[Federal Register Volume 73, Number 82 (Monday, April 28, 2008)]
[Proposed Rules]
[Pages 22890-22894]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-9184]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 13

RIN 1024-AD69


National Park System Units in Alaska

AGENCY: National Park Service, Interior.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The NPS is proposing to implement recent management decisions 
affecting Denali National Park and Preserve regarding backcountry 
management, climbing Mount McKinley, and off-road vehicle use for 
subsistence purposes.

DATES: Comments must be received by June 27, 2008.

ADDRESSES: You may submit your comments, identified by Regulatory 
Information Number 1024-AD69 (RIN), by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: National Park Service, Regional Director, Alaska 
Regional Office, 240 West 5th Ave., Anchorage, AK 99501.

FOR FURTHER INFORMATION CONTACT: National Park Service, Victor Knox, 
Deputy Regional Director, Alaska Regional Office, 240 West 5th Ave., 
Anchorage, AK 99501. Telephone: (907) 644-3501. E-mail: [email protected]. Fax: (907) 644-3816.

SUPPLEMENTARY INFORMATION:

Background

    In 1917 Congress established Mount McKinley National Park as a game 
refuge. By 1932, the park had been enlarged to approximately 2 million 
acres. In 1980 the Alaska National Interest Lands Conservation Act 
tripled the size of the park and renamed it Denali National Park and 
Preserve. At 6 million acres, Denali exemplifies interior Alaska's 
character as one of the world's last great frontiers for wilderness 
adventure. One third of the park is designated wilderness-the area that 
roughly conforms to the boundaries of the former Mount McKinley 
National Park. The former Mount McKinley is closed to hunting and 
trapping and is managed to maintain the undeveloped wilderness parkland 
character. The 1980 park additions allow customary and traditional 
subsistence uses by local rural residents. The preserve is open to 
subsistence uses and also to hunting and trapping under Alaska state 
law.
    The proposed regulations would revise Denali National Park and 
Preserve regulations in Subpart L of 36 CFR Part 13. The proposed rule 
implements the 2006 Final Environmental Impact Statement (EIS) and 
Record of Decision (ROD) regarding the Denali Backcountry Management 
Plan (BMP) as well as the 2007 Environmental Assessment (EA) and 
Finding of No Significant Impact (FONSI) for subsistence use of off-
road vehicles in the Cantwell Traditional Use Area. Specific proposed 
changes include (1) establishing group size limits in the backcountry, 
an annual limit of 1500 climbers on Mount McKinley, and camping permits 
where they are currently required through the compendium in accordance 
with the 2006 BMP/EIS; and (2) restricting off-road vehicle use for 
subsistence purposes to designated routes and trails in Windy Creek, 
Cantwell Creek, and Bull River drainages in the Cantwell Traditional 
Use Area in accordance with the 2007 EA/FONSI. Each proposal is 
identified in the Section-by-Section Analysis that follows. As used 
within this document, the terms ``we,'' ``our,'' and ``us'' refer to 
the National Park Service.

Section-by-Section Analysis

Section 13.902 Subsistence Resident Zone

    ANILCA and NPS implementing regulations authorize subsistence 
hunting and fishing by local rural residents in parks and monuments 
established in 1980 and the portions of Denali National Park expanded 
in 1980. In Denali National Park, local rural residents are those who 
reside in a resident zone community identified in section 13.902, those 
who possess a permit issued by the superintendent under section 13.440 
of this Part, and those who reside within the park boundary. A resident 
zone community consists of a significant concentration of local rural 
residents who customarily and traditionally engaged in subsistence uses 
in the park or monument. Section 808 of ANILCA establishes a 
Subsistence Resource Commission (SRC) to make recommendations to the 
Secretary of the Interior regarding subsistence hunting matters for 
each national park or monument in Alaska where subsistence is 
authorized. In 1984, the NPS, in consultation with the Denali SRC, 
determined the area within a three mile radius of the Cantwell Post 
Office includes a significant concentration of local rural residents 
who customarily and traditionally engage in subsistence uses in the 
park additions. The three mile radius provision has been part of the 
Denali Subsistence Management Plan since August 2000 and the park 
compendium since 2001.

