2012-21828. Special Regulations; Areas of the National Park System, Yellowstone National Park

AGENCY:

National Park Service, Interior.

ACTION:

Proposed rule.

SUMMARY:

This rule would implement an amended Record of Decision for the 2011 Winter Use Plan/Environmental Impact Statement and would govern winter visitation and certain recreational activities in Yellowstone National Park for the 2012-2013 winter season. The rule proposes to retain, for one additional year, the regulation and management framework that have been in place for the past three winter seasons (2009-2010, 2010-2011 and 2011-2012). Specifically, the rule would retain provisions that require most recreational snowmobiles operating in the park to meet certain National Park Service air and sound emissions requirements; require snowmobiles and snowcoaches in Yellowstone to be accompanied by a commercial guide; set daily entry limits on the numbers of snowmobiles (up to 318) and snowcoaches (up to 78) that may enter the park; and prohibit traveling off designated oversnow routes.

DATES:

Comments must be received by October 4, 2012.

ADDRESSES:

You may submit your comments, identified by Regulation Identifier Number (RIN) 1024-AE10, by any of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Mail: Yellowstone National Park, Winter Use Proposed Rule, P.O. Box 168, Yellowstone National Park, WY 82190.
• Hand Deliver to: Management Assistant's Office, Headquarters Building, Mammoth Hot Springs, Yellowstone National Park, Wyoming.

All submissions received must include the agency name and RIN. For additional information see “Public Participation” under SUPPLEMENTARY INFORMATION below.

FOR FURTHER INFORMATION CONTACT:

Wade Vagias, Management Assistant's Office, Headquarters Building, Yellowstone National Park, 307-344-2035 or at the address listed in the ADDRESSES section.

SUPPLEMENTARY INFORMATION:

Background

The National Park Service (NPS) has managed winter use in Yellowstone National Park for several decades. A detailed history of the winter use issue, past planning efforts, and litigation is provided on the park's Web site, http://www.nps.gov/​yell/​parkmgmt/​timeline.htm. The park has most recently operated under a temporary one-year rule (76 FR 77131). That rule, which expired by its own terms on March 15, 2012, had extended for one winter season the daily entry limits and operational requirements for snowmobiles and snowcoaches adopted by the 2009 interim plan, which had been in effect for the prior two winter seasons.

On July 5, 2011, the NPS published a proposed long-term rule to implement the preferred alternative identified in the Draft Environmental Impact Statement (DEIS) (76 FR 39048). Under that alternative, the NPS proposed providing four different use-level combinations for snowmobiles and snowcoaches, which would vary according to a seasonal schedule. The NPS had intended to issue a record of decision and finalize a long-term rule for Yellowstone winter use by December 2011. However, some of the more than 59,000 public comments received on the DEIS raised reasonable questions as to long-term management strategies and environmental impacts, and the NPS decided to delay implementation of a long-term rule in order to prepare a Supplemental Environmental Impact Statement (SEIS) further analyzing the impacts of winter use under various long-term management options.

Accordingly, in its December 2011 Record of Decision (ROD) (76 FR 77249), the NPS announced its decision to select and implement Alternative 8 in the Final Environmental Impact Statement (FEIS). Alternative 8 extended for one additional winter season—the 2011-2012 season—the daily entry limits and operating requirements of the 2009 rule, which allowed up to 318 commercially guided, best available technology snowmobiles and 78 commercially guided snowcoaches in the park per day, as well as authorizing a variety of non-motorized uses. The DEIS and FEIS contained and analyzed an alternative—identified as Alternative 2—implementing those limits and operating requirements indefinitely into the future. On December 12, 2011, the NPS published a final rule to implement Alternative 8 (76 FR 77131). The NPS believed that the additional time afforded by a new one-season rule would allow it to complete the SEIS, decide on a long-term plan for managing winter use, and promulgate a new long-term rule before the beginning of the 2012-2013 winter season.

On June 29, 2012, the NPS released the Draft SEIS and published a Notice of Availability in the Federal Register (77 FR 38824). Public comment on the Draft SEIS closed on August 20, 2012. The response from the public and stakeholders has been robust. A majority of the substantive comments have addressed the proposal in the Draft SEIS's preferred alternative to manage snowmobiles and snowcoaches by a new concept known as “transportation events.” Numerous commenters have requested additional time to consider this new management concept and to respond substantively to it. Accordingly, the NPS has decided to reopen public comment on the Draft SEIS for an additional 30 days. Mindful of the short amount of time left before the December 15, 2012, opening of the 2012-2013 winter season and desiring to take the time necessary to make a reasoned, sustainable long-term decision on winter use, the NPS has decided to amend the December 2011 ROD. Utilizing the analyses contained in Alternative 2 in the 2011 FEIS and updated information gathered during the 2011-2012 winter season, the NPS is promulgating this new rule to extend for one additional winter season the 2011-2012 daily entry limits and operating requirements. The purpose of this publication is to solicit public comment on the NPS's decision to amend the December 2011 ROD and on the new proposed one-season rule.

