The regulations in 7 CFR 301.64 (referred to below as the regulations) restrict the interstate movement of certain regulated articles from quarantined areas in order to prevent the spread of the pine shoot beetle (PSB) into noninfested areas of the United States.

PSB is a pest of pine trees. PSB can cause damage in weak and dying trees, where reproduction and immature stages of PSB occur. During “maturation feeding,” young beetles tunnel into the center of pine shoots (usually of the current years growth), causing stunted and distorted growth in host trees. PSB is also a vector of several diseases of pine trees. Adults can fly at least 1 kilometer, and infested trees and pine products are often transported long distances; these factors may result in the establishment of PSB populations far from the location of the original host tree. This pest damages urban ornamental trees and can cause economic losses to the timber, Christmas tree, and nursery industries.

PSB hosts include all pine species. The beetle has been found in a variety of pine species ( Pinus spp.) in the United States. Scotch pine ( P. sylvestris ) is the preferred host of PSB. The Animal and Plant Health Inspection Service (APHIS) has determined, based on scientific data from European countries, that fir ( Abies spp.), spruce ( Larix spp.), and larch ( Picea spp.) are not hosts of PSB.

Surveys recently conducted by State and Federal inspectors revealed 28 additional areas infested with PSB in 9 States (IL, IN, MI, NH, NY, PA, VT, WV, and WI). Copies of the surveys may be obtained by writing to either of the individuals listed under FOR FURTHER INFORMATION CONTACT .

The regulations in § 301.50-3 provide that the Administrator of APHIS will list as a quarantined area each State, or each portion of a State, in which PSB has been found by an inspector, in which the Administrator has reason to believe PSB is present, or that the Administrator considers necessary to regulate because of its inseparability for quarantine enforcement purposes from localities in which PSB has been found.

In accordance with these criteria, we are designating Woodford County, IL; Hamilton, Henry, Marion, Montgomery, and Rush Counties, IN; Arenac, Cheboygan, Iosco, and Roscommon Counties, MI; Coos County, NH; Broome, Chenango, Jefferson, Lewis, Madison, Oneida, and Tioga Counties, NY; Bedford, Bradford, Fayette, and Tioga Counties, PA; Essex and Orleans Counties, VT; Marshall and Tucker Counties, WV; and Green and Rock Counties, WI, as quarantined areas, and we are adding them to the list of quarantined areas provided in § 301.50-3(c).

The Administrator of the Animal and Plant Health Inspection Service has determined that an emergency exists that warrants publication of this interim rule without prior opportunity for public comment. Immediate action is necessary to prevent PSB from spreading to noninfested areas of the United States.

Because prior notice and other public procedures with respect to this action are impracticable and contrary to the public interest under these conditions, we find good cause under 5 U.S.C. 553 to make this action effective less than 30 days after publication. We will consider comments that are received within 60 days of publication of this rule in the Federal Register . The document will include a discussion of any comments we receive and any amendments we are making to the rule as a result of the comments.

This rule has been reviewed under Executive Order 12866. For this action, the Office of Management and Budget has waived its review process required by Executive Order 12866.

We are amending the PSB regulations by adding 28 counties in Illinois, Indiana, Michigan, New Hampshire, New York, Pennsylvania, Vermont, West Virginia, and Wisconsin to the list of quarantined areas. This action is necessary to prevent the spread of PSB, a pest of pine products, into noninfested areas of the United States.

This emergency situation makes compliance with section 603 and timely compliance with section 604 of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) impracticable. If we determine that this rule would have a significant economic impact on a substantial number of small entities, then we will discuss the issues raised by section 604 of the Regulatory Flexibility Act in our final regulatory flexibility analysis.

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V.)

This interim rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

An environmental assessment and finding of no significant impact have been prepared for this interim rule. The assessment provides a basis for the conclusion that the treatment of pine products from these 28 newly regulated counties will not present a risk of introducing or disseminating plant pests and will not have a significant impact on the quality of the human environment. Based on the finding of no significant impact, the Administrator of the Animal and Plant Health Inspection Service has determined that an environmental impact statement need not be prepared.

The environmental assessment and finding of no significant impact were prepared in accordance with: (1) The National Environmental Policy Act of 1969, as amended (NEPA) (42 U.S.C. 4321 et seq. ), (2) regulations of the Council on Environmental Quality for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508), (3) USDA regulations implementing NEPA (7 CFR part 1b), and (4) APHIS' NEPA Implementing Procedures (7 CFR part 372).

Copies of the environmental assessment and finding of no significant impact are available for public inspection at USDA, room 1141, South Building, 14th Street and Independence Avenue, SW., Washington, DC, between 8 a.m. and 4:30 p.m., Monday through Friday, except holidays. Persons wishing to inspect copies are requested to call ahead on (202) 690-2817 to facilitate entry into the reading room. In addition, copies may be obtained by writing to the individual listed under FOR FURTHER INFORMATION CONTACT .

This interim rule contains no information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Boeing Model 767 series airplanes was published in the Federal Register on December 6, 1999 (64 FR 68058). That action proposed to require repetitive inspections to detect fatigue cracking of the pitch load fittings of the wing front spar, and rework, if necessary.

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received.

One commenter supports the proposed rule.

Two commenters request that the FAA revise paragraph (c)(1) of the proposed rule to allow a dye penetrant inspection to be performed in lieu of the high frequency eddy current (HFEC) inspection specified in that paragraph. Both commenters point out that Boeing Service Bulletin 767-57-0053, Revision 2, dated September 23, 1999, describes a dye penetrant inspection that may be used instead of the HFEC inspection. One of the commenters also points out that the original issue, dated June 27, 1996, and Revision 1, dated October 31, 1996, of the service bulletin reference a dye penetrant inspection but not an HFEC inspection, and some operators have already accomplished the inspection in accordance with one of the earlier issues of the service bulletin. (“Note 2” of the proposed rule states that use of the original issue or Revision 1 of the service bulletin is acceptable for compliance with this AD.)

The FAA concurs with the commenters' request to revise paragraph (c)(1) of this AD. The FAA's intent in the proposed rule was to allow accomplishment of the dye penetrant inspection in lieu of the HFEC inspection; however, the proposed rule did not explicitly state that. Therefore, the FAA has revised paragraph (c)(1) of this final rule to require accomplishment of either an HFEC or a dye penetrant inspection.

Several commenters request that the proposed rule be revised to specify a terminating action for the proposed repetitive inspections. Though Boeing Service Bulletin 767-57-0053, Revision 2, specifies that incorporation of certain strut improvement program (SIP) service bulletins is terminating action, the proposed rule does not mention a terminating action. One commenter, the airplane manufacturer, states that the proposed rule should be revised to state that accomplishment of the applicable SIP service bulletin, along with the bushing removal, lug bore inspections, and insurance cut specified in Boeing Service Bulletin 767-57-0053, constitutes terminating action for the repetitive inspection requirements of this AD. One commenter, an operator, also points out that the SIP service bulletin that is applicable to its airplanes recommends accomplishment of Boeing Service Bulletin 767-57-0053, Revision 1, dated October 31, 1996, prior to or concurrent with the SIP bulletin, but the SIP service bulletin does not list Boeing Service Bulletin 767-57-0053, Revision 2. The commenter states that the bulletins “do not provide a clear direction on what needs to be accomplished to terminate the inspection requirements stated in the NPRM.”

The FAA concurs with the commenters' request. The SIP service bulletins referenced by the commenter and Boeing Service Bulletin 767-57-0053, Revision 2, do reference one another, and modification of the nacelle strut and wing structure as specified in the applicable SIP service bulletin does constitute terminating action for the repetitive inspections required by this AD, provided that the lug bore inspections and the insurance cut described in this AD are also accomplished. Therefore, a new paragraph (g) has been added to this final rule to provide this as an optional terminating action.

In addition, the FAA is considering separate rulemaking actions to mandate accomplishment of the SIP service bulletins, and Boeing Service Bulletin 767-57-0053, Revision 2 (as well as the earlier revisions of that service bulletin), will be specified as an integral part of the actions required to accomplish the SIP service bulletins. A new “Note 4” has been included in this final rule to clarify this.

One commenter requests that paragraph (c) of the proposed rule be revised to specify that the pitch load fitting bushings must be removed to accomplish the inspection of the lug bores. The commenter points out that removal of both the upper link and pitch load fitting bushings is specified in Figure 1 of the service bulletin. The commenter states that the omission is an error in the proposed rule.

The FAA does not concur with the commenter's request to revise paragraph (c) of the proposed rule. The FAA acknowledges that the pitch load fitting bushings must be removed prior to inspection of the lug bores. Though this was not explicitly stated in the proposed rule, the FAA finds that it is implied by the wording of paragraph (c), which reads, “accomplish the requirements of paragraphs (c)(1) and (c)(2) of this AD in accordance with [the service bulletin.]” The service bulletin states that the HFEC inspection, which is specified in paragraph (c)(1) of this AD, is to be accomplished “as specified in Figure 3” of the service bulletin. In turn, Figure 3 instructs operators to remove the bushings prior to accomplishment of the inspection. The FAA finds that to specify every action contained in the service bulletin would unnecessarily complicate this AD. Therefore, no change to the final rule is necessary in this regard.

After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule with the changes previously described. The FAA has determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

There are approximately 663 Model 767 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 312 airplanes of U.S. registry will be affected by this AD, that it will take approximately 10 work hours per airplane to accomplish the required inspections, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $187,200, or $600 per airplane, per inspection cycle.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted.

The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES .

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding 97-21-10, amendment 39-10163 (62 FR 53939, October 17, 1997), which is applicable to certain Airbus Model A319, A320, and A321 series airplanes, was published in the Federal Register on April 14, 2000 (65 FR 20105). The action proposed to continue to require a revision to the Airplane Flight Manual (AFM) to increase monitoring of the flight path of the airplane to detect certain software anomalies of the flight management guidance system, and take appropriate corrective actions. The action proposed to add a requirement to either modify all existing on-board replaceable modules of the FMGC's to incorporate software changes, or replace all existing FMGC's with new, improved FMGC's; which would terminate the requirements for the AFM revision. The action also proposed to limit the applicability of the existing AD to airplanes on which a certain modification has been installed or service bulletin has been accomplished, and to exclude airplanes on which another modification has been installed or service bulletin has been accomplished.

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received.

One commenter, the manufacturer, concurs with the content of the proposal.

The same commenter states that related French airworthiness directive 1999-411-140(B) has been revised to Revision 1, dated May 3, 2000, to include in the applicability Airbus Model A319 and A320 series airplanes having Airbus Modification 26717. The commenter notes that the proposed AD already includes these airplanes in its applicability, but suggests that the AD be revised to refer to the latest revision of the French airworthiness directive.

The FAA concurs that Revision 1 of the related French airworthiness directive matches the applicability of this AD and should be referenced for completeness. Note 4 of the final rule has been revised to include a reference to Revision 1 of the French airworthiness directive.

