[Federal Register Volume 65, Number 118 (Monday, June 19, 2000)]
[Rules and Regulations]
[Pages 37863-37879]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-14754]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Parts 5 and 13

RIN 1024-AC58


National Park System Units in Alaska; Denali National Park and 
Preserve, Special Regulations

AGENCY: National Park Service, (NPS), Interior.

ACTION: Final rule.

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SUMMARY: For the portion of Denali National Park and Preserve formerly 
known as Mount McKinley National Park (the Old Park) only, this rule 
establishes a definition for ``traditional activities'' as the term is 
used in Alaska National Interest Lands Conservation Act (ANILCA) 
section 1110(a) and related Department of the Interior regulations. The 
rule also applies this definition and determines that, for the Old Park 
only, prior to the enactment of ANILCA, no traditional activities took 
place during periods of adequate snow cover for which snowmachines 
(snowmobiles) may now be used. In addition, the rule implements the 
June, 2000 Statement of Finding: Permanent Closure of the Former Mt. 
McKinley National Park Area of Denali National Park and Preserve To The 
Use of Snowmachines and determines that any snowmachine use in the Old 
Park would be detrimental to the resource values of the area. The rule 
also consolidates, expands and codifies certain designations, closures 
and permit requirements for Denali National Park and Preserve, 
including requirements for vehicular traffic, vehicle use limits, and 
public health and safety. The rule also replaces the out-of-date 
references to ``Mount McKinley National Park'' with the Alaska National 
Interest Lands Conservation Act name ``Denali National Park and 
Preserve.''

EFFECTIVE DATE: July 19, 2000.

ADDRESSES: Superintendent, Denali National Park and Preserve, PO Box 9, 
Denali National Park, AK 99755. Attention: Ken Kehrer, Jr.

FOR FURTHER INFORMATION CONTACT: Ken Kehrer, Jr. at the above address 
or by calling 907-683-2294.

SUPPLEMENTARY INFORMATION:

Background

    As used in this Rule, the term ``Old Park'' means the portion of 
Denali National Park and Preserve that was formerly known as Mount 
McKinley National Park. This Rule incorporates

[[Page 37864]]

all the information in the Environmental Assessment for Permanent 
Closure Of the Former Mount McKinley National Park to Snowmachine Use, 
the Finding of No Significant Impact for the Proposed Permanent Closure 
of the Former Mount McKinley National Park to Snowmachine Use, the 
Statement of Finding: Permanent Closure of the Former Mt. McKinley 
National Park area of the Denali National Park and Preserve to the Use 
of Snowmachines and the Final Cost-Benefit analysis: Denali National 
Park and Preserve Special Regulations.
    In 1903, United States Geological Survey geologist Alfred Brooks 
wrote: ``* * * the abundance of sheep, bear, moose and caribou found 
along the north slope of the Alaska Range rank it as one of the finest 
hunting grounds in North America.'' In 1917, to protect and preserve 
natural and scenic resources and for public enjoyment and recreation, 
Congress directed that Mount McKinley National Park ``shall be, and is 
hereby established as a game refuge.'' 39 Stat. 938. Congress expanded 
the Park in 1922 and 1932. Horace Albright, the National Park Service 
(NPS) Director, welcomed these additions, in part, as a means to better 
protect wildlife, particularly to improve protection of Dall sheep and 
moose in the Park by giving them additional winter range protection. 
House Committee on the Public Lands, Report 207, Letter of January 20, 
1932.
    In 1980, Congress passed the Alaska National Interest Lands 
Conservation Act (ANILCA), which enlarged Mount McKinley National Park 
and renamed it Denali National Park and Preserve (Pub. L. 96-487, Dec. 
2, 1980, 94 Stat 2371). Consistent with the 1917 Act that created the 
Park, ANILCA recognized the importance of protecting habitat for, and 
populations of, fish and wildlife. The legislative history of ANILCA 
states that certain NPS units in Alaska, including ``Mount McKinley 
[National Park] * * * are intended to be large sanctuaries where fish 
and wildlife may roam freely, developing their social structures and 
evolving over long periods of time as nearly as possible without the 
changes that extensive human activities would cause.'' Sen. Rep. No. 
96-413, 96th Cong., 1st Sess. 137 (1979); and, Cong. Rec. H10532 (Nov. 
12, 1980). The heart of the Park and preserve lies on the lands that 
once comprised Mount McKinley National Park (the Old Park); there, on 
lands that ANILCA designated as Wilderness, predator-prey relationships 
have functioned for decades without significant human interference.
    Under NPS management for the past 83 years, the wildlife and the 
wilderness have remained virtually unchanged. It is the human 
recreational element that has undergone a dramatic evolution. During 
the summer of 2000, the National Park Service (NPS) expects that over 
400,000 people will visit the Old Park. Nevertheless, like Alfred 
Brooks, they will see an abundance of sheep, bear, moose and caribou, 
and the occasional wolf, against a spectacular backdrop of pristine, 
subarctic, alpine landscape--taiga and tundra, glaciers, glacier-fed 
rivers and cathedral peaks. The health of this shielded ecological 
system is also the cornerstone of a multimillion-dollar tourism 
industry in Alaska which is very dependent upon the presence of this 
diverse wildlife along the Denali road corridor.
    Limiting motor vehicle use on the Denali Park Road, educating 
backcountry users and prohibiting snowmachine use in the Denali 
wilderness have been essential factors in maintaining the natural 
systems in the Park interior, and in providing continued outstanding 
visitor experiences; experiences that depend, in large part, on seeing 
the spectacular variety of wildlife along the Park road and the 
opportunity to observe natural predator-prey interactions. The wildlife 
populations in the Old Park are available for this unparalleled viewing 
opportunity precisely because they have been protected from intrusive 
interactions with humans for decades. Vehicle use of the road corridor 
beyond certain levels has been determined by NPS to displace the 
wildlife that can be seen from the road and otherwise disrupts the 
Park's ecosystems, thereby impairing the resources, values and purposes 
for which the Park was established.
    During the difficult interior Alaska winters, any increase in 
stress on the wildlife through added energy expenditure or loss of 
preferred habitat is a concern. The braided river valleys and the high 
open tundra of the Old Park leave little opportunity for wildlife to 
avoid intrusions and take refuge. Any snowmachine use in the Old Park 
would result in detriment to the resource values of the Old Park and a 
significant change from the long-standing patterns of non-intrusive 
human interaction with wildlife. A major change in the level and extent 
of human activity in this historically undisturbed winter environment 
would be detrimental to many animals over a large area. The possibility 
of many additional miles of snowmachine trails and increased 
snowmachine activity levels throughout the Old Park threatens all types 
of habitat. This area of previously protected habitat is particularly 
vulnerable to increased disturbance given its proximity to access 
points along the George Parks Highway. In the long term, preserving the 
Old Park wilderness and its continually evolving natural processes is 
essential to ensuring opportunities for outstanding resource-based 
visitor experiences.
    The historical limitations on motorized use have also created a 
unique wilderness recreation opportunity in Alaska. There is no other 
comparably sized, naturally regulated ecosystem in Alaska that has been 
as protected from motorized use during winter months. As a result, the 
resource values of solitude and natural quiet, which are the source of 
this opportunity, remain at exceptional levels during the winter and 
are enjoyed by skiers, mushers, snowshoers and winter campers.
    The NPS Organic Act of 1916 directs NPS to manage National Parks 
and Monuments to ``* * * conserve the scenery and the natural and 
historic objects and the wildlife therein and to provide for the 
enjoyment of the same in such manner and by such means as will leave 
them unimpaired for the enjoyment of future generations.'' 16 U.S.C. 1. 
ANILCA section 1110(a) provides that snowmachine use may be prohibited 
if such use would be detrimental to the resource values of the unit or 
area. Additional information upon which NPS relied is found in the 
June, 2000 Statement of Finding: Permanent Closure of the Former Mt. 
McKinley National Park Area of Denali National Park and Preserve To the 
Use of Snowmachines. In that Finding NPS concluded that any snowmachine 
use in the Old Park would be detrimental to the resource values of the 
area and that snowmachine usage for travel to and from villages and 
homesites and for traditional activities did not occur. That Finding is 
available from the superintendent or on the Denali National Park and 
Preserve web page at www.nps.gov/dena.

Administrative History of ANILCA Section 1110(a), Special Access 
for Snowmachines

National Park Service Rulemakings

    On December 2, 1980, President Carter signed ANILCA into law. On 
January 2, 1981, NPS published a proposed rule (46 FR 5642). The 
purpose of the proposed rule was ``* * * to harmonize the statutory 
directives [of ANILCA] with existing [national monument] regulations

[[Page 37865]]

* * *'' and ``* * * to provide public guidance as soon as 
practicable.'' Id. According to the rule, expeditious rulemaking was 
needed to, among other reasons, address new directives in ANILCA such 
as section 1110(a) access. NPS regulations then in effect, generally 
prohibited aircraft and snowmachine use in Parks. Id. NPS described the 
proposed regulations as those minimally necessary to provide proper 
management in Park areas in Alaska and noted that further comprehensive 
rulemaking would follow. Id.
    The proposed rule stated that: ``* * * [s]ections 13.10-13.12 would 
initially open all Park areas to access by snowmachine, aircraft and 
motorboat for any purpose.'' Id. at 5644. The proposal sought to reduce 
the need for persons to obtain individual access permits and 
distinguished between recreational uses and traditional activities:

    Sections 13.10-13.12 of these proposed regulations initially 
open all Park areas in Alaska to access by snowmachine (on areas 
with adequate snow cover or frozen rivers), motorboat, and aircraft, 
without the need for individual access permits. Access by these 
methods of transportation is authorized for any purpose (e.g. travel 
between villages, to a homesite, for mineral development, for 
recreation, or for traditional activities except as is specifically 
provided for subsistence uses in ss 13.45 and 13.46 discussed below 
under subsistence. Sections 13.10-13.12 implement section 1110(a) of 
the Alaska Lands Act which provides access for ``traditional 
activities * * * and for travel to and from villages and 
homesites.'' This approach extends the statutory concept to access 
for all purposes, except the special provisions concerning access 
for subsistence uses.''

Id., (emphasis added).
    Under the corresponding access section for subsistence users 
(13.46), the proposal noted:

    At all times when not engaged in subsistence uses, local rural 
residents would be able to use snowmachines, motorboats, and other 
means of surface transportation [sic] in accordance with the 
appropriate Subpart A regulations. For example, local rural 
residents engaged in recreational uses of snowmachines, motorboats, 
and other means of surface transportation would comply with the 
provisions of ss 13.10, 13.11, and 13.13, respectively, and local 
rural residents seeking otherwise-closed access to Inholdings or 
temporary access would comply with the provisions of ss 13.14 and 
13.15, respectively.

Id. at 5654, (emphasis added).
    This explanation was repeated in the final rulemaking (46 FR 31836, 
31852). It is instructive to note that, from the beginning, the authors 
of the rule distinguished recreational activities from traditional 
activities. On June 17, 1981, NPS published the final rule (46 FR 
31836). The preamble to the rule also noted that:

    A substantial number of comments (203) objected to making these 
regulations applicable to all Park areas in Alaska (see ss 13.1(m), 
13.2), including pre-ANILCA areas like the former Mt. McKinley 
National Park and Katmai and Glacier Bay National Monuments. The 
proposed regulations were viewed by these commentors as an 
unwarranted lessening of protective measure for these ``old'' Park 
areas.

