[Federal Register Volume 82, Number 8 (Thursday, January 12, 2017)]
[Rules and Regulations]
[Pages 3626-3633]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-32045]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 13

[NPS-AKRO-22487; PPAKAKROZ5, PPMPRLE1Y.L00000]
RIN 1024-AE28


Alaska; Subsistence Collections

AGENCY: National Park Service, Interior.

ACTION: Final rule.

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

SUMMARY: The National Park Service amends it regulations for National 
Park System units in Alaska to allow qualified subsistence users to 
collect nonedible fish and wildlife parts and plants for creating 
handicrafts for barter and customary trade. The rule also clarifies 
that capturing, collecting or possessing living wildlife is generally 
prohibited and adopts restrictions on using human-produced foods to 
bait bears for subsistence uses.

DATES: This rule is effective February 13, 2017.

FOR FURTHER INFORMATION CONTACT: Andee Sears, Regional Law Enforcement 
Specialist, Alaska Regional Office, 240 West 5th Ave., Anchorage, AK 
99501. Phone (907) 644-3410. Email: [email protected].

SUPPLEMENTARY INFORMATION: 

Background

Proposed Rule and Public Comment Period

    On January 13, 2016, the National Park Service (NPS) published the 
proposed rule in the Federal Register (81 FR 1592). The rule was open 
for public comment for 90 days, until April 12, 2016, to coincide with 
scheduled meetings of the NPS Subsistence Resource Commissions and 
Federal Subsistence Regional Advisory Councils. The NPS invited 
comments through the mail, hand delivery, and through the Federal 
eRulemaking Portal at http://www.regulations.gov. The NPS received 27 
comments on the proposed rule during the public comment period. A 
summary of comments and NPS responses is provided below in the section 
entitled ``Summary of and Responses to Public Comments''. After 
considering the public comments and additional review, the NPS made 
some changes in the final rule from what was proposed. These changes 
are summarized below in the section entitled ``Changes from the 
Proposed Rule''.

Subsistence Uses Authorized by ANILCA

    In 1980, Congress enacted the Alaska National Interest Lands 
Conservation Act (ANILCA) (16 U.S.C. 410hh-410hh-5; 3101-3233) to 
preserve various nationally significant areas in Alaska. One of the 
purposes of ANILCA is ``to provide the opportunity for rural residents 
engaged in a subsistence way of life to continue to do so.'' 16 U.S.C. 
3101(c). The subsistence take of fish and wildlife on (federal) public 
lands is governed by Title VIII of ANILCA (16 U.S.C. 3111-3126).
    Title II of ANILCA established new National Park System units, 
added to existing units, and specified in which units that subsistence 
uses shall be allowed. 16 U.S.C. 410hh-2. Subsistence uses by local 
rural residents in Alaska are authorized in all national preserves and 
in the Alagnak Wild River (managed as a national preserve), Aniakchak 
National Monument, Cape Krusenstern National Monument, Gates of the 
Arctic National Park, Kobuk Valley National Park, Lake Clark National 
Park, Wrangell-Saint Elias National Park, 16 U.S.C. 410hh-(1)-(4), (6)-
(10); and the additions to Denali National Park, 16 U.S.C. 410hh-
1(3)(a).
    ANILCA defines ``subsistence uses'' as:

    [T]he customary and traditional uses by rural Alaska residents 
of wild, renewable resources for direct personal or family 
consumption as food, shelter, fuel, clothing, tools, or 
transportation; for the making and selling of handicraft articles 
out of nonedible byproducts of fish and wildlife resources taken for 
personal or family consumption; for barter, or sharing for personal 
or family consumption; and for customary trade. 16 U.S.C. 3113

    This definition reflects that the creation of hand-made crafts from 
nonedible natural materials has long been a part of the cultural, 
social, and economic practices of those living a subsistence way of 
life in Alaska. These individuals requested that the NPS allow this 
customary and traditional practice.

Consistency With NPS Regulations

    NPS regulations for subsistence uses in park units in Alaska are 
found in 36 CFR part 13, subpart F--Subsistence. The regulations 
authorize local rural residents to take fish and to hunt and trap 
wildlife in specific park units for subsistence uses in compliance with 
state and federal law. 36 CFR 13.470 and 13.480. The Federal 
Subsistence Board (FSB) regulations governing the subsistence take of 
fish and wildlife on federal lands in Alaska are found at 50 CFR part 
100. These part 100 regulations are limited to fish, wildlife and non-
migratory birds. NPS regulations regarding the non-commercial 
subsistence use of timber and plant materials are located at 36 CFR 
13.485. The non-commercial cutting of standing timber for firewood and 
house logs is authorized under 36 CFR 13.485(a) while the non-
commercial gathering of plant materials such as fruits, berries, and 
mushrooms for subsistence uses without a permit is authorized by 36 CFR 
13.485(b).
    The NPS regulation at 36 CFR 13.420 defining the term ``barter'' is 
derived from the statutory definition of ``subsistence uses'' in 
section 803 of ANILCA (16 U.S.C. 3113). Barter means the exchange of 
fish or wildlife or their parts for other fish or game or their parts; 
or for other food or for nonedible items other than money if the 
exchange is of a limited and noncommercial

