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Thread: National Park Gun Ban Repealed Effective January 9, 2009

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    http://edocket.access.gpo.gov/2008/E8-29249.htm
    Code:
    [Federal Register: December 10, 2008 (Volume 73, Number 238)]
    [Rules and Regulations] 
    [Page 74966-74972]
    From the Federal Register Online via GPO Access [wais.access.gpo.gov]
    [DOCID:fr10de08-8] 
    
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    DEPARTMENT OF THE INTERIOR
    
    National Park Service
    
    36 CFR Part 2
    
    Fish and Wildlife Service
    
    50 CFR Part 27
    
    RIN 1024-AD70
    
    
    General Regulations for Areas Administered by the National Park 
    Service and the Fish and Wildlife Service
    
    AGENCIES: Fish and Wildlife Service and National Park Service, 
    Interior.
    
    ACTION: Final rule.
    
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    SUMMARY: This final rulemaking amends regulations codified in 36 CFR 
    part 2 and 50 CFR part 27, which pertain to the possession and 
    transportation of firearms in national park areas and national wildlife 
    refuges. The final rule updates these regulations to reflect state laws 
    authorizing the possession of concealed firearms, while leaving 
    unchanged the existing regulatory provisions that ensure visitor safety 
    and resource protection such as the prohibitions on poaching and 
    limitations on hunting and target practice.
    
    DATES: This rule becomes effective on January 9, 2009.
    
    FOR FURTHER INFORMATION CONTACT: Lyle Laverty, 202-208-4416.
    
    SUPPLEMENTARY INFORMATION:
    
    I. Background
    
    America's parks and wildlife refuges are an important part of our 
    shared national heritage, and a source of inspiration and enjoyment for 
    visitors from around the world. For nearly 100 years, Congress has 
    vested the Secretary of the Interior with the responsibility for 
    managing these lands and resources in a manner that ensures their 
    preservation and seeks to provide for the safety of visitors and 
    employees. In administering these lands, Congress has enacted various 
    statutes authorizing the Secretary to work closely with respective 
    State and local governments in the management of these areas. In the 
    following decades, the Department has worked closely with its State, 
    local
    
    [[Page 74967]]
    
    government and Tribal neighbors, and has adopted regulations in 
    appropriate circumstances that look to the laws of the state in which 
    that unit is located. This final rule is intended to extend similar 
    treatment to non-conflicting state laws pertaining to carrying of 
    concealed weapons.
    Forty-eight States currently authorize law-abiding citizens to 
    carry concealed firearms. However, existing Federal regulations 
    governing firearms in national parks and national wildlife refuges, 
    promulgated before the vast majority of these state laws were in 
    effect, unnecessarily preclude law-abiding citizens from possessing, 
    carrying, or transporting a concealed firearm that is otherwise legal 
    in that state.
    On December 14, 2007, forty-seven United States Senators from both 
    parties wrote to the Secretary of the Interior asking the National Park 
    Service (NPS) and U.S. Fish and Wildlife Service (FWS) to ``remove 
    their prohibitions on law-abiding citizens from transporting and 
    carrying firearms on lands managed by these agencies'' by amending 
    their regulations to allow ``firearms consistent with the state law 
    where the National Park Service's sites and the National Wildlife 
    Refuges are located.'' 1 The Senators observed that the ``regulations 
    infringe on the rights of law-abiding gun owners'' and that the 
    ``inconsistencies in firearms regulations for public lands are 
    confusing, burdensome, and unnecessary.'' On February 11, 2008, four 
    additional United States Senators wrote to the Secretary in support of 
    the effort, adding that existing regulations ``preempt state regulatory 
    frameworks for transporting and carrying firearms, thus invalidating 
    concealed weapons permits and other state laws that allow law-abiding 
    citizens to transport and carry firearms.'' 2
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    1 See Letter to the Honorable Dirk Kempthorne, Secretary of 
    the Interior, dated December 14, 2007, from Senators Crapo (ID), 
    Baucus (MT), Craig (ID), Johnson (SD), Inhofe (OK), Tester (MT), 
    Vitter (LA), Pryor (AR), Smith (OR), Lincoln (AR), Hatch (UT), 
    Dorgan (ND), Coleman (MN), Nelson (NE), Coburn (OK), Webb (VA), 
    Gregg (NH), Murkowski (AK), Ensign (NV), Sununu (NH), Stevens (AK), 
    Bennett (UT), Chambliss (GA), Cochran (MS), Isakson (GA), Bunning 
    (KY), Allard (CO), Thune (SD), Grassley (IA), Corker (TN), Lott 
    (MS), Hutchison (TX), Roberts (KS), Martinez (FL), Cornyn (TX), 
    Shelby (AL), Hagel (NE), Graham (SC), Dole (NC), Enzi (WY), McCain 
    (AZ), Barrasso (WY), Brownback (KS), Domenici (NM), DeMint (SC), 
    Sessions (AL), and Kyl (AZ). A copy of this letter may be accessed 
    at http://www.doi.gov/issues/response_to_senators.html.
    2 See Letter to the Honorable Dirk Kempthorne, Secretary of 
    the Interior, dated February 11, 2008, from Senators Feingold (WI), 
    Specter (PA), Bond (MO), and Wicker (MS). A copy of this letter may 
    be accessed at http://www.doi.gov/issues/response_to_
    senators.html.
    ---------------------------------------------------------------------------
    
