[Federal Register Volume 88, Number 5 (Monday, January 9, 2023)]
[Proposed Rules]
[Pages 1176-1183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00142]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 13

[NPS-AKRO-33913; PPAKAKROZ5, PPMPRLE1Y.L00000]
RIN 1024-AE70


Alaska; Hunting and Trapping in National Preserves

AGENCY: National Park Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The National Park Service (NPS) proposes to amend its 
regulations for sport hunting and trapping in national preserves in 
Alaska. This proposed rule would prohibit certain harvest practices, 
including bear baiting; and prohibit predator control or predator 
reduction on national preserves.

DATES: Comments on the proposed rule must be received by 11:59 p.m. ET 
on March 10, 2023.

ADDRESSES: You may submit comments, identified by Regulation Identifier 
Number (RIN) 1024-AE70, by either of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail or Hand Deliver to: National Park Service, Regional 
Director, Alaska Regional Office, 240 West 5th Ave., Anchorage, AK 
99501. Comments delivered on external electronic storage devices (flash 
drives, compact discs, etc.) will not be accepted.
     Instructions: Comments will not be accepted by fax, email, 
or in any way other than those specified above. Comments delivered on 
external electronic storage devices (flash drives, compact discs, etc.) 
will not be accepted. All submissions received must include the words 
``National Park Service'' or ``NPS'' and must include the docket number 
or RIN (1024-AE70) for this rulemaking. Comments received will be 
posted without change to https://www.regulations.gov, including any 
personal information provided.
     Docket: For access to the docket to read background 
documents or comments received, go to https://www.regulations.gov and 
search for ``1024-AE70.''

FOR FURTHER INFORMATION CONTACT: Regional Director, Alaska Regional 
Office, 240 West 5th Ave., Anchorage, AK 99501; phone (907) 644-3510; 
email: [email protected]. Individuals in the United States who 
are deaf, deafblind, hard of hearing, or have a speech disability may 
dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay 
services. Individuals outside the United States should use the relay 
services offered within their country to make international calls to 
the point-of-contact in the United States.

SUPPLEMENTARY INFORMATION:

Background

    The Alaska National Interest Lands Conservation Act (ANILCA) allows 
harvest of wildlife in national preserves in Alaska for subsistence 
purposes by local rural residents under Federal regulations. ANILCA 
also allows harvest of wildlife for sport purposes by any individual 
under laws of the State of Alaska (referred to as the State) that do 
not conflict with federal laws. ANILCA requires the National Park 
Service (NPS) to manage national preserves consistent with the NPS 
Organic Act of 1916, which directs the NPS ``to conserve the scenery, 
natural and historic objects, and wild life in the System units and to 
provide for the enjoyment of the scenery, natural and historic objects, 
and wild life in such manner and by such means as will leave them 
unimpaired for the enjoyment of future generations.'' 54 U.S.C. 
100101(a).
    On June 9, 2020, the NPS published a final rule (2020 Rule; 85 FR 
35181) that removed restrictions on sport hunting and trapping in 
national preserves in Alaska that were implemented by the NPS in 2015 
(2015 Rule; 80 FR 64325). These included restrictions on the following 
methods of taking wildlife that were and continue to be authorized by 
the State in certain locations: taking black bear cubs, and sows with 
cubs, with artificial light at den sites; harvesting bears over bait; 
taking wolves and coyotes (including pups) during the denning season 
(between May 1 and August 9); taking swimming caribou; taking caribou 
from motorboats under power; and using dogs to hunt black bears. The 
2015 Rule prohibited other harvest practices that were and continue to 
be similarly prohibited by the State. These prohibitions were also 
removed by the 2020 Rule. The 2020 Rule also removed a statement in the 
2015 Rule that State laws or management actions that seek to, or have 
the potential to, alter or manipulate natural predator populations or 
processes in order to increase harvest of ungulates by humans are not 
allowed in national preserves in Alaska. The NPS based the 2020 Rule in 
part on direction from the Department of the Interior (DOI) to expand 
recreational hunting opportunities and align hunting opportunities with 
those established by states. Secretarial Orders 3347 and 3356. The 2020 
Rule also responded to direction from the

[[Page 1177]]

Secretary of the Interior to review and reconsider regulations that 
were more restrictive than state provisions, and specifically the 
restrictions on harvesting wildlife found in the 2015 Rule.
    The harvest practices at issue in both the 2015 and 2020 Rules are 
specific to harvest under the authorization for sport hunting and 
trapping in ANILCA. Neither rule addressed subsistence harvest by rural 
residents under title VIII of ANILCA.

