E8-27049. National Park System Units in Alaska

AGENCY:

National Park Service, Interior.

ACTION:

Final rule.

SUMMARY:

This rule implements recent management decisions affecting Denali National Park and Preserve regarding backcountry management, climbing Mount McKinley, and off-road vehicle use for subsistence purposes.

DATES:

This rule is effective on December 15, 2008.

FOR FURTHER INFORMATION CONTACT:

National Park Service, Victor Knox, Deputy Regional Director, Alaska Regional Office, 240 West 5th Ave., Anchorage, AK 99501. Telephone: [phone]. E-mail: [e-mail]. Fax: [phone].

SUPPLEMENTARY INFORMATION:

Background

On April 28, 2008, the NPS published in the Federal Register proposed regulations to revise Denali National Park and Preserve regulations in Subpart L of 36 CFR part 13. This rule implements certain decisions made in the 2006 Final Environmental Impact Statement (EIS) and Record of Decision (ROD) regarding the Denali Backcountry Management Plan (BMP) and the 2007 Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) for subsistence use of off-road vehicles in the Cantwell Traditional Use Area (TUA). The final regulations (1) establish group size limits in the backcountry, restrict the number of climbers on Mount McKinley from April 1 through August 1 to a maximum of 1500, and require camping permits (currently required through the compendium) in accordance with the 2006 BMP/EIS; and (2) restrict off-road vehicle use for subsistence purposes to designated routes and trails in Windy Creek, Cantwell Creek, and Bull River drainages in the Cantwell Traditional Use Area in accordance with the 2007 EA/FONSI. Comments received and the corresponding NPS responses are summarized below. Modifications to the proposed rule are listed under Changes to the Final Rule. As used within this document, the terms “we,” “our,” and “us” refer to the National Park Service.

Summary of Comments

The proposed rule was published for public comment on April 28, 2008 (73 FR 22890), with a 60 day comment period lasting until June 27, 2008. The National Park Service received three timely comments. Of the three comments, one was from the State of Alaska, one was from non-governmental organizations (consolidated response from two signatory groups), and one was submitted by an individual. Many proposed changes either received supporting comments or no comments. The proposed regulations are being adopted as proposed unless noted otherwise below. The proposed sections that did receive substantive comments are discussed below.

Section 13.903 Subsistence Off-Road Vehicle Use

1. The NPS received three comments regarding subsistence use of off-road vehicles. The State of Alaska asked for clarification on whether any qualified subsistence users who are currently using ORVs in the Cantwell TUA would be unable to continue to do so based on the requirement that subsistence users either be residents of the Cantwell resident zone community or residents of Alaska Game Management Unit (GMU) 13E holding a permit to use ORVs issued under 36 CFR 13.440. The State also suggested providing the Superintendent discretion to authorize subsistence users to use ORVs if they move outside the boundaries of this area.

The NPS appreciates the opportunity to explain the eligibility criteria for using ORVs in the Cantwell TUA. Section 811(b) of the Alaska National Interest Lands Act authorizes the use of ORVs for subsistence purposes if such ORV use was “traditionally employed.” In 2005, the NPS reviewed information regarding historical ORV use in the Cantwell area of Denali National Park. Several individuals who reside in and around Cantwell provided information regarding ORV use that occurred before this portion of the park was established in 1980. Based on this information, the NPS determined that Cantwell area residents used ORVs for successive generations in that portion of Denali National Park prior to the park's establishment in 1980. Because only residents of the Cantwell area have demonstrated traditional ORV use, this regulation restricts ORV use in the 1980 Park additions to those residents. The 2007 FONSI specifically stated that ORV use would be limited to residents of the Cantwell resident zone community and those residents of GMU 13E holding a 13.440 permit. For this reason, the NPS declines to accept the suggestion to allow individuals who move outside the Cantwell area to continue to use of ORVs for subsistence purposes.