[[Page 3627]]

nature. The term ''customary trade'' is limited by definition to the 
exchange of furs for cash, and other activities designated for a 
particular NPS unit by special regulation. These definitions recognize 
the traditional cultural, social, and economic practices of non-cash 
exchange of subsistence resources among those living a ``genuine 
subsistence lifestyle'', and that trapping was an ``integral and 
longstanding part of the subsistence lifestyle in many regions in 
Alaska.'' See 1981 U.S. Fish and Wildlife Service interim regulations 
interpreting similar definitions of ``barter'' and ``customary trade'' 
(46 FR 31824, June 17, 1981).
    Since the June 1981 rulemaking, two NPS units in Alaska where such 
customary trade was known to have occurred, Gates of the Arctic 
National Preserve and Kobuk Valley National Park, have promulgated 
special regulations that expand the definition of ``customary trade'' 
in those units to include the sale of handicrafts made from plant 
material taken by local rural residents of the park area. These special 
regulations do not require any written authorization from the 
superintendent. 36 CFR 13.1006 and 13.1504, respectively.
    Except for these specific and limited authorizations for barter and 
customary trade of handicrafts in Gates of the Arctic National Preserve 
and Kobuk Valley National Park in Alaska, National Park System-wide 
regulations at 36 CFR 5.3 generally prohibit engaging in any business 
without authorization. This means that other forms of sale, barter, and 
trade that are customary and traditional uses of wild, renewable 
resources by rural Alaska residents are not allowed under current NPS 
regulations. In addition, National Park System-wide regulations at 36 
CFR 2.1(a)(1) prohibit the collection of wildlife, plants, or parts 
thereof. There is a limited authorization for the hand-collection of 
fruits, berries, nuts, or unoccupied seashells for personal use or 
consumption, and a separate limited authorization for members of 
federally-recognized tribes to collect plants for traditional purposes 
under an agreement with the NPS, but the sale or commercial use of the 
products collected under these authorities is prohibited. 36 CFR 2.1(c) 
and (d).

Environmental Impact Analysis

    The NPS prepared an Environmental Assessment (EA) to analyze the 
impacts of various alternatives that would address the collection of 
plant materials and nonedible animal parts to make handicrafts for 
barter and customary trade. On April 14, 2014, the Regional Director 
for the Alaska Region signed a Finding of No Significant Impact (FONSI) 
that selected a modified version of the preferred alternative 
(Alternative D) in the EA as the selected action. In the FONSI, the 
Regional Director determined that written authorization from the NPS 
would be required to collect both animal parts and plant materials for 
making handicrafts for barter and customary trade. On December 2, 2016, 
the NPS amended the FONSI to exempt plant materials from this 
requirement. The provisions in this rule about the capture, collection, 
or possession of live wildlife and restrictions on the types of bait 
that may be used to take bears for subsistence purposes were 
categorically excluded from further environmental analysis.

Final Rule

Summary of Final Rule

    This rule implements the selected action identified in the amended 
FONSI and applies to all NPS units in Alaska where subsistence uses by 
local rural residents are authorized by ANILCA. The rule allows NPS-
qualified local rural residents to collect and use the following items 
to make and sell handicrafts:
     Plant Materials; and
     nonedible animal parts (e.g., antlers, horns, bones, 
teeth, claws, hooves, skins, hides, fur, hair, feathers, or quills) 
that are naturally shed or discarded, lawfully taken, or that remain on 
the landscape due to the natural mortality of an animal.
    While ANILCA does not expressly address making and selling of 
handicrafts out of plant materials, the NPS concludes it falls within 
this definition, and that it is not otherwise prohibited. Making and 
selling handicrafts out of plant materials is clearly use of a wild 
renewable resource for barter or customary trade. The omission of plant 
materials from the statute's specific provision on handicraft articles 
does not indicate any intent to prohibit their use. That definition 
provides that fish and wildlife-based handicraft articles for 
subsistence purposes are only made from ``nonedible byproducts'' to 
avoid the take of fish and wildlife solely for the purpose of making 
handicrafts out of them. Plant materials fall within the definition's 
more general provision of wild, renewable resources and the making and 
selling of plant-based handicrafts is a customary and traditional use 
of wild, renewable resources for barter or customary trade.
    Feathers may only be collected if such collection is not prohibited 
by the Bald and Golden Eagle Protection Act, the Migratory Bird Treaty 
Act, or other applicable law. Collection and use of bird feathers 
remains subject to any applicable federal and state laws.
    Eligibility to collect plants or nonedible animal parts follows the 
same criteria for other subsistence uses in national parks, monuments 
and preserves. Collection of nonedible wildlife parts is limited to 
NPS-qualified subsistence users who are residents of communities or 
areas with a federally recognized customary and traditional use 
determination (as listed in 50 CFR part 100) for each species in the 
game management unit within the affected area. Thus, if an NPS 
qualified subsistence user can lawfully harvest the wildlife species in 
a particular area for subsistence uses, then they are allowed to 
collect nonliving, nonedible parts of that same species they encounter 
in the area. Eligible persons must have written authorization from the 
superintendent to collect nonedible animal parts. The sale of raw 
unworked materials or parts remains prohibited because of concern about 
overuse and commercialization of the resource. The rule also allows 
NPS-qualified subsistence users to collect nonedible animal parts and 
plants on behalf of another NPS-qualified subsistence user or for 
cultural or educational programs that are qualified under FSB 
regulations at 50 CFR 100.25(g). The rule provides superintendents with 
authority to set conditions, limits, and other restrictions on 
collection activities to protect resources and values.
    The rule allows the collection of nonedible animal parts and plants 
and their inclusion in handicrafts to be sold or exchanged through 
barter or customary trade. The regulatory definition of ``barter'' is 
amended to include exchange of handicrafts for fish or game or their 
parts; or for other food or nonedible items other than money if the 
exchange is of a limited and noncommercial nature. The regulatory 
definition of ``customary trade'' is amended to include exchange of 
handicrafts for cash to support personal or family needs, so long as 
these exchanges do not constitute a significant commercial enterprise.
    The rule adds a definition of ``handicraft'' that is taken from the 
current federal subsistence regulations at 50 CFR 100.25(a). This 
definition clarifies that a handicraft must result from the alteration 
or manipulation of the shape and appearance of natural materials to 
create something of greater

[[Page 3628]]

monetary or aesthetic value than the unaltered natural material alone.

