[Federal Register Volume 89, Number 128 (Wednesday, July 3, 2024)]
[Rules and Regulations]
[Pages 55059-55072]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-14701]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 13

[NPS-AKRO-36475; PPAKAKROZ5, PPMPRLE1Y.L00000]
RIN 1024-AE70


Alaska; Hunting and Trapping in National Preserves

AGENCY: National Park Service, Interior.

ACTION: Final rule.

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SUMMARY: The National Park Service amends its regulations for sport 
hunting and trapping in national preserves in Alaska to prohibit bear 
baiting and clarify trapping regulations.

DATES: This rule is effective on August 2, 2024.

ADDRESSES: 
    Docket: For access to the docket to read comments received, go to 
https://www.regulations.gov and search for Docket ID: NPS-2023-0001.
    Document Availability: The Revisiting Sport Hunting and Trapping on 
National Park System Preserves in Alaska Revised Environmental 
Assessment (EA) and Finding of No Significant Impact (FONSI) provide 
information and context for this rule and are available online at 
https://parkplanning.nps.gov/akro by clicking the

[[Page 55060]]

link entitled ``Revisiting Sport Hunting and Trapping on National Park 
System Preserves in Alaska'' and then clicking the link entitled 
``Document List.''

FOR FURTHER INFORMATION CONTACT: Sarah Creachbaum, 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). Thus, the NPS recognizes that its conservation stewardship 
mandate for national preserves in Alaska includes both utilitarian uses 
of wildlife as well as recognition of their intrinsic value. The NPS 
also recognizes that both the utilitarian use and intrinsic value of 
wildlife are concepts that predate the NPS Organic Act, and thus the 
NPS.
    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 also were 
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. Secretary's Orders 3347 and 3356. The 2020 
Rule also responded to direction from the 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.
    On January 9, 2023, the NPS published a proposed rule (88 FR 1176) 
that would prohibit certain harvest practices, including bear baiting; 
and would prohibit predator control or predator reduction on national 
preserves. In developing the proposed rule, NPS sought input from 
Tribal entities, subsistence user groups, and the State of Alaska.
    The harvest practices at issue in the 2015 Rule, 2020 Rule, and 
this final rule are specific to harvest under the authorization for 
sport hunting and trapping in ANILCA. None of these rules address 
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 lands within the National Park System 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 US 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

[[Page 55061]]

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 pieces of correspondence 
during the public comment period for the 2015 Rule. These included 
unique comment letters, form letters, and signed petitions. 
Approximately 65,000 pieces of correspondence 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 correspondence, 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 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 reconsidered what it viewed as the 
legislative requirements of ANILCA with respect to hunting in national 
preserves in Alaska. 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 National Park System 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

[[Page 55062]]

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 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''.
    Several environmental organizations sued NPS challenging the 2020 
Rule, and Alaska and several hunting organizations intervened to defend 
the rule. NPS did not defend the rule on the merits but instead sought 
a voluntary remand, without vacatur, in light of its ongoing 
reassessment of the factual, legal, and policy conclusions underlying 
the rule. The district court denied that motion, and subsequently 
granted the plaintiffs' motion for summary judgment in part and denied 
it in part. See Alaska Wildlife Alliance v. Haaland, 632 F. Supp. 3d 
974 (D. Alaska 2022). The court held that the 2020 Rule violated the 
Administrative Procedure Act in three respects, ruling as follows:
     NPS acted contrary to law insofar as it determined that 
its statutory authority to regulate hunting on the National Preserves 
of Alaska is restricted to a ``limited closure authority'' and that 
ANILCA mandates that NPS defer to State hunting regulations.
     NPS's finding that State of Alaska's and Federal wildlife 
management requirements are equivalent is arbitrary and capricious.
     NPS's disregard without explanation of its conclusion in 
2015 that State regulations fail to address public safety concerns 
associated with bear baiting is arbitrary and capricious.
    The court remanded the 2020 Rule to NPS, without vacatur, for 
further proceedings consistent with its opinion.

Final Rule

    In this rule, the NPS reconsiders the conclusions that supported 
the 2020 Rule, while taking into account the defects in the Rule 
identified by the district court. The proposed rule addressed 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 has decided to prohibit the 
practice of taking bears over bait based primarily on public safety 
concerns and new factual information pertaining to the risk posed to 
the visiting public. This rule also clarifies the regulatory definition 
of trapping. Although the district court confirmed in the challenge to 
the 2020 Rule that the agency possesses the authority to do so, the NPS 
has decided against addressing the other hunting practices outlined in 
the proposed rule at this time, though it may re-evaluate whether 
regulatory action is necessary in the future. The approach NPS takes in 
this final rule, which focuses on addressing the threat to public 
safety from bear baiting, is considerably narrower than the 2015 Rule. 
It is an improvement over the 2020 Rule because it is more consistent 
with NPS policies to protect wildlife and promote visitor safety.

Bear Baiting

    This rule prohibits 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. The NPS mission 
is broad and includes measures to promote the safety of those who visit 
System units (see 2006 NPS Management Policies, section 8.2.5) as well 
to protect natural wildlife populations (see 2006 NPS Management 
Policies, section 4.4.2). This rule will lower the probability of 
visitors encountering a bait station where bears may attack to defend a 
food source. Further, this rule will 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 action to prohibit baiting is supported by these two primary risk 
factors and other considerations that are discussed below.

Primary Risk Factor One: 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 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. Because of the 
effort involved, bear baiters typically establish stations close to 
access points used by other visitors, such as roads, trailheads, and 
waterways, and are not likely to travel beyond these locations into 
more remote and less visited areas. As a result, 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 https://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

[[Page 55063]]

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 visitors 
approaching a bear defending bait, NPS records indicate that the 
majority of bait stations established at Wrangell-St. Elias National 
Preserve do not comply with the State's minimum distance requirements. 
Further, these requirements do not mitigate the risk of other adverse 
outcomes associated with baiting that are discussed below.

