[Federal Register Volume 73, Number 221 (Friday, November 14, 2008)]
[Rules and Regulations]
[Pages 67390-67393]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-27049]


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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: Final rule.

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SUMMARY: This rule implements recent management decisions affecting 
Denali National Park and Preserve regarding backcountry management, 
climbing Mount McKinley, and off-road vehicle use for subsistence 
purposes.

DATES: This rule is effective on December 15, 2008.

FOR FURTHER INFORMATION CONTACT: National Park Service, Victor Knox, 
Deputy Regional Director, Alaska Regional Office, 240 West 5th Ave., 
Anchorage, AK 99501. Telephone: (907) 644-3510. E-mail: [email protected]. Fax: (907) 644-3816.

SUPPLEMENTARY INFORMATION: 

Background

    On April 28, 2008, the NPS published in the Federal Register 
proposed regulations to revise Denali National Park and Preserve 
regulations in Subpart L of 36 CFR part 13. This rule implements 
certain decisions made in the 2006 Final Environmental Impact Statement 
(EIS) and Record of Decision (ROD) regarding the Denali Backcountry 
Management Plan (BMP) and 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 (TUA). The final 
regulations (1) establish group size limits in the backcountry, 
restrict the number of climbers on Mount McKinley from April 1 through 
August 1 to a maximum of 1500, and require camping permits (currently 
required through the compendium) in accordance with the 2006 BMP/EIS; 
and (2) restrict 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. Comments received and the corresponding NPS 
responses are summarized below. Modifications to the proposed rule are 
listed under Changes to the Final Rule. As used within this document, 
the terms ``we,'' ``our,'' and ``us'' refer to the National Park 
Service.

Summary of Comments

    The proposed rule was published for public comment on April 28, 
2008 (73 FR 22890), with a 60 day comment period lasting until June 27, 
2008. The National Park Service received three timely comments. Of the 
three comments, one was from the State of Alaska, one was from non-
governmental organizations (consolidated response from two signatory 
groups), and one was

[[Page 67391]]

submitted by an individual. Many proposed changes either received 
supporting comments or no comments. The proposed regulations are being 
adopted as proposed unless noted otherwise below. The proposed sections 
that did receive substantive comments are discussed below.