Capture or Collection of Live Wildlife

    In the proposed rule, the NPS stated that collecting or possessing 
living wildlife (including eggs and offspring) is prohibited in NPS 
units located in Alaska unless specifically authorized by federal 
statute or pursuant to (1) an NPS research specimen collection permit 
issued under 36 CFR 2.5; (2) federal subsistence regulations; or (3) 
special regulations for Glacier Bay National Park and Preserve. This 
proposal originated from public inquiries about the collection of live 
falcon chicks in national preserves that would be trained and then used 
for sport hunting.
    The take of wildlife is generally prohibited on National Park 
System units. Although in Alaska hunting and trapping are allowed in 
national preserves in accordance with applicable federal and non-
conflicting state laws and regulations, the NPS does not consider the 
capture or collection of live falcons to be hunting or trapping. The 
NPS concludes that the harvest of migratory birds (including their 
eggs) pursuant to the Migratory Bird Treaty Act and implementing 
regulations in 50 CFR part 92 is an appropriate ``subsistence use'' as 
defined in section 803 of ANILCA, 16 U.S.C. 3113. Similarly, the NPS 
concludes that the harvest of marine mammals in accordance with the 
Marine Mammal Protection Act and implementing regulations in 50 CFR 
part 18 by NPS-qualified subsistence users is also an appropriate 
``subsistence use'' as defined by section 803 of ANILCA. Thus, in this 
final rule, the NPS clarifies the prior definition of ``subsistence 
uses'' to explicitly include harvest of migratory birds under the MBTA 
and the harvest of marine mammals under the MMPA by qualified 
individuals. Except for these subsistence uses, the final rule 
continues the previous prohibitions on collecting, capturing, or 
possessing living wildlife unless expressly authorized by federal 
statute or pursuant to a NPS research specimen collection permit. This 
rule does not affect the use of trained raptors for hunting activities 
where authorized by applicable federal and state law. It also does not 
affect the collection of gull eggs in Glacier Bay by the Huna Tlingit 
pursuant to Public Law 113-142, sec. 2, 128 Stat. 1749 (2014).

Use of Bait for Taking Bears Under Federal Subsistence Regulations

    The NPS is adopting restrictions on the types of bait that may be 
used to take bears for subsistence uses under federal subsistence 
regulations in units of the National Park System in Alaska. Under this 
rule, bait is limited to (1) parts of legally taken native fish or 
wildlife that are not required to be salvaged; or (2) remains of native 
fish or wildlife that died of natural causes. The rule prohibits human-
produced items such as dog food, grease, bread, and marshmallows, which 
are currently allowed and used to bait bears.
    Baiting alters the natural behavior of bears by predictably 
attracting them to a specific location for harvest. The use of human-
produced food as bait can result human food-conditioned bears that are 
more likely to be killed by agency personnel or the public in defense 
of life or property. Human food-conditioned bears are also more likely 
to cause human injury. Bait stations tend to be located in accessible 
areas due to the infrastructure (typically a 55 gallon drum) used for 
baiting, the quantity of bait used to engage in this activity, and the 
frequency it must be replenished. Because of the accessibility of these 
areas, they are typically used by multiple user groups, which 
contributes to the public safety concerns associated with baiting.\1\
---------------------------------------------------------------------------

    \1\ More information about the impacts of bear baiting can be 
found in the September 2014 Environmental Assessment entitled 
``Wildlife Harvest On National Park Preserves In Alaska'' (Wildlife 
EA) that can be found at https://parkplanning.nps.gov/projectHome.cfm?projectID=49062 and then clicking ``Document List.''
---------------------------------------------------------------------------

    The NPS recognizes that hunting black bears over bait has been 
authorized by the State since the 1980s. Taking brown or black bears 
over bait, however, is not a common activity in most NPS units in 
Alaska. The only NPS unit where taking bears over bait has 
traditionally occurred is Wrangell-St. Elias National Park and 
Preserve.\2\ The final rule has been modified to give the 
superintendent of Wrangell-St. Elias National Park and Preserve the 
discretion to allow the use of human-produced food as bait pursuant to 
an annual permit. Permits would only be issued upon a written finding 
that such use is compatible with park purposes and values and that the 
permit applicant does not have reasonable access to natural materials 
that can be used as bait under this rule. Permits will identify 
specific baiting locations and will not be issued for areas where user 
conflicts are likely (i.e., areas that receive higher visitation 
particularly by the nonhunting public). This provision is similar to 
practices at Kenai National Wildlife Refuge, where the FWS issues 
permits for bear baiting but only for certain areas. Permits will also 
help the NPS document the level of use and minimize user conflicts.
---------------------------------------------------------------------------

    \2\ See Wildlife EA, pp. 11, 15.
---------------------------------------------------------------------------

Summary of and Responses to Public Comments

    A summary of public comments received on the proposed rule and NPS 
responses is provided below followed by a table that sets out changes 
we have made to the rule based on the analysis of the comments and 
other considerations.
General/Process
    1. Comment: Some commenters asked the NPS to rescind or re-propose 
the rule without two of the proposed changes (the limit on types of 
bait that can be used to bait bears for subsistence uses and the 
prohibition on collecting live wildlife). The commenters stated that 
they were not properly notified of these changes because they are not 
related to subsistence collections, which was the title of the proposed 
rule, and were not included in the 2014 EA.
    NPS Response: The NPS concludes the public was given sufficient 
notice for providing comments on all of the provisions in the proposed 
rule. In addition to publishing the proposed rule in the Federal 
Register, the NPS issued a press release and met with various interest 
groups and stakeholders during an extended 90-day comment period. 
Although the title of the proposed rule did not mention these other 
proposals, the summary on the first page of the proposed rule referred 
to these elements.
    2. Comment: Some comments were received that said the proposed rule 
is inconsistent with ANILCA, which--according to the commenters--made 
Alaska NPS units ``open unless closed.'' Another commenter said the NPS 
does not have authority to permanently close areas to subsistence uses.
    NPS Response: The commenters did not specify which section of 
ANILCA makes NPS units in Alaska open unless closed. NPS units are 
generally open to public uses unless they have been restricted or 
prohibited by law or regulation. The primary function of this rule is 
to authorize subsistence collection. This rule limits the type of bait 
that can be used for baiting bears, but it does not close any areas to 
taking fish or wildlife.
    3. Comment: Some commenters stated that the proposed restrictions 
on bait and capturing live wildlife should have been considered by the 
FSB and the State of Alaska Board of Game prior to being proposed as an 
NPS regulation.
    NPS Response: While the provisions on bait and collecting live 
wildlife