Section 13.903 Subsistence Off-Road Vehicle Use

    The 1980 Alaska National Interest Lands Conservation Act (ANILCA) 
authorizes subsistence uses by local rural residents where traditional 
in the ANILCA additions of Denali National Park (Denali park 
additions). Section 811(b) of ANILCA authorizes the ``appropriate use 
[of] * * * surface transportation traditionally employed'' for 
subsistence uses by federally qualified local rural residents, subject 
to reasonable regulation.
    Relying on information available at the time, the 1986 Denali 
General Management Plan (GMP) did not consider ORVs to have been 
regularly used for subsistence purposes and therefore did not consider 
them a traditional means of subsistence access. In the 1990s, several 
Cantwell residents provided information new to the NPS regarding 
historic off-road vehicle use for subsistence purposes in the Cantwell 
area of the Denali park additions and requested a revision to the GMP 
to allow traditional subsistence ORV use. The information included 
affidavits from Cantwell residents describing their use of ORVs for 
subsistence purposes, including types of ORVs, periods of use, location 
of use, purpose of use, and identified individuals who used ORVs. Upon 
reviewing the information, in 2005 the NPS determined that ORVs were 
used by successive generations of Cantwell residents for subsistence in 
the Cantwell area (Cantwell Traditional Use Area or TUA) of the Denali 
National Park additions (see 2005 Determination for Traditional ORV Use 
for Subsistence in the Cantwell Area) and therefore are authorized for 
subsistence purposes in this area under ANILCA section 811 and 36 CFR 
13.460.
    In 2005 the park initiated a planning process and accompanying EA 
to assure that subsistence ORV use in the Cantwell Traditional Use Area 
is managed to minimize adverse impacts to the resources and values for 
which

[[Page 22891]]

the park was established while continuing to provide reasonable access 
for subsistence purposes. Each year since the 2005 Determination, the 
NPS has implemented seasonal closures to subsistence ORV use in the 
Traditional Use Area--excluding the trails identified in this 
proposal--during the fall subsistence hunting season to protect park 
resources while the EA was being prepared and until permanent 
regulations are put into place.
    The Cantwell Subsistence Off-Road Vehicle Management EA was 
completed in 2007 and a FONSI was signed shortly thereafter. The NPS 
decided that only designated trails and areas in the Traditional Use 
Area would remain open to use of ORVs by federally qualified 
subsistence users from Cantwell and those residents of Game Management 
Unit 13E holding a permit issued pursuant to 36 CFR 13.440 for 
subsistence purposes. The designated trails and areas are: Windy Creek 
Access Trail, Windy Creek Bowl Trail, Cantwell Airstrip Trail, Pyramid 
Peak Trail, and the Cantwell Creek Floodplain Corridor. Future 
designation of a trail and area along the Bull River Floodplain 
Corridor is contingent upon access being secured across adjacent state 
lands, construction of an NPS approved trail, and a determination by 
the superintendent that ORV use continues to be necessary for 
reasonable access to the Bull River for subsistence resources. ORV use 
within the Bull River Floodplain Corridor and Cantwell Creek Floodplain 
Corridor would be limited to designated trails and unvegetated gravel 
bars. Motor vehicle use off of designated trails or areas would be 
prohibited.
    This provision would also establish the types of ORVs that may be 
operated on designated trails or areas, who is authorized to use ORVs, 
and methods to notify the public of closures or restrictions should 
changing environmental conditions warrant. Nothing in this provision 
would supersede the provisions of 36 CFR 13.460(d), which requires that 
ORVs be operated in compliance with applicable state and federal laws, 
and prohibits damaging park resources or harassing wildlife.
    Should credible information become available in the future 
regarding subsistence ORV use in other areas of the park additions or 
preserve, the park will at that time consider whether such ORV use is 
traditional under ANILCA section 811.
    The 2005 Cantwell Subsistence Traditionally Employed ORV 
Determination as well as the 200 EA and FONSI are available at park 
headquarters, http://www.regs.gov, and http://www.nps.gov/dena/parkmgmt/managementdocs.htm.

Section 13.904 Camping

    This provision would replace the existing camping regulation that 
allows camping in accordance with the BMP, moving a camping permit 
requirement in the high visitation areas of the park from the 
compendium to regulation. This proposal would clarify that camping 
permits are required in the former Mount McKinley National Park and the 
Kantishna area. Based on visitation patterns, the NPS does not believe 
camping permits are necessary in other areas of the park or preserve at 
this time and therefore are not required.