After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule with the change previously described. The FAA has determined that this change will neither increase the economic burden on any operator nor increase the scope of the AD.

There are approximately 200 airplanes of U.S. registry that will be affected by this AD.

The actions that are currently required by AD 97-21-10 take approximately 1 work hour per airplane to accomplish, at an average labor rate of $60 per work hour. Required parts will be provided by the manufacturer at no charge to the operators. Based on these figures, the cost impact of the previously required actions on U.S. operators is estimated to be $60 per airplane.

The new actions that are required by this new AD will take approximately 1 work hour per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the new requirements of this AD on U.S. operators is estimated to be $12,000, or $60 per airplane.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted.

The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this action: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES .

On February 22, 1999, the FAA issued AD 99-05-06, amendment 39-11054 (64 FR 10205, March 3, 1999), applicable to certain Boeing Model 747 series airplanes, to require repetitive inspections to detect fatigue cracking or loose or missing fasteners of the aft torque bulkheads of the outboard nacelle struts; and repair, if necessary. That action was prompted by a report indicating that cracking was found in the aft torque bulkheads of the outboard nacelle struts, and by the availability of new service instructions for detecting fatigue cracking that would not have been detected by the required actions of the existing AD. The requirements of that AD are intended to detect and correct such fatigue cracking and loose or missing fasteners, which could result in failure of an outboard nacelle strut diagonal brace load path and possible separation of the nacelle from the wing.

Since the issuance of AD 99-05-06, the FAA has reviewed and approved Boeing Alert Service Bulletin 747-54A2184, Revision 1, dated May 6, 1999. The alert service bulletin describes procedures for repetitive inspections to detect fatigue cracking or loose or missing fasteners of the aft torque bulkheads of the outboard nacelle struts; and repair, if necessary. These procedures are substantially similar to those described in Boeing Alert Service Bulletin 747-54A2184, dated July 3, 1997, which was referenced in AD 99-05-06 as an appropriate source of service information for accomplishment of certain requirements of that AD. However, Revision 1 of the alert service bulletin adds new airplanes (Group 5) that are subject to the repetitive inspections (and repair, if necessary) described in the original issue of the alert service bulletin and required by AD 99-05-06. For certain airplanes ( i.e., the airplanes listed in Groups 1, 2, and 5 of the alert service bulletin), the alert service bulletin also describes procedures for a terminating action that eliminates the need for the repetitive inspections described in the alert service bulletin for affected airplanes. The terminating action involves installation of doublers and fillers on the forward side of the lower spar fitting. Accomplishment of the actions specified in the alert service bulletin is intended to adequately address the identified unsafe condition.

For airplanes listed in Groups 3 and 4 of the original issue of Boeing Alert Service Bulletin 747-54A2184, paragraph (c) of AD 99-05-06 describes a detailed visual inspection to detect fatigue cracking and loose or missing fasteners of the aft torque bulkheads of the number 1 and number 4 nacelle struts. For these airplanes in Groups 3 and 4, paragraph (d) of AD 99-05-06 states, “Accomplishment of the nacelle strut modifications required in AD 95-13-07, amendment 39-9287 [60 FR 33336, June 28, 1995] * * * constitutes terminating action for the requirements of this AD.” Paragraph (a) of AD 95-13-07 requires accomplishment of the nacelle strut modifications within 56 months after July 28, 1995 (the effective date of that AD). Considering that the compliance time for this modification has now passed, the FAA finds that it is unnecessary in this AD to continue to reference the inspection and terminating action for airplanes listed in Groups 3 and 4 of the alert service bulletin. Therefore, paragraphs (c) and (d) of AD 99-05-06 have not been included in this AD, and the applicability statement of this AD has been revised to include only airplanes listed in Groups 1, 2, and 5 of Revision 1 of the alert service bulletin.

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, this AD supersedes AD 99-05-06 to continue to require repetitive inspections to detect fatigue cracking or loose or missing fasteners of the aft torque bulkheads of the outboard nacelle struts; and repair, if necessary. This AD expands the applicability of the existing AD to include certain additional airplanes, and removes certain other airplanes from the applicability of the existing AD. For all airplanes subject to this AD, this amendment also requires accomplishment of a new terminating action. The actions are required to be accomplished in accordance with the alert service bulletin described previously, except as discussed below.

Operators should note that, although the alert service bulletin specifies that the manufacturer may be contacted for disposition of certain repair conditions, this AD requires the repair of those conditions to be accomplished in accordance with a method approved by the FAA, or in accordance with data meeting the type certification basis of the airplane approved by a Boeing Company Designated Engineering Representative who has been authorized by the FAA to make such findings.

In addition, the FAA has determined that there is an error in Item 3.A.5.c. under “Part 4—Terminating Action” in the Accomplishment Instructions of Boeing Alert Service Bulletin 747-54A2184, Revision 1. The words, “as shown by Figure 11,” should read “as shown by Figure 12.” “Note 6” has been included in this AD to clarify this error.

None of the Model 747 series airplanes affected by this action are on the U.S. Register. All airplanes included in the applicability of this rule currently are operated by non-U.S. operators under foreign registry; therefore, they are not directly affected by this AD action. However, the FAA considers that this rule is necessary to ensure that the unsafe condition is addressed in the event that any of these subject airplanes are imported and placed on the U.S. Register in the future.

Should an affected airplane be imported and placed on the U.S. Register in the future, it would take approximately 15 work hours to accomplish the required inspections, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of these inspections would be $900 per airplane.

Should an affected airplane be imported and placed on the U.S. Register in the future, it would take approximately 45 work hours to accomplish the required terminating action, at an average labor rate of $60 per work hour. Required parts would cost approximately $8,166 per airplane. Based on these figures, the cost impact of the required terminating action on U.S. operators would be $10,866 per airplane.

Since this AD action does not affect any airplane that is currently on the U.S. register, it has no adverse economic impact and imposes no additional burden on any person. Therefore, prior notice and public procedures hereon are unnecessary and the amendment may be made effective in less than 30 days after publication in the Federal Register .

Although this action is in the form of a final rule and was not preceded by notice and opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified under the caption ADDRESSES. All communications received on or before the closing date for comments will be considered, and this rule may be amended in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether additional rulemaking action would be needed.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the AD is being requested.

• Include justification ( e.g., reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report that summarizes each FAA-public contact concerned with the substance of this AD will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NM-78-AD.” The postcard will be date stamped and returned to the commenter.

The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES .

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Saab Model SAAB SF340A and SAAB 340B series airplanes was published in the Federal Register on April 24, 2000 (65 FR 21677). That action proposed to require a one-time inspection to detect chafing of the wires and harnesses in the cabin compartment ceiling; repair, if necessary; and installation of protective sleeving.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to the proposal or the FAA's determination of the cost to the public.

The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

The FAA estimates that 288 airplanes of U.S. registry will be affected by this AD, that it will take approximately 36 work hours per airplane to accomplish the required actions, and that the average labor rate is $60 per work hour. Required parts for the sleeving installation will cost approximately $358 per airplane. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $725,184, or $2,518 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted.

The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES .

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 95-07-05, amendment 39-9187 (60 FR 17990, April 10, 1995), which is applicable to certain Airbus Model A300-600 series airplanes, was published in the Federal Register on April 20, 2000 (65 FR 21157). The action proposed to continue to require repetitive ultrasonic inspections to detect cracks in the bolt holes inboard and outboard of rib 9 on the bottom booms of the front and rear wing spars, and repair, if necessary. The action also proposed to revise the compliance thresholds for the inspection and require that the inspections be repeated at reduced intervals.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to the proposal or the FAA's determination of the cost to the public.

The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

There are approximately 75 airplanes of U.S. registry that will be affected by this AD.

The inspection that is currently required by AD 95-07-05, and retained in this AD, takes approximately 1 work hour per airplane to accomplish (excluding 10 work hours for access and close-up), at an average labor rate of $60 per work hour. Based on this figure, the cost impact of the currently required inspection on U.S. operators is estimated to be $4,500, or $60 per airplane, per inspection cycle.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted.

The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES .

On March 15, 2000, the Coast Guard published a notice of proposed rulemaking (NPRM) entitled Temporary Regulations: Sail Boston 2000, Port of Boston, MA in the Federal Register Volume 65, Page 13926. The Coast Guard received two letters commenting on the proposed rule. No public hearing was requested, and none was held. Comments received have resulted in modification of the final rule; therefore, under 5 U.S.C. 553(d)(3), the Coast Guard finds good cause for making this rule effective in less than 30 days.

On March 9, 2000 the Captain of the Port, Boston hosted a meeting for small passenger vessel operators to detail the scope and content of the marine events and proposed regulations. The meeting yielded no comments.

The temporary regulations are for Sail Boston 2000 events held in Boston Harbor. These events are from July 10 through 16, 2000. This rule provides for the safety of life on navigable waters and to protect U.S. Navy vessels, tall ships, spectators, and the Port of Boston during these events. At the time of this Final rule, Sail Boston 2000 events include the following:

1. July 10-11: Tall Ship Rally.

2. July 11: Grand Parade of Sail.

4. July 11-16: Safety and Security Zones.

5. July 11-16: USS JOHN F. KENNEDY and Support Vessel Visits.

6. July 12-15: Public Boarding of Tall Ships.

7. July 15: Boston 2000 Fireworks Extravaganza.

8. July 16: Salute to USS CONSTITUTION Parade.

9. July 16: Tall Ships 2000 Race Restart.

The Coast Guard received one telephonic comment regarding a slight coordinate inaccuracy in 33 CFR 110.T01-135-191(6) describing Spectator Anchorage B. The error was verified and corrected to properly reflect the anchorage boundary and has no regulatory effect. Moreover, additional coordinates were included for regulation locations throughout this Final rule. The coordinates are intended to clarify locations described in the Final rule and do not change its regulatory impact.

The Coast Guard received a written comment regarding marine sanitation pumpout boats. The Commonwealth of Massachusetts is promoting the use of pumpout boats among spectator craft to reduce potential sewage discharge in state waters. The comment suggested pumpout boats should be permitted to move freely among the spectator anchorages during the various marine events to remove spectator craft sewage. Further, the pumpout boats intend to provide no cost service to the attending boating public during the marine events. The suggestion conflicts with the restrictions imposed as temporary regulations hereunder in amendments to 33 CFR parts 100 and 110. However, the pumpout boats will proactively advance the Coast Guard's and Massachusetts' pollution prevention policies. The Coast Guard decided to alter 33 CFR 100.T01-191(9) and 33 CFR 110.T01-135-191(b)(xii) to permit pumpout boats limited access to move within specific spectator anchorages. The regulation does not permit pumpout boats to cross any main channels or intended tall ship parade routes during the effective periods.