    The Department agrees with the 51 United States Senators that the 
    regulations should be amended to reflect developments in state law, 
    particularly where, as in this case, the deference can be achieved 
    without impacting the visitors or resources the regulations are 
    designed to protect. Accordingly, on April 30, 2008, the Department 
    chose to address this issue proactively through the development of a 
    proposed regulation, which it published in the Federal Register with a 
    request for public comment. See 73 FR 23388 (April 30, 2008). The 
    Department initially provided a sixty-day comment period and 
    subsequently provided an additional 30-day comment period. The 
    Department received more than 125,000 comments during the comment 
    period and thereafter formed a working group to carefully review and 
    analyze the submissions.
    We believe that in managing parks and refuges we should, as 
    appropriate, make every effort to give the greatest respect to the 
    democratic judgments of State legislatures with respect to concealed 
    firearms. As stated in the proposed rule, Federal agencies have a 
    responsibility to recognize the expertise of the States in this area, 
    and Federal regulations should be developed and implemented in a manner 
    that respects ``state prerogatives and authority.'' See Executive Order 
    13132 of August 10, 1999 (``Federalism''). As explained herein, the 
    Department believes that this rule more appropriately gives effect to 
    these federalism concepts as called for in the Executive Order, while 
    simultaneously maintaining protection of visitors and the values for 
    which these parks and refuges were established. We discuss these 
    considerations more fully below.
    
    II. Discussion
    
    A. Summary of the Final Rule
    
    The regulations being amended by this rule are intended by the NPS 
    and the FWS to protect the natural and cultural resources of park areas 
    and refuges, and to protect visitors, employees and property within 
    those lands. In their previous form, these regulations generally 
    prohibited visitors from possessing an operable and loaded firearm in 
    areas administered by these bureaus unless the firearm is used for 
    lawful hunting activities, target practice in areas designated by 
    special regulations, or other purposes related to the administration of 
    Federal lands in Alaska. The previous regulations also allowed visitors 
    to transport firearms through parks and refuges subject to limitations 
    that generally required the firearm to be unloaded and rendered 
    inoperable or inaccessible. See 48 FR 30282 (June 30, 1983); 49 FR 
    18444 (April 30, 1984).
    The previous FWS and NPS regulations were last substantively 
    updated in 1981 and 1983, respectively. The overwhelming majority of 
    States now provide for the possession of concealed firearms by their 
    citizens. In many States, the authority to carry loaded and operable 
    concealed firearms extends to State park and refuge lands, whether 
    expressly or by operation of law.
    1. The Department's Purpose
    The Department's intent in adopting this final rule is to better 
    reflect the decisions of the States in which parks and refuge units are 
    located to determine who may lawfully possess a firearm within their 
    borders, while preserving the Federal government's authority to manage 
    its lands, buildings, and other facilities. Mindful of that objective, 
    the Department's final rule amends the regulations to allow individuals 
    to carry concealed, loaded, and operable firearms in Federal park units 
    and refuges to the extent that they could lawfully do so under non-
    conflicting state law. By adopting state law in this manner, this rule 
    is similar in approach to that already taken by NPS and FWS in various 
    regulations pertaining to hunting, fishing, motor vehicles and boating. 
    Additionally, the final rule treats state law in a similar manner to 
    regulations adopted by the Bureau of Land Management (BLM) and the 
    United States Forest Service (USFS), both of which allow visitors to 
    carry weapons consistent with applicable Federal and state laws. See 36 
    CFR 261.8 (a)-(c); 43 CFR 8365.1-7.
    Under the final rule, individuals must have actual authority to 
    possess those loaded and concealed firearms under state law in order to 
    carry those loaded concealed firearms in Federal park areas and 
    refuges. This means that the State in which the park or refuge unit is 
    located must have laws that authorize the individual to possess those 
    concealed and loaded firearms, and the individual must be so 
    authorized. Additionally, to the extent that a State's law recognizes 
    licenses issued by other States, including the applicability of 
    reciprocity agreements, the final rule would similarly recognize such 
    reciprocal authorities. Finally, individuals authorized to carry 
    firearms under this rule will continue to be subject to all other 
    applicable state and Federal laws. Accordingly, as stated in the 
    preamble to the proposed rule, this rule does not authorize visitors to 
    use
    