[[Page 3629]]

could have been addressed by the FSB or the State, the NPS is 
implementing its responsibilities under ANILCA and the NPS Organic Act 
(54 U.S.C. 100101) using the well-established process for notice and 
comment rulemaking.
    4. Comment: Some commenters stated there was insufficient 
consultation with Tribes, the State of Alaska, and the affected public. 
One commenter suggested the NPS should consult on the proposed rule in 
addition to the Environmental Assessment (EA) on subsistence 
collections. Another commenter suggested the NPS should consult with 
the State on the proposed baiting restriction since individuals are 
required to register bait stations with the State.
    NPS Response: This rule was published for an extended comment 
period (90 days as opposed to 30 days) in order to coincide with 
scheduled meetings of the NPS Subsistence Resource Commissions and 
Federal Subsistence Regional Advisory Councils. NPS staff attended 
these meetings and gave presentations on the proposed rule. Following 
these presentations, several SRCs and RACs submitted formal written 
comments on the proposed rule. The NPS met with the State both during 
the comment period and after the comment period closed when the NPS was 
analyzing public comments and considering changes to the final rule. 
Specific issues addressed in those meetings included the proposed 
restrictions on bait for hunting bears and capturing falcon chicks, 
among other topics. The content of those discussions, along with 
written comments submitted by the State and others, helped inform this 
final rule. Consultation with Tribes, Native corporations, and others 
is addressed in the compliance section of this rule.
Customary Trade
    5. Comment: One commenter suggested retaining the reference to 
park-specific special regulations in the definition of customary trade. 
The existing definition states that the NPS can designate other 
activities as ``customary trade'' by promulgating a special regulation 
for a particular park unit.
    NPS Response: The proposed change does not result in a substantive 
change to the regulations. Removing the reference to park-specific 
regulations in the definition of customary trade does not affect the 
ability of parks to establish such regulations in the future if found 
to be necessary.
    6. Comment: Several commenters responded to the NPS's request for 
feedback on how the agency could better explain the phrase 
``significant commercial enterprise'' in the definition of ``customary 
trade''. Some commenters suggested the phrase was vague, while others 
stated that further defining this term was unnecessary. Some commenters 
suggested that ``significant commercial enterprise'' should not be 
based on the value of the handicrafts, which reflects the skill and 
time involved in their creation, but instead should be based upon the 
venue and quantity of sales (e.g., mass production and selling to a 
larger distributor for resale) or the use of paid employees in their 
production.
    NPS Response: The NPS agrees that the value of the handicraft does 
not necessarily determine whether the sale of that handicraft is a 
``significant commercial enterprise.'' While quantity of sales is 
related to the level of commercial activity, the NPS concludes that the 
venue where the item is sold is not relevant. The NPS also concludes 
that prohibiting the use of paid employees helps to ensure that 
handicraft production under these regulations is not a ``significant 
commercial enterprise.'' This is also consistent with an existing NPS 
regulation in Alaska (36 CFR 13.42(c)) that prohibits the use of 
employees in trapping activities in national preserves. The final rule 
has been modified to prohibit the use of paid employees--except by 
qualified educational or cultural programs--to collect plant materials 
and animal parts.
    7. Comment: The NPS requested comment on how the term 
``substantially greater monetary and aesthetic value'' could be further 
explained to provide more clarity to the public about what qualifies as 
a handicraft. Some commenters said this term was vague while others 
said no further clarification or definition was necessary. Other 
commenters suggested the NPS adopt the definition found in federal 
subsistence regulations.
    NPS Response: The NPS finds it is in the best interest of the 
public to be consistent with federal subsistence regulations to the 
extent possible. The NPS has modified the definition of ``handicraft'' 
in the rule to refer to the definition used in federal subsistence 
regulations (50 CFR 100.25(a)). As a result, any modifications made by 
the FSB to this definition in the future will be automatically adopted 
in NPS regulation. If the FSB clarifies the term ``substantially 
greater monetary and aesthetic value'' in the definition of 
``handicraft'', that change will be adopted in NPS regulation without 
additional rulemaking by the NPS. The NPS definition of handicraft 
differs in two ways from the FSB definition. First, the NPS definition 
includes plants. Plants are not included in the definition in 50 CFR 
part 100 because the FSB does not have authority to regulate 
subsistence use of plants. Second, the NPS definition of handicraft 
specifically excludes trophy or European mounts of horns or antlers. 
Both state and federal subsistence regulations specifically prohibit 
the sale of trophies or mounts of horns or antlers. See 5 AAC 92.200, 
50 CFR 100.25(j)(10).
Subsistence Collections
    8. Comment: One commenter stated that subsistence collections 
should be limited to Alaska Natives.
    NPS Response: ANILCA provides for subsistence uses by rural 
residents of Alaska regardless of ethnicity. Limiting subsistence 
collections to Alaska Natives is inconsistent with ANILCA.
    9. Comment: Several commenters objected to the requirement that 
subsistence users obtain written authorization for collecting animal 
parts and plants for the creation and sale of handicrafts.
    NPS Response: The preferred alternative in the EA would require 
individuals to obtain a permit in order to collect plants or animal 
parts for the making and sale of handicrafts. In the FONSI, however, 
the NPS decided to require written authorization for all items except 
for plant materials gathered in Kobuk Valley National Park and Gates of 
the Arctic National Park and Preserve where existing special 
regulations allow this activity without written authorization. Because 
colleting plants for subsistence uses is already authorized by NPS 
regulations, the NPS has decided to let the superintendent determine 
whether to require written authorization for collecting plants for 
making handicrafts for customary trade. Because the final rule does not 
require written authorization for this activity, the special 
regulations for Kobuk Valley and Gates of the Arctic are no longer 
necessary and are removed.
    10. Comment: Some commenters recommended the NPS issue written 
permission for the collection of plants and animal parts on a 
community-wide basis as opposed to issuing individual permits to each 
qualified subsistence user.
    NPS Response: The written authorizations could take many forms, and 
they need not always be permits issued to individual subsistence users. 
Alternatives include written authorizations to resident zone 
communities or to entire resident zones, or annual authorizations 
documented in park compendia. Park superintendents