Id. at 31837.
    NPS concluded that there was no basis under the statutory language 
to exclude the Old Park from the conservation system units subject to 
section 1110(a).
    NPS agreed with comments made that the findings required by 
Executive Order 11644 would not allow a general opening for snowmachine 
use--thus the final rule limited snowmachine use to the uses enumerated 
in section 1110(a), while allowing motorboats, airplanes and non-
motorized surface transportation means to be used for any purpose. 
Executive Order 11644 requires that off-road vehicle use, including 
that of snowmachines, must be limited to specific areas and trails 
that: minimize damage to soils and vegetation; minimize harassment of 
wildlife or significant disruption of wildlife habitat; and minimize 
conflicts with, and danger to, other existing or proposed recreational 
uses. Furthermore, snowmachine use was not to be authorized in 
designated Wilderness Areas, and could be authorized in areas of the 
National Park system only if it would not adversely affect natural, 
aesthetic or scenic values. Consequently, the final rule authorized 
snowmachine use during periods of adequate snow cover or frozen river 
conditions only for traditional activities and village to village 
travel that were still permitted in park areas. The final rule provided 
two examples of uses that were not authorized, because the land use was 
no longer permitted in parks: snowmachine use to locate new mining 
claims and sport hunting. The rule also cautioned that ``* * * 
[p]rospective snowmachine users should note that the legislative 
history of section 1110(a) defines a traditional activity in terms of a 
use generally occurring in a park area prior to its designation. See S. 
Rep. No. 96-413, supra at 248; H. Rep. No. 96-97, Part 1, supra at 
239.''
    On April 6, 1983, NPS proposed regulations that would have 
effectively closed much of the Old Park to snowmachine and other 
motorized uses (48 FR 14978). The proposed rule noted that ``* * * 
[o]ne of the primary purposes for establishing Denali National Park and 
Preserve was to provide protection to certain species of wildlife and 
their habitats * * *'' ``Motorized use of certain areas of Denali 
National Park is believed to be detrimental to its ecosystem and the 
values for which it was established.'' Id. William P. Horn, then Deputy 
Under Secretary of the Interior announced the proposal by stating:

    The proposed regulations * * * would correct an oversight in the 
1980 Alaska National Interest Lands Conservation Act (ANILCA). When 
Congress enacted Section 1110(a) of ANILCA it opened all units of 
the vastly expanded conservation system to snowmachine * * * use. 
Prior to ANILCA, the critical wildlife habitat and natural resource 
areas of [Mount McKinley were] essentially closed to motorized 
access. Congress inadvertently opened [Mount McKinley] to this kind 
of use. By re-establishing the historical public use restrictions, 
the National Park Service seeks to correct the action and restore 
the historical level of resource protection.

Department of the Interior, News Release, April 6, 1983.
    The April 6,1983 proposal was never adopted in a final rule.

Department of the Interior Rule Making

    On July 15, 1983, the Department of the Interior proposed 
regulations that would implement portions of ANILCA Title XI that had 
not been promulgated by any of the bureaus. The rule also proposed to 
repeal and replace the bureaus' various special access, temporary 
access and access to inholdings regulations, to codify all Title XI 
regulations in a single part. These regulations essentially mirrored 
NPS and U.S. Fish and Wildlife Service (FWS) regulations that generally 
tracked the language of ANILCA section 1110(a). The proposed rule would 
authorize snowmachine use during periods of adequate snow cover or 
frozen river conditions only for traditional activities that were still 
permitted in Park areas, and for travel to and from villages and 
homesites, pursuant to an access permit, and for subsistence purposes. 
The rule also proposed a definition for ``adequate snow cover.''
    On September 4, 1986, the Department of the Interior published 
final regulations implementing ANILCA Title XI. Following the precedent 
established by NPS and FWS, the proposed regulations on motorboat, 
aircraft and nonmotorized surface transportation access were not 
restricted to traditional activities and travel to and from villages 
and homesites, as in the statutory authorization. In the final rule, 
the Department noted that EO 11644, regarding off-road vehicles (ORV), 
does

[[Page 37866]]

not apply to motorboats or aircraft. Therefore, the Department 
exercised its discretion under other applicable statutes in order to 
authorize airplane and motorboat use beyond that mandated in ANILCA. 
The fact that the Department did not limit airplane and motorboat 
access to only traditional activities under section 1110(a) 
demonstrates that traditional activities are a distinct subset of all 
the legally permissible activities that may occur in a Park area 
consistent with its enabling legislation.
    The Department again also declined to endorse comments that 
supported a blanket exception from the provisions of 1110(a) for the 
parks and monuments that predated ANILCA.

    The argument is made that Congress did not intend to open the 
pre-ANILCA areas to the uses described in Section 1110(a), since 
these pre-ANILCA areas had been closed to such uses prior to the 
enactment of ANILCA. Interior does not find any statutory support 
for this position, since Section 1110(a) provides no exception for 
the pre-ANILCA areas. Accordingly, no exception for pre-ANILCA areas 
is provided for in these regulations.''

Id. (emphasis added).
    While the statutory language must be read to apply to the Old Park, 
NPS and the Department continue to believe that the Department's 1983 
characterization is correct, and that inclusion of the Old Park was 
inadvertent.
    The Department also declined to accept comments to define 
``traditional activities,'' even though, under the regulations, 
snowmachines are limited to use for traditional activities and travel 
to and from villages and homesites. The Department noted that: ``* * * 
[o]ne suggestion was made that the regulations should limit access to 
traditional activities to the means traditionally employed, and should 
define what those means are.'' Id. at 31626, (emphasis added). The 
Department chose to neither reject nor accept this suggestion. Instead 
the Department stated that:

    Because these regulations apply to a number of areas under the 
administrative jurisdiction of three agencies, it has been decided 
that it would be unwise, and perhaps impossible to develop a 
definition that would be appropriate for all areas under all 
circumstances. Exactly what ``traditional activities'' are must be 
decided on a case-by-case basis. Once the agencies have had the 
opportunity to review this question for each area under their 
administration, it may be possible to specifically define 
``traditional activity'' for each area. Accordingly, these 
regulations do not contain a definition of ``traditional activity.''

Id.

Denali National Park and Preserve 1986 General Management Plan

    In the 1986 General Management Plan (GMP) for Denali National Park 
and Preserve, NPS followed the suggestion in the 1986 regulations for 
the development of area specific definitions of ``traditional 
activity'' (GMP, page 195). The GMP also indicated that recreational 
snowmachining can be treated as either a means of access or as a 
distinct activity in and of itself. The GMP identified recreational 
snowmachining as a distinct activity that needed to be evaluated 
against the definition of traditional that was provided in the GMP in 
order to determine if it was a traditional activity within the Old Park 
(GMP, page 37). This definition was not incorporated into regulation, 
but the Old Park was closed for 19 years to this activity by way of 
Superintendent's Orders (Compendium) based on an interpretation that 
recreational snowmachining was not a traditional activity in the Old 
Park.

Denali National Park and Preserve: 2000 Final Rule

    Under Section 1110(a) of ANILCA, snowmachines may be used in 
conservation system units for traditional activities, unless a 
particular traditional activity is barred by ANILCA or other applicable 
law, and for travel to and from villages and homesites. The use of 
snowmachines for such purposes may not be prohibited unless, after 
notice and hearing in the vicinity of the affected unit, it is 
determined that such use ``would be detrimental to the resource 
values'' of the unit.
    There are no villages, homesites and other valid occupancies within 
the Old Park. Access by snowmachine through the Old Park in transit to 
homesites, villages and other valid occupancies did not lawfully occur 
prior to ANILCA and is available through routes outside the Old Park 
that have been historically used for that purpose, both prior to and 
since the enactment of ANILCA. Thus, no snowmachine use within the Old 
Park is authorized by Section 1110(a) or 43 CFR 36.11(c) for travel to 
and from villages, homesites and other occupancies.
    Consumptive use as stated in the final rule definition of 
``traditional activity'' was derived by the Department after careful 
review of the legislative history of ANILCA. The four specific examples 
found in that history are sport hunting, fishing, trapping and berry 
picking. In the context of the proposed rule, NPS requested specific 
information on other activities which the public felt might be 
traditional activities. Based on its review of the comments, NPS has 
not identified any other consumptive activities in the Old Park which 
are traditional activities under the adopted definition.
    The definition of traditional activities in this final rule differs 
from the November 12,1999 proposed rule definition in two main ways. 
First, the application of the final rule definition is limited. The 
final rule definition is for the Old Park only, while the proposed 
definition was a general definition that would have applied to all the 
NPS units in Alaska. This is because the public comments indicated 
there was some confusion over the applicability of the definition to 
other than the Old Park. NPS also believes that further consideration 
of the definition in the context of the other park areas in Alaska is 
needed before a definition applicable to them is promulgated due to the 
possibility of different historical use patterns in those areas.
    Second, the final rule definition is now clearer about what NPS 
considers to be traditional activities in the Old Park. The revised 
definition clearly states that traditional activities are related to 
consumptive use, and that recreational snowmobiling is not a 
traditional activity in the Old Park. These changes are described in 
further detail below. Because the meaning of the phrase ``utilitarian 
Alaska lifestyle'' was not clear to many commentators we have replaced 
it with language which we believe accomplishes the same purpose, but 
defines the term traditional activity in a manner that is more readily 
understood by the public.
    The November 12,1999 proposed rule suggested the following 
definition of a traditional activity for NPS units in Alaska: An 
activity that generally and lawfully occurred in a unit or a 
geographically defined area of a unit prior to enactment of ANILCA, and 
that was typically associated with that region as an integral and 
established part of a utilitarian Alaska lifestyle or cultural pattern.
    This final rule adopts the following definition of a traditional 
activity for the former Mount McKinley National Park portion of Denali 
National Park and Preserve:

    An activity that generally and lawfully occurred in the Old Park 
contemporaneously with the enactment of ANILCA, and that was 
associated with the Old Park, or a discrete portion thereof, 
involving the consumptive use of one or more natural resources of 
the Old Park such as hunting, trapping, fishing, berry picking or 
similar activities. Recreational use of snowmachines was not a 
traditional activity. If a traditional activity

[[Page 37867]]

generally occurred only in a particular area of the Old Park, it 
would be considered a traditional activity only in the area where it 
had previously occurred. In addition, a traditional activity must be 
a legally permissible activity in the Old Park.