    [[Page 74968]]
    
    firearms, or to otherwise possess or carry concealed firearms in 
    Federal facilities in national parks and wildlife refuges as such 
    possession is proscribed by 18 U.S.C. 930.
    We also note that national park areas and wildlife refuges are 
    often located in close proximity to state parks or wildlife management 
    areas, National Forests, or public lands managed by the BLM. Visitors 
    to these sites may frequently travel through a combination of Federal 
    and state lands during the course of a trip or vacation. In these 
    circumstances, the Department believes that adopting for these Federal 
    lands the applicable state standards for the possession of firearms 
    will promote uniformity of application and better visitor understanding 
    and compliance with the requirements.
    During the course of the public comment process, a number of 
    entities and individuals, including the State of Alaska and employees 
    of the FWS, suggested that the Department's reference to ``similar 
    state lands'' in the proposed regulation is ambiguous and confusing 
    since individual States provide for various management regimes that 
    make it difficult to determine what areas are actually similar. As 
    discussed more fully below, the Department agrees with this concern and 
    has deleted this language in the final rule. The modified final 
    language adopts state law in a similar manner to regulations adopted by 
    other Federal agencies regarding firearms on public lands, as called 
    for by the 51 United States Senators who wrote to us.
    We understand that states with concealed carry laws routinely 
    impose statutory prohibitions on the lawful possession of concealed 
    handguns in certain locations. It is possible that a state may wish to 
    prohibit an individual from possessing a concealed weapon on Federal 
    lands within state boundaries. In the event a state enacts such a law, 
    the Department's final rule respects the legislative judgment of the 
    people of that State.
    2. Constitutional Considerations
    During the pendency of our public comment period, the Supreme Court 
    announced its decision in District of Columbia v. Heller, 554 U.S.---- 
    , 128 S. Ct. 2783; 171 L. Ed. 2d 637; 2008 U.S. LEXIS 5268; 76 U.S.L.W. 
    4631 (June 26, 2008) (``Heller''), which held that the Second Amendment 
    protects an individual's right to possess a firearm unconnected with 
    service in a government militia, and to use that firearm for 
    traditionally lawful purposes, such as self-defense within the home. 
    Several individuals, including two members of Congress, wrote the 
    Department suggesting that the Court's decision in this case is of 
    significance to the proposal, and that the Department should extend the 
    public comment period to allow citizens to comment on the potential 
    impacts of this case on the proposed rule. In our view, the Supreme 
    Court's decision in Heller does not directly impact our proposal to 
    revise existing Federal regulations to more closely conform our 
    regulations to appropriate state laws.
    
    B. Summary of Comments and Responses
    
    The Department received approximately 125,000 comments on the 
    proposed rule from a wide variety of entities, including members of 
    Congress, government agencies, current and former NPS employees, 
    conservation groups, coalitions, and private individuals. Most of those 
    comments were form letters or cards. Many of those expressed opposition 
    to a change in the rules. The majority of supporting comments were 
    submitted by individuals and elected officials favoring a rule that 
    would align Federal policy with the adjacent state law. In addition to 
    the original 51 United States senators who originally wrote to the 
    Secretary, U.S. Senators Jim Webb (VA) and Senator Lisa Murkowski (AK) 
    as well as Alaska Governor Sarah Palin wrote letters in support of the 
    rule during the comment period. U.S. Senators Dianne Feinstein and 
    Daniel K. Akaka along with U.S. House members Norman D. Dicks and Raul 
    M. Grijalva submitted a letter during the comment period opposing any 
    change to the existing regulations.
    To facilitate analysis of the public comments, we formed a working 
    group composed of employees from the NPS, the FWS, and the Office of 
    the Assistant Secretary for Fish and Wildlife and Parks. The group was 
    charged with analyzing the comments and organizing them into categories 
    for further review. The working group considered all of the information 
    and recommendations submitted in developing the final rule. The 
    following is a summary of the comments and our responses.
    Issue 1: The Department should not rely on state law to manage 
    firearms because Congress has given Federal government complete 
    authority over Federal lands.
    Response 1: We recognize that Congress may enact comprehensive and 
    preemptive statutes in a wide range of areas that involve national 
    interests. In these instances, the Supreme Court has consistently held 
    that Federal law preempts state law and does not permit further 
    regulation by the States. The Property Clause of the United States 
    Constitution authorizes the Congress to enact laws to maintain and 
    administer the Federal lands, including the laws establishing the 
    National Park System and the National Wildlife Refuge System. These 
    statutes are not necessarily preemptive of the field of law in that 
    they allow for Federal agencies to appropriately adopt state law in a 
    range of subjects, including law enforcement and firearms. See, e.g., 
    16 U.S.C. 1a-3; 1a-6; 1531(c); 1535 (cooperation with states); see also 
    Coggins, George C., Wilkinson, Charles F., Leshy, John D., and 
    Fischman, Robert L., Federal Public Land and Resources Law (6 Ed. 
    2007), p. 181 (``In most traditionally Federal areas where uniform 
    national regulation is important, such as aliens, navigation, Indian 
    affairs, labor, and civil rights, the Supreme Court has been quick to 
    find preemption. Federal lands have never been regarded as such an 
    area. Indeed, state law has always played an important role, applying 
    to much private activity on federal lands.''). We believe that this 
    principle applies here.
    Issue 2: The proposed rule will not provide a uniform standard 
    because state laws governing concealed firearms vary. Additionally, 
    since many parks are located in two or more states with different 
    licensing schemes, there is no way that visitors and park managers will 
    be able to maintain clear standards and enforcement.
    Response 2: We recognize that the proposed rule means that 
    permissible activities in parks and refuges may vary from state to 
    state. However, this circumstance is not unique and has not presented 
    significant problems in other areas where state laws are adopted. For 
    example, current NPS regulations adopt such an approach for hunting, 
    fishing, motor vehicles and boating. Moreover, in the relatively few 
    instances where parks and refuges are located in more than one state, 
    we do not believe that this presents a situation any different than 
    citizens already face. As is generally the case, and is also true under 
    this rule, individuals remain responsible for familiarizing themselves 
    with and obeying all applicable laws, including the laws of the state 
    they are located within. We see no reason why citizens who are 
    authorized to carry a concealed firearm are not capable of undertaking 
    this same due diligence when they cross state boundaries within parks 
    or refuges. In addition, the NPS and FWS will take appropriate steps to 
    inform visitors about the applicable requirements when a unit is 
    located in more than one state.
    