The Coast Guard received another comment requesting non-participating tall ships to be permitted into safety zones during effective periods. The temporary safety zones are specifically and clearly designed to facilitate participating vessels only. Participating vessels are represented by the event sponsor who is the Coast Guard Marine Event Permit applicant. As part of the marine event permit, the Coast Guard requires the event sponsor to satisfy various safety, pollution prevention, and vessel traffic requirements before the event permit is issued. Should non-participating vessels enter the safety zones, it will cause confusion and diminish safety, as the Masters will not be apprised of special operating instructions. The Coast Guard has not amended regulations in response to this comment. The same comment also suggested Spectator Anchorage G to be exclusively used by tall ships which choose not to use berthing. The regulations were not changed in response to this comment because Spectator Anchorage G already permits use by any vessel which is authorized by the Captain of the Port, which includes tall ships which choose not to use berthing.

The Coast Guard also received a comment regarding the USS JOHN F. KENNEDY'S security zone detailed in 33 CFR 165.TO1-195. The comment suggested there is little need for the security zone to extend continuously from July 10, 2000 through July 16, 2000. The Coast Guard has decided to leave the defined security zone boundary in 33 CFR 165.TO1-195(a), however, the Captain of the Port will broadcast times when mariners will be allowed to pass through the security zone. Times when mariners can pass through the security zone will be announced via Coast Guard Safety Marine Information Broadcasts on VHF radio using channels 13 and 16. Announcements will start at least one hour prior to when mariners will be permitted in the zone, and will continue for the period the Captain of the Port permits transit through the zone.

The Coast Guard also changed the introductory note in § 110.155 to emphasize the mariners' need to exercise caution while using the temporarily designated spectator anchorages for Sail Boston 2000. While the Coast Guard is not aware of any safety problems associated with these temporary spectator anchorages, the Coast Guard makes no assurances of the holding power of each area nor that the bottoms are free from obstructions. Mariners are advised to take appropriate precautions including using all means available to ensure their vessels are not dragging anchor. Verbal discussion at an April 24, 2000 Marine Safety Office Boston Waterways Management meeting suggested an alternate arrangement for spectator Anchorages K and L found in 33 CFR 110.T01-135-191(a)(14) and (15). To better accommodate Parade of Sail viewing from a Disabled American Veterans' site on Long Island, the Coast Guard has switched Spectator Anchorages K and L functions on July 10-11, 2000. On July 10-11, 2000 Spectator Anchorage L will be a special use anchorage. On July 10-11, 2000 Spectator Anchorage K will accommodate inspected small passenger vessels. On July 15-16, 2000 Spectator Anchorage K will be a special use anchorage as originally planned. On July 15-16, 2000 Spectator Anchorage L will accommodate inspected small passenger vessels as originally planned. The partial anchorage switch improves viewing for the disabled without affecting safety. This change from the NPRM does not alter the regulatory effect of this final rule since the boundaries of the anchorages remain the same, and spectator areas for inspected small passenger vessels continue to be provided.

Regulated Area A covers all waters of Broad Sound and Boston Outer Harbor bounded by lines drawn along the coordinates 070°52′00″ W, 070°57′13″ W, 42°17′30″ N, and 42°24′42″ N including the following waterways: Nahant Bay, Broad Sound, Boston North Channel, Boston South Channel, Nubble Channel, Hull Bay, and Nantasket Roads. The area also includes all temporary spectator anchorages established in 33 CFR 110.T01-135-191. Regulated Area A is applicable from 8 a.m. until 6 p.m. on July 11, 2000 and 8 a.m. until 6 p.m. on July 16, 2000.

Regulated Area B covers all waters of Boston Inner Harbor westward from a line drawn between Deer Island at position 42°20′38″ N, 070°57′13″ W and Long Island at position 42°19′51″ N, 070°57′13″ W including President Roads, Sculpin Ledge Channel, Dorchester Bay, Western Way, the Boston Main Channel, the Reserved Channel to the Summer Street retractile bridge, the Fort Point Channel to the Congress Street Bridge, the Charles River to the Gridley Locks at the Charles River Dam, the Mystic River to the Alford Street Bridge, and the Chelsea River to the McArdle Bridge. The area also includes all temporary spectator anchorages established in 33 CFR 110.T01-135-191. Regulated Area B is applicable from 8 a.m. on July 11, 2000 until 6 p.m. on July 16, 2000.

Regulated Area C is an Emergency Transit Lane from Boston Main Channel Light “5” to Charlestown Navy Yard Pier “1” extending fifty (50) yards into the outbound lane of the Boston Main Channel. The lane allows unlimited access to emergency and law enforcement vessels. The emergency lane restriction imposed by Regulated Area C are applicable from 8 a.m. until 6 p.m. on July 11, 2000 and from 8 a.m. until 6 p.m. July 16, 2000.

The Coast Guard has established temporary anchorage regulations for participating Sail Boston 2000 ships and spectator craft. 33 CFR 110.134 is temporarily suspended by this regulation and new spectator anchorages and regulations are temporarily established.

The anchorage regulations temporarily establish spectator anchorages for spectator craft or Sail Boston 2000 participant vessel use only. They restrict all other vessels from using these spectator anchorages during Sail Boston 2000 events. The applicable dates for the temporary spectator anchorages are July 10 and 11, 2000 and July 15 and 16, 2000.

A security zone protecting the moored U.S. naval aircraft carrier USS JOHN F. KENNEDY is effective from July 10, 2000 until July 16, 2000 around Boston Inner Harbor's North Jetty, in South Boston. All safety and security zones will be easily identifiable by patrolling Coast Guard and law enforcement craft.

On July 11, 2000 from 8 a.m. until 6 p.m. a three hundred (300) yard moving safety zone around participating tall ships is imposed for Broad Sound and Boston Harbor. The safety zone will ensure the safety of participating tall ships and spectator craft during the Grand Parade of Sail. On July 15, 2000 a four hundred (400) yard safety zone surrounding fireworks barges in Boston Inner Harbor is imposed from 8 p.m. until 11 p.m. The safety zone will ensure the safety of spectator craft during the scheduled fireworks displays. From 8 a.m. until 6 p.m July 16, 2000, a three hundred (300) yard moving safety zone around each participating tall ship is effective for Boston Harbor and Broad Sound. The safety zone will ensure the safety of participating tall ships and spectator craft during the Salute to the USS CONSTITUTION Parade. On July 16, 2000 a three (3) square mile safety zone is in effect for Massachusetts Bay off of Nahant from 10 a.m. until 6 p.m. This three (3) square mile area will serve as the staging area for the Tall Ships 2000 Race Restart. The safety zone will ensure the safety of participating tall ships and spectator craft during the Tall Ships 2000 Race Restart. A three hundred (300) yard moving safety zone around each participating tall ship is also in effect for the Tall Ships 2000 Race Restart as each proceeds from its respective berth to the staging area on July 16, 2000. For more navigational chart information regarding this safety zone, see ADDRESSES .

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policy and procedures of the Department of Transportation (DOT)(44 FR 11040, February 26, 1979). The economic impact of this rule is expected to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary.

Although these regulations impose traffic restrictions in portions of Boston Harbor during the events, the effect of the regulations are not significant for the following reasons: The regulated areas, spectator anchorages, and safety and security zones are limited in duration; and extensive advance notice was made to the maritime community via Local Notice to Mariners, facsimile, marine safety information broadcasts, local Port Operators' Group meetings, Propeller Club meetings, the Internet, and Boston area newspapers and media. Also, on March 9 the Captain of the Port, Boston hosted a meeting of small passenger vessel operators to detail the scope and content of the marine events and proposed regulations. The advance notice permits mariners to adjust their plans accordingly. Additionally, these regulated areas are tailored to impose the least impact on maritime interests without compromising safety.

Similar regulated areas and safety and security zones were established for Sail Boston 1992 events. Based upon the Coast Guard's experiences from that previous event of similar magnitude, these regulations have been narrowly tailored to impose the least impact on maritime interests yet provide the necessary level of safety.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), an initial review was conducted to determine whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

For the reasons stated in the Regulatory Evaluation section above, the Coast Guard certifies under 5 U.S.C. 605(b) that this rule does not have a significant economic impact on a substantial number of small entities.

This rule affects the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in portions of Broad Sound and Boston Inner and Outer Harbors during various times from July 10 until 16, 2000. These regulations do not have a significant economic impact on a substantial number of small entities because the Coast Guard notified the public via mailings, facsimiles, Local Notice to Mariners, marine safety information broadcasts, local Port Operators' Group meetings, Propeller Club meetings, the media, the Internet, and Boston area newspapers. Also, on March 9, 2000 the Captain of the Port, Boston hosted a meeting of small passenger vessel operators to detail the scope and content of the marine events and proposed regulations. In addition, the sponsoring organization, Sail Boston 2000, Inc., announced event information in local newspapers, pamphlets, and television and radio broadcasts. The advance notice permitted mariners to adjust their plans accordingly. Although these regulations apply to a substantial portion of the Port of Boston, areas for viewing the Parade of Sail, Boston 2000 Fireworks Extravaganza, Salute to USS CONSTITUTION, and Tall Ships 2000 Race Restart are established to maximize the use of the waterways by commercial vessels that usually operate in the affected areas.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard offered to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking.

Assistance was offered at various public forums including Port Operators' Group meetings, Propeller Club meetings, Maritime Incident Resources and Training drills and meetings, and brochure distribution. In addition, information including the preceding NPRM, was posted on Marine Safety Office Boston's Web Page. Moreover, the Coast Guard hosted an informational meeting on March 9, 2000 to thoroughly explain the rule to local small passenger vessel operators.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

An analysis of this rule under E.O. 13132 has determined that this rule does not have implications for federalism under that order.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local or tribal government or the private sector to incur direct costs without the Federal Government having first provided the funds to pay those costs. This rule does not impose an unfunded mandate.

This rule does not effect a taking of private property or otherwise have taking implications under E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

An analysis of this rule under E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks has determined that this rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.

The Coast Guard considered the environmental impact of this rule and concluded that, under figure 2-1, paragraphs 34 (f, g, and h) of Commandant Instruction M16475.1C, this rule is categorically excluded from further environmental documentation. A written “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES .

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. It was impracticable to publish an NPRM, because there was insufficient time remaining after we were notified of the dates of the repairs to follow normal rulemaking procedures.

Further, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . A delayed effective date is impracticable as repairs on the bridge are already underway.

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for the rulemaking [CGD07-00-051], indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received. We may change this rule in view of them.

We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to the address under ADDRESSES , explaining why one would be beneficial. If the Coast Guard determines that a public meeting would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register .