The 2015 Rule

    Some of the harvest methods prohibited by the 2015 Rule targeted 
predators. When the NPS restricted these harvest methods in the 2015 
Rule, it concluded that these methods were allowed by the State for the 
purpose of reducing predation by bears and wolves to increase 
populations of prey species (ungulates) for harvest by human hunters. 
The State's hunting regulations are driven by proposals from members of 
the public, fish and game advisory entities, and State and Federal 
government agencies. The State, through the State of Alaska Board of 
Game (BOG), deliberates on the various proposals publicly. Many of the 
comments made in the proposals and BOG deliberations on specific 
hunting practices showed that they were intended to reduce predator 
populations for the purpose of increasing prey populations. Though the 
State objected to this conclusion in its comments on the 2015 Rule, the 
NPS's conclusion was based on State law and policies; \1\ BOG 
proposals, deliberations, and decisions; \2\ and Alaska Department of 
Fish and Game actions, statements, and publications leading up to the 
2015 Rule.\3\ Because NPS Management Policies state that the NPS will 
manage park lands for natural processes (including natural wildlife 
fluctuations, abundances, and behaviors) and explicitly prohibit 
predator control, the NPS determined that these harvest methods 
authorized by the State were in conflict with NPS mandates. NPS 
Management Policies (4.4.1, 4.4.3) (2006). For these reasons and 
because the State refused to exempt national preserves from these 
authorized practices, the NPS prohibited them in the 2015 Rule and 
adopted a regulatory provision consistent with NPS policy direction on 
predator control related to harvest. The 2015 Rule further provided 
that the Regional Director would compile, annually update, and post on 
the NPS website a list of any State predator control laws or actions 
prohibited by the NPS on national preserves in Alaska.
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    \1\ Alaska Statutes (AS) section 16.05.255(k) (definition of 
sustained yield); Findings of the Alaska Board of Game, 2006-164-
BOG, Board of Game Bear Conservation and Management Policy (May 14, 
2006) (rescinded in 2012).
    \2\ See, e.g., Alaska Board of Game Proposal Book for March 
2012, proposals 146, 167, 232.
    \3\ See, e.g., AS section 16.05.255(e); State of Alaska 
Department of Fish and Game Emergency Order on Hunting and Trapping 
04-01-11 (Mar. 31, 2011) (available at Administrative Record for 
Alaska v. Jewell et al., No. 3:17-cv-00013-JWS, D. Alaska pp. 
NPS0164632-35), State of Alaska Department of Fish and Game Agenda 
Change 11 Request to State Board of Game to increase brown bear 
harvest in game management unit 22 (2015); Alaska Department of Fish 
and Game Wildlife Conservation Director Corey Rossi, ``Abundance 
Based Fish, Game Management Can Benefit All,'' Anchorage Daily News 
(Feb. 21, 2009); ADFG News Release--Wolf Hunting and Trapping Season 
extended in Unit 9 and 10 in response to caribou population declines 
(3/31/2011); Alaska Department of Fish and Game Craig Fleener, 
Testimony to U.S. Senate Committee on Energy and Natural Resources 
re: Abundance Based Wildlife Management (Sept. 23, 2013); Alaska 
Department of Fish and Game, Hunting and Trapping Emergency Order 4-
01-11 to Extend Wolf Hunting and Trapping Seasons in GMU [Game 
Management Unit] 9 and 10 (LACL and KATM) (Nov. 25, 2014); ADFG 
Presentation Intensive Management of Wolves, Bears, and Ungulates in 
Alaska (Feb. 2009).
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    As stated above, the 2015 Rule only restricted harvest for ``sport 
purposes.'' Although this phrase is used in ANILCA, the statute does 
not define the term ``sport.'' In the 2015 Rule, the NPS reasoned that 
harvest for subsistence is for the purpose of feeding oneself and 
family and maintaining cultural practices, and that ``sport'' or 
recreational hunting invokes Western concepts of fairness which do not 
necessarily apply to subsistence practices. Therefore, the 2015 Rule 
prohibited the practices of harvesting swimming caribou and taking 
caribou from motorboats under power which the NPS concluded were not 
consistent with generally accepted notions of ``sport'' hunting. This 
conclusion also supported restrictions in the 2015 Rule on the 
practices of taking bear cubs and sows with cubs; and using a vehicle 
to chase, drive, herd, molest, or otherwise disturb wildlife. To 
illustrate how the 2015 Rule worked in practice, a federally qualified 
local rural resident could harvest bear cubs and sows with cubs, or 
could harvest swimming caribou (where authorized under federal 
subsistence regulations), but a hunter from Anchorage, Fairbanks, 
Juneau or other nonrural areas in Alaska, or a hunter from outside 
Alaska, could not.
    In the 2015 Rule, the NPS also concluded that the practice of 
putting out bait to attract bears for harvest poses an unacceptable 
safety risk to the visiting public and leads to unnatural wildlife 
behavior by attracting bears to a food source that would not normally 
be there. The NPS based this conclusion on the understanding that bears 
are more likely to attack when defending a food source and therefore 
visitors who encountered a bait station would be at risk from bear 
attacks. In addition, the NPS concluded that baiting could cause more 
bears to become conditioned to human food, creating unacceptable public 
safety risks. The NPS based this conclusion on the fact that not all 
bears that visit bait stations are harvested; for example, a hunter may 
not be present when the bear visits the station, or a hunter may decide 
not to harvest a particular bear for a variety of reasons. 
Additionally, other animals are attracted to bait stations. Because 
bait often includes dog food and human food, including items like bacon 
grease and pancake syrup, which are not a natural component of animal 
diets, the NPS was concerned that baiting could lead to bears and other 
animals associating these foods with people, which would create a 
variety of risks to people, bears, and property. For these reasons, the 
2015 Rule prohibited bear baiting in national preserves in Alaska.
    The NPS received approximately 70,000 comments during the public 
comment period for the 2015 Rule. These included unique comment 
letters, form letters, and signed petitions. Approximately 65,000 
comments were form letters. The NPS also received three petitions with 
a combined total of approximately 75,000 signatures. The NPS counted a 
letter or petition as a single comment, regardless of the number of 
signatories. More than 99% of the public comments supported the 2015 
Rule. Comments on the 2015 Rule can be viewed on regulations.gov by 
searching for ``RIN 1024-AE21''.