    [[Page 74969]]
    
    Issue 3: The Department's reference to ``similar state lands'' in 
    the text of the proposed regulation is ambiguous and confusing since 
    individual states appear to define their parks and refuge lands in 
    different ways, and may regulate these lands differently within the 
    same state. The text could be clarified by simply making a more general 
    reference to state law as the governing standard which, by implication, 
    will also include more specific regulations or policies adopted by the 
    state with regard to the possession of a concealed firearm in a state 
    park or wildlife refuge. The rule should be modified to cure this 
    ambiguity.
    Response 3: We agree with the commenters that the reference to 
    ``similar state lands'' in the proposed rule was ambiguous and led to 
    confusion as to what rules would apply to particular Federal park areas 
    and national wildlife refuges. A very diverse range of commenters 
    raised these concerns, including the National Parks Conservation 
    Association (NPCA), senior employees of the FWS, the State of Alaska, 
    and the West Virginia Citizens Defense League (WVCDL). Several 
    commenters suggest that the ambiguities in the proposed language may be 
    readily cured by amending the language of the proposed rule and simply 
    making a more general reference to state law.
    We have given consideration to this issue and have revised the 
    proposed language to delete the references to ``similar lands'' and to 
    more succinctly state that we are applying the rules established by the 
    applicable state laws. First, by adopting this revision, the final rule 
    more closely resembles the regulatory approach used by BLM and the 
    USFS. Second, we believe the final rule will lessen or eliminate 
    confusion about the application of the various Federal rules because 
    the primary Federal land managers will now have a similar approach to 
    addressing the issue. Finally, no State separately commented in 
    opposition to permitting loaded firearms to be carried in Federal 
    parks--whether such rules were related to ``similar state lands'' or 
    any other state law standard. The only State to comment on the proposed 
    rule was Alaska, which supported an amendment to existing regulations 
    that would authorize loaded firearms in Federal parks consistent with 
    state law.
    Issue 4: There is no reason to allow visitors to carry a concealed 
    firearm for personal safety since visitors to a national park area or 
    wildlife refuge are statistically unlikely to be a victim of violent 
    crime or criminal assault.
    Response 4: The available data indicates that National Parks and 
    Wildlife Refuges are less prone to criminal activity than other areas 
    in the United States. However, we also recognize that current 
    statistics show an alarming increase in criminal activity on certain 
    Federal lands managed by the Department of the Interior, especially in 
    areas close to the border and in lands that are not readily accessible 
    by law enforcement authorities. In 2007, for instance, the NPS reported 
    8 murders, 43 forcible rapes, 57 robberies, and 274 instances of 
    aggravated assault. The fact that these crime rates may be lower than 
    the national average does not mean that parks are free from violence, 
    nor do these figures suggest that people should be less cautious or 
    prepared when visiting a national park unit or national wildlife 
    refuge. Congress recognized this fact in 1994 when it enacted a statute 
    which requires the Department to (1) ``compile a list of areas within 
    the National Park System with the highest rates of violent crime'' and 
    (2) ``make recommendations concerning capital improvements, and other 
    measures, needed within the National Park System to reduce the rates of 
    violent crime, including the rate of sexual assault.'' 16 U.S.C. 1a-
    7a(b)(1)-(2).
    The Department has recently proposed substantial budget increases 
    to resolve some of these problems, and our law enforcement officials 
    will continue to work with their colleagues in tribal, state, and local 
    law enforcement to prevent criminal activities on Federal lands. We do 
    not believe it is appropriate to decline to recognize state laws simply 
    because a person enters the boundaries of a national park or wildlife 
    refuge, or because there is a lesser chance that a visitor will be 
    harmed or potentially killed by a criminal in a national park unit or 
    wildlife refuge.
    Issue 5: Visitors should not carry a concealed firearm for self-
    defense because NPS and FWS law enforcement officers are more than 
    adequate to protect individuals from harm.
    Response 5: The Department believes that NPS and FWS law 
    enforcement officers work hard and perform valiant public service in 
    their respective capacities. We also recognize that the NPS and FWS 
    together employ approximately 3,000 full and part-time law enforcement 
    officers who are responsible for patrolling and securing millions of 
    acres of land, a substantial portion of which is remote wilderness. In 
    these circumstances, NPS and FWS law enforcement officers are in no 
    position to guarantee a specific level of public safety on their lands, 
    and cannot prevent all violent offenses and crimes against visitors. 
    See, e.g., Bowers v. DeVito, 686 F.2d 616 (7th Cir. 1982) (no Federal 
    Constitutional requirement that police provide protection); Warren v. 
    District of Columbia, 444 A.2d 1 (D.C. 1981) (``the government and its 
    agents are under no general duty to provide public services, such as 
    police protection, to any particular individual citizen'').
    Issue 6: Once a visitor sets up camp in a campground, the site 
    becomes a temporary dwelling subject to legal protections. For that 
    reason, the rule should recognize that a visitor has the right to 
    possess an operable firearm in the campsite for self-defense.
    Response 6: We understand that a number of Federal courts of 
    appeal, as well as the Idaho Supreme Court, have concluded that 
    citizens have a right under the Fourth Amendment to be free from 
    unreasonable searches and seizures from government officials within 
    tents and other temporary structures on public lands. United States v. 
    Sandoval, 200 F.3d 659 (9th Cir. 2000), citing United States v. Gooch, 
    6 F.3d 673, 677 (9th Cir. 1993) (reasonable expectation of privacy in 
    tent on public land). See also State v. Pruss, 181 P.3d 1231 (Idaho 
    2008) (``If the travel trailer is protected against government 
    intrusion, then so is the tent.''). However, we are not aware of any 
    cases that have extended this reasoning to the Second Amendment and 
    determined that an individual has a constitutional right to keep and 
    bear arms in a tent or trailer located on Federal public lands. Until 
    such a precedent is clearly established, the Department will continue 
    to assume that the Supreme Court's decision in Heller applies to a 
    person's residential dwelling and not to a temporary dwelling on public 
    land. See Heller, Slip Opinion at 56 (the Second Amendment proscribes 
    the way the Federal government may place limits upon a citizen's 
    ``inherent right of self-defense [which is] central to the Second 
    Amendment right.''); see also 36 CFR 2.4(a)(2) (``weapons * * * may be 
    carried, possessed, or used'' within a ``residential dwelling''); cf. 
    Pruss, 181 P.3d at 1231 (``The respect for the sanctity of the home 
    does not depend upon whether it is a mansion or hut, or whether it is a 
    permanent or a temporary structure''); see also Miller v. United 
    States, 357 U.S. 301, 307 (1958) (same).
    Issue 7: A visitor with a concealed firearm may not be well-trained 
    to use a firearm and thus be given a false sense security against 
    potential attackers.
    Response 7: Many individuals authorized under State law to carry
    
