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

DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 13

RIN 1024–AC25

Alaska; Hunting Regulations

AGENCY: National Park Service, Interior.

ACTION: Final rule.

SUMMARY: This rule prohibits hunting in

National Park Service (NPS) areas in

Alaska on the same day in which a

hunter has flown in an aircraft. The rule

as originally proposed (59 FR 58804)

also included a clarification of the NPS

restriction on use of firearms and other

weapons by trappers. This final rule

addresses only the Same-Day-Airborne

Hunting portion of the proposed rule.

The clarification of the language

regarding trapping and the use of

firearms under a trapping license will be

addressed under a separate document

with an extended comment period.

EFFECTIVE DATE: April 11, 1995.

ADDRESSES: Comments should be

addressed to Robert D. Barbee, Regional

Director, National Park Service, 2525

Gambell Street, Anchorage, AK 99503–

2892 (Fax 907–257–2533).

FOR FURTHER INFORMATION CONTACT:

Paul Hunter, National Park Service,

Alaska Regional Office, 2525 Gambell

Street, Anchorage, AK 99503–2892

(Telephone 907–257–2646; Fax 907–

257–2410).

SUPPLEMENTARY INFORMATION:

Background

The National Park Service ‘‘Organic

Act’’ (16 U.S.C. 1, et seq.) provides

authority for the management of NPS

areas in accordance with the

fundamental purposes established for

each area. The basic purpose established

by the Organic Act is ‘‘* * * to

conserve the scenery and the natural

and historic objects and the wild life

therein and to provide for the enjoyment

of the same in such manner and by such

means as will leave them unimpaired

for the enjoyment of future

generations’’. In addition, each area

established may also have other

legislatively designated purposes.

In 1980, Congress passed the Alaska

National Interest Lands Conservation

Act (ANILCA, 16 U.S.C. 3101) which

established new, and added to existing,

NPS units in Alaska. Sections 201 and

202 of ANILCA established purposes for

which each NPS unit will be managed.

Section 203 of ANILCA directs that

these new and additional areas are to be

administered according to the NPS

‘‘Organic Act’’ and the other applicable

provisions of ANILCA. Also, Section

1313 of ANILCA directs that National

Preserves in Alaska will be

administered and managed in the same

way as a national park except as

otherwise provided in ANILCA. Section

1110 provides for the use of airplanes in

NPS areas subject to reasonable

regulation to protect the natural and

other values of the areas. The intent of

Congress to allow hunting and trapping

in specified NPS areas in Alaska is

implemented through Title 36 part 13 of

the Code of Federal Regulations (CFR).

Hunting and Trapping in NPS Areas in

Alaska

Prior to 1975, same-day-airborne

taking of wildlife was allowed in Alaska

by State regulation. Starting in 1975, the

State began prohibiting same-dayairborne hunting of many species of

wildlife while continuing to allow for

same-day-airborne land and shoot

trapping. Because wolves may be taken

under State law with either a hunting or

trapping license, and State law provides

for taking by firearm with a trapping

license, wolves could still be taken by

the land and shoot method on the sameday-airborne despite the prohibition for

same-day-airborne hunting.

On June 17, 1981, Federal regulations

(36 CFR Part 13) were adopted for NPS

areas in Alaska, including a regulation

(36 CFR 13.1(u)) which limited trapping

in NPS areas to taking by snares, traps,

mesh, or other implements designed to

entrap animals. As a result, use of a

firearm under the State authorization for

land and shoot trapping was precluded

in NPS areas.

From 1981 until 1986, NPS managers

operated on the assumption that the

State prohibition of same-day-airborne

hunting and the NPS prohibition of use

of a firearm for trapping eliminated the

possibility of land-and-shoot taking of

wolves and most other wildlife in NPS

areas. However, at the January 1986

Board of Game meetings, the NPS

learned that State wildlife managers

were unaware of the NPS trapping

restriction and that State tagging records

indicated that as many as 20 wolves

may have been taken in NPS preserves

by the land-and-shoot trapping method

during that season. Shortly thereafter,

the NPS Regional Director met with the

Commissioner of the State Department

of Fish and Game to explain the NPS

trapping regulation. This was followed

with a letter dated February 14, 1986, to

the Commissioner formally conveying

the NPS prohibition of firearm use for

trapping.