The 2020 Rule

    The 2020 Rule reconsidered the conclusions in the 2015 Rule 
regarding predator control, sport hunting, and bear baiting. First, the 
2020 Rule reversed the 2015 Rule's conclusion that the State intended 
to reduce predator populations through its hunting regulations. As 
explained above, the NPS's conclusion in the 2015 Rule was based on BOG 
proposals, deliberations, and decisions; and Alaska Department of Fish 
and Game actions, statements, and publications that preceded the 2015 
Rule. However, in their written comments on the 2015 and 2020 Rules, 
the State denied that the harvest practices for predators were part of 
their predator control or intensive management programs and therefore 
were not efforts to reduce predators. In its written comments, the 
State argued that the liberalized predator harvest

[[Page 1178]]

rules were simply a means to provide new opportunities for hunters to 
harvest predators, in response to requests received by the BOG. The 
State argued that it provided these new opportunities under a 
``sustained yield'' management framework, which is distinct from what 
the State considers ``predator control.'' The State asserted that it 
has a separate, formal predator control program which is not considered 
``hunting'' by the State. According to the State, predator control 
occurs only through its ``intensive management'' program.
    The NPS afforded the State's written comments on the 2020 Rule more 
weight than it did on the State's similar comments on the 2015 Rule, 
both of which were in conflict with other contemporaneous public State 
positions on the matter. The NPS took into account the analysis in the 
environmental assessment supporting the 2020 Rule, which concluded that 
the hunting practices in question would not likely alter natural 
predator-prey dynamics at the population level or have a significant 
foreseeable adverse impact to wildlife populations, or otherwise impair 
park resources. The NPS also considered what it viewed as the 
legislative requirements of ANILCA with respect to hunting. Based upon 
these considerations, the NPS concluded the hunting practices did not 
run afoul of NPS Management Policies section 4.4.3, which prohibits 
predator reduction to increase numbers of harvested prey species. This 
led the NPS to remove two provisions that were implemented in the 2015 
Rule: (1) the statement that State laws or management actions intended 
to reduce predators are not allowed in NPS units in Alaska, and (2) 
prohibitions on several methods of harvesting predators. With 
prohibitions on harvest methods removed, the 2020 Rule went back to 
deferring to authorizations under State law for harvesting predators. 
To illustrate how the 2020 Rule works in practice, Alaska residents, 
including rural and nonrural residents, and out-of-state hunters may 
take wolves and coyotes (including pups) for sport purposes in national 
preserves during the denning season in accordance with State law.
    The 2020 Rule also relied upon a different interpretation of the 
term ``sport'' in ANILCA's authorization for harvest of wildlife for 
sport purposes in national preserves in Alaska. As explained above, the 
2015 Rule gave the term ``sport'' its common meaning associated with 
standards of fairness, and prohibited certain practices that were not 
compatible with these standards. In the 2020 Rule, the NPS stated that 
in the absence of a statutory definition, the term ``sport'' merely 
served to distinguish sport hunting from harvest under federal 
subsistence regulations. Consequently, under the 2020 Rule, practices 
that may not be generally compatible with notions of ``sport''--such as 
harvesting swimming caribou or taking cubs and pups or mothers with 
their young--may be used by anyone in national preserves in accordance 
with State law.
    Finally, the 2020 Rule reconsidered the risk of bear baiting to the 
visiting public. The NPS noted that peer-reviewed data are limited on 
the specific topic of hunting bears over bait. Additionally, the NPS 
concluded that human-bear interactions are likely to be rare, other 
than for hunters seeking bears, due to a lack of observed bear 
conditioning to associate bait stations with humans and the relatively 
few people in such remote areas to interact with bears. In making this 
risk assessment, the NPS took into account state regulations on baiting 
that are intended to mitigate safety concerns, and NPS authority to 
enact local closures if and where necessary. For these reasons and 
because of policy direction from the DOI and the Secretary of the 
Interior requiring maximum deference to state laws on harvest that did 
not exist in 2015, the 2020 Rule rescinded the prohibition on bear 
baiting that was implemented in the 2015 Rule. As a result, any Alaska 
resident, including rural and nonrural residents, or out-of-state 
hunter may take bears over bait in national preserves in Alaska in 
accordance with State law, including with the use of human and dog 
foods.
    The NPS received approximately 211,780 pieces of correspondence, 
with a total of 489,101 signatures, during the public comment period 
for the 2020 Rule. Of the 211,780 pieces of correspondence, 
approximately 176,000 were form letters and approximately 35,000 were 
unique comments. More than 99% of the public comments opposed the 2020 
Rule. Comments on the 2020 Rule can be viewed on regulations.gov by 
searching for ``RIN 1024-AE38''.

Proposed Rule

    In this proposed rule, the NPS reconsiders the conclusions that 
supported the 2020 Rule. This proposed rule addresses three topics that 
were considered in the 2015 and 2020 Rules: (1) bear baiting; (2) the 
meaning and scope of hunting for ``sport purposes'' under ANILCA; and 
(3) State law addressing predator harvest. After reconsidering these 
topics, the NPS proposes in this rule to prohibit the same harvest 
methods that were prohibited in the 2015 Rule. The proposed rule also 
would prohibit predator control or predator reduction on national 
preserves. Finally, the proposed rule would clarify the regulatory 
definition of trapping for reasons explained below. The NPS has begun 
consulting and communicating with Tribes and Alaska Native Claims 
Settlement Act (ANCSA) Corporations that would be most affected by this 
proposed rule and the feedback provided to date has been incorporated 
by the NPS in this proposed rule as discussed below.

Bear Baiting

    The NPS proposes to prohibit bear baiting in national preserves in 
Alaska. Bait that hunters typically use to attract bears includes 
processed foods like bread, pastries, dog food, and bacon grease. As 
explained below, this proposal would lower the risk that bears will 
associate food at bait stations with humans and become conditioned to 
eating human-produced foods, thereby creating a public safety concern. 
This proposal would also lower the probability of visitors encountering 
a bait station where bears may attack to defend a food source. The 
proposal to prohibit baiting is supported by two primary risk factors 
and other considerations that are discussed below.