Primary Risk Factor Two: 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 that bears may become food-
conditioned 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 2020 Rule concluded that the State's mitigation measures 
described above would serve to mitigate risk to public safety. However, 
as a district court noted in setting aside that finding, the 2020 Rule 
did not account for the contrary information contained in the 2015 
Rule. See Alaska Wildlife Alliance v. Haaland, 632 F. Supp. 3d 974 (D. 
Alaska 2022). The State's mitigation measures, 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 revisited the issue of whether bear 
baiting poses safety concerns. In part, the 2020 NPS analysis relied on 
certain studies, including a study of black bear baiting in Alaska from 
1992 to 2010. The 2020 Rule did not accurately describe the conclusions 
of this study. The study concludes that the practice is not likely to 
have population level effects on black bears. It explicitly states, 
however, that the challenge presented by bear baiting is that baiting 
is contrary to efforts to minimize food conditioning of bears and the 
goal of promoting public safety.
    The NPS also reconsidered other studies of public safety risks 
associated with bear baiting that were cited in the 2020 Rule and 
determined that they were inconclusive insofar as they relied solely on 
observational data and thus lacked experimental rigor. The lack of 
peer-reviewed data that would support rigorous analysis of these risks 
is not surprising because rigorous studies specific to this point are 
neither logistically nor ethically feasible. Further, the 2020 Rule 
failed to fully consider the vast experience and knowledge of 
recognized bear experts and professional resource managers. To address 
this data gap, the NPS undertook an effort to obtain new and additional 
information in connection with this rulemaking. 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 had an average of more than 20 years of 
experience as natural resource managers and their 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. In the winter of 2022-2023, the 
NPS queried 28 North American bear management and research biologists 
from state and provincial agencies, universities, and non-NPS Federal 
agencies. On average, each of these individuals had 25 years of bear 
expertise at the time of the survey. All 28 agreed that baiting bears 
as allowed under State law was functionally equivalent to feeding 
bears. Twenty-six of the biologists thought bears would defend a bait 
station in a manner equivalent to how that bear would defend a carcass 
(the remaining two were neutral). Twenty-six of the 28 biologists 
thought baiting would lead to bears associating food with humans (i.e., 
food conditioning). Twenty-five of the 28 biologists thought a \1/4\ 
mile buffer around trails would be insufficient to resolve the public 
safety concerns of a bear defending a bait station. Twenty-seven of the 
28 biologists thought a one-mile buffer around dwellings would not 
resolve the public safety concerns of bears associating food with 
people. All 28 biologists thought that natural bear behavior would be 
altered by baiting and that the broader ecosystem potentially would be 
impacted by baiting with non-natural foods.
    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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    As a result of these more recent factual findings and renewed 
analysis, the NPS has determined that it has sound reasons based on the 
collective expertise of recognized bear managers and researchers from 
across North America to prohibit bear baiting. See FCC v. Fox 
Television Stations, Inc., 556 U.S. 515 (2009). In doing so, the NPS 
acknowledges this is a change of policy

[[Page 55064]]

from the 2020 Rule. This change is permissible under the relevant 
statutes and better advances the statutory goals and NPS duties 
relating to management of wildlife, and visitor experience and safety. 
There are good reasons to make this change--the 2020 Rule was not 
``instantly carved in stone'' and NPS maintains, for various reasons, 
including changed factual circumstances, new information about bear 
baiting, and a change in policy direction, that prohibiting bear 
baiting is better for practical reasons and better complies with 
applicable law. Nat'l Cable & Telecomms. Ass'n v. Brand X Internet 
Servs., 545 U.S. 967, 981 (2005). As discussed above, the change also 
fully addresses and responds to the district court's ruling that the 
2020 Rule arbitrarily ``disregard[ed] without explanation [our] 
conclusion in 2015 that State regulations fail to address public safety 
concerns associated with bear baiting.'' Alaska Wildlife Alliance, 653 
F. Supp. 3d at 1005.

Another Consideration

    The two primary risk factors discussed above fully justify the 
bear-baiting prohibition in National Preserves implemented by this 
rule. In addition to those two factors explained above, the reasons for 
the NPS regulatory change are amplified by other considerations that 
support a prohibition on 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 promote activities that increase non-harvest 
mortalities of bears.
---------------------------------------------------------------------------

    \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 https://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

    The NPS received feedback from Tribes and Alaska Native Claims 
Settlement Act (ANCSA) Corporations before publication of the proposed 
rule that indicated baiting bears is not a common activity in or near 
national preserves and not a common action 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. 
We have thoroughly considered these comments, including the comments in 
support of bear baiting, and we have decided for the reasons stated 
above to prohibit the practice in Alaska's National Preserves.

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. See 16 U.S.C. 3112(2), 3114. 
Separate from subsistence harvest, ANILCA authorized anyone to harvest 
wildlife for ``sport purposes'' on NPS lands in Alaska designated as 
national preserves. 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 priority provisions of ANILCA, 
see McDowell v. State, 785 P.2d 1 (Alaska 1989), the Federal Government 
assumed management of subsistence harvest on Federal lands in Alaska 
under title VIII. Following this decision, the State only regulates 
harvest (concurrently with NPS) for sport purposes under ANILCA on 
national preserves.\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, 
assuming satisfaction of preliminary requirements like obtaining a tag 
for any targeted species, 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 harvest 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 subsistence regulations.
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    The NPS re-evaluated whether it was appropriate for the 2020 Rule 
to change its interpretation of the term ``sport'' from the 2015 Rule. 
A fundamental principle of statutory interpretation is that each word 
is presumed to have meaning and that words generally carry their 
ordinary meaning. The 2020 Rule interpreted the term ``sport'' to 
merely distinguish sport hunting from harvest under Federal subsistence 
regulations. If Congress intended the term ``sport'' to have this 
meaning, however, it could have more simply and clearly allowed for the 
taking of fish and wildlife in national preserves for ``subsistence 
uses and other uses'' or ``subsistence uses and non-subsistence uses.'' 
See 16 U.S.C. 3201. The NPS believes a more faithful interpretation of 
this provision is to give a meaning to the term ``sport'' that 
recognizes its distinct ordinary definition. This is consistent with 
how Congress framed the purposes of ANILCA, which includes an intent of 
Congress ``to preserve . . . recreational opportunities including but 
not limited to hiking, canoeing, fishing, and sport hunting . . . .'' 
See 16 U.S.C. 3101(b) (emphasis added). The NPS maintains that the best 
understanding of this term, as explained more fully below, incorporates 
principles of fairness and, in the context of wildlife harvest, fair 
chase. Giving ``sport'' this meaning also is more consistent with the 
overall intent of Congress to provide a preference for subsistence 
harvest under title VIII of ANILCA. In contrast to harvest for sport or 
recreation, harvest for subsistence use is not bound by Western notions 
of fair chase. Rather, subsistence values an effort in support of 
sustenance and cultural traditions.
    The interpretation of the term ``sport'' in this rule expands on 
the NPS interpretation from previous rulemakings. In addition, this 
expanded interpretation is consistent with the 2015 Rule and NPS 
statements in the Federal Register concerning a regulatory action that 
was finalized in 1995 (60 FR 18534) to prohibit same-day-airborne 
hunting of bear, caribou, Sitka black-tailed deer, elk, coyote,