    As a general definition for all NPS units in Alaska, and under 
which an area-by-area analysis would be done, the proposed definition 
of traditional activities generally received widespread support. 
However, in reviewing the public comment, NPS realized that the 
proposed definition was not entirely clear; accordingly, NPS has made 
several clarifying changes in the final definition. To produce a more 
understandable definition, the description ``involving the consumptive 
use of one or more natural resources of the Old Park such as hunting, 
trapping, fishing, berry picking or similar activities'' has been added 
consistent with the legislative history which uses these examples of 
traditional activities for purposes of section 1110(a). This 
consumptive use is part of a life style or cultural pattern that remain 
practical and essential components of subarctic life. Clarification 
that the recreational uses of snowmachines (such as picnicking, 
sightseeing, wildlife viewing, photography and camping) were not 
traditional activities in the Old Park has been added. Although non-
snowmobile based recreational activities did take place in the Old Park 
these activities were not the type of activities offered during the 
Congressional deliberations as the traditional activities to be 
preserved. Clarification that a traditional activity that only took 
place in a portion of the Old Park is a traditional activity only in 
the area where it generally occurred has also been added. After 
analysis and consideration of the public comments, NPS has decided to 
define and apply this definition only to the Old Park at this time. NPS 
intends to define traditional activities and apply such definitions to 
other park areas, including the remainder of Denali National Park and 
Preserve, in subsequent processes, such as future rulemakings to 
implement backcountry management plans for some of the national parks 
in Alaska.
    NPS emphasizes that the definition of traditional activities in 
this rule is applicable to the Old Park only. NPS could develop and 
apply a different definition of traditional activities for the 
remainder of Denali National Park and Preserve and other Alaska Parks, 
based on historical use patterns for those areas. While NPS has found 
that certain activities did not occur in the Old Park during periods of 
adequate snow cover, and has developed and applied in this rule the 
definition of traditional activities for that area only, NPS could find 
differently for other NPS areas. NPS notes that the use of the Old Park 
may be distinct as compared to the ANILCA established portions of the 
Alaska Park units, due to the use restrictions that have been 
historically applied to the Old Park.
    NPS has previously provided separately for snowmachine use for 
subsistence activities under 36 CFR 13.46, but subsistence is not 
authorized in the Old Park.
    Applying this park specific definition to the Old Park, NPS is 
unable to identify any traditional activities or travel to and from 
villages, homesites and other valid occupancies during periods of 
adequate snow cover. In response to the request for comments regarding 
the identification of traditional activities within the Old Park, NPS 
received no comments that identified a history of any traditional 
activities as defined in this rule legally taking place contemporaneous 
with the enactment of ANILCA. The NPS has additionally concluded that 
any snowmachine use in the Old Park would be detrimental to the 
resource values of the area. Accordingly, NPS has inserted in the 
regulations for the Old Park only, that snowmachine use is not 
permitted for any reason within the Old Park portions of Denali 
National Park and Preserve.
    The legislative history of ANILCA contains several examples of 
traditional activities: sport hunting; fishing; berry picking; 
trapping. The House and Senate Committee Reports that accompany ANILCA 
list the first three of these activities as examples of traditional 
activities. Trapping was discussed as a traditional activity during 
Senate mark-up. The Committee Reports state that if traditional uses 
were generally occurring in an area prior to its designation the uses 
shall be allowed to continue. NPS notes that hunting, fishing, berry 
picking and trapping share a common characteristic; they are all 
consumptive, resource gathering activities. Congress sought to 
specially protect access for these activities (where the activities 
were authorized by ANILCA or other law) within areas that were being 
created to protect natural resources. Section 1110(a) was drafted to 
address Congressional concern that many Alaskans who practiced these 
kinds of activities would not qualify as subsistence users under Title 
VIII and therefore would not qualify for snowmachine access under 
section 811(b). Section 1110(a) was adopted to provide similar access 
for consumptive activities to these non-qualifying members of the 
public.
    With respect to the Old Park, NPS is certain that Congress did not 
expressly intend and did not create, an exception to the Wilderness Act 
that would allow snowmachines in wilderness areas--because someone on 
the snowmachine intended to look around, or happened to be carrying a 
sandwich or disposable camera--or because non-motorized sightseeing, 
picnicking and photography were permissible in the Old Park prior to 
ANILCA. If a contrary interpretation were correct, Congress need not 
have linked snowmobile access to traditional activities, but would have 
allowed it for any purpose since virtually any use of the Park entails 
an element of sightseeing. Such an interpretation would render the term 
``traditional activities'' as the equivalent of ``for any purpose''. 
NPS has found no evidence of such intent in the legislative history.
    The Senate Committee on Energy and Natural Resource mark-up 
sessions that were the origin of this section, and the Committee 
Reports on the Act consistently reference traditional hunting, fishing 
and berry picking. Congress did not identify other activities, such as 
recreational activities, in deliberations on section 1110(a). 
Conversely Congress made its intent clear in other provisions of 
ANILCA, specifically opening conservation system units to recreation by 
authorizing such access specifically, and separately from access for 
traditional activities. See e.g., section 201(2) Bering Land Bridge 
National Preserve (``in a manner consistent with the foregoing [the 
preserve shall be managed] for public access for recreational purposes 
to the Serpentine Hot Springs area.''); section 202(5) Kenai Fjords 
National Park (``the Secretary is authorized to develop access to the 
Harding Icefield and to allow use of mechanized equipment on the 
Icefield for recreation.''); section 202(6) Kobuk Valley National Park 
(``the Secretary shall permit aircraft to continue to land at sites in 
the upper Salmon River watershed.'') and section 202(10) Yukon-Charley 
Rivers National Preserve (``the Secretary shall permit aircraft to land 
on sites in the upper Charley River watershed'').
    With respect to the authorization of landing sites in the upper 
Salmon and Charley River watersheds, amendments approved at the October 
10, 1979 Senate Committee on Energy and Natural Resources mark-up 
struck the phrase ``traditionally used for such purposes'' from the end 
of each sentence. The amendments put a period after the word 
``watershed''. The accompanying mark-

[[Page 37868]]

up colloquy explains the Committee's intent to authorize access beyond 
where and what was traditional in these two areas due to their high 
potential for compatible recreational use.
    As the Alaska Conservation Foundation commented:

    [T]he only mention of recreational use in the ``Purposes'' 
section of ANILCA states that the intent of Congress was ``to 
preserve wilderness resource values and related recreational 
opportunities including but not limited to hiking, canoeing, fishing 
and sport hunting.'' Unquestionably, recreational snowmachining is 
not a recreational opportunity that related to wilderness resource 
values. (Section 101(b)). The other purposes outlined in Section 101 
are either antithetical to recreational snowmachining or are in no 
way supportive of recreational snowmachining.
    With respect to Section 1110(a) and the term ``traditional 
activities'', first and foremost, it is instructive to consider the 
explanatory title for the section, which is ``Special Access and 
Access to Inholdings.'' Congress expected this section to only apply 
to ``special'' access situations--which are, by definition 
``distinguished by some unusual quality, being other than the 
usual.'' Therefore, Congress limited access to these areas, allowing 
intrusions only for ``traditional activities'' or for access to 
homesites and villages.

    NPS also notes that due to the distance that may be traveled by 
modern snowmachines and the resulting noise impacts, even only a few 
snowmachines would cause detriment to the special resource values of 
the Old Park, in particular the wilderness and wildlife values of the 
Old Park. These values have developed over time as a result of the 
unique management history of the area, and are therefore coincident 
with the boundaries of that former unit. See Statement of Finding, 
June, 2000.

Summary and Analysis of Public Comment on Snowmachine Issues

Summary of Comments

    ANILCA section 1110(a) and 43 CFR 36.11(h) require notice and 
hearing(s) in the vicinity of the area(s) directly affected by such 
closures. NPS provided notice of the hearings in a press release that 
was mailed to approximately 450 Alaskans and businesses in the 
Anchorage-Fairbanks rail-belt. The press release was posted on Denali's 
website and faxed directly to 31 community, local and national news 
organizations, including print, radio and television in mid-November 
1999. The press release was published in the Fairbanks Daily News-
Miner, Anchorage Daily News, Valley Sun and Mat-Su Frontiersman. Two 
follow-up press releases were also faxed to the 31 news organizations 
and were published in the Fairbanks and Anchorage newspapers. NPS also 
placed newspaper advertisements in Fairbanks and Anchorage newspapers 
to inform the public of the purpose for, and the times, dates and 
locations of, the hearings. Alaska's congressional delegation was also 
informed. Four public meetings were held from December 6, 1999, to 
December 9, 1999, in McKinley Village, Talkeetna, Fairbanks and 
Anchorage. Comments on the proposed rule were originally due by Jan. 
11, 2000, but were subsequently extended until Jan. 25, 2000. Public 
discussion of the proposal was extensive, with many articles, 
editorials, and opinion pieces published, as well as television and 
radio coverage broadcast.
    At the public meetings: 81 people testified in favor of closing the 
Old Park to snowmachine use, and 44 people testified against the 
proposed closure; 34 speakers voiced support for the proposed 
definition of traditional activities, and 11 spoke against it. 
Including written comments, approximately 6,039 timely comments were 
received on the November 12, 1999 proposed rulemaking. Some commentors 
sent comments by both conventional and electronic mail. NPS attempted 
to match such duplicate mailings and count them as one. Additionally, 
many comments were signed by more than one person--particularly 
comments that supported the proposed rule. NPS acknowledges this point, 
but for this rulemaking, chose to count a letter or post card as a 
single comment, regardless of the number of signatures. The numbers 
shown in parentheses are the portions of the totals that were received 
from Alaska residents.

Total Comments--6039
    (2334, 39% of responses are from Alaskans)
Supporting Closure--5784 (96% of total response on this issue)
    (2105, 91% of Alaskans on this issue)
Opposed to Closure--226 (4% of total response on this issue)
    (201, 9% of Alaskans on this issue)

    NPS proposed Definition of Traditional Activities.

Supporting comments--3176 (98% of total response on this issue)
    (1215, 96% of Alaskans on this issue)
Opposing comments--68 (2% of total response on this issue)
    (57, 4% of Alaskans on this issue)

    Many commentors on both sides of the issue identified themselves as 
snowmachine owners. Quite a few commentors wrote of the detrimental 
effects snowmachines have had on Yellowstone National Park and urged 
NPS to protect Denali from similar impacts. The comments NPS received 
concerning the superintendent's determination of adequate snow cover 
supported this provision.

Response to Public Comment

    Comment: The State of Alaska, Office of the Governor commented that 
it would support selected snowmachine closures in Denali National Park 
if NPS agrees to meet additional procedural steps such as a management 
regime less restrictive then a total closure. Other commentors simply 
disagree with the NPS assertion that any snowmachine use in the Old 
Park would be detrimental due to the unique values of the area. They 
suggest that just by the act of allowing snowmachine use into 
wilderness areas in Alaska, Congress was acknowledging that some impact 
was acceptable and therefore cannot be considered detrimental for the 
purposes of regulating use. The State suggests that in determining what 
would be detrimental to the resource values of the Park, NPS should be 
``focusing greater attention on the intrinsic values of the unit, which 
are becoming increasingly important to the public.''
    NPS response: NPS agrees that in many cases the limited snowmachine 
use envisioned by Congress in ANILCA for traditional activities may not 
represent a significant change or a significant threat to the resource 
values of much of the previously unreserved federal lands that were 
used to create new Parks and wilderness areas. This is because 
snowmachine use had been occurring on many of those lands before their 
establishment as new conservation system units by ANILCA. Use of 
snowmachines for traditional activities, subsistence activities and 
village to village travel was the status quo condition in many of these 
areas.
    However in the Old Park, essentially the area that is now the 
Denali Wilderness, it is dramatically different. McKinley was Alaska'a 
only national park prior to ANILCA, and as a result it has a very 
special set of resource values that have developed since 1917, through 
protective management. The health of this shielded ecological system is 
the park's most intrinsic value. It is the foundation for one of the 
world's finest wildlife viewing opportunities. The possibility of 
seeing in a single day, bears, wolves, caribou, moose, Dall sheep, and 
other animals against the backdrop of a spectacular subarctic, alpine 
landscape and vegetation is the cornerstone of a multimillion-dollar 
tourism industry in Alaska. Wildlife populations within the historical 
boundaries of the Old Park are available for unparalleled viewing 
opportunity

[[Page 37869]]

