[Federal Register Volume 68, Number 186 (Thursday, September 25, 2003)]
[Rules and Regulations]
[Pages 55315-55317]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-24174]



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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 7

RIN 1024-AD12


New River Gorge National River Hunting Regulation

AGENCY: National Park Service (NPS), Interior.

ACTION: Interim final rule.

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SUMMARY: The National Park Service (NPS) is promulgating this interim 
final rule to authorize the continuation of hunting as it presently 
exists at New River Gorge National River (the park) in West Virginia. 
The park's 1978 enabling legislation gives the NPS discretionary 
authority to permit hunting in the park. An NPS regulation adopted in 
1983 requires us to adopt an individual, or special, regulation for 
parks that have been authorized by Congress to permit hunting as a 
discretionary activity. This rulemaking creates such a regulation for 
the park. The rule assimilates the existing West Virginia State hunting 
program and applicable laws. The adoption of this rule will result in 
no changes to the way hunting has taken place since the park was 
authorized in 1978. The NPS is publishing this rule without a prior 
proposal because we believe this action is not controversial and we do 
not expect any significant opposition to this procedural action.

DATES: Effective: September 25, 2003. There is no deadline for sending 
comments on this interim final rule.

ADDRESSES: Comments should be sent to the Superintendent by mail to 
National Park Service, Park Headquarters, New River Gorge NR, P.O. Box 
246, Glen Jean, West Virginia 25846; or by e-mail to [email protected]; or by fax to (304) 465-6559.

FOR FURTHER INFORMATION CONTACT: Gary Hartley, Chief Ranger, National 
Park Service, New River Gorge NR, P.O. Box 246, Glen Jean, West 
Virginia, 25846. Telephone: (304) 465-0508. Fax: (304) 465-6559. Email: 
[email protected]

SUPPLEMENTARY INFORMATION: 

Background

A. Why Is This Rule Necessary?

    Congress specifies the appropriate uses for units of the national 
park system as they are created. Of the 388 units of the national park 
system, 57 allow hunting and 331 do not. Congress specifically 
authorized hunting as a discretionary activity when it authorized the 
New River Gorge National River in 1978. Hunting has been a popular 
recreational and subsistence pastime since then, managed by the park in 
consultation with, and under the laws of, the State of West Virginia.
    Part 2 of the NPS general regulations (36 CFR Part 2) concerns 
resource protection, public use and recreation. As amended in 1983, 
Section 2.2(b)(2) requires that, in cases where Congress has authorized 
(but not mandated) hunting within the boundaries of a national park 
area, the park superintendent must determine that the activity is 
consistent with public safety and enjoyment, and sound resource 
management principles for that particular park. With publication of 
this special regulation the park will be in compliance with that 
requirement.

B. Where Does This Rule Apply?

    This rule applies only to hunting on lands within the boundaries of 
New River Gorge National River. The two other national park system 
units in West Virginia (i.e., Gauley River National Recreation Area and 
Bluestone National Scenic River) are mandated to allow hunting and do 
not require a special regulation in order for it to occur.

C. What Decisions Has the NPS Made in This Rule?

    This rule:
    (1) Puts into regulation what has been occurring in practice since 
before the park was authorized in 1978.
    (2) Assures compliance with NPS general regulations concerning 
hunting.
    (3) Specifies that hunting, where allowed, will be conducted in 
accordance with the laws of the State of West Virginia.
    (4) Does not add new Federal requirements to the State hunting 
regulation for the New River Gorge National River.
    (5) Continues to allow the Superintendent to exercise discretion in 
how lands within the park boundary are managed.

D. Why Does the NPS Want To Allow Hunting To Continue at New River 
Gorge National River?

    (1) Hunting has a long tradition and a popular following within 
West Virginia. Some residents depend on hunting as a source of food for 
themselves and their families.
    (2) The park General Management Plan, adopted in 1982, had wide 
public input. At that time, a determination was made that hunting was 
an appropriate activity and consistent with the purposes of the park. 
If public comments on this rule raise issues about the appropriateness 
of hunting, they will be considered during the development of a new 
General Management Plan, scheduled to begin this Fall.
    (3) Hunting has occurred for the past two decades without 
significant safety problems and has not had unacceptable impacts on 
other visitor or management activities.
    (4) Hunting has not caused unacceptable impacts to hunted species 
nor to other species in the park.

E. What Is the Effect of This Interim Final Rule?

    This rule allows hunting to continue in the park. We do not expect 
the addition of this Part 7 regulation to change hunting within the 
park in any substantive way. The regulation does not impose any new 
requirements, such as a separate permit, license, or fee, nor does it 
affect West Virginia's authority to otherwise regulate hunting 
practices. It satisfies the requirement for the park to have a special 
regulation that recognizes hunting as an activity allowed within the 
park's boundaries.