Section 13.905 Group Size

    This provision would implement the 2006 BMP/EIS decisions on group 
size. The BMP/EIS calls for a maximum backcountry group size of 12 for 
the eastern half of the park and a maximum of 6 in the western half of 
the park and preserve. The western half of the park has a lower group 
size limit. The western portion of the park and preserve are managed to 
provide opportunities for extended expeditions that are remote with 
little evidence of humans and few encounters with other visitors. The 
eastern half of the park receives more visitation, has more evidence of 
humans, and visitors should expect a greater likelihood of contacting 
others. This proposal would also provide the superintendent with 
discretion to authorize larger groups on a case by case basis.

Section 13.910 Mountain Climbing

    This provision would implement sections of the 2006 BMP/EIS by 
requiring a permit to climb Mount McKinley or Mount Foraker and also 
establish a limit on the number of climbers on Mount McKinley. An 
existing 60 day advance registration requirement under current 
regulations was crafted with the intention of reducing climbing-related 
accidents and altitude illnesses on Mount McKinley and Mount Foraker. 
Prior to its promulgation, mountaineering teams could register the same 
day they departed for the mountain, often with little or no advance 
preparation or contact with experienced mountaineering rangers. With 
the advance contact, rangers have an early opportunity to evaluate an 
expedition's climbing history and make safety recommendations 
accordingly. These recommendations include urging additional glacier 
travel, altitude, or winter camping experiences prior to any ascent of 
Mount McKinley or Foraker; suggesting climbing with an authorized 
guiding service; or encouraging a more appropriate route based on the 
reported level of expertise. The advance notice also provides a 
climbing team adequate time to choose a leader, organize its members, 
and pre-plan the expedition for improved safety.
    This proposal would change the current registration requirement to 
a permit requirement and would establish an annual limit of 1500 
climbers on Mount McKinley as called for in the BMP/EIS. Due to limited 
capacity by the NPS to provide required safety briefings, conduct 
ranger patrols, contact climbers on Mount McKinley, and respond to 
search and rescue incidents, the NPS determined more than 1500 climbers 
may compromise visitor and employee safety, potentially resulting in 
more fatalities. Over the past ten years, there has been an annual 
average of 1226 climbers attempting Mount McKinley, with a maximum of 
1340 in 2005.

Compliance With Other Laws

Regulatory Planning and Review (Executive Order 12866)

    This document is not a significant rule and is not subject to 
review by the Office of Management and Budget under Executive Order 
12866.
    (1) This rule will not have an effect of $100 million or more on 
the economy. It will not adversely affect in a material way the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or state, local, or tribal governments or 
communities. However, it is anticipated that governmental processes and 
economic efficiency in Denali National Park and Preserve would be 
improved by this proposed regulatory action.
    (2) This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency. This is an 
agency-specific rule that will not interfere with other agencies or 
local government plans, policies, or controls. The proposals included 
with this rulemaking apply to areas managed by the National Park 
Service and do not conflict with other federal regulations. The review 
process used to develop the rulemaking proposals included consultation 
with the State of Alaska.
    (3) This rule does not alter the budgetary effects of entitlements, 
grants, user fees, or loan programs, or the rights and obligations of 
their recipients. This rule will have no effects on entitlements, 
grants, user fees, or loan programs or the rights or obligations of 
their recipients. No grants or other

[[Page 22892]]

forms of monetary supplements are involved.
    (4) This rule does not raise novel legal or policy issues. This 
rule implements existing legislative enactments, judicial 
interpretations, regulatory provisions, and planning decisions. It is 
not a completely new proposal, but rather a continuation of the 
rulemaking process begun in 1980 to implement various provisions of the 
Alaska National Interest Lands Conservation Act (ANILCA). In 
implementing ANILCA, NPS has sought to promulgate only those 
regulations necessary to interpret the law and to provide for the 
health and safety of the public and the environment.