Section 13.903 Subsistence Off-Road Vehicle Use

    1. The NPS received three comments regarding subsistence use of 
off-road vehicles. The State of Alaska asked for clarification on 
whether any qualified subsistence users who are currently using ORVs in 
the Cantwell TUA would be unable to continue to do so based on the 
requirement that subsistence users either be residents of the Cantwell 
resident zone community or residents of Alaska Game Management Unit 
(GMU) 13E holding a permit to use ORVs issued under 36 CFR 13.440. The 
State also suggested providing the Superintendent discretion to 
authorize subsistence users to use ORVs if they move outside the 
boundaries of this area.
    The NPS appreciates the opportunity to explain the eligibility 
criteria for using ORVs in the Cantwell TUA. Section 811(b) of the 
Alaska National Interest Lands Act authorizes the use of ORVs for 
subsistence purposes if such ORV use was ``traditionally employed.'' In 
2005, the NPS reviewed information regarding historical ORV use in the 
Cantwell area of Denali National Park. Several individuals who reside 
in and around Cantwell provided information regarding ORV use that 
occurred before this portion of the park was established in 1980. Based 
on this information, the NPS determined that Cantwell area residents 
used ORVs for successive generations in that portion of Denali National 
Park prior to the park's establishment in 1980. Because only residents 
of the Cantwell area have demonstrated traditional ORV use, this 
regulation restricts ORV use in the 1980 Park additions to those 
residents. The 2007 FONSI specifically stated that ORV use would be 
limited to residents of the Cantwell resident zone community and those 
residents of GMU 13E holding a 13.440 permit. For this reason, the NPS 
declines to accept the suggestion to allow individuals who move outside 
the Cantwell area to continue to use of ORVs for subsistence purposes.
    The State requested additional information regarding the basis for 
the 1,000 pound weight limit and if this proposed limit will cause 
hardship to any existing qualified subsistence uses that may already 
possess vehicles exceeding the weight limit. The State noted the weight 
limit for ORVs on adjacent state land is 1,500 pounds curb weight and 
that consistent weight limits on adjacent park land would benefit ORV 
operators. Consistent with a recommendation by the Denali Subsistence 
Resource Commission, the NPS selected the 1,000 pound curb (unloaded) 
vehicle weight requirement during the EA process in an effort to 
minimize damage to park resources while still allowing ORV access to 
subsistence resources. The NPS also notes ORVs are limited to 1,000 
pounds in several State of Alaska Game Refuges, including Palmer Hay 
Flats, Yakataga, Susitna Flats, and Goose Bay State Game Refuges. The 
NPS does not believe that this weight limit will curtail subsistence 
activities and has not received any comments through either the 
compliance or rulemaking process from existing qualified subsistence 
users indicating that a 1,000 pound limit would cause hardship.
    Finally, the State requested clarification that this regulation 
does not apply to the use of snowmachines. The NPS appreciates the 
opportunity to clarify that this regulation does not close or restrict 
the use of snowmachines for subsistence purposes. The term ``motor 
vehicle'' is defined in 36 CFR 1.4 and excludes snowmobiles (which are 
defined to be the same as snowmachines). Accordingly, this regulation 
does not affect the use of snowmachines in the park.
    The National Parks Conservation Association (NPCA) and Denali 
Citizens Council (DCC) requested that the procedure for closing and 
opening areas to ORV use follow a procedure similar to that outlined in 
36 CFR 13.960 for snowmachine use.
    The NPS agrees with NPCA and DCC that notifying the public of 
closures to ORV use and lifting those closures should be done via press 
release and other appropriate means. The NPS modified this provision to 
include the means of notice that we believe will be most effective for 
communicating closure information to qualified subsistence users in the 
Cantwell area. These means include issuing a press release, posting at 
local post offices, posting on the park website, posting signs at 
designated trails or areas if appropriate, use of electronic media, and 
via other appropriate means. We believe this modification also enables 
the NPS to respond more quickly to changing conditions.
    A third commenter opposed permitting ORV use for subsistence uses. 
This comment misunderstands the effect of this regulation. Subsistence 
is a recognized and authorized use of the ANILCA additions of Denali 
National Park (Denali park additions). Section 811(b) of ANILCA 
provides that ``the Secretary shall permit * * * appropriate use [of]* 
* * surface transportation traditionally employed'' for subsistence 
uses by federally qualified local rural residents, subject to 
reasonable regulation.
    In 2005 the NPS determined that ORVs were used by successive 
generations of Cantwell residents for subsistence in the Cantwell area 
(TUA) of the Denali National Park additions and therefore are 
authorized for subsistence purposes in this area under ANILCA section 
811 and 36 CFR 13.460. This regulation merely implements the 2007 FONSI 
on subsistence ORV use in the TUA.

2. Section 13.904 Camping

    The State of Alaska requested clarification that the camping permit 
provision only applies in designated areas and not throughout the 
former Mount McKinley National Park. The NPS appreciates the 
opportunity to clarify that a camping permit is only required in 
designated areas of the backcountry. Camping is also allowed in the 
Frontcountry Developed Area in accordance with 36 CFR 13.972-13.974.

Changes to the Final Rule

    Based on the preceding comments and responses as well as internal 
NPS comments, the NPS has made the following changes to the proposed 
rule language:
     13.903(d), Subsistence use of off-road vehicles. The NPS 
modified the provision specifying means of public notice for closures 
to subsistence ORV use. This change will provide more effective notice 
of closures to interested parties.
     13.910(a), Mountain climbing. The NPS replaced the 
provision requiring all individuals to apply for a permit 60 days in 
advance of any climb on Mount McKinley or Mount Foraker with a 
provision that the superintendent will establish application 
procedures. These procedures will be published in the Superintendent's 
compendium. This modification will enable the superintendent to relax 
the 60 day advance application requirement for climbers who have 
previously climbed Mount McKinley or Mount Foraker under certain 
circumstances.