The N.E. 163rd Street (SR 826) bridge at Sunny Isles, mile 1078.0, across the Atlantic Intracoastal Waterway, has a vertical clearance of 36 feet at mean high water and a horizontal clearance of 90 feet between fenders. The existing operating regulations in 33 CFR 117.261(ll) require the bridge to open on signal; except that from 7 a.m. to 6 p.m. on Monday through Friday, except Federal holidays, and from 10 a.m. to 6 p.m. on Saturdays, Sundays, and Federal holidays, the draw need open only on the quarter-hour and three-quarter hour.

The Florida Department of Transportation notified the Coast Guard on April 12, 2000, that the repairs to the north bascule leaf was to be completed by April 22, 2000, and that repairs were to commence on the south leaf, which would require a temporary rule. This temporary rule will allow the south leaf of the N.E. 163rd Street (SR 826) bridge at Sunny Isles in Miami, Florida, to remain closed until July 31, 2000, unless two hours advance notification is provided to the bridge tender requesting a double-leaf opening.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that order. The Office of Management and Budget has not reviewed it under that order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040: February 26, 1979). The Coast Guard expects the economic impact of this rule to be minimal because of the limited duration of the rule, as well as the provision for double leaf openings with advance notice.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this rule will have a significant economic effect upon a substantial number of small entities. “Small entities” include small business, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities as the temporary rule will only delay a full opening of the drawbridge for a limited period of time.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-221), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. Small entities may contact the person listed under FOR FURTHER INFORMATION CONTACT for assistance in understanding and participating in this rulemaking. We also have a point of contact for commenting on actions by employees of the Coast Guard. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This rule calls for no new collection of information requirements under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ).

We have analyzed this rule under Executive Order 13132 and have determined that this rule does not have implications for federalism under that order.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those unfunded mandate costs. This rule will not impose an unfunded mandate.

This rule will not effect a taking of private property or otherwise have taking implications under E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or safety that may disproportionately affect children.

The Coast Guard has considered the environmental impact of this action and has determined under figure 2-1, paragraph 32(e) of Commandant Instruction M16475.1C, that this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES .

2. From June 7, 2000 to July 31, 2000, § 117.261(ll) is suspended and a new paragraph (ss) is added to read as follows:

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 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.

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 * * *” 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:

Under the corresponding access section for subsistence users (13.46), the proposal noted:

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:

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 April 6,1983 proposal was never adopted in a final rule.

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 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.

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:

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.

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:

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- 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:

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.

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.

NPS proposed Definition of Traditional Activities.

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.

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 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 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:

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.

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.

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 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 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 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.

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 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.

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:

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.

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 § 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.

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 § 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.

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. 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.

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.

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.

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.

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).

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

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.

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.

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.

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.

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 § 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.

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.

Section 612 of the Clean Air Act authorizes EPA to develop a program for evaluating alternatives to ozone-depleting substances. EPA refers to this program as the Significant New Alternatives Policy (SNAP) program. The major provisions of section 612 are:

• Rulemaking —Section 612(c) requires EPA to promulgate rules making it unlawful to replace any class I (chlorofluorocarbon, halon, carbon tetrachloride, methyl chloroform, methyl bromide, and hydrobromofluorocarbon) or class II (hydrochlorofluorocarbon) substance with any substitute that the Administrator determines may present adverse effects to human health or the environment where the Administrator has identified an alternative that (1) reduces the overall risk to human health and the environment, and (2) is currently or potentially available.

• Listing of Unacceptable/Acceptable Substitutes —Section 612(c) also requires EPA to publish a list of the substitutes unacceptable for specific uses. EPA must publish a corresponding list of acceptable alternatives for specific uses.

• Petition Process —Section 612(d) grants the right to any person to petition EPA to add a substance to or delete a substance from the lists published in accordance with section 612(c). The Agency has 90 days to grant or deny a petition. Where the Agency grants the petition, EPA must publish the revised lists within an additional 6 months.

• 90-day Notification —Section 612(e) requires EPA to require any person who produces a chemical substitute for a class I substance to notify the Agency not less than 90 days before new or existing chemicals are introduced into interstate commerce for significant new uses as substitutes for a class I substance. The producer must also provide the Agency with the producer's unpublished health and safety studies on such substitutes.

• Outreach —Section 612(b)(1) states that the Administrator shall seek to maximize the use of federal research facilities and resources to assist users of class I and II substances in identifying and developing alternatives to the use of such substances in key commercial applications.

• Clearinghouse —Section 612(b)(4) requires the Agency to set up a public clearinghouse of alternative chemicals, product substitutes, and alternative manufacturing processes that are available for products and manufacturing processes which use class I and II substances.

On March 18, 1994, EPA published rulemaking (59 FR 13044) which described the process for administering the SNAP program and issued EPA's first acceptability lists for substitutes in the major industrial use sectors. These sectors include: refrigeration and air conditioning; foam blowing; solvents cleaning; fire suppression and explosion protection; sterilants; aerosols; adhesives, coatings and inks; and tobacco expansion. These sectors compose the principal industrial sectors that historically consumed the largest volumes of ozone-depleting compounds.

As described in this original rule for the SNAP program, EPA does not believe that rulemaking procedures are required to list alternatives as acceptable with no limitations. Such listings do not impose any sanction, nor do they remove any prior license to use a substance. Consequently, by this notice EPA is adding substances to the list of acceptable alternatives without first requesting comment on new listings.

EPA does, however, believe that notice-and-comment rulemaking is required to place any substance on the list of prohibited substitutes, to list a substance as acceptable only under certain conditions, to list substances as acceptable only for certain uses, or to remove a substance from either the list of prohibited or acceptable substitutes. Updates to these lists are published as separate notices of rulemaking in the Federal Register .

The Agency defines a “substitute” as any chemical, product substitute, or alternative manufacturing process, whether existing or new, intended for use as a replacement for a class I or class II substance. Anyone who produces a substitute must provide the Agency with health and safety studies on the substitute at least 90 days before introducing it into interstate commerce for significant new use as an alternative. This requirement applies to substitute manufacturers, but may include importers, formulators or end-users, when they are responsible for introducing a substitute into commerce.

A complete chronology of SNAP decisions and the appropriate Federal Register citations can be found at EPA's Ozone Depletion World Wide Web site at http://www.epa.gov/ozone/title6/snap/chron.html. This information is also available from the Air Docket (see Addresses section above for contact information).

This section presents EPA's most recent acceptable listing decisions for substitutes in the refrigeration and foams sectors. For copies of the full list of SNAP decisions in all industrial sectors, contact the EPA Stratospheric Protection Hotline at (800) 296-1996.

The sections below presents a detailed discussion of the substitute listing. The table summarizing today's listing decisions is in Appendix A. The comments contained in the table in Appendix A provide additional information, but are not legally binding under section 612 of the Clean Air Act. Thus, adherence to recommendations in the comments section of the table is not mandatory for use of a substitute. In addition, such comments should not be considered comprehensive with respect to other legal obligations pertaining to the use of the substitute. However, EPA strongly encourages users of acceptable substitutes to apply all such comments to their use of these substitutes. In many instances, the comments simply refer to standardized operating practices that have already been identified in existing industry and/or building-code standards. Thus, many of these comments, if adopted, would not require significant changes in existing operating practices for the affected industry.

(a) HFC-4310mee. HFC-4310mee is acceptable as a substitute for CFCs and HCFCs in non-mechanical heat transfer applications . Heat transfer applications are “all cooling systems that rely on convection to remove heat from an area, rather than relying on mechanical refrigeration” (59 CFR 13071). HFC-4310mee is nonflammable and has no ozone depletion potential. However, it does have a 100-year global warming potential of 1700. The potential of HFC-4310mee to contribute to global warming may be mitigated in this end-use through the implementation of the venting prohibition under section 608(c)(2) of the Clean Air Act. HFC-4310mee is already acceptable as a substitute in all solvent cleaning end-uses subject to a 200 part per million (ppm) time-weighted average workplace exposure limit and a 400 ppm workplace exposure ceiling (61 FR 54029, 64 FR 30410). The same industry-established acceptable exposure limits apply in this end-use.

(b) Ikon®B. Ikon®B, a blend of trifluoroiodomethane (CF 3 I), HFC-134a and HFC-152a, is acceptable as a substitute for CFC-12 in household refrigerators and freezers. Ikon®B was listed as acceptable in various refrigeration and air conditioning end-uses in a December 6, 1999 SNAP notice (64 FR 68039). Fractionation and flammability testing have determined that although HFC-152a is flammable, Ikon®B as blended is not, and further testing has shown that it does not become flammable after leakage. Ikon®B has virtually no ozone depleting potential. It contains two constituents with moderate global warming potentials. The potential of these constituents for contributing to global warming may be mitigated in this end-use through the implementation of the venting prohibition under section 608(c)(2) of the Clean Air Act.

(c) Ikon®A. Ikon®A , a blend of trifluoroiodomethane (CF 3 I) and HFC-152a, is acceptable as a substitute for CFC-12 in the following end-uses:

• Commercial comfort air conditioning;

• Industrial process refrigeration and air conditioning;

• Cold storage warehouses;

• Refrigerated transport;

• Retail food refrigeration;

• Vending machines;

• Water coolers;

• Commercial ice machines; and

• Household refrigerators and freezers.

(d) HFC-245fa. HFC-245fa is acceptable as a substitute for CFC-11 in new commercial comfort air conditioning applications (commercial chillers). HFC-245fa contains no chlorine or bromine; therefore, it has no ozone depletion potential. Although its 100-year global warming potential is approximately 1000, the potential of HFC-245fa to contribute to global warming may be mitigated in this end-use through the implementation of the venting prohibition under section 608(c)(2) of the Clean Air Act. HFC-245fa is also non-flammable. EPA anticipates that HFC-245fa will be used in such a manner so that any recommendations specified in the manufacturers' Material Safety Data Sheets (MSDSs) are followed. The Agency also expects that the workplace environmental exposure will not exceed the American Industrial Hygiene Association's (AIHA) limit of 300 ppm.

In 1994, the SNAP program developed a guidance document entitled “Choosing the Optimal Chiller in the Face of a CFC Phaseout”. This guidance was written to assist building owners and operators making decisions on the retrofit or replacement of their existing chillers in light of the phaseout of CFCs. The guidance stresses that the optimal way to select new equipment is to consider a comprehensive set of criteria including ozone depletion potential, global warming potential, energy efficiency, toxicity, occupational exposure, consumer exposure, ecological effects, flammability and cost. It highlights that each refrigerant has advantages and disadvantages and that one option is not likely to satisfy the optimal requirement for every circumstance.

EPA has determined that HFC-245fa is acceptable from an overall health and environmental perspective and may potentially play an important role in the phaseout of ozone depleting substances. However, it is imperative that building owners and operators evaluate refrigerants from a technical standpoint to determine which option is superior for their specific application. For example, a refrigerant may prove suitable and highly efficient for a particular chiller capacity range, but not necessarily for all ranges. To obtain copies of the EPA guidance mentioned above, technical information submitted by the manufacturers of HFC-245fa and industry expert evaluations of HFC-245fa, contact EPA's Air Docket at (202) 260-7548 (Reference A-91-42, IX-B-52 through 56).