Risk of Bears Defending a Food Source

    The risks caused by humans feeding bears (including baiting them 
with food) are widely recognized.\4\ Bears are more likely to attack 
when defending a food source, putting visitors who encounter a bear at 
or near a bait station or a kill site

[[Page 1179]]

at significant risk.\5\ Visitors to national preserves in Alaska may 
inadvertently encounter bears and bait stations while engaging in 
sightseeing, hiking, boating, hunting, photography, fishing, and a 
range of other activities. This is because despite the vast, relatively 
undeveloped nature of these national preserves, most visitation occurs 
near roads, trails, waterways, or other encampments (e.g., cabins, 
residences, communities). Establishing and maintaining a bait station 
requires the transport of supplies, including bait, barrels, tree 
stands, and game cameras. The same roads, trails, and waterways used by 
visitors are, therefore, also used by those setting up a bait station. 
Thus, despite the vast landscapes, bear baiting and many other visitor 
activities are concentrated around the same limited access points. 
Processed foods are most commonly used for bait because they are 
convenient to obtain and are attractive to bears. Processed foods do 
not degrade quickly nor are they rapidly or easily broken down by 
insects and microbes. As a result, they persist on the landscape along 
with the public safety risk of bears defending a food source.
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    \4\ Herrero, S. 2018. Bear attacks: their causes and avoidance. 
Lyons Press, Guilford, Connecticut, USA at p. 22; Glitzenstein, E., 
Fritschie, J. The Forest Service's Bait and Switch: A Case Study on 
Bear Baiting and the Service's Struggle to Adopt a Reasoned Policy 
on a Controversial Hunting Practice within the National Forests. 1 
Animal Law 47, 55-56 (1995). See also, Denali State Park Management 
Plan, 69 (2006) (``The practice has the potential for creating 
serious human-bear conflicts, by encouraging bears to associate 
campgrounds and other human congregation points with food 
sources.''); City and Borough of Juneau, Living with Bears: How to 
Avoid Conflict (available at https://juneau.org/wp-content/uploads/2017/03/2004_living_w_pamphlet_finaljustified.pdf), City and Borough 
of Juneau, Living in Bear Country (available at https://juneau.org/wp-content/uploads/2017/03/living_in_bear_country_color.pdf) (``It 
is well known that garbage kills bears--that is, once bears 
associate people with a food reward, a chain of events is set into 
motion and the end result, very often, is a dead bear.''); 
Biologists say trash bears in Eagle River will be killed--but people 
are the problem, Anchorage Daily News (available at www.adn.com/alaska-news/wildlife/2018/06/18/biologists-say-trash-bears-in-eagle-river-will-be-killed-but-people-are-the-problem/).
    \5\ Herrero, S. 2018. Bear attacks: their causes and avoidance. 
Lyons Press, Guilford, Connecticut, USA. at p. 22; Glitzenstein, E., 
Fritschie, J. The Forest Service's Bait and Switch: A Case Study on 
Bear Baiting and the Service's Struggle to Adopt a Reasoned Policy 
on a Controversial Hunting Practice within the National Forests. 1 
Animal Law 47, 55-56 (1995).
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    The NPS recognizes that there are restrictions in State law 
intended to mitigate the risks described above. Bait stations are 
prohibited within \1/4\ mile of a road or trail and within one mile of 
a dwelling, cabin, campground, or other recreational facility. State 
regulations also require bait station areas to be signed so that the 
public is aware that a bait station exists. Although these mitigation 
measures may reduce the immediate risk of park visitors approaching a 
bear defending bait, NPS records indicate that bait stations 
established at Wrangell-St. Elias National Park and Preserve often do 
not comply with the State's minimum distance requirements. Further, as 
discussed below, these requirements do not mitigate the risk of other 
adverse outcomes associated with baiting that are discussed below.

Risk of Habituated and Food-Conditioned Bears

    Another aspect of bear baiting that poses a public safety and 
property risk is the possibility that bears become habituated to humans 
through exposure to human scents at bait stations and then become food 
conditioned, meaning they learn to associate humans with a food reward 
(bait). This is particularly true of processed foods that are not part 
of a bear's natural diet because virtually all encounters with 
processed foods include exposure to human scent.
    It is well understood that habituated and food-conditioned bears 
pose a heightened public safety risk.\6\ The published works of Stephen 
Herrero, a recognized authority on human-bear conflicts and bear 
attacks explain the dangers from bears that are habituated to people or 
have learned to feed on human food, highlight that habituation combined 
with food-conditioning has been associated with a large number of 
injuries to humans, and indicate food-conditioning of bears may result 
from exposure to human food at bait stations.
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    \6\ Herrero, S. 2018. Bear attacks: their causes and avoidance. 
Lyons Press, Guilford, Connecticut, USA. at p. 22; Glitzenstein, E., 
Fritschie, J. The Forest Service's Bait and Switch: A Case Study on 
Bear Baiting and the Service's Struggle to Adopt a Reasoned Policy 
on a Controversial Hunting Practice within the National Forests. 1 
Animal Law 47, 55-56 (1995).
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    The State's mitigation measures mentioned above, including 
requirements for buffers and signage, do not adequately address the 
risk associated with habituated and food-conditioned bears because 
bears range widely, having home ranges of tens to hundreds of square 
miles.\7\ The buffers around roads, trails, and dwellings are therefore 
inconsequential for bears that feed at bait stations but are not 
harvested there. These bears have the potential to become habituated to 
humans and conditioned to human-produced foods, resulting in increased 
likelihood of incidents that compromise public safety, result in 
property damage and threaten the lives of bears who are killed in 
defense of human life and property.
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    \7\ See, e.g., Glitzenstein, E., Fritschie, J. The Forest 
Service's Bait and Switch: A Case Study on Bear Baiting and the 
Service's Struggle to Adopt a Reasoned Policy on a Controversial 
Hunting Practice within the National Forests. 1 Animal Law 52-53 
(1995).
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    In the 2020 Rule, the NPS determined that the lack of conclusive 
evidence that bear baiting poses safety concerns justified allowing 
bear baiting. While the NPS acknowledges the lack of peer-reviewed data 
demonstrating that bear baiting poses a public safety risk, this data 
gap exists primarily because rigorous studies specific to this point 
are logistically and ethically infeasible. The determination made by 
the NPS in the 2020 Rule did not fully consider the vast experience and 
knowledge of recognized experts and professional resource managers. In 
April 2022, the NPS queried 14 NPS resource managers and wildlife 
biologists from 12 different National Park System units in Alaska about 
bear baiting. These technical experts' unanimous opinion was that bear 
baiting will increase the likelihood of defense of life and property 
kills of bears and will alter the natural processes and behaviors of 
bears and other wildlife. Considering the potential for significant 
human injury or even death, these experts considered the overall risk 
of bear baiting to the visiting public to be moderate to high. These 
findings generally agree with the universal recognition in the field of 
bear management that food conditioned bears result in increased bear 
mortality and heightened risk to public safety and property, and that 
baiting, by its very design and intent, alters bear behavior. The 
findings also are consistent with the State's management plan for 
Denali State Park. The management plan expresses concern that bear 
baiting ``teaches bears to associate humans with food sources'' and 
states that bear baiting is in direct conflict with recreational, non-
hunting uses of the park. The plan further notes that bear baiting has 
``the potential for creating serious human-bear conflicts, by 
encouraging bears to associate campgrounds and other human congregation 
points with food sources.'' \8\
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    \8\ Denali State Park Management Plan, 69 (2006).
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Other Considerations
    In addition to the risks explained above, there are other 
considerations that support the proposal to prohibit all bear baiting. 
The NPS is guided by its mandates under the NPS Organic Act to conserve 
wildlife and under ANILCA to protect wildlife populations. Food-
conditioned bears are more likely to be killed by authorities or by the 
public in defense of life or property.\9\ While the NPS supports 
wildlife harvest as authorized in ANILCA, it cannot