    [[Page 74970]]
    
    concealed firearms are in possession of permits, the acquisition of 
    which is conditioned on some form of training in the use and storage of 
    firearms. Moreover, there is no data before us that would suggest that 
    these citizens lack the requisite skills and/or training to properly 
    use their firearms for self-defense. In fact, statistics maintained by 
    the Justice Department show that from 1987-92 about 83,000 crime 
    victims per year used a firearm to defend themselves or their property, 
    and a majority of these individuals used their firearms during a 
    violent crime. See United States Department of Justice, Office of 
    Justice Programs, Bureau of Justice Statistics, Guns and Crime: Handgun 
    Victimization, Firearm Self-Defense, and Firearm Theft (1994); see also 
    National Research Council, Committee on Law and Justice, Firearms and 
    Violence: A Critical Review (Washington, DC: The National Academies 
    Press, 2004), pp. 7.
    Issue 8: Visitors who carry a concealed firearm permitted under 
    state law are likely to use their handguns to shoot or injure wildlife.
    Response 8: The Bureau of Land Management and the U.S. Forest 
    Service and a number of state parks and refuges currently authorize the 
    possession of concealed firearms consistent with the laws of the state 
    in which they are located. The available data does not suggest that 
    visitors to these lands misuse their legally permitted firearms for 
    poaching or illegal shooting, or that there is additional danger posed 
    to the public from lawfully carried concealed firearms. See, e.g., 
    National Research Council, Committee on Law and Justice, Firearms and 
    Violence: A Critical Review (Washington, DC: The National Academies 
    Press, 2004), p.6; Dodenhoff, David, Concealed Carry Legislation: An 
    Examination of the Facts, Wisconsin Public Policy Research Institute 
    (2006), p. 5; see also, Jeffrey Snyder, Fighting Back: Crime, Self-
    Defense, and the Right to Carry a Handgun (October 1997); Kopel, David, 
    et al., Policy Review No. 78 (July & August 1996).
    Issue 9: The rule will inhibit the ability of park rangers to halt 
    poaching because brandishing a firearm would no longer be probable 
    cause to search for evidence of wildlife parts.
    Response 9: We disagree. The final rule continues to maintain 
    existing prohibitions on poaching, unauthorized target shooting, and 
    other illegal uses of firearms, including laws against brandishing a 
    firearm in public. As with any other law or regulation, we expect 
    visitors to obey those requirements. Individuals who break the law by 
    using illegally their concealed firearms will be subjected to arrest 
    and/or prosecution.
    Issue 10: The proposed rule is too narrow and should be expanded to 
    allow visitors to carry all forms of firearms, including shotguns and 
    rifles.
    Response 10: The Department recognizes that long guns are an 
    important part of America's hunting and recreation tradition, and that 
    many individuals use these arms for self-defense of their home and 
    person. Although we understand that there may be good reasons to update 
    our policies with regard to these firearms, we have decided at this 
    time to adopt a narrowly-tailored rule to give greater respect to state 
    laws which authorize law-abiding citizens to possess and carry 
    concealed firearms.
    Issue 11: The proposed rule should have been subjected to a full 
    environmental review under the National Environmental Policy Act so 
    that the public could comment on the impacts of the rule on the 
    environment.
    Response 11: The Department agrees that policies and rules which 
    have a significant effect on the environment must be fully analyzed 
    under the provisions of the National Environmental Policy Act of 1969 
    (NEPA) (42 U.S.C. 4321-4347). Consistent with this commitment, we have 
    analyzed the final rule under NEPA and concluded that (i) the action is 
    subject to a categorical exclusion under 43 CFR 46.210 since the final 
    regulation is in the nature of a legal change to existing regulations, 
    and (ii) no ``extraordinary circumstances'' exist which would prevent 
    the proposed action from being classified as categorically excluded. 
    Id. This decision is fully described in our decision document dated 
    November 18, 2008, which is available to the public at http://
    www.doi.gov/.
    Issue 12: The proposed rule should have been subjected to study and 
    consultation under Section 7 of the Endangered Species Act.
    Response 12: Section 7 of the Endangered Species Act (ESA) of 1972, 
    as amended (16 U.S.C. 1531 et seq.), provides that Federal agencies 
    shall ``insure that any action authorized, funded or carried out * * * 
    is not likely to jeopardize the continued existence of any endangered 
    species or threatened species or result in the destruction or adverse 
    modification of (critical) habitat.'' We have analyzed the final rule 
    and have concluded that it is solely a legal amendment to existing 
    rules, and that it does not authorize any new uses or activities that 
    may affect endangered or threatened species or designated critical 
    habitat. See 50 CFR 402.14(a). For this reason, we have determined that 
    the final rule has ``no effect'' on listed species or on designated 
    critical habitat. Accordingly, we are not required to conduct a Section 
    7 consultation under the ESA for the final rule.
    Issue 13: National Parks and Wildlife Refuges are designed to be 
    havens of peace and safety. In this respect, visitors who do not like 
    guns will not fully enjoy their visit to a National Park or Wildlife 
    Refuge if they know that another visitor in close proximity is carrying 
    a loaded and operable firearm permitted by the state.
    Response 13: The Department seeks to provide opportunities for all 
    those who visit national park areas and national wildlife refuges to 
    enjoy their experience. Insofar as the final rule adopts the State law 
    that also governs outside the national park or refuge area, the 
    Department believes that its applicability to these Federal areas will 
    not diminish the experience of most visitors, particularly where, as 
    here, NPS and FWS law enforcement officers already carry firearms which 
    are visible to the public.
    