Section by Section Analysis

The NPS is proposing to revise § 7.13 paragraphs (l)(3)(ii) and (l)(4)(vi) and the introductory text of paragraphs (l)(7)(i) and (l)(8)(i) by replacing the terms “the winter season of 2011-2012” and “the winter of 2011-2012” with the terms “the winter season of 2012-2013” and “the winter of 2012-2013.” This would be the only change to the existing regulations.

Compliance With Other Laws and Executive Orders

Regulatory Planning and Review (Executive Orders 12866 and 13563)

Executive Order 12866 provides that the Office of Information and Regulatory Affairs will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is significant because it will raise novel legal or policy issues.

Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 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. We have developed this rule in a manner consistent with these requirements.

Regulatory Flexibility Act (RFA)

This rule will not have a significant economic effect on a substantial number of small entities under the RFA (5 U.S.C. 601 et seq.).

The NPS used two separate baselines for its regulatory flexibility analysis. If no new rule were passed, Baseline 1 would be defined by the no-action alternative in the EIS. Under this baseline, no motorized oversnow vehicles would be allowed in the park. In addition, the NPS defined a second baseline, Baseline 2. Baseline 2 represents the continuation of the same levels of use allowed under the 2009 interim regulation in place for the past three winter seasons. Under Baseline 2, there would be a zero net change between the past three years and the actions being implemented under this rule, because the rule extends the management framework in place the past three winter seasons for one additional year. A regulatory flexibility analysis is included in the report titled “Economic Analysis of Winter Use Regulations in Yellowstone National Park” (RTI International, 2011). The NPS has reviewed the economic analysis contained in that report and has concluded that it still is relevant and that its results would apply to the additional year.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

This rule is not a major rule under 5 U.S.C. 804(2), the SBREFA. 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. This rule has no effect on methods of manufacturing or production and specifically affects the Greater Yellowstone Area, not national or U.S.-based enterprises.

Unfunded Mandates Reform Act (UMRA)

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. A statement containing the information required by the UMRA (2 U.S.C. 1531 et seq.) is not required. The rule addresses public use of national park lands, and imposes no requirements on other agencies or governments.

Takings (Executive Order 12630)

Under the criteria in section 2 Executive Order 12630, this rule does not have significant takings implications. Access to private property located adjacent to the park will be afforded the same access during winter as before this rule. No other property is affected. A takings implication assessment is not required.

Federalism (Executive Order 13132)

Under the criteria in section 1 of Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a Federalism summary impact statement. It addresses public use of national park lands, and imposes no requirements on other agencies or governments. A Federalism summary impact statement is not required.

Civil Justice Reform (Executive Order 12988)

This rule complies with the requirements of Executive Order 12988. Specifically, 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. We have evaluated this rule under the Department's consultation policy and under the criteria in Executive Order 13175 and have determined that it has no substantial direct effects on federally recognized Indian tribes and that consultation under the Department's tribal consultation policy is not required. Numerous tribes in the area were consulted in the development of the previous winter use planning documents.

Paperwork Reduction Act (PRA)

This rule does not contain any new collection of information that requires approval by the Office of Management and Budget (OMB) under the PRA of 1995 (44 U.S.C. 3501 et seq.). OMB has approved the collection requirement associated with Commercial Services and has assigned OMB control number 1024-0129 (expires 09/30/2013). An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

National Environmental Policy Act (NEPA)

This winter use plan and rule constitute a major Federal action with the potential to significantly affect the quality of the human environment. The NPS prepared the 2011 Winter Use Plan/Environmental Impact Statement under the National Environmental Policy Act of 1969. The NPS is reexamining the analyses contained in the 2011 EIS, as well as new data from the 2011-2012 winter season, and intends to amend the December 2011 ROD (76 FR 77249) to authorize extending the current winter use management frame work for an additional year. The EIS is available for review at http://parkplanning.nps.gov/​yell.

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 is not required.