Regulatory Flexibility Act

    The Department of the Interior certifies that this document will 
not have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The economic effects of this rule are local in nature and negligible in 
scope. The proposals in this rulemaking will either implement rules 
unrelated to business activity or, in the case of the proposed annual 
climbing limits for Mount McKinley, does not extend beyond the usual 
contractual limits for small entities authorized to do business in the 
park. Consequently, the proposed rule will have no effect on small 
entities.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2), SBREFA. This 
rule:
    a. Does not have an annual effect on the economy of $100 million or 
more. Expenses related to compliance with various provisions of this 
proposed rule are slight. No new user fees or charges are proposed. Any 
incidental costs associated with the proposed climbing permits would be 
covered by or instead of those for the existing registration, check-in, 
or orientation programs and would not be additional.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, federal, state, or local government 
agencies, or geographic regions. Most of the proposed provisions of 
this rulemaking will generally continue existing rules and use patterns 
for Denali National Park and Preserve.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises. The 
various provisions of this proposed rule do not apply differently to 
U.S.-based enterprises and foreign-based enterprises.

Unfunded Mandates Reform Act

    This rulemaking addresses only actions that will be taken by the 
NPS. It will not require any State, local or tribal government to take 
any action that is not funded. In accordance with the Unfunded Mandates 
Reform Act (2 U.S.C. 1501 et seq.):
    a. This rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. This rule 
is an agency specific rule and imposes no other requirements on small 
governments.
    b. This rule will not produce a federal mandate of $100 million or 
greater in any year, i.e., it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act.

Takings (Executive Order 12630)

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

Federalism (Executive Order 13132)

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

Civil Justice Reform (Executive Order 12988)

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

Paperwork Reduction Act

    This regulation requires information collection from 10 or more 
parties, which must be submitted for OMB approval under the Paperwork 
Reduction Act. However, these are not new collection requirements and, 
therefore, no additional request to OMB has been prepared. The 
information collection activities are necessary for the public to 
obtain benefits in the form of camping and climbing permits.

National Environmental Policy Act

    We have analyzed this rule in accordance with the criteria of the 
National Environmental Policy Act and 516 DM. This rule does not 
constitute a major Federal action significantly affecting the quality 
of the human environment. A Record of Decision (ROD) for the Denali 
National Park and Preserve Final Backcountry Management Plan 
Environmental Impact Statement was approved on February 21, 2006. On 
September 18, 2007, a Finding of No Significant Impact (FONSI) was 
approved for the Cantwell Subsistence ORV Management Environmental 
Assessment. These documents together represent the environmental 
analysis for this proposed rule, and are available for review at: 
http://www.nps.gov/dena/parkmgmt/managementdocs.htm, or http://www.regulations.gov

Government-to-Government Relationship With Tribes

    In accordance with Executive Order 13175 ``Consultation and 
Coordination with Indian Tribal Governments'' (65 FR 67249); the 
President's memorandum of April 29, 1994, ``Government-to-Government 
Relations with Native American Tribal Governments'' (59 FR 22951); the 
Department of the Interior--Alaska Policy on Government-to-Government 
Relations with Alaska Native Tribes dated January 18, 2001; part 512 of 
the Departmental Manual, Chapter 2 ``Departmental Responsibilities for 
Indian Trust Resources''; and park consultation agreements with tribal 
governments, the potential effects on Federally-recognized Indian 
tribes have been evaluated, and it has been determined at this time 
that there are no potential effects that have not been addressed in 
prior decision documents.
    While the consultation agreements noted above have not resulted in 
findings of new potential effects, various proposals are of interest to 
local residents using Denali National Park and Preserve and have been 
facilitated by the relationships established through government-to-
government consultation. Finally, the initial determination of effect 
noted here is dynamic and subject to change throughout this rulemaking 
process due to the ongoing nature of government-to-government 
consultation for the NPS areas in Alaska.

[[Page 22893]]

Clarity of This Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.
    Drafting Information: The principal contributors to this proposed 
rule are: Peter Armington, Steve Carwile, Philip Hooge, and Joe Van 
Horn, Denali National Park and Preserve; Andee Sears and Paul Hunter, 
NPS Alaska Regional Office; and Jerry Case, Regulations Program 
Manager, NPS, Washington, DC.

Public Participation

    You may submit comments online at: http://www.regulations.gov. 
Follow the instructions for submitting comments. You may also mail or 
hand deliver comments to: National Park Service, Regional Director, 
Alaska Regional Office, 240 West 5th Ave., Anchorage, AK 99501.

Public Availability of Comments

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

List of Subjects in 36 CFR Part 13

    Alaska, National Parks, Reporting and recordkeeping requirements.

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

PART 13--NATIONAL PARK SYSTEM UNITS IN ALASKA

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

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

Subpart L--[Amended]

    2. Revise Sec.  13.902 to read as follows:


Sec.  13.902  Subsistence resident zone.