    III. Required Determinations
    
    Regulatory Planning and Review (Executive Order 12866)
    
    This document is a significant rule and is subject to review by the 
    Office of Management and Budget (OMB) under Executive Order 12866.
    (1) This rule will not have an effect of $100 million or more on 
    the economy. It will not adversely affect in a material way the 
    economy, productivity, competition, jobs, the environment, public 
    health or safety, or State, local, or tribal governments or 
    communities.
    (2) This rule will not create a serious inconsistency or otherwise 
    interfere with an action taken or planned by another agency.
    (3) This rule does not alter the budgetary effects of entitlements, 
    grants, user fees, or loan programs or the rights or obligations of 
    their recipients.
    (4) This rule raises novel legal or policy issues.
    
    Regulatory Flexibility Act
    
    The Department of the Interior certifies that this document will 
    not have a significant economic effect on a substantial number of small 
    entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
    
    Small Business Regulatory Enforcement Fairness Act (SBREFA)
    
    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
    Business
    
    [[Page 74971]]
    
    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; and
    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.
    
    Takings (Executive Order 12630)
    
    In accordance with Executive Order 12630, the rule does not have 
    significant takings implications.
    
    Federalism (Executive Order 13132)
    
    In accordance with Executive Order 13132, the rule does not require 
    the preparation of a federalism assessment.
    
    Civil Justice Reform (Executive Order 12988)
    
    This regulation meets the applicable standards set forth in 
    Sections 3(a) and 3(b)(2) of Executive Order 12988 Civil Justice 
    Reform.
    
    Paperwork Reduction Act
    
    This regulation does not contain information collection 
    requirements, and a submission under the Paperwork Reduction Act is not 
    required.
    
    National Environmental Policy Act
    
    The Department has analyzed the final rule under NEPA and 
    determined that the action is subject to a categorical exclusion under 
    applicable regulations. See 43 CFR 46.210. First, the rulemaking is in 
    the nature of a legal change to existing rules that will not have any 
    actual effects on the environment. And second, the Department has 
    determined that no ``extraordinary circumstances'' exist which would 
    prevent the proposed action from being classified as categorically 
    excluded. Id. This decision is fully described in our decision document 
    dated November 18, 2008, which is available to the public at http://
    www.doi.gov/.
    
    Government-to-Government Relationship With Tribes
    
    In accordance with Executive Order 13175 ``Consultation and 
    Coordination with Indian Tribal Governments'' (65 FR 67249), the 
    President's memorandum of April 29, 1994, ``Government-to-Government 
    Relations with Native American Tribal Governments'' (59 FR 22961), and 
    512 DM 2, the Department has invited federally recognized tribal 
    governments to jointly evaluate and address the potential effects, if 
    any, of the proposed regulatory action.
    