[[Page 3630]]

will work with SRCs and, as appropriate, RACs, tribes and ANCSA 
corporations to determine the most appropriate type of written 
authorization for individual NPS units.
    11. Comment: Some commenters said that requiring a permit or 
written authorization for subsistence uses was a closure. Other 
commenters stated that a permit requirement is burdensome and not 
justified in the absence of biological concerns.
    NPS Response: Requiring a permit or otherwise putting conditions on 
an activity is not a closure. The NPS concludes that the incremental 
burden placed upon subsistence users to be required to obtain written 
authorization to collect animal parts is an appropriate and prudent 
mechanism for regulating the commercial use of these resources.
    12. Comment: Some commenters stated that collected materials are 
sometimes exchanged before they reach an artist and are made into 
handicrafts, adding that it is too restrictive to say that materials 
must be modified before they can be exchanged. The commenters suggested 
that exchange of unworked material should be allowed to supply 
materials for elders to produce handicrafts and for qualified cultural 
and educational programs.
    NPS Response: In the EA on subsistence collections, the NPS 
recognized that the person collecting the materials would not always be 
the person who uses them to make handicrafts. The final rule has been 
modified to clarify that permits may be issued to allow an NPS-
qualified subsistence user to gather plants or animal parts for making 
handicrafts on behalf of another NPS-qualified subsistence user or for 
qualified cultural and educational programs.
Baiting Bears
    13. Comment: Some commenters stated that the proposed limits on the 
types of bait that may be used to take bears under federal subsistence 
regulations would essentially eliminate the opportunity for hunters to 
harvest bears over bait in the spring. This is because hunters may not 
have access to the types of baits that would be allowed in the spring, 
such as parts and remains of fish and wildlife.
    NPS Response: As discussed above, the NPS has made an allowance for 
other types of bait in certain circumstances in Wrangell-St. Elias 
National Park and Preserve. This is the only NPS unit where bear 
baiting traditionally occurred. The final rule allows for NPS qualified 
subsistence users who do not have reasonable access to natural bait to 
apply for a permit to use other types of bait. The NPS will issue this 
permit for specific locations in the park unit upon a finding that 
using other types of bait is compatible with park purposes and values 
(e.g. will not result in user conflicts, particularly in areas that 
receive higher visitation by the nonhunting public).
    14. Comment: Some commenters stated that using natural bait will 
attract more brown bears than black bears and that hunters could end up 
baiting brown bears even if that was not their intent.
    NPS Response: The NPS expects that natural bait will attract both 
brown and black bears, just as human-produced foods attract both 
species as well as other wildlife. The use of natural bait will help 
avoid conditioning brown and black bears to human-produced foods which 
can lead to more frequent interactions between humans and bears.
    15. Comment: Some commenters stated that natural bait, such as a 
gut pile or furbearer carcasses, would be more difficult to clean up at 
the end of the baiting season than human-produced foods that are 
commonly used to bait bears, such as dog food or popcorn.
    NPS Response: Federal subsistence regulations require that bait 
station sites be cleaned up when hunting is completed, including 
removing any litter, containers, chains, and other equipment used to 
set bait. The natural materials allowed by the rule--such as parts and 
remains of fish and wildlife--are not litter or equipment and thus 
would not be covered by this requirement.
    16. Comment: Some commenters stated that inconsistent regulations 
about the types of bait that can be used will increase the possibility 
for confusion.
    NPS Response: NPS acknowledges that this rule results in 
differences between the materials that can be used to harvest bears 
over bait under NPS-specific subsistence regulations and generally 
applicable federal subsistence regulations. In order to avoid the 
potential for confusion, the NPS will engage in outreach to local user 
groups, post information online, and make information available at park 
headquarters to inform local hunters of the rules that apply on NPS 
lands.
    17. Comment: Some commenters stated that there is no biological 
data or other evidence demonstrating that baiting bears has the same 
effects as feeding wildlife, such as habituating bears to human foods 
or causing nuisance bear behavior.
    NPS Response: Like feeding wildlife, baiting typically uses human 
or pet food to alter the natural behavior of bears to predictably 
attract them to a specific location for harvest. Food-conditioned bears 
are more likely to be killed by agency personnel or the public in 
defense of life or property. Food-conditioned bears are also believed 
more likely to cause human injury.\3\
---------------------------------------------------------------------------

    \3\ See Wildlife EA.
---------------------------------------------------------------------------