(e) Small auxiliary power units which include an engine, electrical alternator, water pump, air conditioning compressor, and a heat exchanger that are used in tractor trailers in conjunction with passenger compartment climate control systems that use a SNAP-accepted refrigerant. Small auxiliary power units which include an engine, electrical alternator, water pump, air conditioning compressor and a heat exchanger used in tractor trailers in conjunction with passenger compartment climate control systems that already use an acceptable substitute refrigerant, are acceptable as substitutes for CFC-12 in motor vehicle air conditioners. These systems have been developed for use in heavy duty trucks that contain sleeper compartments. Currently these trucks must continually idle while the vehicle is parked and the driver is resting in the sleeper compartment, to power a conventional air-conditioner or heater when cooling or heating comfort is needed. These power units will allow the provision of cooling/heating comfort while the engine is off, and although the unit is powered by a small diesel engine, emissions are reduced dramatically.

The main engine of the truck operates the existing truck air conditioning and heating system in a normal manner when the engine is running. When air conditioning or heating is required and the main engine is not running, the auxiliary power unit operates the air conditioning or heating system. The unit includes its own engine, air conditioning compressor, alternator, water pump, and heat exchanger. The unit works in conjunction with the existing truck air conditioning and heating components to supply the desired air conditioning or heating capacity.

After reviewing the technology of the auxiliary power system submitted in the SNAP application, the SNAP review found no safety or environmental concerns associated with its use in trucks. EPA acknowledges the existence of such a system and recognizes the potential merits. This type of technology can significantly lower fuel consumption and reduce pollutant emissions of nitrous oxides, carbon monoxide, carbon dioxide, sulfuric oxides, and particulate matter.

(a) Vacuum panels. Vacuum panels are acceptable as substitutes for HCFC blown rigid polyurethane appliance foam. EPA defines a substitute as “any chemical, product substitute, or alternative manufacturing process” (59 FR 13050). The Agency listed vacuum panels as acceptable substitutes for CFC-11 blown rigid polyurethane appliance foam on January 13, 1995 (60 FR 3318). Today's decision makes vacuum panels also acceptable as substitutes for HCFC blown polyurethane foam.

(b) 2-Chloropropane. 2-Chloropropane (isopropyl chloride) is acceptable as a substitute for HCFCs in rigid polyurethane and polyisocyanurate laminated boardstock foam. This non-ozone-depleting chemical was listed as acceptable as a substitute for CFC-11 in rigid polyurethane and polyisocyanurate laminated boardstock foam and phenolic insulation board in the original SNAP rulemaking on March 18, 1994 (59 FR 13044). 2-Chloropropane has no global warming potential. An analysis of the decomposition products of 2-chloropropane shows that concentrations are well below the 1500 parts per million (ppm) limit that EPA has determined to be of concern. This analysis can be obtained through EPA's Air Docket at (202) 260-7548 (Reference A-91-42, IX-B-57). Although exposure to foam blown with 2-chloropropane poses essentially no risk to the consumer, exposure during manufacturing could pose a risk. Analysis of toxicity data available suggest an acceptable exposure limit of 350 ppm (8-hour Time Weighted Average). This analysis can also be obtained through EPA's Air Docket at (202) 260-7548 (Reference A-91-42, IX-B-58). Because 2-chloropropane is flammable, appropriate fire control measures should be in place throughout the foam manufacturing process including storage and handling of the chemical.

Contact the Stratospheric Protection Hotline at (800) 296-1996, Monday-Friday, between the hours of 10 a.m. and 4 p.m. (EST). For more information on the Agency's process for administering the SNAP program or criteria for evaluation of substitutes, refer to the original SNAP rulemaking published in the Federal Register on March 18, 1994 (59 FR 13044). Notices and rulemakings under the SNAP program, as well as all EPA publications on protection of stratospheric ozone, are available from EPA's Ozone Depletion World Wide Web site at “http://www.epa.gov/ozone/title6/snap/” and from the Stratospheric Protection Hotline whose number is listed above.

Based on results from the 23rd Stock Assessment Workshop and information obtained from a cooperative experimental research fishery conducted from August through October 1998, the Council developed, and NMFS approved, Framework Adjustment 11 to the Atlantic Sea Scallop FMP and Framework Adjustment 29 to the Northeast Multispecies FMP in June 1999, which implemented the 1999 Georges Bank Sea Scallop Exemption Program and provided sea scallop fishermen access to CA II. This action helped to reduce fishing effort in other scallop areas where the stock is dominated by smaller scallops by shifting effort into CA II where the scallop biomass and average individual size have increased dramatically since 1994, while maintaining conservation neutrality.

During the course of the 1999 Georges Bank Sea Scallop Exemption Program implemented under Frameworks 11/29 (June 15 through November 12, 1999), additional cooperative research was conducted by NMFS and the industry in CA I, CA II, and the NLCA. This research involved mapping the distribution and estimating the abundance of Atlantic sea scallops; determining the rate and distribution of finfish and invertebrate bycatches in the sea scallop fishery; testing new gear designs to reduce finfish bycatch rates; providing information on the potential habitat effects of the use of scallop dredge gear; and evaluating changes in catch-per-unit-effort. To the extent that the data from these research projects have been analyzed, this new information was incorporated into the development of Frameworks 13/34 and builds on the data obtained from the 1999 Georges Bank Sea Scallop Exemption Program.

To provide an additional year of access to areas of high scallop biomass, this action allows sea scallop dredge vessels access to portions of CA I, CA II, and the NLCA during the period from June 15, 2000, through December 31, 2000, and establishes a sea scallop TAC of 8,664 mt to be distributed among the three closure areas. To help fund the cost of observers, an additional 87 mt above the TAC together with another 87 mt set aside from the TAC, for a total of 174 mt, is available. In addition, 87 mt is set aside from the sea scallop TAC to help defray the cost of sea scallop research. After deducting the two 87 mt set asides, the resulting commercial scallop TAC available is 8,490 mt (2,934 for CA II; 2,445 mt for the NLCA; and 3,111 mt for CA I).

As in Frameworks 11/29, this action opens only certain portions of the closed areas to minimize the impact on finfish bycatch and habitat. The Council's Habitat Committee recommended that, based on current essential fish habitat (EFH) considerations, only areas south of 41°30' N. lat. in CA II, only areas north of 41°07' N. lat. in CA I, and only areas north of 40°30' N. lat. and east of the 13900 loran line in the NLCA should be considered for opening to scallop dredge vessels. This action adopts the Habitat Committee's recommended area openings for all three areas.

To minimize yellowtail flounder bycatch, this action implements a Georges Bank yellowtail flounder TAC of 757 mt (a combined TAC for CA I and CA II), and a Southern New England yellowtail flounder TAC of 50 mt for NLCA. Once these yellowtail flounder TACs are projected to be reached, scallop fishery access to the respective closed areas will be terminated. The yellowtail flounder TAC is estimated using the information obtained from observed trips in the Exemption Program. One percent from each yellowtail flounder TAC is set aside to account for yellowtail flounder incidental catch that may occur on vessels conducting sea scallop research activities. This will allow sea scallop research activities to continue, should the Exemption Program be terminated due to the harvest of the overall yellowtail flounder TAC.

This action expands upon the mechanism in the 1999 Georges Bank Sea Scallop Exemption Program to conduct sea scallop research utilizing the TAC set aside for this purpose by adopting a more flexible design to provide applicants more options in conducting their projects. For example, this action will allow sea scallop research activities and commercial trips to be conducted separately, rather than on the same trip as implemented under the 1999 Georges Bank Sea Scallop Exemption Program. In addition, this action requires that specific elements be included in proposals submitted in response to the Request for Proposal and a report of the project results submitted to the Council and NMFS. Successful applicants will receive grant awards to help defray the costs of the sea scallop research. Grant awards will be made consistent with Department of Commerce grant policy and procedures. Amounts over the trip limits for sea scallop meats to be allocated for defraying project costs shall be limited by area up to 30 mt for CA II, 25 mt for the NLCA, and 32 mt for CA I.

All limited access scallop vessels, including vessels that hold a scallop “Confirmation of Permit History,” are eligible to fish for the sea scallop TAC specified for each Exemption Area. Full-time and part-time scallop vessels are allowed up to three CA II trips, two CA I trips, and one NLCA trip. Vessels permitted in the Occasional permit category are allocated only one trip in the area of their choice. All scallop vessels are allowed to possess up to 10,000 lb (4,356.0 kg) of scallop meats per trip. Note that the 10,000 lb (4,356.0 kg) of meats per trip is a possession limit, rather than just a landing limit, to help ensure the enforceability of this measure.

All scallop vessels fishing in the Exemption Program must have installed on board an operational Vessel Monitoring System (VMS) unit that meets the minimum performance criteria as specified in the regulations (Occasional permitted vessels are the only limited access scallop vessels not currently required to have a VMS.). Scallop vessels planning to fish in an Exemption Area must so declare by notifying the Administrator, Northeast Region, NMFS (Regional Administrator), through the VMS. For each trip declared, a minimum of 10 DAS will automatically be deducted.

Each vessel operator is required to inform NMFS of his/her intention to fish in the Exemption Areas at least 15 days prior to the opening of each Exemption Area season through the VMS e-mail system to facilitate placement of observers. This, along with the following information, must be reported at least 15 days prior to the opening of each Exemption Area season: Vessel name and permit number, owner and operator's name, owner and operator's phone numbers, and number of trips anticipated for the Exemption Area in question. In addition, vessels must provide notice to NMFS as to the time and port of departure at least 5 working days prior to the beginning of any trip on which it declares into the Exemption Program. Vessels will be provided additional information by mail regarding all notification requirements.

Because of the late publication of this final rule implementing the 15-day advance notification requirement, there is insufficient time to provide for the 15-day advance notification for Closed Area II, which is scheduled to reopen on June 15th. Therefore, NMFS is waiving the 15-day advance notification for Closed Area II, only. NMFS requests that vessel operators intending to fish in Closed Area II provide notification to NMFS as soon as possible.

Each vessel participating in this Exemption Program is required to report information on a daily basis through the VMS. On all trips to an Exemption Area, vessels must report their daily pounds (kg) of scallop meats kept and the Fishing Vessel Trip Report page number corresponding to the respective Exemption Area trip. In addition, vessels on observed trips must provide a separate report of the daily pounds (kg) of scallop meats kept and the pounds (kg) of yellowtail flounder caught on tows that were observed.