[[Page 55065]]

arctic and red fox, mountain goat, moose, Dall sheep, lynx, bison, musk 
ox, wolf and wolverine (now codified at 36 CFR 13.42(d)). In 1989, when 
the prohibition was first proposed, the NPS stated that in national 
preserves, the prohibition of same-day-airborne hunting of wolves would 
be ``consistent with the `fair chase' philosophy of hunting'' (54 FR 
24853). The proposed rule further stated that the rulemaking action 
would not unduly restrict aircraft access for sport hunting purposes 
when the concept of ``fair chase'' is maintained (54 FR 24853). When 
the prohibition was proposed again in 1994, the NPS stated it ``did not 
consider the use of aircraft in such proximate relation to the actual 
taking of wildlife as is the case with same-day-airborne hunting to be 
a sporting practice'' and that ``[a]lthough Congress clearly provided 
for continued sport hunting in national preserves, same-day-airborne 
hunting does not appear to be intended to be legitimately related to 
such sport'' (59 FR 58806).
    The meaning of ``sport'' is critical given how the NPS has 
implemented the 1916 Organic Act direction 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). ANILCA 
authorizes harvest for Federal subsistence and for ``sport purposes'' 
in national preserves in Alaska. The NPS interprets the term ``sport'' 
to include the concept of fair chase as articulated by hunting 
organizations, as not providing an unfair advantage to the hunter and 
allowing the game to have a reasonable chance of escape. For example, 
the Boone and Crockett Club, the oldest wildlife conservation group in 
North America, defines the term ``fair chase'' as ``the ethical, 
sportsmanlike, and lawful pursuit and taking of any free-ranging wild 
game animal in a matter that does not give the hunter an improper or 
unfair advantage over the game animals,'' and states that ``[t]he fair 
chase hunter . . . [d]efines `unfair advantage' as when the game does 
not have reasonable chance of escape.'' \11\ Similarly, the Hunting 
Heritage Foundation defines ``fair chase'' as ``the balance between the 
hunter and the hunted animal that occasionally allows the hunter to 
succeed while animals generally avoid being taken,'' and states that 
``[f]air chase laws, outlawing unfair methods like poison, snares, or 
bait, ensure that the hunted animal has a reasonable opportunity to 
elude the hunter.'' \12\
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    \11\ Boone and Crockett Club, The Principles of Fair Chase, 
https://www.boone-crockett.org/principles-fair-chase (last visited 
July 25, 2022).
    \12\ The Hunting Heritage Foundation, Fair Chase, https://www.huntingheritagefoundation.com (last visited July 25, 2022).
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    The NPS requested comment on this concept of ``sport''. Responses 
to comments received on the topic of ``sport'' are provided below.

State Law Addressing Predator Harvest

    The 2020 Rule concluded that the ``State's constitutional mandate 
for sustained yield is consistent with NPS Management Policies, which 
state that the NPS manages [wildlife] harvest to allow for self-
sustaining populations of harvested species.'' However, as the district 
court explained in its 2022 opinion rejecting that conclusion, State 
and Federal wildlife management objectives are somewhat similar but not 
equivalent. Therefore, the NPS cannot fully rely on State management to 
ensure consistency with Federal law and policy. 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). 
This policy is supported by the ANILCA's legislative history. The 
Report of the Committee on Energy and Natural Resources, U.S. Senate, 
Report No. 96-413, at page 171, states that ``[i]t is contrary to the 
National Park Service concept to manipulate habitat or populations to 
achieve maximum utilization of natural resources. Rather, the National 
Park System concept requires implementation of management policies 
which strive to maintain natural abundance, behavior, diversity and 
ecological integrity of native animals as part of their ecosystem, and 
that concept should be maintained.''
    In its 2022 opinion, the district court acknowledged that NPS 
Management Policies prohibit predator reduction efforts. The court 
nevertheless concluded that the 2020 Rule did not conflict with that 
policy ``because substantial evidence supports NPS's finding that the 
State hunting regulations at issue . . . do not have the effect of 
reducing the natural abundance of predator species in the National 
Preserves.'' That conclusion does not address the conflict with NPS 
Management Policies, which provide that NPS ``does not engage in 
activities to reduce the numbers of native species for the purpose of 
increasing the numbers of harvested species (i.e., predator control), 
nor does the Service permit others to do so on lands managed by the 
National Park Service'' (emphasis added). Measures enacted for the 
purpose of predator control thus are prohibited by policy even if they 
do not actually reduce predator populations or increase the number of 
prey species available to hunters. For that reason, the limited data 
discussed in 2020 Rule and in the district court's opinion suggesting 
that Alaska's predator control measures may not impact predator 
population levels within national preserves do not lead to the 
conclusion that such measures are consistent with NPS policies. The 
position articulated in the 2020 Rule instead is in tension with these 
policies based upon the information NPS collected over a period of 
years before the publication of the 2015 Rule. This information 
indicates that the State allowed the predator harvest practices for the 
purpose of benefitting prey species over predators and that the 
practices are therefore contrary to NPS policy. For this reason, the 
NPS reaffirms its policy that actions intended to reduce predator 
species, whether effective or not, are not allowed on lands managed by 
the NPS. However, for the reasons discussed in the summary of changes 
to the final rule and in response to specific comments below, the NPS 
does not believe it is necessary at this time to incorporate this 
prohibition into the regulatory text of this final rule. The NPS may 
reconsider whether this policy statement should be incorporated into 
regulations in the future. Park superintendents in Alaska may also use 
this clarified policy in support of closures or other measures as 
appropriate.

Trapping Clarification

    The rule also revises the definition of ``trapping'' to clarify 
that trapping only includes activities that use a ``trap'' as that term 
is defined in NPS regulations. The definition of ``trapping'' 
promulgated in the 2015 Rule inadvertently omitted reference to the use 
of traps and instead referred only to ``taking furbearers under a 
trapping license.'' The revision in this rule resolves 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 more closely 
aligns the definition of ``trapping'' for System units in Alaska with 
the definition that applies to all other System units (see 36 CFR 1.4). 
This

[[Page 55066]]

clarification is an improvement over the 2015 Rule and will facilitate 
better administration of, and participation in, trapping on national 
preserves in Alaska.

Severability

    The NPS intends these regulations to be severable. This final rule 
amends NPS's existing regulations, and in general, NPS regulatory 
provisions related to hunting and trapping in Alaska national preserves 
can be functionally implemented if each revision in this final rule 
occurred on its own or in combination with any other subset of 
revisions. Bear baiting, the meaning of ``sport hunting,'' predator 
control, and the definition of trapping are separate and discrete 
issues, and the provisions related to each of those issues can clearly 
and effectively be implemented independently of each other. As a 
result, if a court were to invalidate any particular provision of this 
final rule, allowing the remainder of the rule to remain in effect 
would still result in functional regulation of hunting and trapping in 
Alaska national preserves.

