[Federal Register Volume 60, Number 69 (Tuesday, April 11, 1995)]
[Rules and Regulations]
[Pages 18532-18534]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-8692]




[[Page 18531]]

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Part VIII





Department of the Interior





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National Park Service



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36 CFR Part 13



Alaska, Hunting Regulations; Final Rule

  Federal Register / Vol. 60, No. 69 / Tuesday, April 11, 1995 / Rules 
and Regulations   
[[Page 18532]] 

DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 13

RIN 1024-AC25


Alaska; Hunting Regulations

AGENCY: National Park Service, Interior.

ACTION: Final rule.

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SUMMARY: This rule prohibits hunting in National Park Service (NPS) 
areas in Alaska on the same day in which a hunter has flown in an 
aircraft. The rule as originally proposed (59 FR 58804) also included a 
clarification of the NPS restriction on use of firearms and other 
weapons by trappers. This final rule addresses only the Same-Day-
Airborne Hunting portion of the proposed rule. The clarification of the 
language regarding trapping and the use of firearms under a trapping 
license will be addressed under a separate document with an extended 
comment period.

EFFECTIVE DATE: April 11, 1995.

ADDRESSES: Comments should be addressed to Robert D. Barbee, Regional 
Director, National Park Service, 2525 Gambell Street, Anchorage, AK 
99503-2892 (Fax 907-257-2533).

FOR FURTHER INFORMATION CONTACT:
Paul Hunter, National Park Service, Alaska Regional Office, 2525 
Gambell Street, Anchorage, AK 99503-2892 (Telephone 907-257-2646; Fax 
907-257-2410).

SUPPLEMENTARY INFORMATION:

Background

    The National Park Service ``Organic Act'' (16 U.S.C. 1, et seq.) 
provides authority for the management of NPS areas in accordance with 
the fundamental purposes established for each area. The basic purpose 
established by the Organic Act is ``* * * to conserve the scenery and 
the natural and historic objects and the wild life therein and to 
provide for the enjoyment of the same in such manner and by such means 
as will leave them unimpaired for the enjoyment of future 
generations''. In addition, each area established may also have other 
legislatively designated purposes.
    In 1980, Congress passed the Alaska National Interest Lands 
Conservation Act (ANILCA, 16 U.S.C. 3101) which established new, and 
added to existing, NPS units in Alaska. Sections 201 and 202 of ANILCA 
established purposes for which each NPS unit will be managed. Section 
203 of ANILCA directs that these new and additional areas are to be 
administered according to the NPS ``Organic Act'' and the other 
applicable provisions of ANILCA. Also, Section 1313 of ANILCA directs 
that National Preserves in Alaska will be administered and managed in 
the same way as a national park except as otherwise provided in ANILCA. 
Section 1110 provides for the use of airplanes in NPS areas subject to 
reasonable regulation to protect the natural and other values of the 
areas. The intent of Congress to allow hunting and trapping in 
specified NPS areas in Alaska is implemented through Title 36 part 13 
of the Code of Federal Regulations (CFR).

Hunting and Trapping in NPS Areas in Alaska

    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 for 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. As a result, use of a 
firearm under the State authorization for land and shoot trapping was 
precluded 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 in Alaska 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 preserves. 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 were held in sixteen communities 
during the Summer of 1989. After analyzing the public comments, the NPS 
in 1990 prepared, but did not publish, a final rule.
    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 in August, 1990 to specifically exclude same-
day-airborne hunting allowances in national preserves. On October 30, 
1990, the NPS published a Notice in the Federal Register (55 FR 45663) 
announcing the exception for the preserves.
    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 perception that 
the State action did affect NPS areas, included many requests that the 
NPS move ahead with the rulemaking that was first proposed in 1989. 
Consequently, the 1989 proposed rule was revised and published in the 
Federal Register on November 15, 1994 (59 FR 58804), with the intent of 
accomplishing the following: [[Page 18533]] 
    1. Prohibit same-day-airborne taking of fifteen designated wildlife 
species.
    2. Satisfy statutory mandates to provide for hunting and trapping 
in specified NPS areas in Alaska.
    3. Maintain compatibility between hunting and trapping activities 
and statutory purposes.
    4. Provide more effective and consistent enforcement of State and 
Federal hunting and trapping laws and regulations.
    In consideration of NPS law and policy, and Federal Airborne 
Hunting Act purposes and enforceability, the NPS has determined that 
this final rule will reduce the incidence of aircraft harassment of 
wildlife and the potential for aircraft assisted taking of wildlife in 
units of the NPS.