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

[[Page 67392]]

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. A qualitative cost/benefit analysis was conducted to 
examine costs and benefits associated with the proposed rule. That 
analysis concludes that positive net benefits will be generated by each 
component of the proposed regulatory action, and hence by the 
regulatory action overall. The analysis also indicates that 
governmental processes in NPS-administered areas in Alaska will be 
improved. Therefore, it is anticipated that economic efficiency will 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 to seek views of appropriate officials and to 
provide consistency with state rules on adjacent lands as well as 
active participation where NPS is proposing variation from similar 
state regulations.
    (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. No grants or other forms of monetary supplements are 
involved.
    (4) This rule does not raise novel legal or policy issues.

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. 601 et seq.). 
The economic effects of this rule are local in nature and positive or 
negligible in scope. This rule either implements rules unrelated to 
business activity or makes permanent various temporary and emergency 
rules under which area businesses have been operating. This rule will 
have no effect or in some cases a salutary effect by eliminating year 
to year uncertainty for park visitors.
    A qualitative Regulatory Flexibility threshold analysis was 
conducted to examine potential impacts to small entities. The analysis 
concludes that, since no significant costs are anticipated for any 
component of the rule, significant economic impacts would not be 
imposed on a substantial number of small entities.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. 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 from this rule would be small and generally would not 
be additional to those already associated with visiting park areas.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions. The provisions of this rule will 
generally continue existing rules and use patterns for the park areas 
in Alaska.
    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 rule do not apply differently to U.S.-based 
enterprises and 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. This rule is an 
agency-specific rule and imposes no other requirements on small 
governments.

Takings (Executive Order 12630)

    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. A takings implications assessment is 
not required because no taking of property will occur as a result of 
this final 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 rule is limited in effect to federal lands 
and waters administered by the NPS and does not have a substantial 
direct effect on state and local government in Alaska. The rule was 
initiated in part at the request of the State of Alaska and was 
developed 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 sections 3(a) and 3(b)(2) 
of the Order.

Paperwork Reduction Act

    This regulation does not require any 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

    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 various park consultation agreements with 
tribal

[[Page 67393]]

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 potential effects, review of this rule has been facilitated 
by the relationships established through government-to-government 
consultation.
    Drafting Information: The principal contributors to this rule are: 
Vic Knox, Chuck Passek, Jane Hendrick, Andee Sears and Paul Hunter, 
Alaska Regional Office; and Jerry Case, Regulations Program Manager, 
NPS, Washington, DC.

List of Subjects in 36 CFR Part 13

    Alaska, National Parks, Reporting and recordkeeping requirements.

0
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

0
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]

0
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.

0
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 
trail or area designated by this section is prohibited. A map and GPS 
coordinates of designated trails and areas are available on the park 
website 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 issuing a press release, posting at local 
post offices, posting on the park website, posting signs at designated 
trails or areas if appropriate, use of electronic media, and via other 
appropriate means.

0
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 website. Violating terms and 
conditions of the permit is prohibited.

0
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.
0
6. Revise Sec.  13.910 to read as follows:


Sec.  13.910  Mountain climbing.

    (a) Climbing Mount McKinley or Mount Foraker without a permit is 
prohibited. The superintendent will establish procedures for applying 
for a permit. The superintendent may authorize a maximum of 1500 
climbers on Mount McKinley from April 1 through August 1 each calendar 
year.
    (b) Violating terms and conditions of the permit is prohibited.

    Dated: October 28, 2008.
Lyle Laverty,
Assistant Secretary, Fish and Wildlife and Parks.
[FR Doc. E8-27049 Filed 11-13-08; 8:45 am]
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