[Federal Register Volume 59, Number 219 (Tuesday, November 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-28072]


[[Page Unknown]]

[Federal Register: November 15, 1994]


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DEPARTMENT OF THE INTERIOR
National Park Service

36 CFR Part 13

RIN: 1024-AC25

 

Alaska; Hunting and Trapping Regulations

AGENCY: National Park Service, Interior.

ACTION: Proposed rule; revision.

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SUMMARY: This proposed rule will establish a National Park Service 
(NPS) prohibition of hunting on the same day in which the hunter has 
flown in an aircraft, and will clarify the existing NPS prohibition of 
using firearms and other weapons to take free ranging wildlife under a 
trapping license on lands under the jurisdiction of the NPS in the 
State of Alaska. While clarifying the NPS firearm prohibition for 
trapping, this rule will expressly recognize as an exception, the 
common trapping practice of using a firearm to dispatch wildlife that 
is already caught in a trap. Aircraft use for access purposes is not 
affected by this rule.
    The NPS has concluded that activities such as those allowed under 
State authorizations for same-day-airborne taking of wildlife conflict 
with NPS management mandates and policies, and invite abuse and 
violations of the Federal Airborne Hunting Act and exacerbate 
enforcement problems with that Act. This proposed rule is intended to 
establish clearly the NPS position regarding any potentially applicable 
conflicting State authorizations. The intended effect of the proposed 
rule is to reduce the incidence of aircraft harassment of wildlife and 
to reduce the potential for aircraft assisted taking of wildlife.

DATES: Written comments will be accepted on or before December 15, 
1994.

ADDRESSES: Comments should be addressed to: Robert D. Barbee, Regional 
Director, National Park Service, 2525 Gambell Street, Anchorage, AK 
99503-2892.

FOR FURTHER INFORMATION CONTACT: Paul Hunter, National Park Service, 
2525 Gambell Street, Anchorage, Alaska 99503-2892, Telephone: (907) 
257-2646.

SUPPLEMENTARY INFORMATION:

Background

    In 1980, the Alaska National Interest Lands Conservation Act 
(ANILCA), Pub. L. 96-487, was passed by Congress. This act, among other 
things, identified and set aside certain areas of Federal land in 
Alaska as being of a high public interest. These ``public interest'' 
lands include units designated as national parks, monuments, and 
preserves.
    ANILCA provided for continued subsistence use of fish and wildlife 
in most of the new park and monument areas in Alaska. National 
preserves were established as open to subsistence uses, as well as 
sport hunting and trapping. Federal regulations govern subsistence 
taking of fish and wildlife on Federal public lands in Alaska, 
including NPS lands. State laws and regulations govern sport hunting 
and non-subsistence trapping allowed in national preserves. Such State 
provisions are subject to overriding Federal regulations intended to 
protect the congressionally mandated Federal purposes of the preserves.
    Same-day-airborne hunting is not an issue in those parks and 
monuments open to subsistence taking. This is because National Park 
Service regulations, promulgated in 1981, generally prohibit the ``use 
of aircraft for access to or from lands and waters within a national 
park or monument for purposes of taking fish or wildlife for 
subsistence uses* * *'' (36 CFR 13.45). The primary effect of this 
revised proposed rule will be on same-day-airborne taking of wildlife 
in national preserves.
    National preserves are to be managed under the same mandates, and 
by the same principles, as all NPS areas. ANILCA directed the Secretary 
of the Interior to administer the Alaska areas of the National Park 
System, including national preserves, ``pursuant to the provisions of 
the Act of August 25, 1916 (39 Stat. 535) as amended and supplemented 
(16 U.S.C. 1 et seq.), and, as appropriate, under section 1313 and the 
other applicable provisions of this Act* * *'' (ANILCA, Sec. 203). The 
Act of August 25, 1916 is the NPS Organic Act, which calls for the 
conservation of scenery, natural objects, and wild life of units in 
such a manner as to leave those values unimpaired for the enjoyment of 
future generations. Section 1313 of ANILCA specifically addresses the 
management of national preserves and establishes the aforementioned 
allowance for sport hunting and trapping. With the exception of those 
specific allowances, section 1313 and its legislative history clarify 
that national preserves are to be managed with the same degree of 
stewardship as parks and monuments. Congress made it clear that the 
preserve lands ``qualify in every regard as National Parks'', while 
recognizing, ``in some instances that the taking of wildlife under 
appropriate regulation is consistent with the maintenance of the 
natural values of lands which we otherwise would unhesitatingly 
designate as National Parks.'' (Congressional Record, House, November 
12, 1980; H10549).
    The intent of Congress to allow the taking of wildlife for sport 
purposes and trapping under ``applicable State and Federal law and 
regulation'' (ANILCA Sec. 1313) is reflected in this revised proposed 
rule, and in existing NPS regulations codified in Title 36 of the Code 
of Federal Regulations. National Park Service regulations at 36 CFR 
2.2(b)(4) adopt nonconflicting State hunting and trapping laws for all 
NPS areas in which hunting and trapping are authorized. The adoption of 
applicable State law for hunting and trapping is reiterated by 36 CFR 
13.21(d) for the NPS preserves in Alaska.
    This proposed rule was first published in the Federal Register on 
June 9, 1989 (54 FR 24852). A final rule was originally intended in 
1990, but the NPS held the final rule in abeyance as a result of State 
actions restricting same-day-airborne taking of wolves in NPS managed 
areas. The NPS has now determined it is necessary to revise the 
original proposed rule and reactivate the rulemaking started in 1989 
because of subsequent changes in the State rule for same-day-airborne 
taking of wildlife. These State changes have resulted in a great deal 
of public confusion regarding the applicability of State hunting and 
trapping laws to NPS areas. This revised proposed rule is necessary to 
identify the conflict between State and NPS laws and regulations and 
clearly establish a controlling NPS rule. In this regard, the NPS 
proposed rule is consistent with a rule now being proposed for adoption 
by the U.S. Fish and Wildlife Service for similar reasons.
    The revised proposed rule, while substantially the same as the 
original proposed rule, has extended application to other wildlife 
similarly susceptible to same-day-airborne taking. This change was 
promoted by approximately 82% of the public providing written comments 
during the comment period for the original proposed rule. The revised 
proposed rule also provides administrative clarification of the 
existing NPS prohibition on the use of firearms and other weapons under 
a trapping license. This clarification is deemed necessary due to 
recent State action to allow the taking of certain wildlife, including 
wolves, by same-day-airborne land and shoot trapping, which, under 
State law, can be done in the same manner as same-day-airborne hunting.