Capture or Collection of Live Wildlife
    18. Comment: Two commenters addressed subsistence harvest of 
migratory birds and their eggs, noting that the collection of eggs is 
allowed under the Migratory Bird Treaty Act (MBTA) and that the harvest 
of migratory birds and their eggs is a customary and traditional 
practice.
    NPS Response: ANILCA authorized the harvest of fish and wildlife 
for subsistence uses in specific NPS units under Title VIII of ANILCA 
and pursuant to federal regulations applicable to NPS units. National 
preserves in Alaska are open to the harvest of fish and of wildlife for 
sport hunting and trapping under State of Alaska regulations. The FSB 
generally regulates subsistence harvest of fish and wildlife. It does 
not regulate the harvest of migratory birds for subsistence uses in 
Alaska which is provided for by law under the MBTA and implementing 
regulations at 50 CFR part 92. The NPS concludes that ANILCA's broad 
definition of subsistence uses authorizes NPS-qualified rural residents 
to harvest migratory birds, including eggs, in NPS units where 
subsistence is authorized in accordance with the MBTA and the migratory 
bird subsistence regulations at 50 CFR part 92. Collecting live 
wildlife, such as falcon chicks to raise and train for hunting, remains 
prohibited in NPS areas in accordance with national or Alaska-specific 
NPS regulations. 36 CFR 2.2(a)(2) or 13.35.
    In considering this comment, the NPS notes that a similar issue 
exists with respect to harvest of marine mammals by Alaska Natives 
under the Marine Mammal Protection Act (MMPA). The NPS concludes that 
ANILCA's definition of subsistence uses includes the harvest of marine 
mammals by Alaskan Natives who are NPS-qualified rural residents in 
park areas where the take of marine mammals is authorized in accordance 
with the Alaska Native exemption in the Marine Mammal Protection Act 
and the marine mammal regulations at 50 CFR 18.23 and 18.26. The NPS 
has modified the definition of subsistence uses to reflect that NPS-
qualified subsistence users who are eligible to harvest under the MBTA 
and the MMPA can do so in NPS areas open to subsistence uses.

[[Page 3631]]

Changes From the Proposed Rule

    After taking the public comments into consideration and after 
additional review, the NPS made the following substantive changes from 
the proposed rule:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Sec.   13.420.................  Modified the definition of ``animal
                                 parts'' to clarify that this also
                                 includes parts of fish.
Sec.   13.420.................  Modified the definition of
                                 ``handicraft'' to adopt the definition
                                 under federal subsistence regulations
                                 in 50 CFR part 100.
Sec.   13.420.................  Modified the definition of ``subsistence
                                 uses'' to include the harvest of
                                 migratory birds under the MBTA and
                                 marine mammals under the MMPA.
Sec.   13.482.................  Included a provision to allow an NPS-
                                 qualified subsistence user to designate
                                 another NPS-qualified subsistence user
                                 to collect, on their behalf, animal
                                 parts from nonliving wildlife for
                                 making handicrafts in accordance with a
                                 permit from the superintendent. Removed
                                 the reference to nonconflicting State
                                 regulations regarding use of bear claws
                                 because federal subsistence regulations
                                 address this activity. Added a
                                 prohibition on the use of paid
                                 employees.
Sec.   13.485(b)..............  Removed the requirement for a written
                                 authorization to collect plants to make
                                 handicrafts for customary trade or
                                 barter. Added a prohibition on the use
                                 of paid employees.
Sec.   13.485(d)..............  Included a provision to allow an NPS-
                                 qualified subsistence user to designate
                                 another NPS-qualified subsistence user
                                 to collect, on their behalf, plants for
                                 making handicrafts in accordance with a
                                 permit from the superintendent.
Sec.   13.1902(d).............  Included a provision to allow the
                                 superintendent of Wrangell-St. Elias
                                 National Park and Preserve to issue a
                                 permit to use human-produced food as
                                 bait upon a finding that such use is
                                 compatible with the park purposes and
                                 values and that the permit applicant
                                 has no reasonable access to natural
                                 bait.
------------------------------------------------------------------------

Compliance With Other Laws, Executive Orders, and Department Policy

Regulatory Planning and Review (Executive Order 12866)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. OIRA has determined that this rule is not 
significant.
    Executive Order 13563 reaffirms the principles of Executive Order 
12866 while calling for improvements in the nation's regulatory system 
to promote predictability, to reduce uncertainty, and to use the best, 
most innovative, and least burdensome tools for achieving regulatory 
ends. The executive order directs agencies to consider regulatory 
approaches that reduce burdens and maintain flexibility and freedom of 
choice for the public where these approaches are relevant, feasible, 
and consistent with regulatory objectives. Executive Order 13563 
emphasizes further that regulations must be based on the best available 
science and that the rulemaking process must allow for public 
participation and an open exchange of ideas. We have developed this 
rule in a manner consistent with these requirements.

Regulatory Flexibility Act

    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.). This certification is based on the cost-
benefit and regulatory flexibility analyses found in the reports 
entitled ``Regulatory Flexibility Threshold Analysis: Special 
Regulations for National Park Areas in Alaska'' and ``Preliminary Cost/
Benefit Analysis: Special Regulations for National Park Service Areas 
in Alaska'' which can be viewed online at http://parkplanning.nps.gov/akro by clicking the link ``Subsistence Uses of Horns, Antlers, Bones 
and Plants'' and then clicking ``Document List.''

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2), the SBREFA. 
This rule:
    a. Does not have an annual effect on the economy of $100 million or 
more.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, federal, state, or local government 
agencies, or geographic regions
    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.

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local or tribal governments or the private sector. A statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1531 et seq.) is not required.

Takings (Executive Order 12630)

    This rule does not effect a taking of private property or otherwise 
have taking implications under Executive Order 12630. A takings 
implication assessment is not required.

Federalism (Executive Order 13132)

    Under the criteria in section 1 of Executive Order 13132, this rule 
does not have sufficient federalism implications to warrant the 
preparation of a Federalism summary impact statement. The proposed rule 
is limited in effect to federal lands managed by the NPS in Alaska and 
would not have a substantial direct effect on state and local 
government in Alaska. A Federalism summary impact statement is not 
required.

Civil Justice Reform (Executive Order 12988)

    This rule complies with the requirements of Executive Order 12988. 
Specifically, this rule:
    (a) Meets the criteria of section 3(a) requiring that all 
regulations be reviewed to eliminate errors and ambiguity and be 
written to minimize litigation; and
    (b) Meets the criteria of section 3(b)(2) requiring that all 
regulations be written in clear language and contain clear legal 
standards.