Summary of Comments Received in 1989

    The original proposed rule (54 FR 24852) 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. Ninety-three oral comments were recorded at the public 
meetings and 1,312 written comments were received prior to the end of 
the comment period.

Summary of 1994 Comments

    The revised proposed rule (59 FR 58804) had a 30-day public comment 
period. During the comment period public hearings were held in 
Anchorage and Fairbanks at which sixteen persons presented oral 
comments. The NPS also received ninety letters, cards, and facsimile 
comments within the official comment period.
    After considering all public comments from both comment periods, 
the NPS has decided to proceed with a final rule on the same-day-
airborne portion of the revised proposed rule. The clarification of the 
trapping portion of the proposed rule will be covered under a separate 
document with an extended comment period.

Analysis of Comments

1. Widespread Support for the Proposed Regulations

    Analysis of supporting views is consolidated in this paragraph 
because the various supporting comments generally repeat the reasons 
presented by the NPS in the published Proposed Rule documents (54 FR 
24852 and 59 FR 58804). Overall, the comments supported the prohibition 
of same-day-airborne land-and-shoot hunting. The NPS received a total 
of 1,405 comments (1,312 written and ninety-three oral) during the 1989 
comment period, and 106 (ninety written and sixteen oral) during the 
1994 comment period. Ninety-three percent (1,406 comments) favored the 
proposed rule and seven percent (105 comments) opposed the rule.

2. Opinions of Alaska Residents Were Seriously Considered

    Several commenters who oppose the proposed rule expressed their 
belief that the NPS ignores opinions of Alaska residents and relies on 
comments from outside Alaska. While most opposition to the proposed 
rule came from Alaska residents, more than two-thirds of the comments 
from Alaska support the proposed rule. Alaska residents submitted a 
total of 322 comments, with sixty-nine percent favoring the proposed 
rule and thirty-one percent opposed.
    The NPS considered all public opinions and views on the proposed 
rule and did not disregard opinions of Alaskan residents. In fact, 
special attention was given to comments and concerns received from 
Alaskans. The decision to extend the comment period for the trapping 
clarification portion of the proposed rule was a direct result of 
requests from Alaska residents involved with trapping activities, local 
governmental bodies, members of local advisory groups, Native 
organizations, and individual Alaska residents. Even so, while the 
response from Alaska residents was mixed, a significant majority of 
commenting Alaskans, including many uniquely knowledgeable persons such 
as hunting guides, hunters, pilots, and representatives of local rural 
residents directly affected by same-day-airborne taking of wildlife, 
support the same-day-airborne rule.

3. The Proposed Rule Would Not Violate the Special Aircraft Access 
Provisions of ANILCA

    Several commenters expressed concern that the proposed rule 
violates the procedure for implementing restrictions on aircraft access 
under Section 1110 of ANILCA. This section of ANILCA, among other 
things, limits the restrictions that may be placed on aircraft access 
for traditional activities. After carefully reviewing the potential 
applicability of Section 1110 to the proposed same-day-airborne rule, 
it was concluded early in the rulemaking process that the regulation 
does not restrict aircraft access for hunting, trapping, fishing or any 
other traditional activity permitted by ANILCA or other law. 
Furthermore, at the time ANILCA was passed, same-day-airborne taking of 
wildlife was a widely restricted hunting method under State law, as it 
is today. However, even if found to be an aircraft access restriction 
as certain commenters asserted, the NPS believes that the 
administrative process used for this rule would meet the requirements 
established for adoption of such restrictions.