Summary and Responses to Comments

    On January 5, 2023, the NPS sent letters to Tribal entities 
inviting them to consult on this rule. The NPS followed each of these 
letters with calls and emails. The NPS met with every Tribal entity 
that requested a meeting in the venue and format of their choosing to 
best facilitate meaningful engagement. On January 9, 2023, the NPS 
published the proposed rule in the Federal Register (88 FR 1176). The 
proposed rule was open for an initial 60-day public comment period. The 
NPS extended the comment period on March 10, 2023 (88 FR 14963), in 
response to requests from the public and the State for more time to 
review the proposal. In total, the comment period was open for 77 days 
including the extension. The comment period closed on March 27, 2023. 
The NPS invited comments through the mail, hand delivery, and through 
the Federal eRulemaking Portal at https://www.regulations.gov.
    The NPS received 199,494 pieces of correspondence on the proposed 
rule, including 196,158 form letters and 3,336 unique pieces of 
correspondence. Following publication of the proposed rule, the NPS 
consulted with the State. Meetings were held on February 23, 2023, and 
March 6, 2023, between NPS Alaska Region staff and Alaska Department of 
Fish and Game staff specific to the proposed rule, and on March 6, 
2023, between the NPS Director and Alaska Department of Fish and Game 
leadership. Additionally, following publication of the proposed rule, 
the NPS presented the proposed rule at numerous public meetings, 
including BOG meetings, Subsistence Resource Commission meetings, and 
Regional Advisory Council meetings. NPS leadership also met with the 
Alaska Congressional Delegation several times following publication of 
the proposed rule.
    A summary of the pertinent issues raised in the comments received 
and NPS responses are provided below. After consultation, considering 
public comments, revising the EA and issuing the FONSI, the NPS made 
the following changes in this final rule:
    1. The NPS removed the table of 14 prohibited practices and instead 
only prohibits the use of bait, and specifically the practice of bear 
baiting, for the reasons stated above. Most of the remaining practices 
from the table are currently prohibited under state law. To the extent 
any of the remaining practices are currently allowed under state law, 
they typically only apply to a limited number of preserves. While the 
NPS believes the remaining listed practices are generally not 
appropriate under the NPS management framework for the reasons 
discussed in the proposed rule, the NPS has decided against taking 
action at this time for those practices. Information from user groups, 
including Alaska Native entities, that commonly harvest wildlife in 
national preserves in Alaska expressed their belief, consistent with 
NPS management observations, that there is little to no demand to 
engage in these harvest practices in national preserves (other than 
limited demand to bait bears primarily in a single preserve). The 
practice of bear baiting, however, poses significant public safety 
concerns, which urgently requires regulatory action. Concerns with the 
other practices do not carry the same degree of urgency. They are 
either already prohibited by the state or occur on a limited basis.
    Additionally, park superintendents have authority to prohibit or 
restrict these practices if they deem it necessary. For these reasons, 
NPS has decided not to adopt regulatory prohibitions on these practices 
at this time. The NPS may re-evaluate regulatory action in the future.
    2. The NPS decided not to incorporate the provision from NPS 
Management Policies regarding predator control into the regulatory text 
of this final rule. The NPS determined it is not necessary to 
incorporate this prohibition at this time in the regulatory text of 
this final rule. NPS may reconsider whether this policy statement 
should be incorporated into regulatory provisions in the future.
    3. Based on public comment that there is confusion on when a 
firearm can be used under a trapping license, the NPS modified the 
definition of trapping in Sec.  13.1 to clarify that a firearm can be 
used to take a furbearer in conjunction with a trapping license when a 
furbearer is (1) ensnared in an intact trap; (2) ensnared by a trap 
that is no longer anchored; or (3) mortally wounded by a trap but has 
broken free from the trap, during an open trapping season for that 
species. This allows the humane dispatch of a furbearer that has been 
caught in a trap. Free-ranging furbearers may not be harvested with a 
firearm under a trapping license. Free-ranging furbearers may be 
harvested with a firearm under a hunting license during an open hunting 
season for the harvested species.
    4. The NPS added a new paragraph (k) addressing the severability of 
the regulations in Sec.  13.42.

Economic Costs and Benefits

    1. Comment: Commenters suggested that the economic benefit of 
wildlife viewing, outdoor recreation, and tourism to Alaska's state 
economy are greater than the economic benefit of sport hunting.
    NPS Response: The NPS agrees that several analyses, including 
ECONorthwest (2014), USDOI-USDOC (2018), and The University of Alaska 
(2019),\13\ have estimated that wildlife viewing contributes more to 
Alaska's state economy in terms of jobs, labor income, and revenue, 
than hunting. However, the economic analysis for this rule evaluates 
costs, benefits, and impacts to small businesses relative to baseline 
conditions (the conditions absent the rule). The NPS does not expect 
the rule to affect visitation, or the number of days visitors come to 
national preserves to view wildlife or engage in other non-hunting 
recreational activities. Further, the NPS expects impacts to hunters to 
be small. Individuals who choose to hunt wildlife in national preserves 
would be mostly unaffected by the rule, and hunters that

[[Page 55067]]

are interested in the specific practices affected by this rule could 
substitute many other locations in Alaska (or other seasons) in which 
such hunting practices are still allowed. As a result, the NPS does not 
expect the rule to impact small businesses or the overall state 
economy.
---------------------------------------------------------------------------

    \13\ ECONorthwest. 2014. The Economic Importance of Alaska's 
Wildlife in 2011. Summary Report to the Alaska Department of Fish 
and Game, Division of Wildlife Conservation, contract IHP-12-052. 
Portland, Oregon. USDOI-USDOC. (U.S. Department of the Interior, 
U.S. Fish and Wildlife Service, and U.S. Department of Commerce, 
U.S. Census Bureau). 2018. 2011 National Survey of Fishing, Hunting, 
and Wildlife-Associated Recreation. Revised October 2018. The 
University of Alaska. 2019. Economic Development in Alaska. Outdoor 
Recreation Impacts and Opportunities. Presented to the Alaska 
Division of Economic Development http://npshistory.com/publications/recreation/ak-outdoor-rec.pdf.
---------------------------------------------------------------------------

    2. Comment: Commenters suggested that the intrinsic value of 
protecting wildlife outweighs potential costs to sport hunters.
    NPS Response: The NPS acknowledges that there are many ways to 
assess the value of wildlife. In economics, for example, value is 
measured by consumer surplus, which is calculated as an individual's 
willingness to trade off money (and thus other goods and services) for 
a resource or service as a measure of how much that resource or service 
is ``worth'' to that individual; how much they value it. While this is 
an anthropocentric concept of value based on the ways in which a 
resource or service benefits human well-being, it is a useful measure 
that allows for the comparison of benefits and costs in a consistent 
and well-understood metric of dollars. This is also a key component of 
the measure of value that Federal agencies are directed to use in cost-
benefit analyses (Office of Management and Budget (OMB) Circular A-4; 
OMB Circular A-94). Importantly, however, such economic values do not 
have to involve any human use of, or interaction with, a resource. 
Passive, or nonuse values, capture the values people place on the 
existence of wildlife or the preservation of wildlife for future 
generations, independent of any ``use'' of that wildlife. Intrinsic 
value, on the other hand, is an eco-centric concept reflecting the 
perspective that wildlife has value in its own right, regardless of its 
contribution to human uses or well-being (Rea and Munns, 2017). Passive 
use value is the most closely related economic concept to intrinsic 
value, but still focuses on human well-being and human-ascribed values. 
As noted by Rea and Munns (2017), while passive use values can be 
quantified monetarily through economic valuation, there are no standard 
metrics or methods for describing intrinsic values. Methods to quantify 
intrinsic values are evolving and have not yet reached the same level 
of acceptance as economic valuation methods.
    In the previous version of the cost-benefit analysis for this rule, 
the NPS included one example of relevant passive use values associated 
with wildlife in Alaska (bears) that could be affected by this rule. In 
response to these comments, the NPS has expanded the discussion by 
including a definition of passive use value, a definition of intrinsic 
value, and how the two relate. The NPS has also included additional 
references for passive use values and intrinsic values.\14\
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    \14\ Rea, A.W. and Munns Jr, W.R., 2017. The value of nature: 
Economic, intrinsic, or both? Integrated environmental assessment 
and management, 13(5), p. 953. Richardson, L. and Loomis, J., 2009. 
The total economic value of threatened, endangered and rare species: 
an updated meta-analysis. Ecological economics, 68(5), pp.1535-1548. 
Subroy, V., Gunawardena, A., Polyakov, M., Pandit, R. and Pannell, 
D.J., 2019. The worth of wildlife: A meta-analysis of global non-
market values of threatened species. Ecological Economics, 164, 
p.106374.
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    3. Comment: Commenters suggested that the value of a living animal 
spans time (e.g., through wildlife viewing) and is greater than that of 
the associated pelt or meat.
    NPS Response: The NPS is aware of a study by Elbroch et al. (2017) 
\15\ that compared the tourism spending and business revenue generated 
by one commonly seen and photographed bobcat in Yellowstone National 
Park to the average price of a bobcat pelt and hunting license. The NPS 
is also aware of several analyses that have demonstrated the importance 
of wildlife viewing and the greater overall contributions such tourism 
makes to Alaska's state economy compared to hunting.
---------------------------------------------------------------------------