Measures are included to improve the enforceability of this program. One measure is an increase in the VMS polling frequency. For the duration of the Exemption Program implemented by this action, all limited access scallop vessels equipped with a VMS unit will be polled twice per hour, regardless of whether the vessel is enrolled in the Exemption Program. Based on the increase in polling, the Council recommended and NMFS approved a decision to eliminate the buffer zone that was put into place last year. In addition, the openings of the closed areas will be sequential rather than concurrent. The seasonal openings for this year's Exemption Areas are as follows: June 15 through August 14 for CA II; August 15 through September 30 for the NLCA; and October 1 through December 31, 2000, for CA I.

After taking into account data on the number of eligible vessels participating and the total number of trips taken, the Regional Administrator may adjust the sea scallop possession limit for the NLCA and/or the CA I Exemption Areas during January 2001 for full-time and part-time limited access sea scallop vessels and/or allocate one or more additional trips, if a sufficient amount of the sea scallop target TAC and yellowtail flounder TAC remains to warrant such an adjustment or allocation, given the likelihood of exceeding the sea scallop TAC. Occasional permitted vessels would not be allocated an additional trip.

At the discretion of the Regional Administrator, scallop vessels may be allocated an additional amount of sea scallops, not to exceed a cumulative total of 60 mt in CA II, 64 mt in CA I, and 50 mt in the NLCA, respectively, for each trip on which an observer is taken, to help fund the cost of observers. The vessel owner will be responsible for paying for the cost of the observer, regardless of whether any scallops are caught on the trip.

This action also increases the regulated multispecies incidental catch allowance from 300 lb (136.1 kg) to 1,000 lb (453.6 kg) per trip for scallop vessels when fishing under the Exemption Program and authorizes the Regional Administrator to make in-season adjustments, if necessary, to reduce regulatory discards. Because vessels are expected to catch more groundfish (especially yellowtail flounder) in the Exemption Areas than outside those areas, increasing the allowance of regulated species will help reduce discards. In addition, vessels that have an observer on board will be allowed to retain all regulated species caught, provided the fish caught in excess of the possession limit are donated to a bonafide charity.

Vessels that have declared a trip under the Exemption Program are prohibited from possessing more than 50 U.S. bushels (400 lb (181.4 kg) of meats) of shell stock when outside of the designated Exemption Area specified in this framework. This 400- lb (181.4-kg) scallop meat limit for shell stock is considered part of the 10,000-lb (4,536.0-kg) meat weight possession limit. A limit on the amount of sea scallops landed in the shell is a necessary enforcement tool for purposes of monitoring the 10,000-lb (4,536.0-kg) meat weight possession limit requirement. Allowing vessels to retain a relatively minor amount of shell stock will help satisfy a market for large, live scallops, yet not compromise the enforceability of the possession limit.

All scallop vessels, including those currently fishing with nets, that are fishing under the Exemption Program, must use scallop dredge gear that conforms to the current sea scallop dredge vessel gear restrictions specified in § 648.51, with the exception of the twine top mesh size restrictions. For vessels fishing in the Exemption Program, twine tops must have a minimum mesh size of 10-inch (25.40-cm) square or diamond mesh. The purpose of increasing the minimum twine top mesh size measurement from 8 inches (20.32 cm) outside the closed areas to 10 inches (25.40 cm) inside the closed areas is to reduce bycatch of groundfish and other finfish. Recent research demonstrates that the 10 inch mesh size may significantly reduce bycatch of certain species, especially flatfish species.

In response to safety concerns raised by industry, this final rule also implements a mechanism for the modification to the current stowage provision for dredge gear vessels and will allow the Regional Administrator to authorize other methods of gear stowage. This modification allows scallop dredge gear to be stowed in a safer manner while not compromising enforcement. This provision will remain in place beyond the closure of the Exemption Program. In addition, gear stowage provisions previously contained in §§ 648.57 introductory paragraphs (a) and (b), 648.80(a)(2)(iii), (b)(2)(iii), (b)(6)(i)(C), and (b)(9)(i)(E), 648.81(d) and the removal of paragraph (e), 648.82(k)(1)(iv)(A), 648.86(b)(3), (b)(4), (d)(1)(i), (d)(1)(ii), and (d)(1)(iii), 648.87 introductory text to paragraphs (a) and (b), 648.89(a), 648.91(c)(2)(ii), and § 648.94(e) have been consolidated and are now contained in § 648.23.

The Northeast multispecies and monkfish regulations contain a provision that restricts vessels that held a Confirmation of Permit History for the entire fishing year preceding the carry-over year, from carrying over unused DAS from one year to the next. However, NMFS inadvertently omitted this restriction in the end-of-the-year DAS carry-over provision. This final rule corrects and clarifies the end-of-the-year DAS carry-over provision for vessels participating in the limited access scallop fishery to make it consistent with the DAS carry-over provisions contained in the Northeast multispecies and monkfish fisheries.

Finally, vessels fishing under the Exemption Program are prohibited from off loading their scallop catch at more than one location. This measure will help in monitoring the TAC, as well as aid enforcement in tracking landings and in enforcing the trip limit.

The framework document for this action proposes to allow General Category permitted vessels to fish for scallops in portions of the NLCA and CA I. The General Category fleet would have been allocated 5 percent of the total scallop TAC and would have been authorized to retain no more than 400 lb (174.2 kg) of scallop meats per Exemption Program trip. Retention of regulated multispecies would have been prohibited. In addition, General Category vessels would have been required to obtain and operate a VMS unit and would have been restricted to one dredge no larger than 10.5 ft (3.2 m) with 10-inch (25.40-cm) mesh twine top.

Because this measure would create significant enforcement and administrative concerns, it violates section 303(a)(1)(A) of the Magnuson-Stevens Act and national standard 7. National standard 7 requires that conservation and management measures minimize costs where practicable. The General Category permit, an open access permit, was originally developed by the Council to allow vessels not qualified for a limited access scallop permit to retain an incidental catch of scallops. As an open access permit, there is no limit on the number of vessels that could obtain this permit, thus creating an enforcement burden due to the potential of greatly expanding the number of boats that may fish in this program. In addition, monitoring of a separate TAC for these vessels would be extremely difficult. Therefore, NMFS disapproved this measure.

NMFS is making these revisions to the regulations under the framework abbreviated rulemaking procedure codified at 50 CFR part 648, subpart F. This procedure requires the Council, when making specifically allowed adjustments to the FMP, to develop and analyze the actions over the span of at least two Council meetings. The Council must provide the public with advance notice of both the proposals and the analysis, and an opportunity to comment on them prior to and at a second Council meeting. Upon review of the analysis and public comment, the Council may recommend to the Regional Administrator that the measures be published as a final rule if certain conditions are met. NMFS may publish the measures as a final rule, or as a proposed rule if additional public comment is needed.

The public was provided the opportunity to express comments on allowing access by scallop vessels into the multispecies closed areas at numerous meetings. The following list includes all meetings, including plan development team meetings, at which this action was on the agenda, discussed, and public comment was heard:

Documents summarizing the Council's proposed action, and the analysis of biological and economic impacts of this and alternative actions, were available for public review one week prior to the final Council meeting, as is required under the framework adjustment process. Written and oral comments were accepted up to and during that meeting.

Comment 1: Several commenters stated that this action should remain conservation neutral, i.e., there should be no net increase in fishing mortality rate (F) for sea scallops.

Response: Conservation neutrality means that F for the sea scallop resource should not rise above the annual F set by Amendment 7 to the Atlantic Sea Scallop FMP. The framework analyses demonstrate that total F will not increase, except in the unlikely event that a large portion of inactive vessels, including vessels that hold a Confirmation of Permit History, begin fishing.

Comment 2: Several comments were received that viewed the reopening of the closed areas as shortsighted, in that several important fishery resources will be negatively impacted by this action.

Response: Although no specific fishery resource was identified by the commenter, NMFS has concluded that the action does not negatively impact any other resources. The EA concludes that there will be no net increase in F for scallops. One of the more critical groundfish stocks, Georges Bank yellowtail flounder, has recovered considerably from its once highly depleted condition. Still, continued rebuilding of the Georges Bank yellowtail flounder stock is necessary and there is a high level of concern over the low stock size of the Cape Cod and Southern New England yellowtail flounder stocks. This action takes the necessary steps to protect these valuable resources through implementation of TAC levels, which, when reached, will terminate the Exemption Program. The action also promotes fishing effort reduction in areas where scallops are depleted, and increases meat yield. The selection of the areas to be reopened under the Exemption Program addresses habitat concerns by keeping some of the more complex bottom areas within the groundfish closed areas closed. Additionally, this action promotes rebuilding of the scallop resource by reducing effort on small, fast-growing scallops.

Comment 3: Several commenters noted that the closed areas were closed to scallop dredge gear partly because this gear disrupts spawning activity of groundfish.

Response: This action restricts access by scallop dredge vessels into the closed areas to a time when groundfish spawning activity is considered to be minimal (i.e., June 15 through August 14 for CA II; August 15 through September 30 for the NLCA; and October 1 through December 31, 2000, for CA I).

Comment 4: Some commenters stated that any economic gain derived from scallop fishing in the groundfish closed areas will be offset or lost by the setback to cod, yellowtail flounder, and other recovering species.

Response: This action sets yellowtail flounder TAC levels for Exemption Area fisheries, which, when reached, trigger the termination of the respective Exemption Area fisheries. The yellowtail flounder TAC levels will ensure that the Exemption Area fisheries do not cause a setback to that species' rebuilding schedule. Cod and haddock do not appear to be vulnerable in any significant way to scallop fishing with dredges within the Exemption Areas during the specified fishing seasons. Furthermore, the minimum mesh twine-top size and the expected effort transfers from areas now open to scallop fishing will limit the impacts on other species. Suspending the fisheries when certain thresholds are met and requiring more restrictive fishing gear when fishing in the Exemption Areas will mitigate the negative impacts on all species, particularly yellowtail flounder, even though an insignificant net increase in mortality is expected.

Comment 5: Because scallop fishers harvested significant amounts of yellowtail flounder in the 1999 Georges Bank Sea Scallop Exemption Program, as evidenced by the termination of the fishery when the yellowtail flounder TAC was taken, several commenters stated that the Council's analysis of the likely significant impact on overfished groundfish stocks is insufficient.

Response: The yellowtail flounder TAC levels are designed to ensure adequate protection of the yellowtail flounder stocks. Provided each respective Exemption Area fishery is terminated when its TAC level is reached, as required by this action, the stocks should receive adequate protection.

Comment 6: Opening the closed areas to scalloping and maintaining scallopers' DAS at current levels will undercut current and proposed protections afforded EFH in New England waters. In its Omnibus EFH Amendment (64 FR 19503, April 21, 1999), the Council noted that the year-round groundfish closed areas and proposed reductions in scallop DAS protect and conserve EFH. The Council relied on these measures in the Omnibus EFH Amendment to satisfy its duty under the Magnuson-Stevens Act to minimize adverse effects of fishing on EFH.