    The following communities and areas are included within the 
resident zone for Denali National Park addition: Cantwell (limited to 
the area within a 3 mile radius of the Cantwell post office as shown on 
a map available at the park visitor center), Minchumina, Nikolai, and 
Telida.
    3. Add Sec.  13.903 to subpart L to read as follows:


Sec.  13.903  Subsistence use of off-road vehicles.

    Operating a motor vehicle off road is prohibited except by 
authorized residents as defined in this section when engaged in 
subsistence uses. For purposes of this section, ``authorized 
residents'' means residents of the Cantwell resident zone community as 
defined by this subpart or those residents of Alaska Game Management 
Unit 13E holding a permit issued under Sec.  13.440 of this part. 
Operating a motor vehicle off road for subsistence purposes outside any 
area designated by this section is prohibited. A map and GPS 
coordinates of designated trails and areas are available on the park 
Web site and at the park visitor center.
    (a) Authorized residents may operate vehicles off road only in the 
following designated areas and trails:
    (1) The Windy Creek Trail;
    (2) The Cantwell Airstrip Trail;
    (3) The Pyramid Trail;
    (4) The Cantwell Creek Floodplain Trail/Corridor; and
    (5) A trail or area along the Bull River Floodplain designated by 
the superintendent under paragraph (b) of this section.
    (b) The superintendent may designate a trail or area along the Bull 
River Floodplain Corridor for motor vehicle use by authorized residents 
if the superintendent determines that the following conditions are met:
    (1) Access across adjacent non-NPS lands has been secured;
    (2) An NPS-approved trail has been constructed on NPS lands; and
    (3) Off-road vehicle use continues to be necessary for reasonable 
access to the Bull River for subsistence resources by authorized 
residents.
    (c) All of the following are prohibited:
    (1) Motor vehicles greater than 5.5 feet wide;
    (2) Motor vehicles exceeding 1,000 pounds curb (unloaded) weight;
    (3) Motor vehicles that steer by locking or skidding a wheel or 
track; and
    (4) Operating a motor vehicle in violation of Sec.  13.460(d) of 
this part.
    (d) The superintendent may restrict or prohibit motor vehicle use 
authorized by this section in accordance with Sec.  13.460(b) of this 
part. The Superintendent will notify the public of the proposed 
restriction or closure by:
    (1) Publishing a notice in at least one newspaper of general 
circulation in the State and in at least one local newspaper if 
appropriate;
    (2) Making information about the proposed or emergency actions 
available for broadcast on local radio stations; and
    (3) Posting information about the proposed or emergency actions at 
local post offices, on the park Web site, and, if appropriate, on signs 
at the designated trails or areas.
    4. Revise Sec.  13.904 to read as follows:


Sec.  13.904  Camping.

    Camping without a permit in designated areas in the former Mount 
McKinley National Park or the Kantishna area is prohibited. A map 
showing areas where a permit is required for camping is available at 
the park visitor center and on the park Web site. Violating terms and 
conditions of the permit is prohibited.
    5. Add Sec.  13.905 to subpart L to read as follows:


Sec.  13.905  Group size.

    (a) The following are prohibited:
    (1) Group sizes exceeding 12 individuals on the east side of the 
park outside the Frontcountry Developed Area as defined by this 
subpart.
    (2) Group sizes exceeding 6 individuals on the west side of the 
park outside the Frontcountry Developed Area as defined by this 
subpart.
    (b) A map showing the east and west boundaries is available at the 
park visitor center.
    (c) The superintendent may authorize larger groups on a case-by-
case basis.
    6. Revise Sec.  13.910 to read as follows:


Sec.  13.910  Mountain climbing.

    (a) Climbing Mount McKinley and Mount Foraker without a permit is 
prohibited. Climbers must apply for a permit at least 60 days in 
advance of

[[Page 22894]]

any climb. The superintendent may authorize a maximum of 1500 climbers 
on Mount McKinley each year.
    (b) Violating terms and conditions of the permit is prohibited.

    Dated: April 8, 2008.
Lyle Laverty,
Assistant Secretary, Fish and Wildlife and Parks.
 [FR Doc. E8-9184 Filed 4-25-08; 8:45 am]
BILLING CODE 4310-EF-P