    \15\ Elbroch, L.M., Robertson, L., Combs, K. and Fitzgerald, J., 
2017. Contrasting bobcat values. Biodiversity and Conservation, 26, 
pp.2987-2992.
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    Cost-benefit analyses of Federal regulatory actions, however, 
evaluate and compare specific measures of economic value referred to as 
consumer surplus--e.g., the value of recreational opportunities such as 
hunting and wildlife viewing, and passive use values associated with 
the preservation and avoided loss of wildlife. This is the appropriate 
economic measure of societal welfare, allowing for a comparison of 
costs and benefits in consistent terms (OMB Circular A-4; OMB Circular 
A-4). Economic analyses of NPS regulatory actions also evaluate impacts 
to small businesses associated with potential changes in park 
visitation.
    This regulatory action is not expected to affect visitation or the 
number of days visitors come to national preserves to view wildlife, 
and as a result, is not expected to have any associated economic 
effects on consumer surplus or impacts to guides and other small 
businesses. However, this rule could have a small impact on wildlife 
sightings for those visitors who already come to national preserves. 
The NPS acknowledges that a single animal has the potential to generate 
wildlife viewing opportunities for many different people that spans a 
longer period of time and has discussed this issue in the updated cost-
benefit analysis for this rule.

NPS Legal Authority

    4. Comment: Commenters stated that the rule exceeds the NPS's 
authority under ANILCA. Commenters stated that ANILCA gives sole 
discretion to the State to regulate harvest of wildlife for sport 
purposes under 16 U.S.C. 3202(a) and that 16 U.S.C. 3201 limits NPS 
authority to implementing temporary closures in specific locations.
    NPS Response: The NPS recognizes the State has responsibility and 
authority for management of fish and wildlife on national preserves in 
Alaska. 16 U.S.C. 3202(a). Similarly, however, the NPS has 
responsibility and authority over the management of these areas. 16 
U.S.C. 3202(b). These principal statements in ANILCA establish a legal 
framework where authority and responsibility for managing wildlife on 
national preserves are shared between the State and Federal 
governments. In a separate section of the statute, ANILCA addresses the 
management of wildlife on national preserves specifically. 16 U.S.C. 
3201. It begins by directing the NPS to administer national preserves 
as units of the National Park System in the same manner as national 
parks, provided that hunting and trapping must be allowed in accordance 
with State and Federal law and regulation. All units of the National 
Park System are governed by the NPS Organic Act, which, among other 
things, establishes a general mandate to conserve wildlife. 54 U.S.C. 
100101(a). The NPS therefore must manage wildlife on national preserves 
to allow sport hunting, but in a manner that is consistent with the NPS 
Organic Act, and by inference NPS policies implementing the NPS Organic 
Act related to the taking of wildlife in System units. See NPS 
Management Policies section 4.4.3. ANILCA further states that the 
Secretary of the Interior (acting through the NPS) may promulgate 
regulations restricting sport hunting and trapping in national 
preserves after consultation with the State. 16 U.S.C. 3201. This 
section states specifically that the NPS may designate zones where and 
periods when no hunting or trapping may be permitted for reasons of 
public safety, administration, floral and faunal protection, or public 
use and enjoyment. 16 U.S.C. 3201. This provision does not narrow the 
NPS's general regulatory authority under ANILCA, 16 U.S.C. 3124, or its 
general authority to manage wildlife in national preserves; rather it

[[Page 55068]]