History of Same-Day-Airborne Taking in the NPS Preserves

    Prior to 1975 same-day-airborne taking of wildlife was allowed in 
Alaska by State regulation. Starting in 1975 the State began 
prohibiting same-day-airborne hunting of many species of wildlife while 
continuing to allow same-day-airborne land and shoot trapping. Because 
wolves may be taken under State law with either a hunting or trapping 
license, and State law provides for taking by firearm with a trapping 
license, wolves could still be taken by the land and shoot method on 
the same-day-airborne despite the prohibition for same-day-airborne 
hunting.
    On June 17, 1981, Federal regulations (36 CFR Part 13) were adopted 
for NPS areas in Alaska, including a regulation (36 CFR 13.1(u)) which 
limited trapping in NPS areas to taking by snares, traps, mesh, or 
other implements designed to entrap animals. The use of firearms for 
trapping was precluded. As a result, use of a firearm under the State 
authorization for land and shoot trapping was superseded in NPS areas.
    From 1981 until 1986 NPS managers operated on the assumption that 
the State prohibition of same-day-airborne hunting and the NPS 
prohibition of use of a firearm for trapping eliminated the possibility 
of land and shoot taking of wolves and most other wildlife in NPS 
areas. However, at the January 1986 Board of Game meetings the NPS 
learned that State wildlife managers were unaware of the NPS trapping 
restriction and that State tagging records indicated that as many as 20 
wolves may have been taken in NPS preserves by the land and shoot 
trapping method during that season. Shortly thereafter the NPS Regional 
Director met with the Commissioner of the State Department of Fish and 
Game to explain the NPS trapping regulation. This was followed with a 
letter dated February 14, 1986, to the Commissioner formally conveying 
the NPS prohibition of firearm use for trapping.
    In 1987 the State Board of Game revised same-day-airborne 
provisions for wolves by eliminating the previous allowance for 
trapping and establishing such an allowance for hunting. This action 
had implications for national preserves where same-day-airborne takings 
were previously prohibited by the NPS preclusion of use of firearms for 
trapping. This was the first time that wolves could legally be taken on 
the same-day-airborne in NPS areas in Alaska.
    In response to the State change in same-day-airborne taking rules 
for wolves, the NPS adopted an emergency one-year regulation from 
November, 1988, to November, 1989, prohibiting same-day-airborne 
hunting of wolves in NPS areas. At the same time the NPS began drafting 
a proposed rule for permanent adoption. The proposed rule was published 
in the Federal Register on June 9, 1989 (54 FR 24852). Written comments 
were accepted and public hearings held during the Summer of 1989. After 
analyzing the public comments, the NPS prepared a final rule for 
adoption during 1990.
    However, as a result of consultations between the State of Alaska 
and the NPS, the State agreed to exclude the NPS preserves from the 
State regulation allowing same-day-airborne hunting of wolves. State 
regulations were changed to specifically exclude same-day-airborne 
hunting allowances in national preserves in August, 1990. On October 
30, 1990, the NPS published a Notice in the Federal Register (55 FR 
45663) announcing the exception for the preserves. Since that date, the 
NPS rule making on this issue has been held in abeyance.
    In 1992 the State Board of Game again prohibited same-day-airborne 
hunting of wolves statewide and did not reauthorize same-day-airborne 
land and shoot trapping. Consequently, for about one year, same-day-
airborne taking of wolves in Alaska was not allowed under either a 
State hunting or trapping license. Then in 1993 the State Board of Game 
reauthorized same-day-airborne land and shoot trapping of wolves. This 
action essentially returned same-day-airborne taking of wildlife to the 
pre-1987 status when it was allowed for trapping but not hunting.
    While the 1993 State action did not directly impact the NPS, it did 
result in a strong public reaction that, because of the incorrect 
perception that the State action did affect NPS areas, included many 
requests that the NPS move ahead with the rule making that was first 
proposed in 1989. In this regard, there continues to be significant 
public interest in separating NPS areas from even the possibility of 
impact from current and prospective State allowances for same-day-
airborne taking of wildlife under either State hunting or trapping 
regulations.

Hunting and Trapping in NPS Areas

    In discussing subsistence uses of wildlife in NPS areas under 
ANILCA Congress stated:

    ``It is contrary to the National Park Service concept to 
manipulate habitat or populations to achieve maximum utilization of 
natural resources. Rather, the National Park System concept requires 
implementation of management policies which strive to maintain the 
natural abundance, behavior, diversity and ecological integrity of 
native animals as part of their ecosystem, and that concept should 
be maintained. It is expected that the National Park Service will 
take appropriate steps when necessary to insure that consumptive 
uses of fish and wildlife populations within National Park Service 
units not be allowed to adversely disrupt the natural balance which 
has been maintained for thousands of years. Accordingly, the 
National Park Service will not engage in habitat manipulation or 
control of other species for the purpose of maintaining subsistence 
uses within National Park System units.''

Congressional Record H10541 (November 12, 1980).