The State requested additional information regarding the basis for the 1,000 pound weight limit and if this proposed limit will cause hardship to any existing qualified subsistence uses that may already possess vehicles exceeding the weight limit. The State noted the weight limit for ORVs on adjacent state land is 1,500 pounds curb weight and that consistent weight limits on adjacent park land would benefit ORV operators. Consistent with a recommendation by the Denali Subsistence Resource Commission, the NPS selected the 1,000 pound curb (unloaded) vehicle weight requirement during the EA process in an effort to minimize damage to park resources while still allowing ORV access to subsistence resources. The NPS also notes ORVs are limited to 1,000 pounds in several State of Alaska Game Refuges, including Palmer Hay Flats, Yakataga, Susitna Flats, and Goose Bay State Game Refuges. The NPS does not believe that this weight limit will curtail subsistence activities and has not received any comments through either the compliance or rulemaking process from existing qualified subsistence users indicating that a 1,000 pound limit would cause hardship.

Finally, the State requested clarification that this regulation does not apply to the use of snowmachines. The NPS appreciates the opportunity to clarify that this regulation does not close or restrict the use of snowmachines for subsistence purposes. The term “motor vehicle” is defined in 36 CFR 1.4 and excludes snowmobiles (which are defined to be the same as snowmachines). Accordingly, this regulation does not affect the use of snowmachines in the park.

The National Parks Conservation Association (NPCA) and Denali Citizens Council (DCC) requested that the procedure for closing and opening areas to ORV use follow a procedure similar to that outlined in 36 CFR 13.960 for snowmachine use.

The NPS agrees with NPCA and DCC that notifying the public of closures to ORV use and lifting those closures should be done via press release and other appropriate means. The NPS modified this provision to include the means of notice that we believe will be most effective for communicating closure information to qualified subsistence users in the Cantwell area. These means include issuing a press release, posting at local post offices, posting on the park website, posting signs at designated trails or areas if appropriate, use of electronic media, and via other appropriate means. We believe this modification also enables the NPS to respond more quickly to changing conditions.

A third commenter opposed permitting ORV use for subsistence uses. This comment misunderstands the effect of this regulation. Subsistence is a recognized and authorized use of the ANILCA additions of Denali National Park (Denali park additions). Section 811(b) of ANILCA provides that “the Secretary shall permit * * * appropriate use [of]* * * surface transportation traditionally employed” for subsistence uses by federally qualified local rural residents, subject to reasonable regulation.

In 2005 the NPS determined that ORVs were used by successive generations of Cantwell residents for subsistence in the Cantwell area (TUA) of the Denali National Park additions and therefore are authorized for subsistence purposes in this area under ANILCA section 811 and 36 CFR 13.460. This regulation merely implements the 2007 FONSI on subsistence ORV use in the TUA.

2. Section 13.904 Camping

The State of Alaska requested clarification that the camping permit provision only applies in designated areas and not throughout the former Mount McKinley National Park. The NPS appreciates the opportunity to clarify that a camping permit is only required in designated areas of the backcountry. Camping is also allowed in the Frontcountry Developed Area in accordance with 36 CFR 13.972-13.974.

Changes to the Final Rule

Based on the preceding comments and responses as well as internal NPS comments, the NPS has made the following changes to the proposed rule language:

• 13.903(d), Subsistence use of off-road vehicles. The NPS modified the provision specifying means of public notice for closures to subsistence ORV use. This change will provide more effective notice of closures to interested parties.
• 13.910(a), Mountain climbing. The NPS replaced the provision requiring all individuals to apply for a permit 60 days in advance of any climb on Mount McKinley or Mount Foraker with a provision that the superintendent will establish application procedures. These procedures will be published in the Superintendent's compendium. This modification will enable the superintendent to relax the 60 day advance application requirement for climbers who have previously climbed Mount McKinley or Mount Foraker under certain circumstances.

Compliance With Other Laws

Regulatory Planning and Review (Executive Order 12866)

This document is not a significant rule and is not subject to review by the Office of Management and Budget 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. A qualitative cost/benefit analysis was conducted to examine costs and benefits associated with the proposed rule. That analysis concludes that positive net benefits will be generated by each component of the proposed regulatory action, and hence by the regulatory action overall. The analysis also indicates that governmental processes in NPS-administered areas in Alaska will be improved. Therefore, it is anticipated that economic efficiency will be improved by this proposed regulatory action.