[[Page 1180]]

promote activities that increase non-harvest mortalities of bears.
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    \9\ See e.g., City and Borough of Juneau, Living with Bears: How 
to Avoid Conflict (available at https://juneau.org/wp-content/uploads/2017/03/2004_living_w_pamphlet_finaljustified.pdf), City and 
Borough of Juneau, Living in Bear Country (available at https://juneau.org/wp-content/uploads/2017/03/living_in_bear_country_color.pdf) (``It is well known that garbage 
kills bears--that is, once bears associate people with a food 
reward, a chain of events is set into motion and the end result, 
very often, is a dead bear.''); Biologists say trash bears in Eagle 
River will be killed--but people are the problem, Anchorage Daily 
News (available at www.adn.com/alaska-news/wildlife/2018/06/18/biologists-say-trash-bears-in-eagle-river-will-be-killed-but-people-are-the-problem/); Glitzenstein, E., Fritschie, J. The Forest 
Service's Bait and Switch: A Case Study on Bear Baiting and the 
Service's Struggle to Adopt a Reasoned Policy on a Controversial 
Hunting Practice within the National Forests. 1 Animal Law 52-53 
(1995).
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Feedback From Tribes and ANCSA Corporations on Bear Baiting

    Feedback received to date from Tribes and ANCSA Corporations 
indicates baiting bears is not a common activity in or near national 
preserves and not something done commonly by local rural residents. 
Many of the entities voiced support for prohibiting baiting altogether, 
limiting bait to natural items, increasing buffer zones around 
developments, or requiring a permit. On the other hand, a minority--
mostly entities affiliated with the Wrangell-St. Elias area--
recommended continuing to allow sport hunters to harvest bears over 
bait, including with use of processed foods like donuts and dog food. 
Consultation and communication with Tribes and ANCSA Corporations is 
ongoing and feedback will continue to be considered by the NPS 
throughout the rulemaking process.