    NPS policy guidelines reflect the Congressional mandate by 
directing that, where hunting and trapping are allowed in NPS areas, 
the NPS will seek to perpetuate healthy and natural populations of 
native wildlife and protect the integrity of natural ecosystems by 
minimizing human impacts on natural wildlife population dynamics. 
Native animal populations are protected against harvest, removal, 
destruction, harassment, or harm through human action, even though 
individual animals within the population may be removed for various 
reasons, including hunting and trapping where authorized. NPS 
Management Policies, pp. 4:5-7 (Dec 88).
    With reference to predator control, the NPS ``Natural Resources 
Management Guideline'' (NPS-77), states: ``No native predator may be 
destroyed on account of its normal utilization of any native animal 
unless it is part of an approved threatened and endangered species 
recovery program'' (NPS-77, Chap. 2, p.37). NPS-77 further directs that 
native predators may not be manipulated, controlled, or eradicated for 
the purpose of increasing harvestable species (Chap.2, p.29).
    The practical effect of allowances for same-day-airborne hunting or 
trapping of wolves is increased efficiency in the taking of wolves. The 
State of Alaska does not allow for same-day-airborne hunting of favored 
hunting species such as moose, caribou, or even bear. Reduction of 
wolves in favor of caribou and moose populations and opportunities for 
harvest is clearly a general goal of the State of Alaska. These facts 
taken together lend credence to the conclusion that allowances for 
same-day-airborne wolf taking are motivated, at least in part, by 
predator control. To the extent predator control is the basis, or the 
result, of State authorized same-day-airborne hunting and trapping, any 
such authorizations are in direct conflict with NPS wildlife management 
policies and with congressional allowances for hunting and trapping in 
NPS areas.
    Furthermore, the NPS does not consider the use of aircraft in such 
proximate relation to the actual taking of wildlife as is the case with 
same-day-airborne hunting, to be a sporting practice. Although Congress 
clearly provided for continued sport hunting in national preserves, 
same-day-airborne hunting does not appear to be intended to be 
legitimately related to such sport.

The Problem of Enforcing Aircraft Harassment Restrictions

    Hunting with the aid of an aircraft was characterized as 
``unsportsmanlike'' in the legislative history for the Airborne Hunting 
Act (AHA) of 1971 and was given as a primary reason for passage of the 
AHA. The significant impact of aircraft assisted hunting on certain 
prey species, including wolves, was also given as a reason for passage 
of the AHA (Senate Report No. 92-421, Pub. L. 92-159). The NPS is 
responsible for enforcing the AHA in NPS areas.
    The AHA prohibits airborne shooting of wildlife and use of an 
aircraft to harass wildlife. Harassment, as defined in the implementing 
regulations (50 CFR 19.4), means to disturb, worry, molest, rally, 
concentrate, harry, chase, drive, herd, or torment. This is a broader 
restriction than the related State restriction, which covers only 
intentional driving, herding, or molesting of game (5 AAC 92.080(5)).
    Federal law enforcement experience indicates a correlation between 
same-day-airborne taking of wildlife and the likelihood of aircraft 
harassment of wildlife under the broader Federal definition. Unless 
observed directly, it is difficult to prove that aircraft harassment 
has occurred in conjunction with land and shoot taking of wildlife, 
even though as a practical matter it is difficult, if not impossible, 
to take wildlife in this manner without violating the Federal 
harassment prohibition. Therefore, in areas where same-day-airborne 
taking of wildlife is allowed, federal harassment violations tend to 
increase while enforcement remains difficult.
    An increase in the number of violations occurred in conjunction 
with the State authorization of same-day-airborne hunting of wolves in 
1987. In one incident in March of 1988, four wolves were illegally 
killed in and near Denali National Park and Preserve. Evidence at two 
kill sites indicated that the animals were run nearly to the point of 
exhaustion by aircraft before being killed. In March, 1989 the U.S. 
Fish and Wildlife Service investigated a case on the Kanuti National 
Wildlife Refuge where wolves had been chased by several aircraft 
operating under State land and shoot regulations. Aircraft radios were 
used by the pilots to coordinate aerial driving of the wolves to a 
location where the aircraft could be landed and the hunters could shoot 
the wolves. In March 1990, two airplanes were observed in the Koyukuk 
National Wildlife Refuge driving a wolf to a suitable location to land 
and shoot. One person was convicted for violating the AHA. In another 
large scale investigation that ended in 1990, federal investigators 
found that numerous wolves reported as legal kills by one pilot and ten 
of his partners were, in fact, actually killed in violation of the AHA. 
A common thread in these cases is the pattern of illegal aircraft 
harassment of wildlife occurring in conjunction with otherwise legal 
land and shoot hunting. It is clear that when same-day-airborne taking 
of wildlife is allowed, illegal aircraft harassment of wildlife 
increases.