Consultation With Tribes (E.O. 13175 and Department Policy) and ANCSA 
Corporations

    The Department of the Interior strives to strengthen its 
government-to-government relationship with federally recognized Tribes 
through a commitment to consultation with Tribes and recognition of 
self-governance and Tribal sovereignty. We have evaluated this rule 
under the criteria in Executive Order 13175 and under the Department's 
tribal consultation policy and Alaska Native Claims Settlement Act 
(ANCSA) Corporations consultation policy. Tribes were notified of the 
proposal regarding the subsistence collections provisions early in the 
process of developing the regulation. Because the provision on taking 
live wildlife is not a new prohibition, it will not have a substantial 
direct effect on federally recognized Tribes or ANCSA Corporation 
lands, water areas, or

[[Page 3632]]

resources. The NPS concludes that the types of bait local rural 
residents can use for hunting bears will not have a substantial direct 
effect on federally recognized Tribes or ANCSA Corporation lands, water 
areas, or resources. This is based on previous consultation with Tribes 
on proposed restrictions related to taking wildlife, the limited nature 
of the restriction (hunting bears, including over bait, remains 
authorized), and the infrequent basis that local rural residents take 
bears over bait on NPS lands (records show three bears taken over bait 
by local rural residents between 1992-2010). Most of this limited 
activity has occurred in Wrangell-St. Elias National Park and Preserve. 
Tribes associated with Wrangell-St. Elias National Park and Preserve 
where invited to consult on the proposed bait restriction; no Tribes 
requested consultation.

Paperwork Reduction Act (44 U.S.C. 3501 et seq.)

    This final rule does not contain any new collections of information 
that require approval by Office of Management and Budget (OMB) under 
the Paperwork Reduction Act of 1995. Information collection 
requirements associated with the requirement for the Superintendent's 
written authorization to collect nonedible animal parts and for the 
designated gatherer permit are covered under OMB Control Number 1024-
0026 (expires 12/31/2016 and in accordance with 5 CFR 1320.10, the 
agency may continue to conduct or sponsor this collection of 
information while the submission is pending at OMB). We estimate the 
annual burden associated with this information collection to be 2.5 
hours per year. Information collection requirements associated with FSB 
customary and traditional use determinations have been approved under 
OMB Control Number 1018-0075 (expires 06/30/2019). We may not conduct 
or sponsor, and a person is not required to respond to, a collection of 
information unless it displays a currently valid OMB control number.

National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. A detailed statement 
under the National Environmental Policy Act of 1969 (NEPA) is not 
required because we reached the FONSI. The EA and amended FONSI are 
available online at http://parkplanning.nps.gov/akro by clicking the 
link ``Subsistence Uses of Horns, Antlers, Bones and Plants'' and then 
clicking ``Document List.'' The other parts of this rule (collection/
capture of live wildlife, bear baiting under federal subsistence 
regulations) are excluded from the requirement to prepare a detailed 
statement because they fall within the categorical exclusion covering 
modifications to existing regulations for NPS-administered areas that 
do not (a) increase public use to the extent of compromising the nature 
and character of the area or cause physical damage to it; (b) introduce 
non-compatible uses that might compromise the nature and 
characteristics of the area or cause physical damage to it; (c) 
conflict with adjacent ownerships or land uses; or (d) cause a nuisance 
to adjacent owners or occupants. (For further information see Section 
3.3 of Director's Order #12 Handbook). We have also determined that the 
rule does not involve any of the extraordinary circumstances listed in 
43 CFR 46.215 that would require further analysis under NEPA.

Effects on the Energy Supply (Executive Order 13211)

    This rule is not a significant energy action under the definition 
in Executive Order 13211. A Statement of Energy Effects is not 
required.

Drafting Information

    The primary authors of this regulation are Mary McBurney and Andee 
Sears of the Alaska Regional Office, National Park Service; Barbara 
Cellarius of Wrangell-St. Elias National Park and Preserve, National 
Park Service; and Jay Calhoun and Russel J. Wilson of the Division of 
Regulations, Washington Support Office, National Park Service.

List of Subjects in 36 CFR Part 13

    Alaska, National parks, Reporting and recordkeeping requirements.

    In consideration of the foregoing, the National Park Service amends 
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. 3124; 54 U.S.C. 100101, 100751, 320102; 
Sec. 13.1204 also issued under Sec. 1035, Public Law 104-333, 110 
Stat. 4240.


0
2. Amend Sec.  13.42 by adding paragraph (j) to read as follows:


Sec.  13.42   Taking of wildlife in national preserves.

* * * * *
    (j) Collecting, capturing, or possessing living wildlife is 
prohibited unless expressly authorized by federal statute or pursuant 
to Sec.  2.5 of this chapter. A falconry permit or other permit issued 
by the State of Alaska does not provide the required authorization. 
These collecting activities are not hunting or trapping activities and 
therefore are not allowed in national preserves under paragraph (a) of 
this section. This regulation does not prohibit the use of trained 
raptors for hunting activities where authorized by applicable federal 
and state law.

0
3. Amend Sec.  13.420 by:
0
a. Adding introductory text and the definitions of ``Animal parts'' and 
``Handicraft'' in alphabetical order; and
0
b. Revising the definition of ``Subsistence uses.''
    The additions and revision read as follows:


Sec.  13.420   Definitions.