4. The State of Alaska's Authority to Regulate the Taking of Fish and 
Wildlife Is Limited by Federal Law

    Many of those opposing the rule commented that the State either has 
or should have sole authority to regulate the taking of fish and 
wildlife in Alaska. The proposed rule is seen as unauthorized and 
unwarranted Federal interference with the State's jurisdiction over 
fish and wildlife. While this argument is often raised as an objection 
to Federal actions regarding fish and wildlife management, the NPS is 
legally obligated to manage the NPS areas in Alaska in accordance with 
statutory mandates and purposes. While the NPS follows State law to the 
fullest extent possible in the management of fish and wildlife, there 
are situations in which there is a conflict between State law and 
Congressional mandates for Federal areas. Federal subsistence law under 
ANILCA is perhaps the most well-known example of such a conflict in 
Alaska, but there are other examples of which the same-day-airborne 
method of taking in NPS areas is one. The NPS has been able, over the 
years, to manage within the State framework for same-day-airborne 
taking of wildlife as described above. However, changes in the State 
approach to wildlife management and corresponding adjustments in the 
application of same-day-airborne rules threaten to violate the separate 
and distinct Federal mandates established for NPS areas. This 
rulemaking recognizes that State and Federal mandates differ in this 
case and adopts a separate Federal rule for NPS areas that complies 
with applicable Federal law and policy for park areas. The NPS remains 
committed to managing fish and wildlife in a way that avoids 
unnecessary interference with State management of resident wildlife 
resources.

5. The Proposed Rule Is Not Based on a Biological Problem

    Many commenters stated that there is not a biological basis for the 
proposed regulation because wildlife populations are generally healthy 
and are managed by the State to maintain continued 
[[Page 18534]] viability of populations. The NPS acknowledges that the 
proposed rule is not based on biological concerns for the health of 
wildlife populations and such reasons have not been used as a 
justification for the rulemaking. The reasons stated in the two Federal 
Register publications of the proposed rule, and above in this document, 
are the basis for this rule. Existing closure regulations under both 
State and Federal law appear to be sufficient to protect wildlife when 
biological data indicates this is necessary, and this rule should not 
be interpreted as suggesting that State wildlife management is in any 
way deficient in this regard.

Immediate Effective Date

    The final rule establishes a prohibition on hunting on the same day 
in which the hunter has flown on an aircraft. The rule is based upon 
the determination 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 enforcement problems 
with the Federal Airborne Hunting Act. The rule is intended to reduce 
the incidence of aircraft harassment of wildlife and to reduce the 
potential for aircraft assisted taking of wildlife. The rationale for 
the rule is more fully discussed at 59 FR 58804.
    In accordance with the Administrative Procedure Act (APA) (5 U.S.C. 
553(d)(3)), the NPS has determined that publishing this final rule 30 
days prior to the rule becoming effective could result in public 
confusion resulting from reliance on the January 13, 1995, State of 
Alaska authorization of same-day-airborne caribou hunting in several 
NPS areas that will be closed to such hunting by this rule. Therefore, 
in accordance with 5 U.S.C. 553(d)(3), the NPS finds good cause to make 
this rule effective on the date published in the Federal Register.

Drafting Information

    The primary authors of this regulation are Lou Waller, John 
Hiscock, Steve Shackleton and Paul Hunter of the NPS Alaska Regional 
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 rule was not subject to Office of Management and Budget review 
under Executive Order 12866. The Department of the Interior has 
determined 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 
rulemaking are local in nature and negligible in scope.
    The NPS has determined that this proposed rulemaking will not have 
a significant effect on the quality of the human environment, health 
and safety because it is not expected to:
    (a) Increase public use to the extent of compromising the nature 
and character of the area or causing physical damage to it;
    (b) Introduce incompatible uses that may 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.
    Based on this determination, the regulation is categorically 
excluded from the procedural requirements of the National Environmental 
Policy Act (NEPA) by Departmental guidelines in 516 DM 6, (49 FR 
21438). As such, neither an Environmental Assessment nor an 
Environmental Impact Statement has been prepared.
    The 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 record keeping requirements.

    In consideration of the foregoing, 36 CFR Chapter I, Part 13 is 
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]
* * * * *
    (d) Hunting and trapping. (1) Hunting and trapping are allowed in 
national preserves in accordance with applicable Federal and non-
conflicting State law and regulations.
    (2) Violating a provision of either Federal or non-conflicting 
State 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 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.
    (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 of this chapter. 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: March 12, 1995.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 95-8692 Filed 4-10-95; 8:45 am]
BILLING CODE 4310-70-M