Summary of Comments Received in 1989

    The original proposed rule (54 FR 24852-24854, June 9, 1989) 
afforded the public a comment period of 60 days (extended to 70 days). 
During the comment period, public meetings were held in Alaska in 
Anchorage, King Salmon, Wasilla, Chignik, McGrath, Fairbanks, 
Glennallen, Eagle, Kenai, Bettles, Iliamna, Yakutat, Kotzebue, Juneau, 
and Nome, as well as in Washington, D.C. The comments strongly 
supported the prohibition of same-day-airborne land and shoot hunting.

Analysis of 1989 Comments

    The NPS received 1405 comments, 1312 written and 93 oral, during 
the formal comment period for the original proposed rule. Ninety-four 
percent (1323 comments) favored the proposed rule and six percent (82 
comments) opposed the rule. Seventy-six percent (1069 comments) 
suggested that the rule should be extended to other wildlife in 
addition to wolves. Those opposing the rule generally felt the State, 
not the Federal Government, should regulate all aspects of the taking 
of wildlife in Alaska.
    Since the formal comment period for the original proposed rule 
ended, the Department of Interior and the National Park Service have 
received, and continue to receive thousands of letters advocating 
stricter controls on same-day-airborne hunting and trapping.

Regulatory Analysis

    Subsection 13.21(a): Paragraph (a) is removed to standardize the 
rule for all hunting classifications.
    Subsection 13.21(d): This subsection addresses hunting and trapping 
activities in park areas, including preserves.
    Paragraph (1) of subsection (d) is added and revises existing 
language to clarify that only State law and regulation that does not 
conflict with Federal law and regulation is applicable to hunting and 
trapping in NPS preserves.
    Paragraph (2) of subsection (d) is added to clearly establish that 
violation of non-conflicting State hunting and trapping laws is 
federally prohibited and, therefore, enforceable by Federal officers.
    Paragraph (3) of subsection (d) is added to retain existing 
language concerning the prohibition on engaging in trapping as the 
employee of another person.
    Paragraph (4) of subsection (d) is added to prohibit same-day-
airborne taking of wildlife. The use of aircraft to aid in the taking 
of wildlife to the degree allowed by same-day-airborne authorizations 
is contrary to Congressional mandates governing NPS management of 
wildlife. There is no other practical means of enforcing the Federal 
and State prohibitions on airborne shooting and aircraft harassment of 
wildlife. The prohibition is expanded from that specified in the 
original proposed rule to include bear, caribou, Sitka black-tailed 
deer, elk, coyote, arctic and red fox, mountain goat, moose, Dall 
sheep, lynx, bison, musk ox, wolf, and wolverine.
    Paragraph (5) of subsection (d) is added, and plainly clarifies in 
one regulation the current firearm prohibition for trappers and 
expressly adds an exception for use of a firearm to dispatch wildlife 
already caught in a trap. This clarification eliminates the need to 
reference various regulatory provisions when enforcing the prohibition 
on the use of a firearm under a trapping license.
    Subsection 13.21(e): Subsection (e) is revised in order to clarify 
its applicability to closures of non-subsistence taking of wildlife 
only. This change is necessitated by the elimination of Sec. 13.21(a). 
Closure of subsistence taking remains subject to the provisions of Sec. 
13.50.