    IV. Section-by-Section Analysis
    
    36 CFR Part 2
    
    Section 2.4--Weapons, Traps, and Nets
    Previously, Section 2.4 generally prohibited visitors from 
    possessing an operable and loaded firearm in national park areas unless 
    the firearm is used for lawful hunting activities, target practice in 
    areas designated by special regulations, or other purposes related to 
    the administration of Federal lands in Alaska. Under the final rule, an 
    individual may possess, carry, and transport concealed, loaded, and 
    operable firearms within a national park area in the same manner, and 
    to the same extent, that a person may lawfully possess, carry, and 
    transport concealed, loaded and operable firearms in the state in which 
    the Federal park, or that portion thereof, is located. Possession of 
    concealed firearms in national parks as authorized by this section must 
    also conform to applicable Federal laws. Accordingly, nothing in this 
    regulation shall be construed to authorize concealed carry of firearms 
    in any Federal facility or Federal court facility as defined in 18 
    U.S.C. 930.
    
    50 CFR Part 27
    
    Section 27.42--Firearms
    The previous regulation in Section 27.42 generally prohibited 
    visitors from possessing an operable and loaded firearm in a national 
    wildlife refuge unless the firearm is used for lawful hunting 
    activities. Under the final rule, an individual may possess, carry, and 
    transport concealed, loaded, and operable firearms within a national 
    wildlife refuge in the same manner, and to the same extent, that a 
    person may lawfully possess, carry, and transport concealed, loaded and 
    operable firearms in the state in which the national wildlife refuge, 
    or that portion thereof, is located. Possession of concealed firearms 
    in national wildlife refuges as authorized by this section must also 
    conform to applicable Federal laws. Accordingly, nothing in this 
    regulation shall be construed to authorize concealed carry of firearms 
    in any Federal facility or Federal court facility as defined in 18 
    U.S.C. 930.
    
    List of Subjects
    
    36 CFR Part 2
    
    National parks.
    
    50 CFR Part 27
    
    Wildlife refuges.
    
    0
    For the reasons discussed in the preamble, we amend part 2 of title 36 
    and part 27 of title 50 of the Code of Federal Regulations as follows:
    
    Title 36--Parks, Forests, and Public Property
    
    CHAPTER I--NATIONAL PARK SERVICE, DOI
    
    PART 2--RESOURCE PROTECTION, PUBLIC USE AND RECREATION
    
    0
    1. The authority citation for part 2 continues to read as follows:
    
    Authority: 16 U.S.C. 1, 3, 9a, 17j-2, 462.
    
    
    0
    2. Amend Sec. 2.4 by adding a new paragraph (h) to read as follows:
    
    [b]Sec. 2.4 Weapons traps and nets.
    
    * * * * *
    (h) Notwithstanding any other provision in this Chapter, a person 
    may possess, carry, and transport concealed, loaded, and operable 
    firearms within a national park area in accordance with the laws of the 
    state in which the national park area, or that portion thereof, is 
    located, except as otherwise prohibited by applicable Federal law.
    
    Title 50--Wildlife and Fisheries
    
    CHAPTER I--UNITED STATES FISH AND WILDLIFE SERVICE, DOI
    
    PART 27--PROHIBITED ACTS
    
    0
    1. The authority citation for part 27 continues to read as follows:
    
    Authority: Sec. 2, 33 Stat. 614, as amended (16 U.S.C. 685); 
    Sec. 5, 43 Stat. 651 (16 U.S.C. 725); Sec. 5, Stat. 449 (16 U.S.C. 
    690d); Sec. 10, 45 Stat. 1224 (16 U.S.C. 715i); Sec. 4, 48 Stat. 
    402, as amended (16 U.S.C. 664); Sec. 2, 48 Stat. 1270 (43 U.S.C. 
    315a); 49 Stat. 383 as amended; Sec. 4, 76 Stat. (16 U.S.C. 460k); 
    Sec. 4, 80 Stat. 927 (16 U.S.C. 668dd) (5 U.S.C. 685, 752, 690d); 16 
    U.S.C. 715s).]
    
    Subpart D--Disturbing Violations: With Weapons
    
    0
    2. Amend Sec. 27.42 by adding a new paragraph (e) to read as follows:
    
    
    Sec. 27.42 Firearms.
    
    * * * * *
    (e) Notwithstanding any other provision in this Chapter, persons 
    may
    
    [[Page 74972]]
    
    possess, carry, and transport concealed, loaded, and operable firearms 
    within a national wildlife refuge in accordance with the laws of the 
    state in which the wildlife refuge, or that portion thereof, is 
    located, except as otherwise prohibited by applicable Federal law.
    
    
    Dated: December 5, 2008.
    Lyle Laverty,
    Assistant Secretary of the Interior for Fish and Wildlife and Parks.
    [FR Doc. E8-29249 Filed 12-9-08; 8:45 am]
    
    BILLING CODE 4312-52-P

  2. #2
    Regular Member Thundar's Avatar
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    The grammatical construction of the published rule would not prohibit open carry of loaded and operable firearms.
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitable–and let it come! I repeat it, Sir, let it come …………. PATRICK HENRY speech 1776

  3. #3
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    Thundar wrote:
    The grammatical construction of the published rule would not prohibit open carry of loaded and operable firearms.
    So, what does the published rule permit in layman's terms?