precisely because they have been protected for decades from intrusive 
interactions with humans. The opportunity to see natural predator-prey 
interactions is one of the primary visitor attractions at Denali 
National Park and Preserve.
    Another important long-term value of this area is the possibility 
of recording and gaining understanding of a naturally functioning 
subarctic system with minimal disturbance by people. This largely 
undisturbed core area is regularly referred to as a comparison site in 
scientific studies throughout the circumpolar region. Denali National 
Park and Preserve has been designated an International Biosphere 
Reserve for its unique scientific values and the presence of the 
protected core area. The area defined by the boundaries of the Old Park 
is recognized as a distinct area in the reserve unit because of its 
different management history. It has also been selected for long-term 
ecological monitoring by NPS and other federal agencies because of its 
historic level of protection and ecological integrity.
    Section 701 of ANILCA designated about 95 per cent of the Old Park 
as the Denali Wilderness. The boundaries of the Old Park are 
essentially now the boundaries of the Denali Wilderness. This area 
provides a unique wilderness recreation opportunity in Alaska. There is 
no other large, naturally regulated ecosystem in the entire 375 million 
acres of Alaska that is as free from motorized use in the winter 
months. As a result, the fundamental wilderness resource values of 
solitude, natural quiet and extensive untracked vistas, which are the 
source of this opportunity, remain at exceptional levels during winter. 
This area provides a unique opportunity to those members of the public 
who seek to exercise their ``quiet rights.'' No other area with such 
special qualities is readily available or adjacent to the road system 
of Alaska.
    Given this unique situation in the public lands of Alaska, the NPS 
believes it is justified in its finding that the introduction of any 
snowmachine use into the Old Park represents a fundamental change to 
the condition of the unique resource values of the area. This shift 
from no use to the levels of use that are now possible with modern 
technology is completely different from the continuation of pre-
existing types and levels of use that Congress envisioned when it moved 
to protect access for resource gathering related activities associated 
with an ongoing Alaska lifestyle. Any snowmachine use in the Old Park 
is a fundamental change; and therefore, such use alone would have a 
significant, detrimental effect on resource values. (See Statement of 
Finding, June, 2000.)
    Furthermore, when enacting ANILCA in 1980, Congress did not 
envision that snowmachines would carry large numbers of people into the 
backcountry. Nor did the framers of ANILCA envision the potential for 
resource harm that is now possible due to the dramatic increases in 
snowmachine use caused by technological advances, increases in urban 
population and increased expendable income.
    Comment: Several commentors, including the Alaska State 
Legislature, suggested that, as proposed, the definition of a 
traditional activities requires that a utilitarian activity must have a 
cultural component to qualify as traditional. The Legislature also 
objected to the requirement that a qualifying activity must have been 
an integral and established part of a utilitarian Alaska lifestyle or 
cultural pattern. Other commentors, including the State of Alaska, 
Office of the Governor, pointed out that the statute does not require 
such a showing and joined in that objection.
    NPS response: Based on the comments submitted, NPS realized that 
the reference to ``utilitarian Alaska lifestyle'' was not well 
understood by the commentors. Accordingly, NPS has modified the final 
definition and eliminated this phrase to more clearly describe the 
activities falling within section 1110(a).
    Comment: Many of the same commentors felt that the definition of 
traditional activities should have been written more broadly to include 
activities that these commentors generally concede are recreational in 
nature, such as sightseeing, picnicking, wildlife viewing, camping and 
photography. These commentors insist that if these activities generally 
occurred in the Old Park prior to ANILCA, they are ``traditional 
activities.'' Most commentors, however, strongly disagreed with this 
approach; they felt that NPS had correctly identified ``traditional 
activities'' as activities that are necessarily connected with a 
generally rural--and from the Alaska perspective, generally unique--
Alaska lifestyle or Alaska culture.
    NPS response: NPS notes that it is rare that people visit National 
Parks, especially an Alaska Park like Denali, without sightseeing. It's 
also our experience that visitors often carry a camera and bring 
something to eat. NPS also notes that many visitors to Alaska go 
sightseeing, take pictures and eat take-out food in downtown Anchorage. 
NPS finds no specific reference in ANILCA or its legislative history 
that indicates that Congress intended to include any recreational 
activities under section 1110(a). With respect to the Old Park, NPS is 
certain that Congress did not expressly intend and did not create, an 
exception to the Wilderness Act that would allow snowmachines in 
wilderness areas--because someone on the snowmachine intended to look 
around, or happened to be carrying a sandwich or disposable camera--or 
because non-motorized sightseeing, picnicking and photography were 
permissible in the Old Park prior to ANILCA. If a contrary 
interpretation were correct, Congress need not have linked snowmobile 
access to traditional activities, but would have allowed it for any 
purpose since virtually any use of the Park entails an element of 
sightseeing. Such an interpretation would render the term ``traditional 
activities'' as the equivalent of ``for any purpose''. NPS has found no 
evidence of such intent in the legislative history.
    Comment: Building on its analysis of what should qualify as 
traditional activities, the Alaska Governor's Office contends that NPS 
cannot justify a post-ANILCA snowmachine closure in the Old Park on the 
fact that snowmachines were prohibited there pre-ANILCA. The proper 
analysis, the Governor suggests, is whether traditional activities were 
conducted in the Park prior to ANILCA, not whether snowmachines were 
used there. The Alaska Outdoor Council made a similar comment. The 
Wilderness Society, the Trustees for Alaska and numerous other 
commentors, on the other hand, argue that ANILCA must be interpreted to 
prohibit any snowmachine use in the Old Park regardless of how 
traditional activities are defined. They believe there having been no 
use in the Old Park prior to ANILCA, there can be none after ANILCA. In 
a recent court decision, ASSA v. Babbitt, A99-59 CV (JWS), the United 
States District Court, District of Alaska, agreed with the Wilderness 
Society that the statutory language of ANILCA does not foreclose the 
interpretation that they suggest.
    NPS response: NPS first notes that it has conducted, with this 
rule's definition, an analysis of whether traditional activities 
occurred in the Old Park in the manner suggested by the Governor. For 
reasons that are explained in this preamble, NPS cannot identify any 
traditional activities that generally occurred in the Old Park prior to 
ANILCA, for which a snowmachine could be now used during periods of 
adequate snow cover. Prior to ANILCA, park regulations prohibited such 
traditional Alaska activities as hunting

[[Page 37870]]

and trapping in the Old Park; those activities are still prohibited. 
Other subsistence activities have never been authorized and despite our 
request for comments, we can find no evidence that fishing or berry 
picking took place during periods of adequate snow cover 
contemporaneous with the enactment of ANILCA. There are no villages or 
homesites in the Old Park, and villages and homesites to the west or 
north of the Old Park have been commonly and more easily reached by a 
flatter, more northern route.
    NPS has, however, reviewed the comments of the Wilderness Society 
and the legislative history of ANILCA that they submitted with their 
comments. NPS has also reviewed similar comments and legislative 
history submitted by the Trustees for Alaska on behalf of a number of 
conservation groups. NPS also conducted its own review of ANILCA's 
legislative history, prior rulemaking and interpretive case law. ANILCA 
does not define the term ``traditional activities''. The relevant 
Committee Report explanation from the Senate is itself ambiguous:

    The Committee recommends that traditional uses be allowed to 
continue in those areas where such activities are allowed. This is 
not a wilderness type of pre-existing use test. Rather, if uses were 
generally occurring in the area prior to its designation, those uses 
shall be allowed to continue and no proof of pre-existing use will 
be required.

Report of the Senate Committee on Energy and Natural Resources, Report 
No. 96-413, p. 248.
    While the statute itself addresses the use of snowmachines for 
traditional activities, the Committee Report speaks in terms of 
continuing ``traditional uses''. Although Congress did not define the 
term ``traditional activities'', the Department has determined that 
Congress intended to allow traditional activities to continue where 
they were taking place prior to the enactment of ANILCA. The report 
only identifies hunting, fishing and berry picking as traditional 
activities. In view of its ambiguity, ANILCA has left it to the 
Secretary to define this term.
    ANILCA section 1110(a), as enacted, was derived from section 
1110(a) of the Senate Committee's reported version of the bill. S. Rep. 
No. 413, 96th Cong. 1st Sess. (1979). In exercising the Secretary's 
discretion to define this term, we have attempted to review all 
potentially relevant information. In this regard, NPS believes the 
Senate Committee on Energy and Natural Resources mark-up sessions on 
August 1 and 8, 1978, are informative of the concerns expressed even 
though they do not represent binding legislative history. The mark-up 
colloquies reveal that, in consideration of the large size of the new 
conservation system units and the remoteness of rural Alaska, Congress 
carefully fashioned an exception to the 1964 Wilderness Act in ANILCA 
section 1110(a). Motorized access for specific traditional activities, 
where they were generally occurring, was allowed to continue in Alaska 
wilderness because Congress recognized that continued access for these 
activities was necessary to sustain the Alaska lifestyle. Where 
snowmachines were being used for such things as hunting or trapping, or 
service functions such as hauling freight to villages, snowmachine use 
for these purposes would continue regardless of wilderness 
designations. Congress understood that where access for these 
activities was ongoing, it supported Alaskan lives and defined Alaskan 
identity. However, there is no suggestion in ANILCA or its legislative 
history that Congress intended to authorize new snowmachine use in the 
Old Park, which ANILCA designated as wilderness, when there had been no 
authorized snowmachine use there prior to ANILCA (for any activities). 
Indeed the legislative history shows that Congress intended to tailor 
this authorization narrowly. (Senate Energy and Natural Resources 
Committee Alaska (d)(2) Lands--Mark-up, August 1, 1978, pages 47-74). 
The August 8th discussion focused particularly on authorizing 
mechanized use where it had been done in the past. In order to prohibit 
a traditional use of this type of vehicle or mechanized equipment in a 
wilderness area the land manager must find that it would cause damage. 
(Senate Energy and Natural Resources Committee Alaska (d)(2) Lands--
Mark-up, August 8, 1978, pages 10-14, 49-50, 60-64).
    Comment: Some commentors thought NPS should ban all recreational 
uses of snowmachines from all of Denali National Park and Preserve. 
Others thought NPS should be able to accommodate some recreational use 
in areas other than the Old Park.
    NPS response: Unlike the proposed rule, the final definition 
adopted here applies only to the Old Park. NPS intends to use park 
planning processes, particularly the backcountry management planning 
process for the Denali addition areas and other park units, in 
developing and applying the definitions of ``traditional activities'' 
outside the Old Park. Although NPS makes no decision at this time on 
such definitions, based on its present review of the statute and its 
legislative history, NPS believes that such future processes could 
conclude that recreational activities independent of the types of 
activities discussed in this preamble are not traditional activities 
for purposes of section 1110(a) in these other areas. NPS intends 
nevertheless to examine, as part of these planning processes, where 
snowmobile use for recreational activities then determined to be 
outside the scope of section 1110(a) could be appropriate within 
individual park units, consistent with the applicable statutes and 
Executive Orders pertaining to the National Park System in Alaska.
    Comment: A few commentors suggested that the definition of 
traditional activities will have major impacts on other forms of access 
such as sightseeing flights that want to land on NPS lands.
    NPS response: The definition of traditional activities adopted by 
this rule does not have the broad effect described by some. The 
Department's 1986 regulations went beyond the scope of section 1110(a) 
and, based on other statutory authorities, authorized the non-
commercial use of motorboats and airplanes in all DOI areas without 
regard to the purpose. 43 CFR 36.11(d) & (f). That extended 
authorization not only remains unchanged, but the definition adopted 
here applies solely to snowmachines in the Old Park. This rulemaking 
has no effect on access by means other than by snowmachines. Commercial 
activities, including sightseeing landings, have been and will continue 
to be, regulated under NPS concessions authority.
    Comment: The Alaska State Legislature and Territorial Sportsmen 
Inc. commented that the proposed definition of traditional activities 
is a major regulatory departure by NPS.
    NPS response: NPS has consistently managed the two-million-acre Old 
Park as closed to snowmachine use and open for nonmotorized winter 
recreation in a way that allows visitors to experience solitude and 
natural sounds, such as dog mushing, snowshoeing, and cross-country 
skiing. Pre-ANILCA regulations and policy prohibited snowmachine use. 
As early as 1981, in the implementing regulations to ANILCA, NPS 
cautioned ``[p]rospective snowmachine users [to] note that the 
legislative history of section 1110(a) defines traditional activities 
in terms of a use generally occurring in a Park area prior to its 
designation.'' 46 FR 3184, June 17, 1981. Based on this interpretation, 
every post-ANILCA superintendent closed the Park to snowmachine use 
through a compendium order since snowmachine use had not lawfully 
occurred in the Old Park contemporaneous with the enactment of ANILCA.

[[Page 37871]]

    Interpreting the term ``traditional activities'' so as to 
distinguish recreational snowmachining from it, as a distinct activity 
in and of itself, was presented to the public in the Park's 1986 GMP. 
Then, as now, the public strongly supported such a distinction. 
Consequently, the definition adopted by this rule does not represent a 
change in the public understanding of the implementation of ANILCA 
section 1110(a) relative to the Old Park. Nor does it alter the actual 
patterns of use that are currently occurring in the Old Park. Since 
Congress did not define the term ``traditional activities'' the NPS has 
done so within its discretion.
    Comment: Three commentors suggested that this closure would 
discriminate against persons with disabilities because it would limit 
their access to the Old Park.
    NPS response: The decision treats all potential users equally in 
that snowmachine use is prohibited for everyone in the Old Park. 
Additionally, as noted above, NPS has determined that any snowmachine 
use would be detrimental to the resource values of the Old Park. The 
commercial dog sled companies that operate in the Old Park have 
expressed a willingness to take any interested individuals, including 
those with disabilities, into the Old Park.