F. Why Wasn't There a Proposed Rule Before Today's Interim Final Rule?

    The NPS recognizes that new rules are ordinarily afforded a comment 
period before going into effect. For this interim regulation, however, 
we have determined under 5 U.S.C. 553(b)(B) and 318 DM 5.3 that it 
would be unnecessary and contrary to the public interest to delay the 
effective date to accommodate notice and comment procedures. This 
decision is based on the following reasons:
    (1) This rule simply codifies existing practice. It is necessary in 
order to comply with an NPS procedural requirement, but it will not 
result in any substantive changes in the existing hunting or other 
programs at New River Gorge National River.
    (2) No particular public interest in the content of this rule is 
expected. Though the NPS has received one comment letter alerting it to 
the procedural need for this rulemaking, neither that letter nor any 
other source has suggested any public interest in the content of this 
special regulation. We believe this action is not controversial and do 
not expect any significant opposition to it.
    (3) Delaying implementation of this rule could prevent it from 
being in place in time for the opening of the regular hunting season in 
West Virginia. If the lands normally open to hunting within the 
boundary of the National River are not available for the upcoming 
hunting season, it will adversely affect a popular and successful 
hunting program and create confusion as to the status of

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hunting at New River Gorge and surrounding areas. The harm to the 
public from such a procedural delay should be avoided, given the 
probable lack of public interest in the content of this rule. The NPS 
still welcomes comments on this interim final rule, and will consider 
them as part of our update of the National River's General Management 
Plan (GMP), which is scheduled to begin in Fall 2003. The update of the 
GMP will consider a full range of park management issues, including 
hunting. If we determine that it is necessary to change this rule, the 
changes will be proposed as part of the GMP process, and the public 
will have further opportunity to comment.

G. When Does This Rule Go Into Effect?

    This rule is effective immediately. The NPS recognizes that new 
rules ordinarily go into effect thirty days after publication in the 
Federal Register. For this interim regulation, however, we have 
determined under 5 U.S.C. 553(d) and 318 DM 6.25 that this rule should 
be effective immediately. This rule relieves the ordinary restrictions 
on hunting and does not require a delay in its effective date. In 
addition, good cause exists for an immediate effective date for the 
following reasons:
    (1) Normally, the purpose of a delayed effective date is to give 
affected parties a chance to learn about a new regulation and how to 
comply with it. Such a delay is not needed here because this rule 
simply maintains the status quo and does not change anything for the 
affected parties (hunters).
    (2) As discussed above, delaying implementation of this rule could 
prevent it from being in place in time for the opening of regular 
hunting season in West Virginia, and would thus adversely affect the 
public. The harm to the public from such a procedural delay should be 
avoided, given the lack of any benefit to the public in delaying the 
effective date.

Compliance With Laws, Executive Orders and Department Policy

Regulatory Planning and Review (Executive Order 12866)

    This rule is not significant and is not subject to review by the 
Office of Management and Budget under Executive Order 12866.
    (1) This rule will not have an effect of $100 million or more on 
the economy. It will not adversely affect in a material way the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities. This action authorizes the continued application of State 
requirements for the purpose of hunting within the New River Gorge 
National River. It imposes no additional requirements beyond those 
already imposed by State law.
    (2) This rule will not create inconsistencies with other agencies' 
actions or otherwise interfere with an action taken or planned by 
another agency. It follows other land management agencies and other 
national park areas in recognizing the role of the State in the 
management of hunting.
    (3) This rule does not alter the budgetary effects or entitlements, 
grants, user fees, or loan programs, or the rights or obligations of 
their recipients. This rule does not impose any new requirements or in 
any way change the existing program.
    (4) This rule does not raise novel legal or policy issues. This 
rule is consistent with the park legislation and NPS general 
regulations.

Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not 
have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 602 et seq.). 
The overall economic effects of this rulemaking will be negligible, 
since there will be no change to longstanding practices. This action 
authorizes pre-existing requirements under Federal and State law for 
the purpose of hunting within the boundaries of New River Gorge 
National River. It does not impose any enforceable duty beyond that 
required by existing Federal and State law. There are no expected 
increases in costs or prices for consumers, individual industries, or 
State or local governments.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    (1) Does not have an annual effect on the economy of $100 million 
or more.
    (2) Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    (3) Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local or tribal governments or the private sector. A statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1531 et seq.) is not required. This action will not have 
substantial direct effects on the State, on the relationship between 
the national government and the State, or on the distribution of power 
and responsibilities among the various levels of government.

Takings (Executive Order 12630)

    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. A takings assessment is not required. 
This rule will not alter property rights.

Federalism (Executive Order 12612)

    In accordance with Executive Order 12612, the rule does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment. A Federalism Assessment is not required since 
this rule applies only to the State of West Virginia and does not alter 
the State's authority to develop and implement a hunting program.

