to the Secretary, Exercising the Authority of the 
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2018-12324 Filed 6-7-18; 8:45 am]
 BILLING CODE 4312-52-P