Summary and Analysis of Public Comment on Other Issues

Comments and Responses on Regulations Affecting Management of the 
Denali National Park Road

Background
    This regulation is the culmination of several years of planning and 
public involvement on managing the Denali National Park Road. Detailed 
direction for managing the road was outlined in the Draft Entrance Area 
and Road Corridor Development Concept Plan and Environmental Impact 
Statement that was available for public review between June 21 and 
August 19, 1996. This draft plan was based on the recommendations of 
the Denali Task Force, a committee formed at the request of the 
Secretary of the Interior in 1994, on proposals received during public 
scoping during 1995, on previous plans, and on planning team work and 
impact analysis. NPS management proposals affecting the Park road 
received widespread support during the public comment period. The final 
plan was distributed in early 1997, and elements of the plan calling 
for safety improvements on the road and for replacing some private 
vehicles with buses were implemented beginning later that year. The 
additional bus trips provided for in the plan-without increasing the 
overall number of vehicles-resulted in more people having the 
opportunity to travel into the Park interior. The specific vehicle 
allocations outlined in the proposed regulations were also evaluated in 
the 1996 draft Entrance Area and Road Corridor Development Concept Plan 
and published in the final plan as part of the ``Road Management'' 
section. The need for regulations for management of the Park road is 
listed as the first item under provisions affecting general vehicle 
traffic. NPS kept the public informed of actions to implement the plan 
and progress on the regulations through press releases and newsletters. 
The concept of restricted vehicle access on the Denali National Park 
road has been supported by the public since it was started in 1972. The 
overall traffic limit on the park road, 10,512 vehicle trips during the 
summer allocation season, was evaluated as part of the 1986 General 
Management Plan, which included public review and comment. Public 
support for the road management provisions in the draft Development 
Concept Plan was expressed during studies along the park road and in 
unsolicited visitor comments. Those who commented on the road 
regulations during late 1999 and early 2000 demonstrated even greater 
support. Of the 6,039 comments received on the proposed regulations, 
382 addressed management of the Denali National Park Road. Of these 382 
comments, 368 were in favor of the road regulations as proposed and 7 
were opposed to the regulations as proposed. Another 7 comments were 
generally in favor of restrictions on road use but expressed a 
preference for other methods than those in the proposed regulations. 
Public involvement and continued planning for management of the park 
road indicate that the road regulations are long overdue. These 
regulations are consistent with ANILCA, and all decisions have been 
made with full participation of the public, above and beyond the 
requirements of ANILCA and the National Environmental Policy Act.
    Comment: The State of Alaska and one individual commented that 
ANILCA does not allow for the regulation of the Park road as proposed.
    NPS response: ANILCA does provide for the reasonable regulation 
included in the final rule. See section 1110(b) of ANILCA (16 U.S.C. 
3171(b)): ``Such rights shall be subject to reasonable regulations 
issued by the Secretary to protect the natural and other values of such 
lands.'' The permit system identified in the regulation affords the 
superintendent the flexibility to accommodate the access allowances in 
ANILCA while managing the Park pursuant to the NPS Organic Act and 
other applicable authorities. The 1997 Entrance Area and Road Corridor 
Development Concept Plan identified methods to increase the numbers of 
visitors to the core of Denali National Park. These provisions have 
been implemented and the overall number of visitors has increased as a 
result.
    Comment: One individual noted that in his view the proposed 
regulations are confusing, the process is misleading, public comment 
was inadequate and Kantishna landowners and stakeholders were not 
provided adequate notice.
    NPS response: The proposed regulations affecting road use in Denali 
National Park followed two previous planning processes involving the 
public, the General Management Plan in 1986 and the 1997 Entrance Area 
and Road Corridor Development Concept Plan. Public notice of the 1997 
plan was widely published. The plan specifically addressed the 
promulgation of special regulations for management of the Park road, 
establishing the GMP limit of 10,512 vehicle trips during the 
allocation season in regulation, setting formal ``Rules of the Road,'' 
and setting a seasonal allocation limit for Kantishna business traffic.
    Several Kantishna landowners and lodge operators commented on the 
1997 Development Concept Plan. The Park also produced a strategic plan 
that included the need for special regulations. The 1997 Strategic Plan 
includes the following long-term goal on page 20: ``By 2002, 
regulations affecting road use and snowmachine use are implemented and 
enforced.''
    The National Park Service has continued meeting with individuals 
and groups interested in the process and has kept the public informed 
through newsletters and press releases. Newsletters discussing 
implementation of the 1997 development concept plan and the need for 
road regulations were distributed to the public twice during 1996, 
twice during 1997, once during 1998, twice during 1999, and once in 
early 2000. Four press releases on the issue were sent to the media, 
and information has been available on the Park's web site since early 
1997.
    Comment: One individual commented that the proposed regulations 
will deny people the opportunity to visit their Park.
    NPS response: The National Park Service disagrees. The 1997 
Entrance Area and Road Corridor Development Concept Plan identified 
methods to increase the numbers of visitors to the

[[Page 37872]]

core of Denali National Park. These provisions have been implemented 
during the past three seasons, and the overall number of visitors has 
increased as a result. The 1997 plan and accompanying environmental 
impact statement also outlined resource protection needs and the need 
for the proposed regulations.
    Comment: A few individuals and one mining company commented that 
they saw no reason to limit traffic on the Park road. They proposed 
that safety concerns could be resolved through road improvements and 
constructing an additional access route into the Park from the north 
creating a one-way loop.
    NPS response: The NPS considered these issues in the 1997 Entrance 
Area and Road Corridor Development Concept Plan and the 1997 North 
Access Feasibility Study. The 1997 development concept plan provides 
for improvements to the existing road to address safety issues and for 
increasing the numbers of visitors traveling into the interior of the 
park.
    The North Access Feasibility Study determined that a new north 
access route, either road or rail, would be feasible, but notes that 
much more study and planning is needed. As stated in the opening 
paragraph, the 1997 study ``does not contain recommendations and is not 
a decision document.''
    In the cover letter accompanying the document, the Acting Assistant 
Secretary for Policy, Management and Budget found that:

    The projected costs of either new road access or rail access 
into Denali would exceed the projected costs for the National Park 
Service's 10-year, visitor access development program for the entire 
State of Alaska. Thus, we believe this study must be considered in 
conjunction with the other National Park Service proposals for 
visitor facilities and access in Alaska-proposals developed with 
input from the State of Alaska, the visitor industry and the public.

    The National Park Service believes that it is a far more efficient 
use of funding to expand upon the existing visitor opportunities along 
the Park road, following the widely supported direction in the 1997 
development concept plan, than to explore the much more controversial 
and expensive north access route. Park visitors have continued to 
support the management decision to maintain most of the Park road in 
its rustic, historic condition.
    Comment: The Alaska Visitors Association commented that the number 
of trips on the Denali National Park Road apportioned to businesses and 
park visitors should not decrease over time in order to accommodate any 
National Park Service increase in the administrative and temporary 
categories.
    NPS response: The National Park Service vehicle trip allocation in 
the 1986 General Management Plan (1754 total) was amended slightly by 
the 1997 Entrance Area and Road Corridor Development Concept Plan, 
which sets the limit of 1,776 vehicle trips. Under the regulations, the 
park would adhere to that limit for its administrative use. NPS notes 
that there have been fewer than 10 emergency vehicle trips in each of 
the past three years. Such additional emergency trips will not effect 
the allocations for other users. The NPS believes that some flexibility 
must remain in the system and that emergency traffic should not be 
constrained. While the NPS has committed to restraint in its 
administrative travel, the same cannot be done with emergency traffic. 
The agency must be able to respond to emergencies along the park road 
to provide for safe and enjoyable visitor use. NPS also notes that 
emergency or other non-routine road maintenance may require NPS to make 
or to authorize a NPS/Federal Highway Administration contractor to make 
additional trips to effect repairs. However, NPS will make every effort 
to schedule repairs pre- and post-season.
    Comment: The State of Alaska commented that the final rule should 
incorporate an annual notice requirement and some sort of built in 
administrative appeal mechanism and that the ``Rules of the Road'' part 
of the regulations should not be used to indirectly restrict public 
access outside the Section 1110(a) and (b) processes.
    NPS response: As discussed above, operation of the regulations 
including issuance of permits is consistent with section 1110(b) of 
ANILCA. The ``Rules of the Road'' will continue to be conditions of a 
permit. These driving rules are designed to increase safety on the Park 
road and are not a means of indirectly restricting access. Public 
access is enhanced by the operation of the visitor transportation 
system and the tour buses. Annual notice and administrative appeal 
provisions are already in place and will continue to be utilized.
    Comment: The State of Alaska, the Alaska Outdoor Council, and two 
individuals commented that ANILCA ``guarantees'' economic and feasible 
access to inholdings and that the NPS cannot diminish the scope of this 
broad statutory right through regulation.
    NPS response: These comments generally omitted the last sentence of 
Section 1110(b) of ANILCA: ``Such rights shall be subject to reasonable 
regulations issued by the Secretary to protect the natural and other 
values of such lands.''
    The regulations do not deny access; they regulate access along the 
park road to protect natural and other values. The result of such 
protection within the road corridor is the high economic value of the 
inholdings in question. What were once mining claims are now instead 
valued by their proximity to the core of Denali and their access via 
the Park road, with its superlative wildlife viewing opportunities. The 
National Park Service is proposing to regulate, not deny this access.
    As stated in the text of the proposed regulations, the traffic 
limits being proposed have also been reviewed as part of the General 
Management Plan in 1986 and the 1997 Entrance Area and Road Corridor 
Development Concept Plan. During the more recent planning process, the 
NPS received 262 written comments and heard testimony from 40 people. 
No comments were received opposing the overall level of 10,512 motor 
vehicle trip permits, although there were numerous comments that 
supported more restrictive regulation of vehicle traffic than was 
adopted in the final plan.
    Comment: One individual commented that the proposed regulations 
threaten the economic viability of Kantishna businesses.
    NPS response: As stated earlier, the regulations are consistent 
with section 1110(b) of ANILCA as well as providing for annual 
adjustments of permit levels. The National Park Service notes that only 
one individual raised the question of economic viability of the several 
Kantishna businesses. In addition to the current level of permits which 
more than afford adequate and feasible access to inholders, the visitor 
transportation system provides access to Kantishna. Area businesses 
also utilize the Kantishna airstrip.
    Comment: One individual and one business owner noted that the 
proposed rules do not provide any incentive to voluntarily reduce 
vehicle use of the Park road.
    NPS response: The final rule has not been modified to address 
voluntary actions. The NPS agrees it is in the best interests of Park 
visitors, including the Kantishna business visitors, and the government 
to limit their use of the road. The National Park Service hopes other 
users agree and will voluntarily limit access without regulatory 
incentives, and NPS will work on such efforts with all interested 
parties.
    Comment: One individual commented that the rule prohibiting motor 
homes, campers, and trailers to travel to

[[Page 37873]]