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    I didnt read all of it but isnt it written somewhere that we cant go to the bathroom while carrying? Since its a public area?

    Pee on a tree and get busted for exposure.

  5. #5
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    Found this thread in progress:

    http://opencarry.mywowbb.com/forum4/19233.html

  6. #6
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    Thundar wrote:
    The grammatical construction of the published rule would not prohibit open carry of loaded and operable firearms.
    I don't think so. It says:

    "Notwithstanding any other provision in this Chapter, persons
    may possess, carry, and transport concealed, loaded, and operable firearms
    within a national wildlife refuge in accordance with the laws of the
    state in which the wildlife refuge, or that portion thereof, is
    located, except as otherwise prohibited by applicable Federal law."

    Laws usuallytell you what you CAN'T do, not what you CAN do... However, I think this is theexception to the part of the rules prohibiting firearms.

    In other words, the other part of the rules reads you cannot have a firearm, but this is the exception that says you canCC if the state allows you to CC.

    ...Orygunner...



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    The way this ruling is written is typical of how laws are written. Clarity is not one of its strong suites. It is no wonder LEO's typically have no idea what the laws are that they are empowered to enforce.

  8. #8
    Regular Member david.ross's Avatar
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    Why not just carry a shotgun, rifle, or other firearm in a violin case? From observation you have a violin instead of a gun case, which a person can't tell there is a firearm in the case without opening said case. Some animal like a bear or other danger may arise, having a proper firearm for self-defense is important.
    Gays are prominent members of firearm rights, we do more via the courts, don't like it? Leave.
    Religious bigots against same sex marriage are not different than white supremacists.
    I expel anti-gay people off my teams. Tolerance is key to team cohesion and team building.

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    ..

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    But wait a minute here.

    The new rule says you can carry a concealed, loaded, and operable firearm. What if it's not loaded? Is it against the rule then? What if it's not operable? Or was it already okay to carry an unloaded firearm (I thought they had to be in a trunk or something).

  11. #11
    Regular Member TFred's Avatar
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    As petty as it may sound, given the [1] general prohibition on carrying inside Federally owned buildings,
    plus the final portion of the rule which states: "except as otherwise prohibited by applicable Federal
    law", and [2] the literal wording of the rule change: "concealed, loaded, and operable firearms", it would
    seem the following two questions are quite legitimate:

    1. May a person carrying a concealed handgun use a National Park restroom?

    2. May a person carry a concealed handgun that is not loaded?

    And then, if the answer to #2 is "yes", then on what basis would Open Carry be prohibited?

    FOR FURTHER INFORMATION CONTACT: Lyle Laverty, 202-208-4416.
    Anyone?

    TFred

    ETA: hard breaks

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    AllAmerican wrote:
    Pee on a tree and get busted for exposure.
    No, it's "unauthorized deposit of bodily wastes".

    No kidding. A buddy of mine was ticketed by a possum cop for peeing on a tree in a wilderness area.

    I guess bears don't do it in the woods after all.



  13. #13
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    No! It is not nice like in National Forests where you can open carry if the state it is in allows open carry. You can only carry concealed if the state it is in allows it. Some states at least let you carry concealedwithout a permit inside your vehicle so you can have it in your car if you don't have a concealed permit (in those states).... Still better then the original version proposed by the NRA with the analagous land confusing language in it.....

  14. #14
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    Does this new ruling allow concealed carry in all holdings except buildings of course administrated by the National Park Service such as National Monuments, The Arch in St Louis, and the Ozark National Scenic Riverways or does it just affect National Parks such as Yellowstone, and Wildlife Refuges?

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    There seems to be a consensus that this allows CC to state permit holders plus any other restrictions by law of the state in which the lands reside. It does not seem to allow OC.

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    micmed wrote:
    There seems to be a consensus that this allows CC to state permit holders
    The regulation clearly allows concealed carry if not unlawful under the law of the state - no permit per se is required by the regulation - many states do not require a permit to conceal in vehicles, see our travelers' map, and Alsaka and Vermont do not require permits to conceal carry generally.

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    kurtmax_0 wrote:
    But wait a minute here.

    The new rule says you can carry a concealed, loaded, and operable firearm. What if it's not loaded? Is it against the rule then? What if it's not operable? Or was it already okay to carry an unloaded firearm (I thought they had to be in a trunk or something).
    This is why most laws tell you what you can't do, instead of what you can do. There are too many variables to explicitly list all acceptable situations.

  18. #18
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    Mike wrote:
    micmed wrote:
    There seems to be a consensus that this allows CC to state permit holders
    The regulation clearly allows concealed carry if not unlawful under the law of the state - no permit per se is required by the regulation - many states do not require a permit to conceal in vehicles, see our travelers' map, and Alsaka and Vermont do not require permits to conceal carry generally.
    Okay, so amended as follows: There seems to be a consensus that this allows CC to state permit holders in states that require a permit to CC.

    Thanks for the clarification.

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