Response: This action re-opens only portions of the closed areas where habitat is less likely to be adversely impacted by scallop gear. The benthos of the re-opened portion of CA II primarily consists of sand and shell in a high energy environment. The habitat in this area is not as complex and diverse as the habitats to the north, which will remain closed to scallop fishing. The reopened portion of CA I, based on the information available to the Council, is believed to be comprised primarily of sand, with no known areas of hard bottom. This type of habitat is less sensitive to the impacts associated with scallop fishing than the gravel and hard-bottom habitats south of the area that will not be opened to scallop fishing. The re-opened portion of the NCLA, based on the information available to the Council, is believed to be primarily comprised of relatively flat sand.

Although this action will increase habitat impacts in the areas to be opened for scallop fishing, the compensating effect will be to reduce scallop fishing effort in areas that are now open. The action is expected to reduce overall scallop fishing time by 22 percent. Some of the areas currently open to scallop fishing have significantly more complex and diverse habitat than that in the portions of the groundfish closed areas to be reopened to scallop fishing. The biological impacts of this trade-off are discussed in the EA and, on balance, this action was determined to be consistent with EFH objectives and to minimize the impacts of fishing on EFH to the extent practicable.

Additionally, NMFS is recommending to the Council who will conduct the initial review of the research proposals that a portion of the scallop TAC set aside for sea scallop research be considered to fund experiments to help identify more selective fishing gears or gears that have less habitat impacts.

Comment 7: The absence of habitat data from research conducted during last year's opening of CA II limited the Council in properly evaluating the environmental impacts of this proposed re-opening. Therefore, the Council continues to be unable to answer fundamental questions necessary to assess properly the EFH and environmental impacts of the last year's partial opening of CA II.

Response: Under National Standard 2 of the Magnuson-Stevens Act, the Council and NMFS are required to use the best scientific information available. During last year's CA II opening, additional cooperative research was conducted by NMFS and industry in CA I, CA II, and the NLCA. From the research conducted, information was gained on the potential habitat effects of the use of scallop dredge gear. However, since this action was developed at the same time the habitat research was being conducted, and a substantial amount of time and resources were needed to adequately analyze the data, the data analysis associated with the habitat studies was not completed in time to be incorporated into this action. The Council's Habitat Committee did, however, use the best available scientific information available in developing the action within the time period for developing the action. The Habitat Committee utilized sidescan sonar information to develop the Exemption Area alternatives chosen by the Council. The Council intends to use the habitat data generated from last year's opening, along with any new habitat information, when developing a more permanent rotational scallop fishing strategy in Amendment 10 to the Atlantic Sea Scallop FMP.

Comment 8: If the Council allows scalloping fishing in these areas, significant environmental impacts can be expected, not just proximate to, but actually in “ecologically critical areas.” In fact, the Council has already identified particularly ecologically important areas within EFH located in CA II and designated such areas as a habitat area of particular concern (HAPC) for juvenile cod.

Response: The term “ecologically critical areas” is not defined, nor does it have any meaning analogous to “HAPC” or “EFH.” There is no reference to this term in the Council's Omnibus EFH Amendment, as implied by the comment. The HAPC in CA II is not near the area where scalloping will be allowed.

Comment 9: Some commenters expressed concern regarding the destruction to the ocean floor that could be caused by scallop dredge vessels in the closed areas. In particular, scallop dredging has a significant effect on gravel and hard bottom habitats.

Response: See the response to Comment 6.

Comment 10: Opening the closed areas and failing to reduce scallop DAS without additional scallop closures or measures with equal habitat benefits increases fishing effects on EFH, an environmental impact that must be analyzed pursuant to National Environmental Policy Act and the EFH Omnibus Amendment. The Council has not sufficiently analyzed the likely significant impact on EFH.

Response: These impacts are analyzed, to the extent possible, in the EA and, pursuant to the EFH interim final rule (62 FR 66531, December 19, 1997), in the EFH Assessment. The EA estimates a 22-percent reduction in bottom time needed to harvest the same amount of sea scallops within the current closed areas as compared to no access to closed areas. See also the response to Comment 6.

Comment 11: Little is known about the habitats within the portions of CA I and the NLCA scheduled to be re-opened. Limited sampling creates a real risk that hard-bottom habitats, not identified, exist in these areas. Little is known about the benthic and pelagic ecosystems that rely on these habitats and how they are affected indirectly by scallop dredging. The Council should have considered postponing scallopers' access to the closed areas until it can collect and analyze reliable data and accurate geological surveys.

Response: The Council based this action on the best scientific information available, as required by National Standard 2 of the Magnuson-Stevens Act. All relevant sources of scientific information were used in the Council's deliberations, including a review of available sidescan sonar information reflecting bottom types in CA I. Other considerations and determinations were made as discussed in the response to Comment 6.

Comment 12: The EA must consider reasonable alternatives to the proposed action, including the no-action alternative, that have the potential to mitigate the potential negative impacts of the action. At a minimum, the Council and NMFS should consider the no-action alternative, allowing scallopers to fish only in certain areas, rather than in all closed areas; for example, the Council should have considered allowing scallop fishing only in areas where sufficient data exist to demonstrate that they contain EFH that is less severely affected by scallop dredging (such as soft sediments and high energy environments).

Response: The Council did consider all these alternatives. In effect, it chose not to open all the areas, and to open areas with habitat less severely affected by scallop dredging by limiting the exempted areas within the overall closed areas.

Comment 13: The Council should have considered requiring slower towing speeds and full stops before hauling the dredge of the bottom to minimize bycatch of groundfish and other species.

Response: During the course of last year's CA II opening, as part of a cooperative research project, tow speed, haul-back speed, and tow scope were studied. According to industry advisors who participated in this research, preliminary tests indicated that those measures would be ineffective. The measures also would be unenforceable. However, industry did employ voluntary fishing practices in last year's Exemption Program that reduced its yellowtail flounder catch and is expected to repeat this practice again this year.

Comment 14: The Council should have considered requiring at least 25-percent observer coverage on scallop vessels fishing under the Exemption Program.

Response: The Council did adopt a goal of 25-percent observer coverage for each area, to be funded by the participants through a TAC set aside. Both the Council and NMFS agree that this program should have the maximum observer coverage practicable. However, due to the high costs of observer programs, the additional administrative burden that would be placed on NMFS, and the uncertainty of NMFS' ability to provide 25-percent observer coverage, the level of observer coverage was expressed as a goal, rather than as a requirement.

Comment 15: Many industry participants suggested that the Council should only consider access to the closed areas in the context of a comprehensive rotational area management strategy.

Response: The intent of this action is to provide a continuation and an expansion of a short-term strategy to allow scallop dredge vessels access to multispecies closed areas. Amendment 10 to the Atlantic Sea Scallop FMP, which is currently under development by the Council, will recommend a long-term sea scallop rotational harvest strategy. The scallop fisheries in the re-opened areas will provide information necessary to make this strategy possible.

Furthermore, this action meets the goals of conservation neutrality and of increasing yield per recruit in terms of managing scallops for any future area rotation strategy and therefore is fully consistent with the objectives of the Atlantic Sea Scallop FMP. To delay this action until the implementation of Amendment 10 to the Atlantic Sea Scallop FMP would deprive the public of substantial economic benefits: An estimated $22 million in consumer surplus and an estimated $26 million in producer surplus.

Comment 16: General category vessels should be allowed to retain more that the 400-lb (181.4-kg) scallop possession limit. The limit makes it economically unfeasible for them to fish in the closed areas, and it is unfair that limited access vessels have a much higher, 10,000-lb (4,356-kg) possession limit.

Response: NMFS has disapproved the provision that would have allowed General Category vessels access to the closed areas because it would create a significant enforcement and administrative burden and thus violate National Standard 7.

In deliberating about whether to increase the possession limit for General Category permit holders, the Council considered the original reason for establishing a General Category permit and 400-lb (181.4-kg) scallop possession limit. This permit was designed to meet the needs of fishermen who catch scallops in small-scale fisheries and/or in combination with other fisheries. For this reason, General Category permit holders are exempt from the DAS restrictions to which limited access scallop vessels are subject.

Comment 17: Some industry members commented that the sea scallop management measures proposed for the Exemption Program are too restrictive and that fishing effort, consequently, will remain in the open areas.

Response: The Council has accounted for the benefits, costs, and risks associated with the closed area fisheries in this action. The EA shows that it would be more economical for scallopers to fish in the Exemption Program than in the existing open areas, due to lower fishing costs and higher prices for large scallops.

Comment 18: Several industry members commented that the yellowtail flounder TAC will likely force an early closure of the Exempted Area fisheries.

Response: An experimental fishery conducted in CA I and the NLCA in 1999 showed very low yellowtail flounder catches in the scallop fishery. Using these rates, the analysis indicated that a closure in the NLCA fishery due to the yellowtail flounder TAC being exceeded is not likely. The combined CA I and CA II yellowtail flounder TAC is about 80 percent higher than the limit in 1999 due to improved yellowtail flounder resource conditions. Additionally, this action includes a minimum twine-top mesh size requirement for scallop dredge vessels that declare into the Exemption Program, which is expected to reduce incidental catch of yellowtail flounder substantially.

Comment 19: Scallop industry members commented that the groundfish closure areas comprise about one-half of the Georges Bank scallop grounds, by area, and that scallop vessels should be able to regain access to these areas.

Response: Under current conditions, the biomass within the closed areas on Georges Bank includes much more than one-half of the scallop biomass of the Georges Bank stock. This imbalance has arisen mainly due to the combination of very high fishing mortality on scallops within areas that have remained open to scallop fishing, while closed areas designed primarily to protect groundfish also protected sea scallops because of the prohibition on use of dredges.

The Council is considering under Amendment 10 to the Atlantic Sea Scallop FMP the extent to which scallopers should be allowed into the closed areas if it does not jeopardize the rebuilding schedule for groundfish or scallops and does not cause substantial adverse impacts on habitat. This action allows access to a portion of the closed areas under a program that meets these conditions.

Comment 20: Industry commented that gear research for the purposes of reducing bycatch should be encouraged and suggested that a portion of the TAC be used to fund this.

Response: This action sets aside 1 percent of the scallop target TAC (87 mt) as a means to fund projects to examine new gears and/or gear modifications that would reduce incidental catch/bycatch by scallop dredge vessels.

Comment 21: Due to the potential for gear conflicts, lobster industry members requested that the reopened areas be modified to exclude areas with concentrations of lobster pot gear.

Response: Since their inception in 1994, the closed areas on Georges Bank and Nantucket Shoals have become viewed as prime lobster fishing grounds. The closed areas provide a place for lobster fishing with little danger of losing gear to mobile fishing gears. In the spring of 1999, the Council's Gear Conflict Committee held a meeting to identify the areas and time periods most valuable to lobster trap fishermen in the NLCA and CA II. The Committee did not ask for industry input on CA I because at that time, the opening of CA I was not being contemplated by the Council. However, during the development of this action, the Council consulted with the Atlantic Offshore Lobstermen's Association (AOLA) concerning lobster activity in CA I. As was the case with the NLCA and CA II, the boundaries within CA I were selected by the Council to avoid the highest concentration of lobster gear in each of the proposed closed area.