The Meaning and Scope of Hunting for ``Sport Purposes'' Under ANILCA

    Hunting is prohibited in National Park System units except as 
specifically authorized by Congress. 36 CFR 2.2(b). Title VIII of 
ANILCA allows local rural residents to harvest wildlife for subsistence 
in most, but not all, lands administered by the NPS in Alaska. Title 
VIII also created a priority for federal subsistence harvest over other 
consumptive uses of fish and wildlife. Separate from subsistence 
harvest, ANILCA authorized anyone to harvest wildlife for ``sport 
purposes.'' When first authorized under ANILCA, the State managed 
subsistence harvest by local rural residents under Title VIII as well 
as harvest for sport purposes by anyone. After a ruling from the State 
Supreme Court that the State Constitution barred the State from 
implementing the rural subsistence provisions of ANILCA, the Federal 
government assumed management of subsistence harvest under title VIII. 
Following this decision, the State only regulates harvest for sport 
purposes under ANILCA.\10\ Under the State's current framework, Alaska 
residents have a priority over nonresidents but there is no 
prioritization based upon where one resides in Alaska. Accordingly, all 
residents of Alaska have an equal opportunity to harvest wildlife for 
``sport purposes'' in national preserves under State law.
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    \10\ The State of Alaska also uses the term ``subsistence'' when 
referencing harvest of fish and wildlife by state residents. It is 
important to recognize, however, that state subsistence harvest is 
not the same as federal subsistence under title VIII of ANILCA, 
which is limited to only local rural residents. When the term 
``subsistence'' is used in this document, it refers to subsistence 
under title VIII of ANILCA and harvest of fish and wildlife under 
federal regulations.
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    The NPS is re-evaluating whether it was appropriate for the 2020 
Rule to change its interpretation of the term ``sport'' in the 2015 
Rule. An important implication of that change is that the 2020 Rule 
expanded sport hunting opportunities for nonlocal residents who are not 
qualified to harvest wildlife under federal subsistence laws. As 
mentioned above, in the spring of 2022 the NPS reached out to Tribes 
and ANCSA Corporations that are most likely to be impacted by this 
proposed rule. In these discussions, most of these entities expressed 
concern that increasing harvest opportunities under ANILCA's 
authorization for sport hunting and trapping could result in increased 
competition from individuals that are not local to the area. In 
addition, most of these entities do not believe there is a demand to 
engage in these harvest practices in national preserves (other than 
limited demand to bait bears in Wrangell-St. Elias) and expressed a 
preference that the NPS not authorize practices that could encourage 
more nonlocal hunters to visit the area and compete for wildlife 
resources.
    This feedback from Tribes and ANCSA Corporations illustrates a 
tension between the interests conveyed and the outcome of the 2020 Rule 
which increased harvest opportunities for nonlocal rural residents. In 
the 2015 Rule, the NPS said harvest of wildlife for ``sport purposes'' 
carries with it concepts of fairness or fair chase. These constructs do 
not necessarily apply to subsistence practices which emphasize cultural 
traditions and acquisition of calories for sustenance. In the 2020 
Rule, the NPS changed its interpretation by saying the term ``sport'' 
only serves to differentiate harvest under State regulations from 
harvest under federal subsistence regulations. As a result, practices 
that some might consider only appropriate for subsistence harvest by 
local rural residents now may be used by anyone harvesting for ``sport 
purposes'' under State law. As conveyed by the Tribes and ANCSA 
Corporations, this increases competition between federal subsistence 
hunters and sport hunters by expanding hunting opportunities to those 
who are not local rural residents. It also allows for sport hunters to 
engage in practices that are not considered sporting under notions of 
the term as described above. The examples below illustrate how this 
issue plays out in national preserves in Alaska today:
     Swimming caribou. Under the 2015 Rule, only qualified 
rural residents could harvest swimming caribou in national preserves in 
accordance with federal subsistence regulations, which recognize the 
practice as part of a customary and traditional subsistence lifestyle. 
Individuals from Anchorage, Fairbanks, Juneau and other nonrural areas 
in Alaska, as well as out-of-state hunters, could not harvest swimming 
caribou in national preserves. Under the 2020 Rule, residents of 
nonrural areas in Alaska (including Anchorage, Fairbanks, and Juneau) 
and out-of-state hunters can harvest swimming caribou in national 
preserves in accordance with State law under ANILCA's authorization for 
harvest for ``sport purposes.''
     Black bear cubs and sows with cubs. Under the 2015 Rule, 
only a qualified rural resident could harvest bear cubs and sows with 
cubs in accordance with federal subsistence regulations, which 
recognize this practice as an uncommon but customary and traditional 
harvest practice by some Native cultures in northern Alaska. 
Accordingly, while the NPS supported the activity under federal 
subsistence regulations, the NPS did not support it under ANILCA's 
authorization for ``sport'' hunting.'' Under the 2020 Rule which 
deferred to State law, harvest of bear cubs and sows with cubs is not 
limited based on where one resides. Accordingly, under the 2020 Rule 
individuals who are not local to the area can harvest bear cubs and 
sows with cubs at den sites in national preserves under ANILCA's 
authorization for harvest for ``sport'' purposes.
     Take of wolves and coyotes, including pups, during the 
denning season. The 2015 Rule prohibited sport hunters from taking 
wolves and coyotes during the denning season, a time when their pelts 
are not in prime condition, which can leave pups and cubs orphaned and 
left to starve. Under the 2020 Rule, any hunter (including those from 
out of state) can harvest wolves and coyotes year-round, including pups 
during the denning season. This reduces the number of wolves and 
coyotes available to harvest when their pelts are fuller and therefore 
more desirable to subsistence users and other trappers.
    These examples demonstrate that the NPS's interpretation of the 
term ``sport'' under the 2015 Rule created a result that is more in 
line with the majority of feedback received to date from Tribes and 
ANCSA Corporations. The NPS Organic Act directs the NPS to conserve 
wildlife. Based upon this conservation mandate, hunting is prohibited 
in National Park System units except as authorized by Congress. 36 CFR 
2.2(b).

[[Page 1181]]

ANILCA authorizes harvest for Federal subsistence and ``sport 
purposes'' in national preserves in Alaska. The NPS interprets the term 
``sport'' to include the concept of fair chase as articulated by some 
hunting organizations,\11\ as not providing an unfair advantage to the 
hunter and allowing the game to have a reasonable chance of escape. 
This involves avoiding the targeting of animals that are particularly 
vulnerable, such as while swimming, while young, or while caring for 
their young. While the NPS understands that the exact boundaries of 
this concept involve some level of ambiguity, the NPS believes the 
practices addressed in this proposed rule fall outside the norms of 
``sport'' hunting.
---------------------------------------------------------------------------

    \11\ The Hunting Heritage Foundation, 
www.huntingheritagefoundation.com (last visited July 25, 2022); 
Boone and Crockett Club, www.boone-crockett.org/principles-fair-chase (last visited July 25, 2022).
---------------------------------------------------------------------------

    The NPS requests comment on this concept of ``sport'' and whether 
the practices described in these examples should be allowed as a 
``sport'' hunt in national preserves in Alaska. Giving meaning of the 
term ``sport'' also prioritizes harvest for subsistence by local rural 
residents by avoiding competition with nonlocal residents who are 
hunting for sport purposes under ANILCA. This is consistent with the 
priority that Congress placed on the customary and traditional uses of 
wild renewable resources by local rural residents under ANILCA (see 
Sec. 101(c)). For these reasons, the proposed rule would reinstate the 
prohibitions in the 2015 Rule on methods of harvest that are not 
compatible with generally accepted notions of ``sport'' hunting. The 
proposed rule would define the terms ``big game,'' ``cub bear,'' ``fur 
animal,'' and ``furbearer,'' which are used in the table of prohibited 
harvest methods, in the same way they were defined in the 2015 Rule.