provides specific authority for geographic or temporary closures to 
hunting or trapping, which complements the NPS's broader regulatory 
authority. ANILCA authorizes the NPS to promulgate reasonable 
regulations concerning the take of wildlife in national preserves that 
are consistent with the mandates of the NPS Organic Act. ANILCA does 
not require that the NPS defer to State hunting regulations in all 
instances. This rule does not interfere with the State's authority and 
responsibility to manage wildlife on national preserves. It prohibits 
one specific harvest practice on national preserves. The vast majority 
of State regulations are, and are expected to remain, the governing 
laws concerning sport hunting in national preserves. This rule is 
consistent with ANILCA by preserving the status quo that the 
responsibility and authority for managing wildlife on public lands in 
Alaska is shared between the State and Federal governments.
    5. Comment: Several commenters stated that the term ``sport,'' as 
used in 16 U.S.C. 3201 and elsewhere in ANILCA, only serves to 
differentiate between subsistence and non-subsistence take of wildlife 
in national preserves.
    NPS Response: The NPS explains the basis for its interpretation of 
the term ``sport,'' and its incorporation of fair chase principles 
above. In short, this interpretation is more appropriate than the 
minimal meaning given to the term in the 2020 Rule, because it 
recognizes the decision by Congress to use the specific term ``sport'' 
and is therefore more consistent with principles of statutory 
interpretation, and it also adheres more closely to the intent of 
Congress to provide a preference for subsistence harvest under title 
VIII of ANLICA.
    6. Comment: Several commenters stated that it is inappropriate to 
give meaning to the term ``sport'' in a manner that restricts harvest 
by individuals for subsistence purposes under state law.
    NPS Response: These commenters conflate harvest for subsistence 
under Federal regulations implementing title VIII of ANILCA and harvest 
for subsistence under state law throughout Alaska, including on 
national preserves. The NPS acknowledges that some individuals who 
harvest wildlife in national preserves are doing so primarily for food, 
and many may have long standing family traditions doing so. Regardless 
of the hunter's intent or purpose, however, and regardless of how the 
State of Alaska labels hunting under state law, ANILCA allows 
individuals to take wildlife in national preserves for two reasons 
only: (1) for Federal subsistence uses under title VIII; or (2) for 
``sport purposes.'' 16 U.S.C. 3201. It would be inappropriate for the 
NPS to allow harvest in national preserves for any purpose that is not 
identified in ANILCA.
    7. Comment: One commenter stated that the NPS lacks authority to 
preempt state regulations for managing wildlife because of statements 
in 43 CFR part 24 about state authority over fish and wildlife, 
including on Federal lands within a state.
    NPS Response: The NPS disagrees with this interpretation of 43 CFR 
part 24. This part recognizes state authority over wildlife in units of 
the National Park System. The provisions in this part, however, are 
policy statements that do not state or suggest that states have plenary 
or exclusive authority over wildlife in System units. To the contrary, 
they outline a policy recognizing the shared responsibility of states 
and the Federal Government for the management of wildlife, and 
specifically reaffirm Federal authority.
    8. Comment: One commenter stated that because national preserve 
lands were withdrawn after Statehood, that NPS lacks authority to adopt 
the harvest restrictions in this rule. This commenter further stated 
that ANILCA removes the NPS's authority to promulgate this rule in 16 
U.S.C. 3122 and 3125.
    NPS Response: These comments fail to acknowledge ANILCA's 
recognition of the Secretary of the Interior's authority, acting 
through the NPS, in ANILCA 16 U.S.C. 3201, to restrict sport hunting 
and trapping in national preserves. Some of these comments acknowledge 
that this section allows the NPS to completely close an area to all 
hunting, but then argue that NPS lacks authority to close an area to a 
specific type of hunting (e.g., taking bears over bait). The NPS finds 
this argument without merit under the plain text of section 3201 for 
two reasons: first, to the extent these comments argue that section 
3201 only allows complete closures, the NPS believe that these are 
complete closures to these specific forms of hunting, and second, the 
more logical reading of section 3201 is that if the NPS can prevent a 
type of hunting by completely closing an area to all harvest, surely it 
can prevent the same activity through less-restrictive measures that 
fall short of a complete closure.
    9. Comment: Several comments argued it is inappropriate for the NPS 
to manage harvest for federally qualified subsistence differently than 
harvest by others and specifically questioned the appropriateness of 
allowing Federal subsistence users to bait bears with natural food 
items and prohibiting others from doing so under state regulations.
    NPS Response: The importance of subsistence is readily apparent in 
ANILCA. It is specifically identified as one of the primary purposes of 
the statute in section 3101(c), and there is an entire title in ANILCA 
devoted to allowing and managing this practice, recognizing the 
importance of subsistence not just for food but as a cultural practice. 
Furthermore, the text of ANILCA requires the NPS to prioritize 
subsistence take in national preserves.
    With respect to bear baiting specifically, there are additional 
reasons to treat title VIII subsistence users differently. As mentioned 
elsewhere, subsistence brings a different set of values than harvest 
for sport purposes. In addition to valuing an economy of effort (as 
opposed to fair chase), subsistence values maximized use of resources. 
To that end, it is contrary to traditional harvest practices to use 
commercial food products to attract wildlife for harvest. Subsistence 
users traditionally harvested bears over remains from the kill of an 
ungulate that could not be harvested or salvaged. The NPS acknowledges 
that these natural items, which are authorized for Federal subsistence 
users in national preserves, can similarly attract bears, but would be 
left behind at the site of harvest. It is reasonable to allow this 
practice for a priority user group that fundamentally operates under a 
different set of values because (1) the number of federally qualified 
subsistence users is much smaller than those that could participate 
under state regulations, (2) offering a traditional harvest opportunity 
to subsistence users is more consistent with ANILCA's emphasis on the 
importance of subsistence, (3) bears are exposed to these items as part 
of their natural history and far less likely to associate them with 
humans, and (4) natural foods degrade more quickly. For these reasons, 
this allowance recognizes rural subsistence priority and reduces the 
safety risk posed by the authorization for non-subsistence users.
    10. Comment: Comments were received stating that NPS 
inappropriately described the subsistence authorization in preserves by 
referring to ``local rural residents.''
    NPS Response: NPS is not proposing to modify the existing statutory 
and regulatory construct pertaining to harvest of wildlife in national 
preserves. Under 36 CFR 13.410, subsistence uses

[[Page 55069]]

are authorized in national preserves in Alaska by ``local rural 
residents.''
    11. Comment: Several commenters stated that this rule is 
``substantially the same'' as a rule promulgated by the U.S. Fish and 
Wildlife Service (FWS) in 2016 (81 FR 52248, August 5, 2016) (the 
Refuges Rule), which was disapproved by a joint resolution of the U.S. 
Congress in 2017 under the Congressional Review Act (CRA). 5 U.S.C. 
801(b)(2); see Public Law 115-20, 131 Stat. 86. As a result, these 
commenters asserted that the CRA prohibits the NPS from promulgating 
this rule.
    NPS Response: The NPS considered whether the final rule is 
``substantially the same'' as the Refuges Rule and determines that it 
is not. As a threshold matter, a rule promulgated by a different bureau 
regarding different lands that are managed according to different legal 
standards is not ``substantially the same.'' The Refuges Rule addressed 
national wildlife refuge lands in Alaska managed by the FWS according 
to, among other authorities, ANILCA, the National Wildlife 
Administration Act of 1966 as amended by the National Wildlife Refuge 
System Improvement Act of 1997, and the 1964 Wilderness Act. The final 
rule, in contrast, addresses national preserves administered by the NPS 
according to the NPS Organic Act and ANILCA.
    In addition to the fundamentally different legal regimes covering 
the different lands, they are also very different in scale and 
geographic scope. National wildlife refuge lands in Alaska comprise 54 
million acres whereas national preserves comprise less than half that 
acreage (22 million acres). There is zero physical overlap between 
National wildlife refuge lands and national preserves in Alaska, 
meaning that nothing in the final rule changes the regulatory 
landscape, in any way, on a single acre of land that was previously 
governed by the Refuges Rule. This sort of geographic non-overlap has 
already been recognized by the Ninth Circuit as support for a 
conclusion that two rules are not ``substantially the same'' within the 
meaning of the Congressional Review Act. See Safari Club Int'l v. 
Haaland, 31 F.4th 1157, 1170 (9th Cir. 2022).
    Even setting aside the fact the two rules were issued by different 
bureaus, under different statutory authorities, on different lands, the 
two rules also have significant substantive differences. The 
substantive difference between this rule and the Refuges Rule is 
evidenced by the fact that the NPS and the FWS have promulgated 
separate rules regarding take of wildlife in national preserves and 
refuges, respectively. In 2015, NPS submitted the 2015 Rule under the 
CRA months before FWS submitted the Refuges Rule. Only one joint 
resolution of disapproval was passed and enacted, disapproving of the 
Refuges Rule.
    Additionally, this final rule only prohibits the practice of 
baiting bears (black and brown) based on primarily on public safety 
risk to visitors, whereas the Refuges Rule prohibited several practices 
in addition to the baiting of brown bears, and also allowed the 
continuance of black bear baiting. The Refuges Rule was based on 
concerns for maintaining natural diversity, whereas this final rule for 
national preserves in Alaska is based predominantly on public safety. 
As discussed above, recent factual information from bear experts led 
the NPS to determine it is necessary to take action to mitigate public 
safety concerns that stem from bear baiting. While additional concerns 
outlined in this rule also support a prohibition on bear baiting, the 
risk to the visiting public, which could be catastrophic, is the 
primary justification.
    The Refuges Rule included a prohibition on several hunting or 
predator-control practices that are not addressed by this final rule. 
These included prohibitions on using snares, nets, or traps to take any 
species of bear; taking wolves and coyotes during denning season (from 
May 1 through August 9); and taking bear cubs or sows with cubs. The 
Refuges Rule included a statement that predator control is prohibited 
on National Wildlife Refuges in Alaska unless specific determinations 
are made. None of these provisions are in this final rule.
    NPS recognizes that it previously described certain aspects of the 
2015 Rule as ``nearly identical in substance'' to the Refuges Rule. 
DOI, Alaska; Hunting and Trapping in National Preserves, 85 FR 35181 
(June 9, 2020). In doing so, however, NPS did not intend to make any 
legal or factual determination or conclusion about the meaning of the 
phrase ``substantially the same'' in the Congressional Review Act. In 
addition, that prior statement from NPS failed to account for several 
of the significant differences between the previous rule and the 
Refuges Rule, as outlined above. Furthermore, this final rule has 
several additional substantive differences from both the previous rule 
and the Refuges Rule, including with respect to the coverage of 
different sorts of hunting practices and treatment of different bear 
species. So that prior statement does not change NPS's current view and 
determination that the final rule is not ``substantially the same'' as 
the Refuges Rule.
    Accordingly, the NPS determines that the final rule is not 
``substantially the same'' as the Refuges Rule within the meaning of 
the Congressional Review Act. 5 U.S.C. 801(b)(2).