Civil Justice Reform (Executive Order 12988)

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

Paperwork Reduction Act

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

National Environmental Policy Act

    The 1982 New River Gorge National River General Management Plan and 
Environmental Assessment (GMP) considered the issue of hunting within 
the boundary of the park, and found that it was appropriate to have 
this traditional use continue.
    Subsequent to the approval of the GMP, the NPS promulgated a 
regulation that requires parks to pass special regulations to permit 
hunting, where it is authorized and where the

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superintendent has determined that such activity is consistent with 
public safety and enjoyment, and sound resource management principles. 
The NPS has reviewed the previous GMP/EA and the environmental impacts 
associated with implementing this regulation and has analyzed whether 
environmental changes since the original issuance of the environmental 
assessment would trigger additional compliance activities under the 
National Environmental Policy Act of 1969. Based on that review, the 
NPS has determined that the regulation is not in conflict with the 
Final GMP and that there have been no changes to conditions that would 
require additional NEPA compliance. In addition, when viewed in the 
context of current Department of the Interior and NPS standards of 
review, the regulation is covered by a categorical exclusion (516 DM 6, 
Appendix 7.4 A.10; RM 12.3.4.A(8)), and no exceptions to categorical 
exclusions (516 DM 2, Appendix 2; RM-12.3.5) apply to the regulation. 
As a result, the NPS is not legally required to prepare, and has not 
prepared, either an additional environmental assessment or an 
Environmental Impact Statement.

Government-to-Government Relationship With Tribes

    In accordance with Executive Order 13175 ``Consultation and 
Coordination with Indian Tribal Governments'' (65 FR 67249), the 
President's memorandum of April 29, 1994, ``Government-to-Government 
Relations with Native American Tribal Governments'' (59 FR 22951), and 
512 DM 2 we have evaluated potential effects on Federally recognized 
Indian tribes and have determined that there are no potential effects; 
the rule will simply continue an activity that has been ongoing since 
before the NPS.

Public Comment Solicitation

    If you wish to comment, you may submit your comments by any one of 
several methods. You may:
    (1) Mail or hand deliver comments to the park Superintendent at 
National Park Service, Park Headquarters, New River Gorge NR, P.O. Box 
246, Glen Jean, West Virginia 25846.
    (2) Send comments by e-mail to [email protected]; or by fax to 
(304) 465-6559.
    (3) Comment via the Internet to [email protected].
    Please include ``NERI Hunting Rule'' in the subject line and your 
name and return address in the body of your message. Our practice is to 
make comments, including names and addresses of respondents, available 
for public review during regular business hours. Individual respondents 
may request that we withhold their home address from the rulemaking 
record which we will honor to the extent allowable by law. If you wish 
us to withhold your name and/or address, you must state this 
prominently at the beginning of your comment. However, we will not 
consider anonymous comments. We will make all submissions from 
organizations or businesses and from individuals identifying themselves 
as representatives or officials or organizations or businesses, 
available for public inspection in their entirety.

Clarity of This Regulation

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this rule easier to understand, including answers to questions such as 
the following: (1) Are the requirements in the rule clearly stated? (2) 
Does the rule contain technical language or jargon that interferes with 
its clarity? (3) Does the format of the rule (grouping and order of 
sections, use of headings, paragraphing, etc.) aid or reduce its 
clarity? (4) Would the rule be easier to read if it were divided into 
more (but shorter) sections? (A ``section'' appears in bold type and is 
preceded by the symbol ``Sec.  '' and a numbered heading; for example 
Sec.  7.89 New River Gorge National River.) (5) Is the description of 
the rule in the ``Supplementary Information'' section of the preamble 
helpful in understanding the proposed rule? What else could we do to 
make the rule easier to understand? Send a copy of any comments that 
concern how we could make this rule easier to understand to: Office of 
Regulatory Affairs, Department of the Interior, Room 7229, 1849 C 
Street, NW, Washington, DC 20240. You may also e-mail the comments to 
this address: [email protected].
    Drafting Information: The primary authors of this regulation were 
Patricia Sheehan, NPS Northeast Regional Office; Chick Fagan, NPS 
Office of Policy and Regulations; Calvin Hite, Superintendent, New 
River Gorge National River; and Jason Waanders, Office of the 
Solicitor, Department of the Interior.

List of Subjects in 36 CFR Part 7

    District of Columbia, National parks, Reporting and recordkeeping 
requirements.

The Interim Final Rule

0
For the reasons stated in the preamble, the NPS amends the Special 
Regulations, Areas of the National Park System (36 CFR part 7) to read 
as follows:

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

0
1. The authority citation for part 7 continues to read as follows:

    Authority: 16 U.S.C. 1, 3, 9a, 460(q), 462(k); Sec. 7.96 also 
issued under D.C. Code 8-137 (1981) and D.C. Code 40-721 (1981).


0
2. Add Sec.  7.89 to read as follows:


Sec.  7.89  New River Gorge National River.

    (a) Hunting. (1) May I hunt within New River Gorge National River? 
Yes, you may hunt if you:
    (i) Possess a valid West Virginia State hunting license or permit, 
or are exempt under provisions of West Virginia law.
    (ii) Comply with the hunting seasons, harvest limits, and any other 
conditions established by the State of West Virginia.
    (iii) Do not violate any closures or limitations established by the 
Superintendent for reasons of public safety, resource protection, or 
other management considerations.
    (2) Do West Virginia state hunting laws apply within New River 
Gorge National River? Yes, non-conflicting State hunting laws are 
adopted as part of the regulations in this section and apply within New 
River Gorge National River.
    (b) [Reserved]

    Dated: September 9, 2003.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 03-24174 Filed 9-24-03; 8:45 am]
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