State Law Addressing Predator Harvest

    The proposed rule also would address opportunities to harvest 
predators that are authorized by the State. NPS policy interprets and 
implements the NPS Organic Act. NPS Management Policies require the NPS 
to manage National Park System units for natural processes, including 
natural wildlife fluctuations, abundances, and behaviors, and 
specifically prohibit the NPS from engaging in predator reduction 
efforts to benefit one harvested species over another or allowing 
others to do so on NPS lands. (NPS Management Policies 2006, Ch. 4). 
These activities are prohibited by policy even if they do not actually 
reduce predator populations or increase the number of prey species 
available to hunters. The NPS believes the 2020 Rule is in tension with 
these policies based upon the information it collected over a period of 
years before the publication of the 2015 Rule. This information 
indicates that the predator harvest practices that were allowed by the 
State were allowed for the purpose of benefited prey species over 
predators. For this reason, the proposed rule would reinstate the 
prohibitions in the 2015 Rule on methods of harvest that target 
predators for the purpose of increasing populations of prey species for 
human harvest. In addition, the proposed rule would add the following 
statement to its regulations to clarify that predator control is not 
allowed on NPS lands: ``Actions to reduce the numbers of native species 
for the purpose of increasing the numbers of harvested species (e.g., 
predator control or predator reduction) are not allowed.''

Trapping Clarification

    Finally, the proposed rule would revise the definition of 
``trapping'' in part 13 to clarify that trapping only includes 
activities that use a ``trap'' as that term is defined in part 13. The 
definition of ``trapping'' promulgated in the 2015 Rule inadvertently 
omitted reference to the use of traps, instead referring only to 
``taking furbearers under a trapping license.'' The proposed revision 
would resolve any question about whether trapping can include any 
method of taking furbearers under a trapping license, which could 
include the use of firearms depending upon the terms of the license. 
This change would more closely align the definition of ``trapping'' in 
part 13 with the definition that applies to System units outside of 
Alaska in part 1.

Compliance With Other Laws, Executive Orders and Department Policy

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs in the OMB will review all significant rules. The 
Office of Information and Regulatory Affairs has determined that this 
proposed rule is significant because it raises novel legal or policy 
issues. The NPS has assessed the potential costs and benefits of this 
proposed rule in the report entitled ``Cost-Benefit and Regulatory 
Flexibility Analyses: Alaska Hunting and Trapping Regulations in 
National Preserves'' which can be viewed online at https://www.regulations.gov by searching for ``1024-AE70.'' 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. The NPS has developed this proposed rule in 
a manner consistent with these requirements.

Regulatory Flexibility Act

    This proposed 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 report 
entitled ``Cost-Benefit and Regulatory Flexibility Analyses: Alaska 
Hunting and Trapping Regulations in National Preserves'' which can be 
viewed online at https://www.regulations.gov by searching for ``1024-
AE70.

Unfunded Mandates Reform Act

    This proposed rule does not impose an unfunded mandate on Tribal, 
State, or local governments or the private sector of more than $100 
million per year. The proposed rule does not have a significant or 
unique effect on Tribal, State, or local governments or the private 
sector. It addresses public use of national park lands and imposes no 
requirements on other agencies or governments. 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 proposed rule does not effect a taking of private property or 
otherwise have takings 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, the 
proposed rule does not have sufficient federalism implications to 
warrant the preparation of a Federalism summary impact statement. This 
proposed rule only affects use of federally administered

[[Page 1182]]

lands and waters. It has no outside effects on other areas. A 
Federalism summary impact statement is not required.

Civil Justice Reform (Executive Order 12988)

    This proposed rule complies with the requirements of Executive 
Order 12988. This proposed 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 Indian Tribes and ANCSA Corporations (Executive Order 
13175 and Department Policy)

    The DOI strives to strengthen its government-to-government 
relationship with Indian Tribes through a commitment to consultation 
with Indian Tribes and recognition of their right to self-governance 
and Tribal sovereignty. The NPS has begun consulting and communicating 
with Tribes and ANCSA Corporations that would be most affected by this 
proposed rule and the feedback provided to date has been incorporated 
by the NPS in this proposed rule. The NPS has evaluated this proposed 
rule under the criteria in Executive Order 13175 and under the 
Department's Tribal consultation and ANCSA Corporation policies. This 
proposed rule would restrict harvest methods for sport hunting only; it 
would not affect subsistence harvest under Title VIII of ANILCA. 
Feedback from Tribes and ANCSA Corporations indicates that these 
harvest methods are not common or allowed in many areas by the State. 
For these reasons, the NPS does not believe the proposed rule will have 
a substantial direct effect on federally recognized Tribes or ANCSA 
Corporation lands, water areas, or resources. Consultation and 
communication with Tribes and ANCSA Corporations is ongoing and 
feedback will continue to be considered by the NPS throughout the 
rulemaking process.

Paperwork Reduction Act

    This proposed rule does not contain information collection 
requirements, and a submission to the Office of Management and Budget 
under the Paperwork Reduction Act is not required. The NPS may not 
conduct or sponsor and you are not required to respond to a collection 
of information unless it displays a currently valid OMB control number.

National Environmental Policy Act

    The NPS will prepare an environmental assessment of this proposed 
rule to determine whether this proposed rule will have a significant 
impact on the quality of the human environment under the National 
Environmental Policy Act of 1969. The environmental assessment will 
include new information, as appropriate, as well as an impact analysis 
similar to what was provided in the environmental assessments prepared 
for the 2015 Rule and the 2020 Rule, both of which resulted in a 
finding of no significant impact.

Effects on the Energy Supply (Executive Order 13211)

    This proposed rule is not a significant energy action under the 
definition in Executive Order 13211; the proposed rule is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy, and the proposed rule has not otherwise been designated by 
the Administrator of Office of Information and Regulatory Affairs as a 
significant energy action. A Statement of Energy Effects is not 
required.