Drafting Information

    The primary authors of this regulation are Paul Hunter and John 
Hiscock of the NPS Alaska Regional Office, and Tony Sisto, formerly of 
the NPS, Washington Office.

Paperwork Reduction Act

    This rulemaking does not contain information collection 
requirements that require approval by the Office of Management and 
Budget under 44 U.S.C. 3501 et seq.

Compliance with Other Laws

    This rulemaking was not subject to Office of Management and Budget 
review under Executive Order 12866. The NPS certifies 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 rulemaking are local in nature and 
negligible in scope.
    This rulemaking is categorically excluded from the procedural 
requirements of the National Environmental Policy Act (NEPA) by 
Departmental regulations in 516 DM 6, (49 FR 21438). As such, neither 
an Environmental Assessment nor an Environmental Impact Statement has 
been prepared. The NPS has determined that this rulemaking will not 
have a significant effect on the quality of the human environment, 
health, and safety because it is not expected to (a) change public 
hunting habits to the extent of adversely affecting wildlife or other 
natural ecosystems; (b) introduce incompatible uses which might 
compromise the nature and characteristics of the area, or cause 
physical damage to it; (c) conflict with adjacent ownerships or land 
uses; (d) cause a nuisance to adjacent owners or occupants; or (e) 
affect the State hunting population generally.
    The proposed rule has been evaluated in accordance with Section 810 
of ANILCA and the NPS has determined there will be no significant 
restriction on subsistence uses. It is worthy of note that the Federal 
Subsistence Board has prohibited same-day-airborne taking of ungulates 
(except deer), bear, wolves, wolverines, and furbearers for subsistence 
uses on all Federal public lands in Alaska (50 CFR Part 100).

List of Subjects in 36 CFR Part 13

    Alaska, National Parks, Reporting and recordkeeping requirements.
    In consideration of the foregoing, 36 CFR Chapter I is proposed to 
be amended as follows:

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.; Section 
13.65(b) also issued under 16 U.S.C. 1361, 1531.

    2. Section 13.21 is amended by removing and reserving paragraph 
(a), and revising paragraphs (d) and (e), to read as follows:


Sec. 13.21  Taking of fish and wildlife.

    (a) [Reserved]
* * * * *
    (a) Hunting and trapping. (1) Hunting and trapping are allowed in 
national preserves in accordance with applicable Federal and non-
conflicting State law and regulations. Such laws and regulations are 
hereby adopted and made a part of these regulations.
    (2) Violating a provision of either Federal or non-conflicting 
State hunting law or regulation is prohibited.
    (3) Engaging in trapping activities as the employee of another 
person is prohibited.
    (4) It shall be unlawful for a person having been airborne to use a 
firearm or any other weapon to take or assist in taking any species of 
bear, caribou, Sitka black-tailed deer, elk, coyote, arctic and red 
fox, mountain goat, moose, Dall sheep, lynx, bison, musk ox, wolf, and 
wolverine under State or Federal hunting laws and regulations until 
after 3 a.m. on the day following the day in which the flying occurred. 
This prohibition does not apply to flights on regularly scheduled 
commercial airlines between regularly maintained public airports.
    (5) It shall be unlawful for a person to use a firearm or any other 
weapon to take or assist in taking wildlife under a trapping license, 
except that a trapper may use a firearm to dispatch wildlife caught in 
a trap.
    (e) Closures and restrictions. The Superintendent may prohibit or 
restrict the non-subsistence taking of fish or wildlife in accordance 
with the provisions of Sec. 13.30. Except in emergency conditions, such 
restrictions shall take effect only after the Superintendent has 
consulted with the appropriate State agency having responsibility over 
fishing, hunting, or trapping and representatives of affected users.

    Dated: September 27, 1994.
George T. Frampton, Jr.
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 94-28072 Filed 11-14-94; 8:45 am]
BILLING CODE 4310-70-P