Bear Baiting for Individuals With Disabilities

    12. Comment: Commenters stated that the NPS should allow bear 
baiting by individuals with disabilities because it is a more efficient 
and accessible method of harvest.
    NPS Response: The NPS is primarily concerned in this rule with the 
risks that bear baiting poses for public safety, which are the same 
regardless of the abilities of the hunter.

Definition of Predator Control

    13. Comment: Several commenters stated that predator harvest 
outside of a BOG-authorized intensive management plan is not predator 
control, as defined under State law.
    NPS Response: The NPS acknowledges that the State and the NPS use 
different terminology for predator management. The State only considers 
actions implemented by plans authorized under its ``intensive 
management'' law as predator control. The term ``intensive management'' 
has no meaning under Federal law. The NPS is guided by NPS 2006 
Management Policies, section 4.4.3, which prohibits the NPS from 
allowing others to engage in activities to reduce the numbers of native 
species for the purpose of increasing the numbers of harvested species 
(i.e., predator control) on lands managed by the NPS.

Predator Control Ban

    14. Comment: Several commenters stated that predator harvest should 
be managed by the State to provide moose and caribou for harvest. 
Commenters stated that the purpose of predator harvest should be to 
meet harvest needs for moose and caribou and to sustain healthy 
populations.
    NPS Response: 2006 NPS Management Policies, section 4.4.3, states 
that activities to reduce the numbers of native species for the purpose 
of increasing numbers of harvested species (i.e., predator control) are 
not allowed on lands managed by the NPS. This policy applies to 
national preserves in Alaska notwithstanding any competing purposes for 
such activities, such as providing a sustained yield of ungulates for 
human use. While NPS is not including this policy language in the text 
of the final rule, it remains NPS policy that activities (including by 
the State) to decrease the number of native species for the

[[Page 55070]]

purpose of increasing numbers of harvested species are not allowed on 
NPS managed lands.

Coyotes Are Not Native to Alaska

    15. Comment: Some commenters stated that coyotes are not native to 
Alaska and therefore do not deserve the same protection from harvest as 
other species that historically occupied the lands within the state.
    NPS Response: Coyotes are native to North America, and while 
coyotes may not have historically occupied all of their current range, 
their expansion most likely occurred through natural processes. 
Consequently, the NPS manages coyotes in the same manner as other 
native species consistent with NPS Management Policies, sections 4.1, 
4.4.1, 4.4.1.2, and 4.4.2.

Prohibited Actions--Harvesting Swimming Caribou

    16. Comment: Several commenters stated that harvesting swimming 
caribou is a traditional activity for people who are not federally 
qualified subsistence users and therefore should be allowed for those 
people. Commenters suggested that harvest levels for this activity are 
typically low and therefore have minimal impacts.
    NPS Response: The NPS removed this provision from the final rule. 
As previously noted, the allowance for this practice is limited and 
this provision would have only applied on waters that are under NPS 
jurisdiction. See 36 CFR 1.2(f). NPS may reconsider taking action 
regarding this practice in the future.

NPS Authority on Navigable Waterways

    17. Comment: Commenters stated that the NPS lacks authority to 
regulate the harvest of swimming caribou or taking wildlife from 
motorboats on waters where the NPS lacks jurisdiction.
    NPS Response: NPS removed this provision from the final rule. As 
previously noted, this provision would have only applied to waters that 
are under NPS jurisdiction. See 36 CFR 1.2(f). NPS may reconsider 
taking action regarding this practice in the future.

Exceptions to Prohibited Methods of Harvest

    18. Comment: Commenters suggested that prohibitions on methods of 
harvest should not apply uniformly across the state, and that there 
should be exceptions or deviations for specific regions of Alaska where 
those activities are traditional. One commenter suggested that the 
superintendents of national preserves should have discretionary 
authority to authorize these harvest practices where they are 
traditional.
    NPS Response: Most of the methods of harvest prohibited by this 
rule are currently prohibited under state law. To the extent any of the 
practices are currently allowed under state law, they typically only 
apply to a limited number of preserves. While the NPS believes these 
practices are generally not appropriate for the reasons discussed above 
in the preamble to this rule, the NPS has decided against taking action 
at this time for all the practices except using bait, specifically to 
take bears. Additionally, park superintendents do have authority to 
prohibit or restrict these practices if they deem it necessary. For 
these reasons, NPS has decided not to adopt regulatory prohibitions on 
these practices at this time. NPS may consider addressing the other 
practices included in the proposed rule in the future.

Prohibition on Bear Baiting

    19. Comment: Several commenters asked the NPS what it considers to 
be bait, and specifically whether it includes smokehouses and gut piles 
from legally harvested animals.
    NPS Response: The NPS considers bait to be any attractant, natural 
or processed, that is specifically placed on the landscape with the 
intent of attracting an animal to facilitate harvest. Neither a 
smokehouse nor a gut pile unmoved from the location of harvest will be 
considered bait under this rule.
    20. Comment: Several commenters stated there is no evidence that 
identifies a public safety risk associated with bear baiting and/or 
that any risk that does exist can be mitigated. Commenters stated that 
the internal NPS query about the risks of bear baiting was 
insufficient.
    NPS Response: As discussed in detail above, bear baiting is broadly 
recognized in the field of bear management to pose a risk to public 
safety because (1) bears may defend a bait station in the same manner 
they would defend any other food resource; (2) food conditioning of 
bears may result in increased bear mortality and heightened risk to 
public safety and property; and (3) baiting, by its very design and 
intent, alters bear behavior. Due to these known risks and impacts, 
avoiding bears defending food resources and preventing bears from 
associating humans with food are central to the educational messaging 
of all government agencies that manage areas where bears exist. This is 
done to promote public safety and reduce the need to kill bears for 
reasons other than hunting. While mitigations to minimize the potential 
for negative consequences associated with bear baiting exist under 
State law, these mitigations do not adequately address safety concerns 
for the visiting public. The likelihood of a catastrophic consequence, 
including an injury or death, to a member of the public increases with 
the presence of a bait station.
    21. Comment: Several commenters stated that bear baiting is a 
sporting practice due to the level of effort and skill required to be 
successful.
    NPS Response: The public safety considerations associated with bear 
baiting are independent of the skill or effort associated with the 
practice. Bear baiting is not consistent with promoting visitor safety 
in national preserves.