Clarity of This Regulation

We are required by Executive Orders 12866 (section 1 (b)(12)), 12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(a) Be logically organized;

(b) Use the active voice to address readers directly;

(c) Use common, everyday words and clear language rather than jargon;

(d) Be divided into short sections and sentences; and

(e) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that you find unclear, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

Public Availability of Comments

Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

Length of the Comment Period

This proposed rule is available for public review and comment for a period of 30 days. Under more typical circumstances the NPS would normally provide a 60-day comment period. In this case, new issues raised in the course of preparing the 2011 EIS necessitated the completion of a Supplemental EIS, resulting in the need for an expedited rulemaking process to authorize winter use during the upcoming winter season. For this regulation, we have determined that in order for a final rule to become effective by December 15, 2012, it is necessary to reduce the normal review and comment period to 30 days.

Good cause exists for the shortened comment period for the following reasons:

(1) The NPS has received voluminous public comment on previous rulemaking efforts regarding winter use of the park, including efforts in 2000, 2003, 2004, 2007, 2008, and 2011. Those rulemaking efforts addressed many of the same issues as are addressed in this rulemaking, and a relatively small number of new issues are being raised.

(2) Since at least December 2011 the NPS has in good faith publicly stated that the 2012-2013 winter season for Yellowstone would commence on or about December 15, 2012, and the public and businesses have made decisions based on the widespread public knowledge of this opening date.

(3) Many persons planning to visit the park have already made travel plans in anticipation of the park being open for snowmobile and snowcoach use, such as reserving time off from work, booking airfares and hotel accommodations, making reservations for snowmobile or snowcoach tours, and the like. The Christmas-New Year period is one of the most heavily visited times of the winter season. If the park does not open as scheduled on December 15, 2012, it would create unnecessary hardship for visitors who have already planned trips, and would likely result in economic losses for some visitors if reservations had to be cancelled. Significant revenue loss for businesses in and around the park would also occur. Many businesses in the gateway communities surrounding the park, and the people who rely upon them for their livelihoods, are highly dependent upon the park being open for the entire duration of the approximately 90-day season.

(4) Snowmobile and snowcoach operators have made business decisions and investments for the winter season premised on an opening date of December 15, 2012. Such actions include purchasing new snowmobiles and snowcoaches for their fleets, making offers of employment, preparing advertising and other materials, and purchasing snowmobile accessories such as suits, helmets, boots, mittens, etc. A late opening would shorten an already-brief winter season, thereby depriving these businesses and others that depend on the winter season (such as hotels, restaurants, service stations, and other hospitality-oriented businesses) of revenue that is important to their livelihoods.

List of Subjects in 36 CFR Part 7

• National Parks
• Reporting and recordkeeping requirements

In consideration of the forgoing, the NPS proposes to amend 36 CFR part 7 as set forth below:

PART 7—SPECIAL REGULATIONS, AREAS OF THE NATIONAL PARK SYSTEM

1. The authority citation for part 7 continues to read as follows:

Authority: 16 U.S.C. 1, 3, 9a, 462(k); Sec. 7.96 also issued under DC Code 10-137 (2001) and DC Code 50-2201 (2001).

2. In § 7.13 revise paragraphs (l)(3)(ii), (l)(4)(vi), (l)(7)(i) introductory text, and (l)(8)(i) introductory text to read as follows:

§ 7.13

Yellowstone National Park.

* * * * *

(l) * * *

(3) * * *

(ii) The authority to operate a snowmobile in Yellowstone National Park established in paragraph (l)(3)(i) of this section is in effect only through the winter season of 2012-2013.

* * * * *

(4) * * *

(vi) The authority to operate a snowcoach in Yellowstone National Park established in paragraph (l)(4)(i) of this section is in effect only through the winter season of 2012-2013.

* * * * *

(7) * * *

(i) You may operate your snowmobile only upon designated oversnow routes established within the park in accordance with § 2.18(c) of this chapter. The following oversnow routes are designated for snowmobile use through the winter of 2012-2013:

* * * * *

(8) * * *

(i) Authorized snowcoaches may be operated on the routes designated for snowmobile use in paragraphs (l)(7)(i)(A) through (l)(7)(i)(O) of this section. The restricted hours of snowmobile use described in paragraphs (1)(7)(i)(M) through (1)(7)(i)(O) do not apply to snowcoaches. Snowcoaches may also be operated on the following additional oversnow routes through the winter of 2012-2013:

* * * * *

Dated: August 30, 2012.

Michael Bean,

Acting Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.