Clarity of This Rule

    The NPS is required by Executive Orders 12866 (section 1(b)(12)) 
and 12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule the NPS publishes must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use common, everyday words and clear language rather than 
jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that the NPS has not met these requirements, send the 
NPS comments by one of the methods listed in the ADDRESSES section. To 
better help the NPS revise the rule, your comments should be as 
specific as possible. For example, you should identify the numbers of 
the sections or paragraphs that you find unclear, which sections or 
sentences are too long, the sections where you feel lists or tables 
would be useful, etc.

Public Participation

    It is the policy of the DOI, whenever practicable, to afford the 
public an opportunity to participate in the rulemaking process. 
Accordingly, interested persons may submit written comments regarding 
this proposed rule by one of the methods listed in the ADDRESSES 
section of this document.

Public Availability of Comments

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

List of Subjects in 36 CFR Part 13

    Alaska, National Parks, Reporting and recordkeeping requirements.

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

PART 13--NATIONAL PARK SYSTEM UNITS IN ALASKA

0
1. The authority citation for part 13 continues to read as follows:

    Authority: 16 U.S.C. 3101 et seq.; 54 U.S.C. 100101, 100751, 
320102; Sec. 13.1204 also issued under Pub. L. 104-333, Sec. 1035, 
110 Stat. 4240, November 12, 1996.
0
2. In Sec.  13.1:
0
a. Add in alphabetical order the definitions for ``Big game'', ``Cub 
bear'', ``Fur animal'', and ``Furbearer''.
0
b. Revise the definition of ``Trapping''.
    The additions and revision read as follows:


Sec.  13.1  Definitions.

* * * * *
    Big game means black bear, brown bear, bison, caribou, Sitka black-
tailed deer, elk, mountain goat, moose, muskox, Dall's sheep, wolf, and 
wolverine.
* * * * *
    Cub bear means a brown (grizzly) bear in its first or second year 
of life, or a black bear (including the cinnamon and blue phases) in 
its first year of life.
* * * * *
    Fur animal means a classification of animals subject to taking with 
a hunting license, consisting of beaver, coyote, arctic fox, red fox, 
lynx, flying squirrel, ground squirrel, or red squirrel that have not 
been domestically raised.
    Furbearer means a beaver, coyote, arctic fox, red fox, lynx, 
marten, mink, least weasel, short-tailed weasel, muskrat, land otter, 
red squirrel, flying squirrel, ground squirrel, Alaskan marmot, hoary 
marmot, woodchuck, wolf and wolverine.
* * * * *

[[Page 1183]]

    Trapping means taking furbearers with a trap under a trapping 
license.
* * * * *
0
3. In Sec.  13.42, add paragraphs (f) and (k) to read as follows:


Sec.  13.42  Taking of wildlife in national preserves.

* * * * *
    (f) Actions to reduce the numbers of native species for the purpose 
of increasing the numbers of harvested species (e.g., predator control 
or predator reduction) are prohibited.
* * * * *
    (k) This paragraph applies to the taking of wildlife in park areas 
administered as national preserves except for subsistence uses by local 
rural residents pursuant to applicable Federal law and regulation. The 
following are prohibited:

                        Table 1 to Paragraph (k)
------------------------------------------------------------------------
            Prohibited acts                      Any exceptions?
------------------------------------------------------------------------
(1) Shooting from, on, or across a park  None.
 road or highway.
(2) Using any poison or other substance  None.
 that kills or temporarily
 incapacitates wildlife.
(3) Taking wildlife from an aircraft,    If the motor has been
 off-road vehicle, motorboat, motor       completely shut off and
 vehicle, or snowmachine.                 progress from the motor's
                                          power has ceased.
(4) Using an aircraft, snowmachine, off- None.
 road vehicle, motorboat, or other
 motor vehicle to harass wildlife,
 including chasing, driving, herding,
 molesting, or otherwise disturbing
 wildlife.
(5) Taking big game while the animal is  None.
 swimming.
(6) Using a machine gun, a set gun, or   None.
 a shotgun larger than 10 gauge.
(7) Using the aid of a pit, fire,        Killer style traps with an
 artificial salt lick, explosive,         inside jaw spread less than 13
 expanding gas arrow, bomb, smoke,        inches may be used for
 chemical, or a conventional steel trap   trapping, except to take any
 with an inside jaw spread over nine      species of bear or ungulate.
 inches.
(8) Using any electronic device to       (i) Rangefinders may be used.
 take, harass, chase, drive, herd, or    (ii) Electronic calls may be
 molest wildlife, including but not       used for game animals except
 limited to: artificial light; laser      moose.
 sights; electronically enhanced night   (iii) Artificial light may be
 vision scope; any device that has been   used for the purpose of taking
 airborne, controlled remotely, and       furbearers under a trapping
 used to spot or locate game with the     license during an open season
 use of a camera, video, or other         from Nov. 1 through March 31
 sensing device; radio or satellite       where authorized by the State.
 communication; cellular or satellite    (iv) Artificial light may be
 telephone; or motion detector.           used by a tracking dog handler
                                          with one leashed dog to aid in
                                          tracking and dispatching a
                                          wounded big game animal.
                                         (v) Electronic devices approved
                                          in writing by the Regional
                                          Director.
(9) Using snares, nets, or traps to      None.
 take any species of bear or ungulate.
(10) Using bait........................  Using bait to trap furbearers.
(11) Taking big game with the aid or     Leashed dog for tracking
 use of a dog.                            wounded big game.
(12) Taking wolves and coyotes from May  None.
 1 through August 9.
(13) Taking cub bears or female bears    None.
 with cubs.
(14) Taking a fur animal or furbearer    Muskrat pushups or feeding
 by disturbing or destroying a den.       houses.
------------------------------------------------------------------------


Shannon Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2023-00142 Filed 1-6-23; 8:45 am]
BILLING CODE 4312-52-P