(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. This is an agency-specific rule that will not interfere with other agencies or local government plans, policies, or controls. The proposals included with this rulemaking apply to areas managed by the National Park Service and do not conflict with other federal regulations. The review process used to develop the rulemaking proposals included consultation with the State of Alaska to seek views of appropriate officials and to provide consistency with state rules on adjacent lands as well as active participation where NPS is proposing variation from similar state regulations.

(3) This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs, or the rights and obligations of their recipients. No grants or other forms of monetary supplements are involved.

(4) This rule does not raise novel legal or policy issues.

Regulatory Flexibility Act

The Department of the Interior certifies that this rule 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.). The economic effects of this rule are local in nature and positive or negligible in scope. This rule either implements rules unrelated to business activity or makes permanent various temporary and emergency rules under which area businesses have been operating. This rule will have no effect or in some cases a salutary effect by eliminating year to year uncertainty for park visitors.

A qualitative Regulatory Flexibility threshold analysis was conducted to examine potential impacts to small entities. The analysis concludes that, since no significant costs are anticipated for any component of the rule, significant economic impacts would not be imposed on a substantial number of small entities.

Small Business Regulatory Enforcement Fairness Act

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

a. Does not have an annual effect on the economy of $100 million or more. Expenses related to compliance with various provisions of this proposed rule are slight. No new user fees or charges are proposed. Any incidental costs from this rule would be small and generally would not be additional to those already associated with visiting park areas.

b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. The provisions of this rule will generally continue existing rules and use patterns for the park areas in Alaska.

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. The various provisions of this rule do not apply differently to U.S.-based enterprises and 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. This rule is an agency-specific rule and imposes no other requirements on small governments.

Takings (Executive Order 12630)

In accordance with Executive Order 12630, the rule does not have significant takings implications. A takings implications assessment is not required because no taking of property will occur as a result of this final rule.

Federalism (Executive Order 13132)

In accordance with Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. The rule is limited in effect to federal lands and waters administered by the NPS and does not have a substantial direct effect on state and local government in Alaska. The rule was initiated in part at the request of the State of Alaska and was developed in close consultation with the State of Alaska and, as such, promotes the principles of federalism.

Civil Justice Reform (Executive Order 12988)

In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

Paperwork Reduction Act

This regulation does not require any information collection from 10 or more parties and a submission under the Paperwork Reduction Act is not required. An OMB form 83-I is not required.

National Environmental Policy Act

We have analyzed this rule in accordance with the criteria of the National Environmental Policy Act and 516 DM. This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A Record of Decision (ROD) for the Denali National Park and Preserve Final Backcountry Management Plan Environmental Impact Statement was approved on February 21, 2006. On September 18, 2007, a Finding of No Significant Impact (FONSI) was approved for the Cantwell Subsistence ORV Management Environmental Assessment. These documents together represent the environmental analysis for this proposed rule, and are available for review at: http://www.nps.gov/​dena/​parkmgmt/​managementdocs.htm,, or http://www.regulations.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 22951); the Department of the Interior-Alaska Policy on Government-to-Government Relations with Alaska Native Tribes dated January 18, 2001; part 512 of the Departmental Manual, Chapter 2 “Departmental Responsibilities for Indian Trust Resources”; and various park consultation agreements with tribal governments, the potential effects on Federally-recognized Indian tribes have been evaluated, and it has been determined at this time that there are no potential effects that have not been addressed in prior decision documents.

While the consultation agreements noted above have not resulted in findings of potential effects, review of this rule has been facilitated by the relationships established through government-to-government consultation.

Drafting Information: The principal contributors to this rule are: Vic Knox, Chuck Passek, Jane Hendrick, Andee Sears and Paul Hunter, Alaska Regional Office; and Jerry Case, Regulations Program Manager, NPS, Washington, DC.