Consultation Process

    22. Comment: Several commenters raised concerns with the level of 
outreach, collaboration, and consultation with the State, Tribal 
entities, and the public.
    NPS Response: In addition to extending the public comment period 
for the proposed rule, the NPS did considerable outreach leading up to 
publication of the proposed rule and during the public comment period.
    In the eight months prior to the publication of the proposed rule, 
the NPS informed the State, Tribal entities, and potentially affected 
user groups that the NPS was likely to reconsider the 2020 Rule through 
a new rulemaking. The NPS shared this information at numerous public 
meetings, including at BOG meetings, Subsistence Resource Commission 
meetings, Federal Subsistence Regional Advisory Council meetings, and 
Federal Subsistence Board meetings. The NPS shared this information at 
the 2022 Alaska Professional Hunters Association annual meeting that 
was attended by the State, on monthly coordination calls between the 
State and the DOI, and in one-on-one meetings between State and NPS 
leadership in Alaska. Beginning in April 2022, the NPS reached out to 
Tribes and ANCSA Corporations, and attended meetings with those groups 
to share information. As mentioned above, the NPS followed those 
efforts with a letter sent to Tribal entities inviting formal 
consultation. The NPS met with every Tribal entity that requested a 
meeting in the venue and format of their choosing to best facilitate 
meaningful engagement.
    Following publication of the proposed rule, the NPS held three 
consultations meetings with the State, presented the proposed rule at 
numerous public meetings, including BOG meetings, Subsistence Resource 
Commission

[[Page 55071]]

meetings, and Regional Advisory Council meetings.

Use of a Firearm Under a Trapping License

    23. Comment: Several commenters asked the NPS to allow the use of a 
firearm under a trapping license to dispatch a wounded or trapped 
animal. Some commenters asked the NPS to allow harvest of free-ranging 
furbearers with a firearm under a trapping license consistent with 
State regulations.
    NPS Response: Existing NPS regulations define a trap as ``a snare, 
trap, mesh, or other implement designed to entrap animals other than 
fish'' and trapping as ``taking furbearers under a trapping license'' 
(36 CFR 13.1). These definitions create uncertainty about whether an 
individual can use a firearm to take a furbearer if authorized under a 
State trapping license, even though the NPS definition of a trap does 
not include a firearm. This rule addresses this uncertainty and in 
response to public comment the NPS has added an allowance in the final 
rule for the use of a firearm to dispatch a furbearer in limited 
circumstances, as explained above.

Compliance With Other Laws, Executive Orders and Department Policy

Regulatory Planning and Review (Executive Orders 12866 and 13563 and 
14094)

    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 
rule is significant. The NPS has assessed the potential costs and 
benefits of this 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 14094 amends Executive Order 12866 and reaffirms 
the principles of Executive Order 12866 and Executive Order 13563 and 
states that regulatory analysis should facilitate agency efforts to 
develop regulations that serve the public interest, advance statutory 
objectives, and be consistent with Executive Order 12866, Executive 
Order 13563, and the Presidential Memorandum of January 20, 2021 
(Modernizing Regulatory Review). Regulatory analysis, as practicable 
and appropriate, shall recognize distributive impacts and equity, to 
the extent permitted by law.
    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 
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 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.''

Congressional Review Act

    This rule is not a major rule under 5 U.S.C. 804(2) of the CRA. 
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 Tribal, State, or 
local governments or the private sector of more than $100 million per 
year. The 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 preserves 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 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 rule 
does not have sufficient federalism implications to warrant the 
preparation of a federalism summary impact statement. As explained 
above, this rule is consistent with ANILCA by preserving the status quo 
that the responsibility and authority for managing wildlife on public 
lands in Alaska, including the harvest of wildlife for sport purposes 
in national preserves, is shared between the State and Federal 
governments. In developing the proposed and final rule, NPS sought and 
considered input from the State. A federalism summary impact statement 
is not required.

Civil Justice Reform (Executive Order 12988)

    This rule complies with the requirements of Executive Order 12988. 
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 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 proposed rule was informed by feedback from 
Tribal entities. In January 2023, the NPS invited consultation with 
Tribes and ANCSA Corporations that would be most affected by this rule. 
The NPS met with all entities that requested a meeting and their input 
was considered in the development of this rule. The NPS has evaluated 
this rule under the criteria in Executive Order 13175 and under the 
Department's Tribal consultation and ANCSA Corporation policies. 
Because the rule does not restrict title VIII subsistence harvest and 
feedback from Tribes and

[[Page 55072]]

ANCSA Corporations indicates these methods of harvest are not common, 
the rule will not have a substantial direct effect on federally 
recognized Tribes or ANCSA Corporation lands, water areas, or 
resources.

Paperwork Reduction Act

    This 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 prepared the EA evaluating the effects of this rule and 
issued the FONSI concluding that 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 is not required because of the FONSI. The EA and 
FONSI considered new information as appropriate and responded to 
comments received during the public comment period and during 
consultation by analyzing impacts under a range of alternatives.

Effects on the Energy Supply (Executive Order 13211)

    This rule is not a significant energy action under the definition 
in Executive Order 13211. The rule is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy and 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.

List of Subjects in 36 CFR Part 13

    Alaska, National parks.

    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. 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 definition ``Furbearer''; and
0
b. Revise the definition of ``Trapping''.
    The addition and revision read as follows:


Sec.  13.1  Definitions.

* * * * *
    Furbearer means one of the following species: 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.
* * * * *
    Trapping means taking furbearers under a trapping license with a 
trap, or with a firearm when a furbearer is:
    (1) Ensnared in an intact trap;
    (2) Ensnared in a trap that is no longer anchored; or
    (3) Mortally wounded by a trap but that has broken free from the 
trap.
* * * * *

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) Using bait is prohibited except for taking furbearers with a 
trap under a trapping license. Using bait to attract or take bears is 
prohibited.
* * * * *
    (k) The paragraphs of this section are separate and severable from 
one another. If any paragraph or portion of this section is stayed or 
determined to be invalid, or the applicability of any paragraph of this 
section to any person or entity is held invalid, it is NPS's intention 
that the validity of the remainder of those parts shall not be 
affected, with the remaining sections to continue in effect.

    Signing Authority:  On June 28, 2024, Shannon Estenoz, Assistant 
Secretary for Fish and Wildlife and Parks, approved this action for 
publication. On June 28, 2024, Shannon Estenoz also authorized the 
undersigned to sign this document electronically and submit it to 
the Office of the Federal Register for publication as an official 
document of the Department of the Interior.

Maureen Foster,
Chief of Staff, Office of the Assistant Secretary for Fish and Wildlife 
and Parks.
[FR Doc. 2024-14701 Filed 7-2-24; 8:45 am]
BILLING CODE 4312-52-P