    The following definitions apply to this part:
    Animal parts. As used in this part, this term means nonedible 
antlers, horns, bones, teeth, claws, hooves, skins, hides, fur, hair, 
feathers, or quills that:
    (1) Are obtained from lawfully hunted or trapped fish or wildlife;
    (2) Have been shed or discarded as a result of natural life-cycle 
events; or
    (3) Remain on the landscape as a result of the natural mortality of 
fish or wildlife.
    Handicraft. As used in the part, this term has the same meaning as 
used in federal subsistence regulations (50 CFR part 100) except that:
    (1) The term also includes products made from plant materials; and
    (2) The term does not include a trophy or European mount of horns 
or antlers.
* * * * *
    Subsistence uses. As used in this part, this term means the 
customary and traditional uses by rural Alaska residents of wild, 
renewable resources for direct personal or family consumption as food, 
shelter, fuel, clothing, tools or transportation; for the making and 
selling of handicraftsout of nonedible byproducts of fish and wildlife 
resources taken for personal or family consumption; for barter or 
sharing for personal or family consumption; and for customary trade 
pursuant to Title VIII of ANILCA. Harvest of migratory birds pursuant 
to the Migratory Bird Treaty Act (and implementing regulations at 50 
CFR part 92) and marine mammals pursuant to the Marine Mammal 
Protection Act Act (and implmenting regulations at 50 CFR 18.23 and 
18.26) by qualified individuals is a subsistence use in

[[Page 3633]]

accordance with this subpart. For the purposes of this subpart, the 
terms--
    (1) ``Family'' means all persons related by blood, marriage, or 
adoption, or any person living within the household on a permanent 
basis; and
    (2) ``Barter'' means the exchange of handicrafts or fish or 
wildlife or their parts taken for subsistence uses--
    (i) For other fish or game or their parts; or
    (ii) For other food or for nonedible items other than money if the 
exchange is of a limited and noncommercial nature; and
    (3) ``Customary trade'' means the exchange of handicrafts or furs 
for cash to support personal or family needs; and does not include 
trade which constitutes a significant commercial enterprise.

0
4. Amend Sec.  13.480 by:
0
a. Designating the undesignated paragraph as paragraph (a).
0
b. Adding paragraph (b).
    The addition reads as follows:


Sec.  13.480   Subsistence hunting and trapping.

* * * * *
    (b)(1) The following types of bait may be used to take bears for 
subsistence uses:
    (i) Parts of legally taken native fish or wildlife that are not 
required to be salvaged; or
    (ii) Remains of native fish or wildlife that died of natural 
causes.
    (2) The use of any other type of bait to take bears for subsistence 
uses is prohibited except under the terms and conditions of a permit 
issued under paragraph (d) of Sec.  13.1902.

0
5. Add Sec.  13.482 to read as follows:


Sec.  13.482   Subsistence collection and use of animal parts.

    (a) Local rural residents may collect animal parts (excluding parts 
of threatened or endangered species) for subsistence uses in park areas 
where subsistence uses are authorized, provided that:
    (1) The resident's primary permanent residence is in an area or 
community with a federally recognized customary and traditional use 
determination for the species in the game management unit where the 
collecting occurs (50 CFR part 100); and
    (2) The resident has written authorization from the superintendent 
issued under Sec.  1.6 of this chapter that identifies specific areas 
where this activity is allowed.
    (3)(i) If you are a NPS-qualified subsistence user (recipient), you 
may designate another NPS-qualified subsistence user to collect animal 
parts on your behalf in accordance with this section for the following 
purposes:
    (A) Making handicrafts for personal use, customary trade, or 
barter; or
    (B) Making handicrafts for qualified educational or cultural 
programs.
    (ii) The designated collector must obtain a permit from the 
superintendent. The designated collector may not charge the recipient 
for his/her services or for the collected items.
    (4) The use of paid employees to collect animal parts is 
prohibited. This prohibition does not apply to qualified educational or 
cultural programs that collect animal parts to create handicrafts, 
provided that the resulting handicrafts are not exchanged through 
barter or customary trade.
    (b) The superintendent may establish conditions, limits, and other 
restrictions on collection activities. Areas open to collections will 
be identified on a map posted on the park Web site and available at the 
park visitor center or park headquarters. Violating a condition, limit, 
or restriction is prohibited.

0
6. Amend Sec.  13.485 by:
0
a. Revising paragraph (b);
0
b. Redesignating paragraph (c) as paragraph (f); and
0
c. Adding paragraphs (c), (d), and (e).
    The revision and additions read as follows:


Sec.  13.485   Subsistence use of timber and plant material.

* * * * *
    (b) The gathering by local rural residents of fruits, berries, 
mushrooms, and other plant materials for subsistence uses, and the 
gathering of dead or downed timber for firewood for noncommercial 
subsistence uses, shall be allowed without a permit in park areas where 
subsistence uses are allowed.
    (c) The gathering by local rural residents of plant materials to 
make handicrafts for customary trade or barter is authorized in park 
areas where subsistence uses are allowed in accordance with terms and 
conditions established by the superintendent and posted on the park Web 
site. The use of paid employees to collect plant materials is 
prohibited. This prohibition does not apply to qualified educational or 
cultural programs that collect plant materials to create handicrafts, 
provided that the resulting handicrafts are not exchanged through 
barter or customary trade.
    (d)(1) If you are a NPS-qualified subsistence (recipient), you may 
designate another NPS-qualified subsistence user to collect plants on 
your behalf in accordance with this section for the following purposes:
    (i) Making handicrafts for personal use, customary trade, or 
barter; or
    (ii) Making handicrafts for qualified educational or cultural 
programs.
    (2) The designated collector must obtain a permit from the 
superintendent. The designated collector may not charge the recipient 
for his/her services or for the collected items.
    (e) The superintendent may establish conditions, limits, and other 
restrictions on gathering activities. Violating a condition, limit, or 
restriction is prohibited.
* * * * *

0
7. Amend Sec.  13.1902 by adding paragraph (d) to read as follows:


Sec.  13.1902   Subsistence.

* * * * *
    (d) Use of bait for taking bears. (1) The superintendent may issue 
individual, annual permits allowing the use of human-produced food 
items as bait for taking bears upon a finding that:
    (i) Such use is compatible with the purposes and values for which 
the area was established (e.g. does not create a user conflict); and
    (ii) The permit applicant does not have reasonable access to 
natural bait that may be used under Sec.  13.480(b)(1).
    (2) Permits will identify specific locations within the park area 
where the bait station may be established and will not include areas 
where the use of such materials could create a user conflict.

    Dated: December 29, 2016.
Michael Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2016-32045 Filed 1-11-17; 8:45 am]
 BILLING CODE 4312-52-P