Comment 22: Concern was expressed that the Exemption Program would encourage a “derby-style” fishery, especially with an inseason adjustment.

Response: This was not a significant problem in the 1999 Georges Bank Sea Scallop Exemption Program and is less likely to be a problem in fishing year 2000 because of the limited period (January 2001) and area (CA I and the NLCA) for which additional trips may be authorized. However, if a derby-style fishery does ensue, the scallop possession limit to some extent addresses this concern.

Comment 23: The high biomass of scallops in the groundfish closed areas represents an important opportunity to learn how to manage an essentially rebuilt stock for optimum yield, as required by National Standard 1 under the Magnuson-Stevens Act.

Response: Additional data collected during the Exemption Program could be an important source of information in developing an area rotation management strategy, contemplated for Amendment 10 to the Atlantic Sea Scallop FMP.

Comment 24: Some commenters felt that early access to the CA II is necessary to avoid adverse fall weather and corresponding safety issues, as well as to improve scallop yield.

Response: This action allows access for scallop fishing in Closed Area II starting June 15, 2000. Although full-time scallop vessels generally fish year-round, part-time and occasional vessels, which tend to be smaller and less seaworthy, would benefit from this early opening since it allows them to take all of their trips during the summer months when weather is usually more favorable and scallop meat yields are high. Smaller vessels also would have access to CA I and the NLCA, which are much closer to shore, later in the year when weather conditions may be more of a concern.

Comment 25: Some individuals noted that illegal transfers of scallops caught in CA II reportedly occurred with regularity.

Response: The enforceability of this action is strengthened by the increase in VMS polling frequency to twice per hour for all scallop vessels fishing under a scallop DAS, whether or not they participate in the Exemption Program, and by staggering access to the closed areas so that only one area is open at one time.

Comment 26: Area closure boundaries should be straight north-south and east-west, using latitude and longitude, and the areas should be as large as possible.

Response: The Council carefully considered this. However, habitat, bycatch, and potential gear conflict concerns constrained the configuration of the Exemption Area boundaries.

The Assistant Administrator for Fisheries, NOAA (AA), finds that, because public meetings held by the Council to discuss the management measures implemented by this final rule provided adequate prior notice and opportunity for public comment, further notice and opportunity to comment on this final rule is unnecessary. Comments were received from members of the public and are responded to in the preamble of this final rule. Also, because the technical amendments to this final rule merely remove outdated regulatory text and add cross-references to the gear stowage requirements that were revised by the Regional Administrator due to safety concerns expressed by industry, they do not effect a substantive change to the existing regulations; thus, prior notice and opportunity for public comment are unnecessary. Therefore, the AA, under 5 U.S.C. 553(b)(B), finds good cause exists to waive prior notice and additional opportunity for public comment.

It is unnecessary and contrary to the public interest to delay for 30 days the effective date provisions for a possession limit of up to 10,000 lb (4,356.0 kg) of scallop meats per trip; the maximum number of trips for each area; an automatic minimum deduction of 10 DAS for each trip; a minimum mesh twine-top of 10 inches; a yellowtail flounder TAC of 757 metric tons (MT) for CA I and CA II combined and 50 MT for the NLCA; and an increase in the regulated species possession limit from 300 lb (136.1 kg) to 1,000 lb (435.6 kg) per trip among other measures. On March 3, 1999, NMFS implemented Amendment 7 to the Atlantic Sea Scallop FMP (64 FR 14835). This amendment, which addressed the new Sustainable Fisheries Act requirements, substantially reduced the level of fishing for scallops through the year 2008 by revising the current fishing effort reduction schedule. Although a less severe reduction was implemented in Framework Adjustment 12 to the Atlantic Sea Scallop FMP (65 FR 11478, March 3, 2000) for fishing year 2000, failure to allow scallop vessels access to Closed Area II on June 15, when finfish bycatch concerns would be mitigated to the largest extent possible, will increase costs to scallop vessels fishing in currently open areas where scallop biomass is low and where the stock is dominated by small scallops. Furthermore, an earlier opening date will allow more time for smaller vessels to fish their allotted trips during good weather. For these reasons, the AA finds, under 5 U.S.C. 553(d)(3), good cause not to delay for 30 days the effective date of these provisions.

Because the revised Sea Scallop Exemption Program limits in § 648.58 and related prohibitions in § 648.14(a)(38), (a)(40), (a)(90) and (h)(27), and the revisions to §§ 648.17(c), 648.51(b)(2)(i) and (b)(2)(ii), 648.52(c), and (b)(9)(i)(E), 648.81(a)(1), (b)(1), (c)(1), 648.86(a)(2)(iii), and 648.88(c) relieve restrictions, under 5 U.S.C. 553(d)(1) they are not subject to a 30-day delay in effectiveness.

Implementation of the “end of the year DAS carry-over” provision for vessels participating in the limited access scallop fishery contained in § 648.53(d) clarifies the intent of previously issued regulations to make the DAS carry-over provision for the scallop fishery consistent with those provisions contained in the Northeast multispecies and monkfish regulations. This classification does not effect a substantive change in the management of the fishery; therefore, prior notice and opportunity for comment and delay in the effectiveness of § 648.53(d) are not required under 5 U.S.C. 553.

In addition, the implementation of the revised stowage provisions for dredge gear vessels will allow scallop dredge gear to be stowed in a safer manner while not compromising enforcement. These provisions are contained in § 648.23(b) and (b)(1) through (b)(4) and related provisions containing cross references to the stowage provisions contained in §§ 648.57 introductory paragraphs (a) and (b), 648.80(a)(2)(iii), (b)(2)(iii), (b)(6)(i)(C), and (b)(9)(i)(E), 648.81(d) and the removal of paragraph (e), 648.82(k)(1)(iv)(A), 648.86(b)(3), (b)(4), (d)(1)(i), (d)(1)(ii), and (d)(1)(iii), 648.87 introductory text to paragraphs (a) and (b), 648.89(a), 648.91(c)(2)(ii), and 648.94(e). Because this revised stowage provisions relieve restrictions and will remain in place beyond the closure of the Sea Scallop Exemption Program, under section 553(d)(1) they are not subject to a 30-day delay in effectiveness.

Because a general notice of proposed rulemaking is not required under 5 U.S.C. 533, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq ., are inapplicable. While a regulatory flexibility analysis is not required and none has been prepared, the economic impacts on affected fishers and alternatives to mitigate such impacts were considered by the Council and NMFS. The primary intent of this action is to allow scallop vessels an opportunity to remain economically viable, while ensuring that the fishing mortality for the entire sea scallop stock does not exceed the F target of 0.34 in the FMP for fishing year 2000. A copy of the analysis for Frameworks 13/34 may be obtained from the Council (see ADDRESSES ).

This final rule has been determined to be not significant for the purposes of Executive Order 12866.

Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid Office of Management and Budget (OMB) control number.

This final rule contains collection-of-information requirements subject to the Paperwork Reduction Act. These requirements have been approved by OMB. The OMB Control numbers and estimated response times are as follow:

1. Reporting of intention to fish in the Exemption Program through the VMS e-mail messaging system (§ 648.58(c)(3)(i)) approved under 0648-0416 at 2 minutes/response.

2. Notice requirements for observer deployment (§ 648.58(c)(3)(ii)) approved under 0648-0416 at 2 minutes/response.

3. Daily reporting of sea scallops kept and Fishing Vessel Trip Report page number and, for observed trips, sea scallops kept, Fishing Vessel Trip Report page number and yellowtail flounder caught on observed tows, through the VMS e-mail messaging system for vessels fishing in the Scallop Exemption Program (§ 648.58(c)(10)) approved under 0648-0416 at 10 minutes/response.

4. VMS polling frequency (§ 648.58(h)) approved under 0648-0307 and 0648-0416 at 30 seconds/response.

5. Installation of a VMS unit on board the vessel (§ 648.10(b)) approved under 0648-0307 and 0648-0416 at 1 hour/response.

6. Declaration into the Exemption Program through the VMS prior to leaving the dock (§ 648.58(c)(3)(iii)) approved under 0648-0202 at 2 minutes/response.

7. Transit notifications (§ 648.86(b)(3)) approved under 0648-0202 at 1 minute/response.

The estimated response time includes the time needed for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding these burden estimates or any other aspect of the data requirements, including suggestions for reducing the burden, to NMFS and OMB (see ADDRESSES ).

NMFS is extending an emergency rule promulgated on December 23, 1999 (64 FR 72290, December 27, 1999), which otherwise would expire on June 26, 2000. Extension of this rule is authorized under section 305(c)(3)(B) of the Magnuson-Stevens Fishery Conservation and Management Act. This rule temporarily amends implementing regulations of the FMP by prohibiting vessels registered for use with Hawaii longline limited access permits from fishing with longline gear within the area north of 28° N. lat. and between 168° W. long. and 150° W. long. It also prohibits vessels registered for use with receiving vessel permits from receiving from another vessel pelagic management unit species harvested with longline gear, if these species were harvested or their transfer to another vessel occurs within the closed area. No vessel may land or transship, shoreward of the outer boundary of the U.S. exclusive economic zone around Hawaii, pelagic management unit species that were harvested with longline gear within the closed area.

The area closure is mandated by the Court's Order Setting Terms of Injunction dated November 23, 1999. The intent of the area closure is to reduce adverse impacts on sea turtles, pending the completion of an EIS on the pelagic fisheries managed under the FMP. Background information on the area closure and emergency rule appears in the emergency rule published in the Federal Register on December 27, 1999 (64 FR 72290), and is not repeated here.

This emergency closure was implemented to comply with Judge Ezra's Court Order, and affords protection to leatherback and other sea turtles incidentally taken by the Hawaii-based pelagic longline fleet while further analysis of methods to mitigate these interactions is being conducted. There are a total of 164 permits issued for this limited entry fishery, with active fishing by 114 vessels during 1999. All permit holders may be affected by the extension of this closure. There are no reporting, recordkeeping, or compliance requirements associated with this closure, or its extension. The extension of this closure does not duplicate, overlap, or conflict with any Federal rules. The alternative of not extending this closure was rejected on the basis that it would not meet the Court Order or its conservation objectives.

This extension of the emergency rule will maintain the current area closure for an additional 180 days unless, prior to that expiration date, NMFS implements a set of new time and area closures imposed by the Court. If the Court chooses to continue the current closure, NMFS could implement an amendment to the FMP and make this closure effective until the EIS is completed, or until further notice.

The Assistant Administrator for Fisheries, NOAA, has determined that extension of the emergency rule is necessary to comply with a valid order of the U.S. District Court.

This emergency rule has been determined to be not significant for purposes of Executive Order 12866.