Kantishna is too restrictive and should allow exceptions by the 
Superintendent.
    NPS response: The final rule retains the prohibition of the use of 
motor homes, campers and trailers to travel to transport guests to 
Kantishna businesses. This provision does not prohibit private inholder 
use of these types of vehicles provided they are operated during 
specific times of the day. Adequate and feasible access using buses is 
available for Kantishna businesses to transport guests. The prohibited 
types of vehicles pose a safety concern if frequently used 
commercially.
    Comment: The State of Alaska commented that the regulations must 
provide a mechanism for currently active inholders to seek adjustments 
of individual allocations and must provide for other inholders to 
acquire access for their possible future ``economic and other 
purposes.''
    NPS response: The current allocations afford more than adequate and 
feasible access for inholders. In addition, the final regulation 
contemplates reallocation to address future needs.
    Comment: The Wilderness Society and two Kantishna businesses 
commented that each Kantishna business should be allocated the same 
number of permits.
    NPS response: The distribution of permits among Kantishna 
businesses as outlined in the 1997 plan and as provided for in the 
regulation is appropriate in that it is fair to Kantishna businesses 
(i.e., provides reasonably necessary and economically feasible access), 
considers the unique characteristics of individual operations, and 
maintains the overall travel limits.
    Comment: One Kantishna business commented that the superintendent 
should not have the authority to revoke road allocations in the case of 
a sale or transfer of a Kantishna business, since it would be a severe 
encumbrance upon the business.
    NPS response: The final regulation continues to provide for a 
reevaluation of access needs upon sale or other change. Additional 
visitor use may be accommodated by the reevaluation while continuing 
adequate access for the business needs of the inholding. To address 
these concerns, the NPS intends to retain the established limit for an 
individual Kantishna business for 12 months after the sale of the 
business while the access requirements of the new owner are being 
evaluated.
    Comment: One business and the Alaska Visitors Association commented 
that the proposed rule should stipulate that the National Park Service 
will work on transfer of the concession agreement and the vehicle 
permit allocation simultaneously.
    NPS response: A regulation is not necessary, as consideration of 
any concession authorizations will also likely include consideration of 
vehicle permits at the same time.
    Comment: Two individuals commented that the National Park Service 
has not provided adequate evidence, such as scientific studies, of the 
need for regulating traffic on the Park road.
    NPS response: Studies addressing the importance of this regulation 
are identified and the topic discussed in the 1997 Entrance Area and 
Road Corridor Development Concept Plan. Other considerations including 
the large growth in visitor numbers, the condition of the road and the 
success demonstrated by road restrictions also make it clear that 
continuing the restrictions at the 1986 levels is best for the Park and 
the visitors.
    Comment: The Denali Citizens Council, one Kantishna business, and 
several individuals commented that the regulations should include daily 
bus trip limits. The Wilderness Society, Denali Citizens Council, one 
Kantishna business, and several individuals also noted that the 
regulations should include daily limits on the Denali Natural History 
Tour.
    NPS response: The National Park Service has already implemented 
daily bus trip limits including limits on the Denali Natural History 
Tour as outlined in the 1997 Entrance Area and Road Corridor 
Development Concept Plan. Since the bus systems are operated under 
concessions contracts, the National Park Service has the authority to 
enforce these restrictions as part of the conditions of the contracts.
    Comment: The Alaska Visitors Association commented that the 
National Park Service should provide at least one year advance notice 
of specific numbers of the annual permit allocation.
    NPS response: The regulations provide that an annual date to 
evaluate requests will be established. The National Park Service 
recognizes that businesses desire to know as far in advance as possible 
and the Superintendent will consider that desire in establishing the 
date.
    Comment: The Alaska Visitors Association commented that absent 
documented safety or resource issues, the regulations should not be 
expanded to further control vehicular traffic.
    NPS response: The National Park Service believes that safety and 
resource issues should be addressed in a proactive way rather than 
waiting for damage to resource values or injury to visitors to occur. 
The National Park Service will continue to monitor all aspects of Park 
use and resource considerations and manage accordingly. In any event, 
the final rule is consistent with current motor vehicle practices on 
the park road, and do not constitute an expansion.
    Comment: Several commentors noted that the Denali Natural History 
Tour (also known as the short tour) does not stop at the Savage River, 
but instead turns around 2.3 miles further into the park at the 
Primrose Overlook. A few questioned why NPS does not count the short 
tour bus trips as part of the 10,512 annual permits.
    NPS response: While the park road changes from pavement to gravel 
at the Savage River and that has traditionally been the site of the 
check station and the beginning of the restricted access section, that 
location does not readily accommodate large buses. The limited parking 
there is often filled with private vehicles and backing busses (as is 
required to turn around there) would be a hazard to pedestrians. The 
short tour buses are better and more safely accommodated at the 
Primrose Overlook where they can turn around without backing. As these 
buses only travel 2.3 miles up the moderate and improved grade past the 
Savage River before returning, there are no resource nor road wear 
reasons to include these trips in the annual limits and these trips 
have, therefore, always been excepted. This issue received thorough 
public review in the 1997 Entrance Area and Road Corridor Development 
Concept Plan and the accompanying Environmental Impact Statement.

Analysis of Comments on Kantishna Firearms Safety Zone

    Although many comments expressed general support for the entire 
proposed rule, NPS received a few comments specific to the seasonal 
prohibition on the discharge of firearms on public lands within the 
developed area of Kantishna. The closure applies on: the Kantishna 
Airstrip; the approximately 4.5 mile-long State Omnibus Act Road right-
of-way; and all public lands located within one mile of the Kantishna 
Airstrip or the State Omnibus Act Road right-of-way (within the Park 
addition area surrounding Kantishna). Fourteen comments expressed 
specific support for the closure or suggested a more stringent closure 
was appropriate.
    Comment: The Alaska Outdoor Council and the State of Alaska Office 
of the Governor did not oppose the closure. They suggested, however, 
that further evaluation of the need for this

[[Page 37874]]

closure was warranted and that NPS should guard against incremental 
expansions of or additions to this closure that favor non-consumptive 
Park uses and have cumulative impacts on consumptive uses. The state 
also pointed out that the state uses a one-half mile closure in many 
areas.
    NPS response: NPS anticipates that public use will increase in this 
developed area. The fact that this area is developed distinguishes it 
from the approximately four million acres of Park addition and preserve 
land that is open to various types of hunting. The rule will only have 
a minimal effect as the Kantishna area is closed to sport hunting, 
protection of life and property is excluded, and there is only a small 
overlap of the permissible subsistence hunting periods and the visitor 
season. NPS finds that the closure is warranted.

Analysis of Comments on Wildlife Protection

    Most commentors generally supported the wildlife closure 
regulations. Several people spoke in favor of the proposal at the 
public hearings and NPS received 25 written comments specifically 
supporting the proposed flexible closures for wildlife and wildlife 
habitat protection; two written comments were opposed. As explained 
below, NPS disagrees with the comments in opposition to this proposal 
and concludes that it does have the necessary legal authority for the 
closure provision as proposed. However, after reviewing the comments 
and further consideration of the proposal, we have determined that the 
proposed regulation is simply redundant with respect to the existing 
regulatory authorities pertaining to closures under 36 CFR 1.5 and 1.7. 
Accordingly, NPS has chosen not to promulgate this regulation but to 
instead continue to utilize existing regulations when wildlife closures 
are required.
    The Department in 1986 concluded that the NPS regulations at 36 CFR 
1.5 were not superceded by section 1110(a) and its implementing 
regulations:

    * * * Our review of section 1110(a) leads us to conclude that 
the closure of areas to the authorized uses (snowmachines, 
motorboats, airplanes, and nonmotorized surface transportation 
methods) should occur only under standards of the law which this 
section is to implement. Accordingly, the final regulations have 
been amended to provide that no closure to any use authorized under 
this section may be made unless the ``area manager determines that 
the use would be detrimental to the values of the unit or area.''
    It is Interior's view however, that these uses may be limited or 
restricted pursuant to other applicable law. The Secretary of the 
Interior has the authority in the areas administered by Interior to 
close areas or restrict use for a variety of reasons, such as for 
health and safety. We do not believe that the provisions of this 
section of ANILCA were intended to preclude the Secretary from 
utilizing other statutory authorizations to restrict these uses. The 
proposed and interim regulations attempted to incorporate these 
other laws and the standard stated above, for emergency closures. 
After reconsideration of these closure provisions as a result of the 
comments made about the standard for closure under section 1110(a), 
Interior has determined that these regulations should be limited to 
closures under the authority of that section. Accordingly, by, 
limiting these regulations to closures authorized by section 
1110(a), it was determined that the category of closure 
``emergency'' was no longer necessary, and as such is covered by 
other established authority. Regulations providing for the closure 
of areas for reasons other than the provisions of section 1110(a) 
include: For NPS, 36 CFR 1.5; for FWS, 50 CFR 25.21; and for BLM, 43 
CFR 8364.

51 FR 31619, 31627-8 (September 4, 1986) (emphasis added).
    Comment: The Alaska State Snowmachine Association and the Alaska 
Outdoor Council question the legal authority of the NPS to permit the 
Superintendent to make seasonal closures and take other actions to 
protect wildlife and indicates that such authority is inconsistent with 
ANILCA section 1110(a). The State of Alaska, Office of the Governor 
recognized that NPS needs flexibility, but suggested the proposed rule 
was too wide-ranging and offered several suggestions to limit the range 
of the rule.
    NPS response: The Department regulations at 43 CFR 36.11(h)(6) 
explicitly provide that nothing in that section limits the authority of 
the appropriate federal agency to restrict or limit uses of an area 
under other statutory authority. The quote in the previous response 
demonstrates that the Department has consistently maintained that the 
closure provisions of 1.5 are available when appropriate and are not 
preempted by the regulations implementing section 1110(a). The 1986 
regulations recognize and confirm the responsibility of the NPS to 
protect the resource values of the Park units in Alaska not only 
through a finding of detriment to Park resources under section 1110(a), 
but also, where applicable, the use of other closure authorities such 
as those in 36 CFR 1.5.
    For example, if NPS sought to close an area only to snowmachines 
due to the detrimental effects of snowmachines to that area, that 
closure must be implemented under the section 1110(a) regulations (43 
CFR 36.11(h)). However, if high avalanche danger necessitated closing 
an area to all entry or use (thereby including snowmachines), such a 
closure can be appropriately implemented in accordance with 36 CFR 1.5 
and 1.7. Similarly, closing an area to all uses under 36 CFR 1.5 for 
resource protection purposes is permissible so long as the closure is 
reasonable under the given circumstances. Most uses of this closure 
authority in the past within the Park have occurred during the summer 
visitor season and are unrelated to section 1110(a) access issues.

Section-by-Section Analysis

36 CFR 5.2(b), 5.4(a) and 5.10(a)

    To reflect the name change to the Park that occurred with the 
enactment of ANILCA, the rule changes the name of the Park, as it 
appears in these sections, from Mount McKinley National Park to Denali 
National Park and Preserve (Pub. L. 96-487 section 202(3)(a), Dec. 2, 
1980). In Sec. 5.4(a) the reference to ``McKinley Park Hotel'' in the 
existing regulations is replaced with ``Denali Park Railroad Depot.'' 
This change reflects the fact that the 1996 Final Denali Entrance Area 
and Road Corridor Development Concept Plan Environmental Impact 
Statement (1996 Final Entrance and Road Plan), which was approved in a 
1997 Record of Decision, adopted September 2001 as the closing date for 
the hotel. The railroad depot, which is just across the road, is 
substituted for the hotel because the depot will remain open. No change 
is made to the regulatory content of the other sections.

36 CFR 13.2(c)

    This section lists those Parks statutorily excepted from 
applicability of the subsistence regulations found in Part 13, subpart 
B. In the case of Denali, only part of the Park was statutorily 
excepted (i.e., that ``core'' part formerly known as Mount McKinley 
National Park, and referred to herein as the ``Old Park'') (Pub. L. 96-
487, section 202(3)(a), Dec. 2, 1980). The rule revises this section to 
use that terminology to clarify the meaning of the current Sec. 13.2(c) 
phrase ``* * * and parts of Denali National Park.'' The new language 
more clearly specifies the intended area and does not change the 
regulatory application of the section.

36 CFR 13.63(d), Denali Park Road: Motor Vehicle Traffic

    This rule codifies the 1986 Denali National Park and Preserve 
General Management Plan (GMP) motor vehicle use level of 10,512 vehicle 
round trips on the Denali Park road west of the Savage River from 
Memorial Day weekend through mid-September.