List of Subjects in 36 CFR Part 13

• Alaska
• National Parks
• Reporting and recordkeeping requirements

In consideration of the foregoing, the National Park Service proposes to amend 36 CFR part 13 as set forth below:

PART 13—NATIONAL PARK SYSTEM UNITS IN ALASKA

1. The authority citation for part 13 continues to read as follows:

Authority: 16 U.S.C. 1, 3, 462(k), 3101 et seq.; Subpart N also issued under 16 U.S.C. 1a-2(h), 20, 1361, 1531, 3197; Pub. L. 105-277, 112 Stat. 2681-259, October 21, 1998; Pub. L. 106-31, 113 Stat. 72, May 21, 1999; Sec. 13.1204 also issued under Sec. 1035, Pub. L. 104-333, 110 Stat. 4240.

Subpart L—[Amended]

2. Revise § 13.902 to read as follows:

§ 13.902

Subsistence resident zone.

The following communities and areas are included within the resident zone for Denali National Park addition: Cantwell (limited to the area within a 3-mile radius of the Cantwell post office as shown on a map available at the park visitor center), Minchumina, Nikolai, and Telida.

3. Add § 13.903 to subpart L to read as follows:

§ 13.903

Subsistence use of off-road vehicles.

Operating a motor vehicle off road is prohibited except by authorized residents as defined in this section when engaged in subsistence uses. For purposes of this section, “authorized residents” means residents of the Cantwell resident zone community as defined by this subpart or those residents of Alaska Game Management Unit 13E holding a permit issued under § 13.440 of this part. Operating a motor vehicle off road for subsistence purposes outside any trail or area designated by this section is prohibited. A map and GPS coordinates of designated trails and areas are available on the park website and at the park visitor center.

(a) Authorized residents may operate vehicles off road only in the following designated areas and trails:

(1) The Windy Creek Trail;

(2) The Cantwell Airstrip Trail;

(3) The Pyramid Trail;

(4) The Cantwell Creek Floodplain Trail/Corridor; and

(5) A trail or area along the Bull River Floodplain designated by the superintendent under paragraph (b) of this section.

(b) The superintendent may designate a trail or area along the Bull River Floodplain Corridor for motor vehicle use by authorized residents if the superintendent determines that the following conditions are met:

(1) Access across adjacent non-NPS lands has been secured;

(2) An NPS-approved trail has been constructed on NPS lands; and

(3) Off-road vehicle use continues to be necessary for reasonable access to the Bull River for subsistence resources by authorized residents.

(c) All of the following are prohibited:

(1) Motor vehicles greater than 5.5 feet wide;

(2) Motor vehicles exceeding 1,000 pounds curb (unloaded) weight;

(3) Motor vehicles that steer by locking or skidding a wheel or track; and

(4) Operating a motor vehicle in violation of § 13.460(d) of this part.

(d) The superintendent may restrict or prohibit motor vehicle use authorized by this section in accordance with § 13.460(b) of this part. The Superintendent will notify the public of the proposed restriction or closure by issuing a press release, posting at local post offices, posting on the park website, posting signs at designated trails or areas if appropriate, use of electronic media, and via other appropriate means.

4. Revise § 13.904 to read as follows:

§ 13.904

Camping.

Camping without a permit in designated areas in the former Mount McKinley National Park or the Kantishna area is prohibited. A map showing areas where a permit is required for camping is available at the park visitor center and on the park website. Violating terms and conditions of the permit is prohibited.

5. Add § 13.905 to subpart L to read as follows:

§ 13.905

Group size.

(a) The following are prohibited:

(1) Group sizes exceeding 12 individuals on the east side of the park outside the Frontcountry Developed Area as defined by this subpart.

(2) Group sizes exceeding 6 individuals on the west side of the park outside the Frontcountry Developed Area as defined by this subpart.

(b) A map showing the east and west boundaries is available at the park visitor center.

(c) The superintendent may authorize larger groups on a case-by-case basis.

6. Revise § 13.910 to read as follows:

§ 13.910

Mountain climbing.

(a) Climbing Mount McKinley or Mount Foraker without a permit is prohibited. The superintendent will establish procedures for applying for a permit. The superintendent may authorize a maximum of 1500 climbers on Mount McKinley from April 1 through August 1 each calendar year.

(b) Violating terms and conditions of the permit is prohibited.

Dated: October 28, 2008.

Lyle Laverty,

Assistant Secretary, Fish and Wildlife and Parks.