[[Page 37875]]

Consideration of factors such as natural resource protection (including 
maintaining the opportunity for unparalleled wildlife watching), road 
wear and maintenance, environmental impacts and traffic safety led to 
this limit. The 1997 Final Entrance Area and Road Corridor Development 
Concept Plan considered these issues and called for retaining the 
annual season motor vehicle traffic level (10,512) as established in 
the 1986 GMP. Public comment on the draft development concept plan, 
which was designed to be applicable for 10-15 years, indicated 
widespread support for retaining the GMP level.
    Because a portion of the motor vehicle traffic on the Denali Park 
road is destined for commercial lodges and other private inholdings in 
Kantishna at the western end of the road, the proposed regulation 
includes consideration of the requirements of ANILCA section 1110(b). 
ANILCA section 1110(b) affords inholders such rights as may be 
necessary to ensure adequate and feasible access to their land for 
economic and other purposes, subject to reasonable regulations that 
protect the natural and other values of the conservation system unit. 
Therefore, this section would be implemented with consideration of, and 
in compliance with, 43 CFR 36.10 (Access to Inholdings).
    The primary visitor attraction at the Park is the unparalleled 
array of Alaska wildlife regularly seen from the Denali Park Road and 
the opportunity to see natural predator-prey interactions. In 1972, to 
ensure that the increasing number of visitors would continue to see 
grizzly bears, caribou, moose, Dall sheep, the occasional wolf, as well 
as other species of Alaska wildlife in their natural habitat, the 
National Park Service developed a shuttle bus system that replaced most 
of the private vehicular traffic with buses capable of transporting 
more passengers. Concurrently, general private vehicular traffic was 
limited to the easternmost 15 miles of the 88-mile Park road. Adding 
additional traffic to the road, especially private vehicular traffic, 
has been shown to displace wildlife. Private vehicle use causes the 
greatest disturbance because the vehicles can stop at will and 
passengers approach wildlife on foot. Although bus passengers may 
choose to be dropped off at any safe point along the road, when 
wildlife is near, passenger discharge is controlled to avoid conflicts 
with, and displacement of, wildlife. Accordingly, opportunities for 
viewing and photographing wildlife abound while the bus is stopped for 
those purposes.
    Traffic safety is also a significant factor for limiting use to the 
GMP allocation. Park visitors consistently support the NPS decision to 
maintain most of the Denali Park Road in its rustic, historic 
condition. The character of the Park road and its relationship with the 
landscape through which it passes are integral to the visitor 
experience at Denali. Consequently, 72 miles of the road are graded 
gravel, much of which varies between one and one-and-one-half lanes 
wide. As the road traverses scenic mountain passes between broad river 
valleys, it often dips and climbs and winds as it clings precipitously 
to the mountains' supporting contours. The road, which was originally 
designed for 1930s era vehicles and levels of use, now accommodates 
larger traffic levels--a mix of large tour and shuttle buses, private 
vehicles for inholder access, park administrative and maintenance 
traffic, and service vehicles traveling to Kantishna lodges.
    National Park Service concern over traffic safety is also based on 
bus accidents that have occurred in 1969, 1974, 1981 and 1989, and that 
have resulted in six fatalities and numerous serious injuries to park 
visitors. The historic character of the road warrants special attention 
to safety procedures for its use. Known locally as the ``Rules of the 
Road,'' practices such as driving with lights on and specific 
procedures for yielding to buses have developed through time. NPS will 
hereafter apply these practices as a term and condition of a permit to 
operate a vehicle on the restricted access section of the Denali Park 
Road.
    This rule provides the superintendent with the regulatory authority 
to annually evaluate anticipated-use requirements and to reasonably 
apportion motor vehicle permits for the restricted access section of 
the road among authorized users. Specific allocations for Kantishna 
motor vehicle traffic will help ensure long-term protection of the 
current visitor experience and of wildlife populations along the road 
corridor. Motor vehicle permits for present and future Kantishna 
businesses would be reallocated in accordance with proposed section 
13.63(d)(2) within the annual limit of 10,512 permits. A total of 1,360 
vehicle round trips for Kantishna inholders are authorized, comprising 
13 percent of all annual traffic. This total includes all Kantishna 
traffic (individual inholders, mining claim owners, lodges and others). 
As mining claims continue to be acquired by the federal government, 
some Kantishna traffic will decrease. Kantishna businesses can also 
continue using both the Kantishna airstrip and the NPS visitor 
transportation system buses for guest access, as well as operate buses 
and other vehicles on the Park road as allocated below. The current 
number of round trips during the visitor season for the existing 
businesses are:
     Denali Backcountry Lodge: 315.
     Kantishna Roadhouse: 420.
     Northface Lodge/Camp Denali: 315.
    Each business may determine the type of vehicle use to best suit 
their needs. However, recreational vehicle (RV) travel (motor homes, 
trailers, and campers) for the purpose of transporting guests to and 
from Kantishna businesses is not permitted. Motor vehicle permits will 
not be transferable from one business operation to another. 
Additionally, when a business is sold to a different entity, National 
Park Service will re-evaluate the access requirements of the new 
entity. If a business ceases to operate, or changes dramatically, it is 
intended that the superintendent would re-allocate the permits. The 
National Park Service intends to retain the established limit for an 
individual Kantishna business for 12 months after the sale of the 
business while access requirements of the new owner are being 
evaluated.

36 CFR 13.63(g), Firearms

    The rule establishes a seasonal closure to the discharge of 
firearms on public lands in the developed area of Kantishna, except for 
the protection of life or property. The closure applies on: the 
Kantishna Airstrip; the approximately 4.5 mile-long State Omnibus Act 
Road right-of-way, and; all public lands located within one mile of the 
Kantishna Airstrip or the State Omnibus Act Road right-of-way (within 
the Park addition area surrounding Kantishna).
    The closure is effective seasonally beginning the Saturday of 
Memorial Day weekend through the second Thursday following Labor Day, 
or September 15, whichever comes first. This period is the time of 
heaviest overlap between subsistence hunting and other seasonal visitor 
activities in the Kantishna area. The purpose of the closure is to 
reduce the level of risk of firearm-related injury inherent in heavy 
use areas without unduly affecting authorized subsistence uses. The 
restriction does not apply on private property. This closure follows 
consultation with the State of Alaska.

[[Page 37876]]

36 CFR 13.63(h), Snowmachines (Snowmobiles)

    The rule defines ``traditional activities,'' as the term is used in 
the Alaska National Interest Lands Conservation Act (ANILCA) section 
1110(a) and 43 CFR 36.11, for the portion of Denali National Park and 
Preserve formerly known as Mount McKinley National Park (Old Park). For 
that area only, traditional activity is: an activity that generally and 
lawfully occurred in the Old Park contemporaneously with the enactment 
of ANILCA, and that was associated with the Old Park, or a discrete 
portion thereof, involving the consumptive use of one or more natural 
resources of the Old Park such as hunting, trapping, fishing, berry 
picking or similar activities. Recreational use of snowmachines was not 
a traditional activity. If a traditional activity generally occurred 
only in a particular area of the Old Park, it would be considered a 
traditional activity only in the area where it had previously occurred. 
In addition, a traditional activity must be a legally permissible 
activity in the Old Park.
    The rule closes the former Mount McKinley National Park to all 
snowmachine use. The closure does not affect the Park's four-million-
acre ANILCA additions where snowmachine use is permitted for 
traditional activities and for travel to and from villages and 
homesites, subject to reasonable regulations. (43 CFR 36.11(c)). The 
rule also requires the superintendent to determine that snow cover is 
adequate in order to protect the underlying vegetation and soils before 
seasonally opening the latter areas. This determination is necessary to 
prevent damage to soils and exposed vegetation and is similar to a 
provision at the Kenai National Wildlife Refuge (50 CFR 36.39(i)(4)(i)) 
which NPS understands has worked well since 1986. (See also, Denali 
State Park, 11 AAC section 20.425). NPS again notes that where 
snowmachine activity is presently authorized by section 1110(a), that 
activity is subject to the regulations found at 36 CFR 2.18(a), (b), 
(d) and (e).
    A copy of the June, 2000, Statement of Finding prepared in 
connection with this rule and maps of the affected area can be obtained 
by visiting the Park's web site at www.nps.gov/dena/statement.htm or by 
writing or calling the superintendent at the address or number printed 
at the top of this rule.
    Drafting information. The primary authors of this rule are Ken 
Kehrer, Jr., Mike Tranel, Joe Van Horn, Steve Carwile and Russel J. 
Wilson, Denali National Park and Preserve; Lou Waller and Paul Hunter, 
NPS Alaska Support Office also contributed.

Compliance With Laws, Executive Orders and Department Policy

Regulator Planning and Review (Executive Order 12866)

    This rule is a significant rule and has been reviewed by the Office 
of Management and Budget under Executive Order 12866. 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. The NPS has prepared a 
Final Cost-Benefit Analysis that is available from the Denali National 
Park and Preserve superintendent. Based on this analysis, the NPS 
anticipates positive net benefits such as: increased public safety; 
improved public understanding of Park regulations; and, continued 
protection of wildlife, preservation of natural interactions among 
wildlife, and the minimization of habitat disturbances that contributes 
to visitors' use and enjoyment of Park resources. This rule will not 
create a serious inconsistency or otherwise interfere with an action 
taken or planned by another agency. The rule does not alter the 
budgetary effects, entitlements, grants, user fees, loan programs or 
the rights or obligations of their recipients. The rule may raise novel 
legal or policy issues, however, the primary effect of the proposed 
action is to consolidate in the Code of Federal Regulations or 
otherwise clarify requirements that already exist under separate NPS 
authorities.

Regulatory Flexibility Act

    The Department of the Interior has determined that this regulatory 
action 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 primary effect of this action is to consolidate in 
the Code of Federal Regulations or otherwise clarify requirements that 
already exist under separate authorities. Only one of the requirements 
addressed by the action is new. The new requirement would apply 
specific ``Rules of the Road'', such as driving with lights on and 
following procedures for yielding to buses, as a permit condition for 
vehicle use on the restricted access section of the Denali Park Road. 
This new requirement is not anticipated to inconvenience drivers or 
otherwise adversely impact any small entity. Substantial areas exist 
nearby where Park users can go who may be displaced as a result of 
firearms and snowmachine closures in this proposed action. The wide 
availability of such substitute-use areas would lessen, or eliminate, 
any impact on Park users, including small entities. The only direct 
compliance cost that would be imposed by this proposed action is the 
requirement to provide drivers license information, vehicle license 
plate information, and a vehicle description for purposes of issuing a 
permit to operate a motor vehicle on the restricted access section of 
the Denali Park Road. That requirement is not anticipated to impose 
significant costs on the public, including small entities. No other 
direct compliance costs would be imposed. Therefore, significant 
impacts on small entities are not expected from this proposed action.
    A qualitative Cost-Benefit Analysis was done and indicates positive 
net benefits for each component of the regulatory action. Two specific 
components that had the most public interest were the snowmobile and 
the road regulations. The road regulations codified the existing trip 
limits and the ``Rules of the Road''. The trip limits have been in 
effect since the 1986 general management plan and are sufficient to 
provide adequate and feasible access for the private holdings in 
Kantishna along with the current levels of Park visitors. The benefits 
exceed the potential costs in this case since this action protects the 
premier wildlife watching that is the main reason the public comes to 
the Park and local businesses. The ``Rules of the Road'' have been in 
place for years and most drivers already follow them. The codifying of 
these rules will improve safety and reduce accidents. The snowmobile 
regulation reinstates a closure of the Old Park to snowmachine use. 
There will be very little cost associated with this regulation since 
almost no snowmachine activity has taken place in the Old Park since it 
was created 83 years ago. There is very little commercial snowmachine 
operation in the area and there will be some benefits to the local dog 
mushing and skiing operations. Therefore both of these components will 
have a net economic benefit (see the Final Cost-Benefit Analysis that 
is available from the Denali National Park and Preserve 
superintendent).

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 37877]]

Regulatory Enforcement Fairness Act. This rule does not have an annual 
effect on the economy of $100 million or more; will not cause a major 
increase in costs or prices for consumers, individual industries, 
Federal, State, or local government agencies, or geographic regions; 
and 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 
primary effect of this action is to consolidate in the Code of Federal 
Regulations or otherwise clarify requirements that already exist under 
separate NPS authorities. Copies of a Final Cost-Benefit Analysis are 
available from the Denali National Park and Preserve superintendent. 
The analysis found that no significant costs would result from this 
action.

Unfunded Mandates Reform Act

    The NPS has determined and certifies pursuant to the Unfunded 
Mandates Reform Act (2 U.S.C. 1502 et seq.), that this rule will not 
impose a cost of $100 million or more in any given year on local, state 
or tribal governments or private entities. Copies of a Final Cost-
Benefit Analysis are available from the Denali National Park and 
Preserve superintendent. A statement containing the information 
required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is 
not required. The rule applies only to Federal Park land and there 
should be no cost to the State from any of these regulations. The State 
was consulted on the topics that were of mutual concern. The NPS 
determined that there are no effects to any Federally recognized 
tribes.

Takings (Executive Order 12630)

    In accordance with Executive Order 12360, the rule does not have 
significant takings implications. The primary effect of this proposed 
action is to consolidate in the Code of Federal Regulations or 
otherwise clarify requirements that already exist under separate NPS 
authorities. A takings implication assessment is not required.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
federalism implications which warrant the preparation of a Federalism 
Assessment. The substantive provisions of this rule apply mainly to the 
portion of Denali National Park and Preserve that was formerly known as 
Mount McKinley National Park which is under the exclusive jurisdiction 
of the United States. The primary effect of this proposed action is to 
consolidate in the Code of Federal Regulations or otherwise clarify 
requirements that already exist under separate NPS authorities.

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 does not meet the requirements of sections 3 (a) 
and 3(b)(2) of the Order.

Paperwork Reduction Act

    This regulation requires an information collection from 10 or more 
parties and a submission under the Paperwork Reduction Act is required. 
The information collection requirements contained in this rule at 
Sec. 13.63(d)(2) have been approved by the Office of Management and 
Budget and assigned clearance number 1024-0026. This information is 
being collected to solicit information that is necessary for the 
Superintendent to issue vehicle permits. The public is being asked to 
provide this information in order for the Park to track the number of 
permits issued and to whom they are issued. The information will be 
used to grant administrative benefits. The obligation to respond is 
required to obtain a benefit.
    Specifically, the NPS needs the following information to issue the 
permit:
    (1) Drivers license number and State of issue.
    (2) Vehicle license plate number and State.
    (3) Vehicle description, including year, make and model.
    The public reporting burden for the collection of information in 
this instance is estimated to be 0.10 hours per response, including the 
time for reviewing instructions, searching existing data sources, 
gathering and maintaining the data needed and completing and reviewing 
the collection of information. This would make a total of about 25 
hours annually.

National Environmental Policy Act

    NPS has determined that most aspects of this rulemaking, with the 
exception of the portion concerning a snowmachine closure, have been 
previously addressed pursuant to the National Environmental Policy Act, 
42 U.S.C. 4332, in environmental documents prepared in conjunction with 
Park management plans. These are the environmental assessments prepared 
in conjunction with the Park General Management Plan which was approved 
in a 1986 Finding of No Significant Impact, or the environmental impact 
statement prepared in conjunction with the Denali Entrance Area and 
Road Corridor Development Concept Plan which was approved in a 1997 
Record of Decision. Copies of these documents are available from the 
Denali National Park and Preserve superintendent.
    An environmental assessment (EA) was prepared by the NPS, in 
accordance with NEPA and its implementing regulations at 40 CFR 1508.9, 
on a proposed special regulation to permanently close the Old Park to 
snowmachine use. The EA was released for 60 days of public comment on 
November 9, 1999. The EA evaluated four alternatives: (1) No action, a 
continuation of snowmachine use for traditional activities in the Old 
Park; (2) closing all but a 180,000 acre area in the southeast part of 
the Old Park to snowmachine use for traditional activities; (3) 
instituting a series of temporary closures to the use of snowmachines 
in the Old Park by use of the procedures required in Section 1110(a) of 
ANILCA, including hearings in the vicinity and a published finding of 
detriment, and (4) permanently closing the Old Park to snowmachine use 
via a special regulation and a regulatory definition of ``traditional 
activities.'' A Finding of No Significant Impact (FONSI)was approved on 
June 6, 2000. The environmental consequences of the snowmachine use 
closure in the old Mount McKinley National Park are minimal and are 
documented within the Environmental Assessment for the Permanent 
Closure of the Former Mt. McKinley National Park to Snowmachine Use and 
the FONSI. The action is also in the scope of the impacts anticipated 
in the approval given for the Park's General Management Plan in 1986.
    A Summary Evaluation and Findings, pursuant to Section 810(a) of 
ANILCA, was attached to the Environmental Assessment for the Permanent 
Closure of the Former Mt. McKinley National Park to Snowmachine Use to 
document the impacts of a closure and alternatives on subsistence 
activities within the area. Lands in the Former Mount McKinley National 
Park are closed to subsistence activities; and, therefore, the analysis 
concluded that a closure would not result in a significant restriction 
to subsistence uses. Copies of these documents are also available from 
the Denali National Park and Preserve superintendent.

[[Page 37878]]

List of Subjects

36 CFR Part 5

    Alcohol and alcoholic beverages, Business and industry, Civil 
rights, Equal employment opportunity, National parks, Transportation.

36 CFR Part 13

    Alaska, National parks, Reporting and recordkeeping requirements.

    In consideration of the foregoing, the NPS amends 36 CFR Chapter I, 
Parts 5 and 13 as follows:

PART 5--COMMERCIAL AND PRIVATE OPERATIONS

    1. The authority citation for part 5 continues to read as follows:

    Authority: 16 U.S.C. 1, 3, 9a, 17j-2, 462.


Sec. 5.2  [Amended]

    2. In Sec. 5.2(b) introductory text, the words ``Mount McKinley'' 
in the first sentence are revised to read ``Denali''.


Sec. 5.4  [Amended]

    3. In Sec. 5.4(a) introductory text, the words ``Mount McKinley 
(prohibition does not apply to that portion of the Denali Highway 
between the Nenana River and the McKinley Park Hotel)'' in the first 
sentence are revised to read, ``Denali National Park and Preserve 
(prohibition does not apply to that portion of the Denali Park road 
between the Highway 3 junction and the Denali Park Railroad Depot)''.


Sec. 5.10  [Amended]

    4. In Sec. 5.10(a) the words ``Mount McKinley'' in the first 
sentence are revised to read, ``Denali''.

PART 13--NATIONAL PARK SYSTEM UNITS IN ALASKA

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

    Authority: 16 U.S.C. 1, 3, 462(k), 3101 et seq.; Sec. 13.65 also 
issued under 16 U.S.C. 1a-2(h), 20, 1361, 1531, 3197; Pub L. 105-
277, 112 Stat. 2681, October 21, 1998; Pub. L. 106-31, 113 Stat. 57, 
May 21, 1999.


Sec. 13.2  [Amended]

    6. In Sec. 13.2(c), the words ``and parts of Denali National Park'' 
are revised to read ``the former Mt. McKinley National Park''.

    7. Section 13.63 is amended by adding paragraphs (d), (g) and (h) 
to read as follows:


Sec. 13.63  Denali National Park and Preserve.

* * * * *
    (d) Operation of motor vehicles on the Denali Park road west of the 
Savage River--(1) Do I need a permit to operate a motor vehicle on the 
Denali Park road west of the Savage River? Yes, you must obtain a 
permit from the superintendent to operate a motor vehicle on the 
restricted section of the Denali Park road. The restricted section 
begins at the west end of the Savage River Bridge (mile 14.8) and 
continues to the former Mt. McKinley National Park boundary north of 
Wonder Lake (mile 87.9).
    (2) How many permits will be issued each summer? The superintendent 
is authorized, under this section, to issue no more than 10,512 motor 
vehicle permits each year for access to the restricted section of the 
road. The superintendent will issue the permits for the period that 
begins on the Saturday of Memorial Day weekend and continues through 
the second Thursday following Labor Day or September 15, whichever 
comes first. Each permit allows one vehicle one entry onto the 
restricted portion of the Park road.
    (3) How will the superintendent manage the permit program? (i) The 
superintendent will apportion motor vehicle permits among authorized 
users following the procedures in Sec. 13.31. Authorized users are 
individuals, groups and governmental entities who are allowed by law or 
policy to use the restricted section of the road.
    (ii) The superintendent will establish an annual date to evaluate 
permit requests and publish that date, along with the results of the 
annual apportionment, in the superintendent's compendium of rules and 
orders. The superintendent's compendium is available to the public upon 
request.
    (iii) The superintendent will re-evaluate the access requirements 
of any business that is sold, ceases to operate or that significantly 
changes the services currently offered to the public.
    (4) What is prohibited? (i) No one may operate a motor vehicle on 
the restricted section of the Park road without a valid permit.
    (ii) No one may use a motor home, camper or trailer to transport 
guests to a lodge or other business in Kantishna.
    (iii) No one may transfer or accept transfer of a Denali Park road 
permit without the superintendent's approval.
* * * * *
    (g) Kantishna area summer season firearm safety zone--(1) What is 
prohibited? No one may fire a gun during the summer season in or across 
the Kantishna area firearm safety zone, unless they are defending life 
or property.
    (i) The summer season begins on the Saturday of Memorial Day 
weekend and continues through the second Thursday following Labor Day 
or September 15, whichever comes first.
    (ii) The Kantishna Area firearm safety zone includes: the Kantishna 
Airstrip; the State Omnibus Act Road right-of-way; and all public lands 
located within one mile of the Kantishna Airstrip or the State Omnibus 
Act Road right-of-way, from the former Mt. McKinley National Park 
boundary at mile 87.9 to the south end of the Kantishna Airstrip.
    (h) Snowmachine (snowmobile) operation in Denali National Park and 
Preserve--(1) What is the definition of a traditional activity for 
which Section 1110(a) of ANILCA permits snowmachines to be used in the 
former Mt. McKinley National Park (Old Park) portion of Denali National 
Park and Preserve? A traditional activity is an activity that generally 
and lawfully occurred in the Old Park contemporaneously with the 
enactment of ANILCA, and that was associated with the Old Park, or a 
discrete portion thereof, involving the consumptive use of one or more 
natural resources of the Old Park such as hunting, trapping, fishing, 
berry picking or similar activities. Recreational use of snowmachines 
was not a traditional activity. If a traditional activity generally 
occurred only in a particular area of the Old Park, it would be 
considered a traditional activity only in the area where it had 
previously occurred. In addition, a traditional activity must be a 
legally permissible activity in the Old Park.
    (2) May a snowmachine be used in that portion of the park formerly 
known as Mt. McKinley National Park (Old Park)? No, based on the 
application of the definition of traditional activities within the park 
to the factual history of the Old Park, there are no traditional 
activities that occurred during periods of adequate snow cover within 
the Old Park; and, thus, Section 1110(a) of ANILCA does not authorize 
snowmachine access. Hunting and trapping were not and are not legally 
permitted activities in the Old Park at any time of the year. Sport 
fishing has not taken place in the Old Park during periods of adequate 
snow cover due to weather conditions that are adverse to sport fishing, 
and the limited fishery resources within the Old Park. During periods 
of adequate snow cover, berry picking is not feasible, and has not 
taken place in the Old Park. Under the definition, recreational use of 
snowmachines is not a traditional activity. There are no villages, 
homesites or other valid occupancies within the Old Park. Access by 
snowmachine through the Old Park in transit to homesites, villages and 
other valid occupancies was not lawful prior to the enactment of ANILCA 
and is

[[Page 37879]]

available through routes outside the Old Park that have been 
historically used for that purpose. Therefore, the use of snowmachines 
is not authorized by section 1110(a) for such travel. Further, Congress 
did not authorize subsistence activities in the Old Park. In addition, 
the National Park Service has determined that the use of even a few 
snowmachines in the Old Park would be detrimental to the resource 
values of the area. Therefore, because no usage is authorized in the 
Old Park by section 1110(a) the Old Park remains closed to all 
snowmachine use in accordance with 36 CFR 2.18.
    (3) Where can I operate a snowmachine in Denali National Park and 
Preserve? You can use a snowmachine outside of the Old Park for 
traditional activities or travel to and from villages and homesites and 
other valid occupancies as authorized by 43 CFR 36.11(c), or when 
lawfully engaged in subsistence activities authorized by Sec. 13.46.
    (4) What types of snowmachines are allowed? The types of 
snowmachines allowed are defined in Sec. 13.1(q) under snowmachine or 
snowmobile.
    (5) What other regulations apply to snowmachine use? Snowmachine 
use is governed by regulations at Sec. 2.18(a) of this chapter, traffic 
safety, Sec. 2.18(b) of this chapter, state laws, and Sec. 2.18(d) and 
(e) of this chapter, prohibited activities; and 43 CFR 36.11(a)(2) 
adequate snow cover, and 43 CFR 36.11(c) traditional activities.
    (6) Who determines when there is adequate snow cover? The 
superintendent will determine when snow cover is adequate for 
snowmachine use. The superintendent will follow the procedures in 
Secs. 1.5 and 1.7 of this chapter to inform the public.
    (7) Nothing in this section shall limit the authority of the 
superintendent to restrict or limit uses of an area under other 
statutory authority.

    Dated: June 7, 2000.
Donald J. Barry,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 00-14754 Filed 6-16-00; 8:45 am]
BILLING CODE 4310-70-P