In 1987, the State Board of Game

revised same-day-airborne provisions

for wolves by eliminating the previous

allowance for trapping and establishing

such an allowance for hunting. This

action had implications for national

preserves in Alaska where same-dayairborne takings were previously

prohibited by the NPS preclusion of use

of firearms for trapping. This was the

first time that wolves could legally be

taken on the same-day-airborne in NPS

areas in Alaska.

In response to the State change in

same-day-airborne taking rules for

wolves, the NPS adopted an emergency

one-year regulation from November,

1988 to November, 1989, prohibiting

same-day-airborne hunting of wolves in

NPS preserves. At the same time, the

NPS began drafting a proposed rule for

permanent adoption. The proposed rule

was published in the Federal Register

on June 9, 1989 (54 FR 24852). Written

comments were accepted and public

hearings were held in sixteen

communities during the Summer of

1989. After analyzing the public

comments, the NPS in 1990 prepared,

but did not publish, a final rule.

However, as a result of consultations

between the State of Alaska and the

NPS, the State agreed to exclude the

NPS preserves from the State regulation

allowing same-day-airborne hunting of

wolves. State regulations were changed

in August, 1990 to specifically exclude

same-day-airborne hunting allowances

in national preserves. On October 30,

1990, the NPS published a Notice in the

Federal Register (55 FR 45663)

announcing the exception for the

preserves.

In 1992 the State Board of Game again

prohibited same-day-airborne hunting of

wolves statewide and did not

reauthorize same-day-airborne land and

shoot trapping. Consequently, for about

one year, same-day-airborne taking of

wolves in Alaska was not allowed under

either a State hunting or trapping

license. Then in 1993, the State Board

of Game reauthorized same-day-airborne

land and shoot trapping of wolves. This

action essentially returned same-dayairborne taking of wildlife to the pre1987 status when it was allowed for

trapping but not hunting.

While the 1993 State action did not

directly impact the NPS, it did result in

a strong public reaction that, because of

the perception that the State action did

affect NPS areas, included many

requests that the NPS move ahead with

the rulemaking that was first proposed

in 1989. Consequently, the 1989

proposed rule was revised and

published in the Federal Register on

November 15, 1994 (59 FR 58804), with

the intent of accomplishing the

following:
Federal Register / Vol. 60, No. 69 / Tuesday, April 11, 1995 / Rules and Regulations 18533

1. Prohibit same-day-airborne taking

of fifteen designated wildlife species.

2. Satisfy statutory mandates to

provide for hunting and trapping in

specified NPS areas in Alaska.

3. Maintain compatibility between

hunting and trapping activities and

statutory purposes.

4. Provide more effective and

consistent enforcement of State and

Federal hunting and trapping laws and

regulations.

In consideration of NPS law and

policy, and Federal Airborne Hunting

Act purposes and enforceability, the

NPS has determined that this final rule

will reduce the incidence of aircraft

harassment of wildlife and the potential

for aircraft assisted taking of wildlife in

units of the NPS.

Summary of Comments Received in

1989

The original proposed rule (54 FR

24852) afforded the public a comment

period of 60 days (extended to 70 days).

During the comment period, public

meetings were held in Alaska in

Anchorage, King Salmon, Wasilla,

Chignik, McGrath, Fairbanks,

Glennallen, Eagle, Kenai, Bettles,

Iliamna, Yakutat, Kotzebue, Juneau, and

Nome, as well as in Washington, D.C.

Ninety-three oral comments were

recorded at the public meetings and

1,312 written comments were received

prior to the end of the comment period.

Summary of 1994 Comments

The revised proposed rule (59 FR

58804) had a 30-day public comment

period. During the comment period

public hearings were held in Anchorage

and Fairbanks at which sixteen persons

presented oral comments. The NPS also

received ninety letters, cards, and

facsimile comments within the official

comment period.

After considering all public comments

from both comment periods, the NPS

has decided to proceed with a final rule

on the same-day-airborne portion of the

revised proposed rule. The clarification

of the trapping portion of the proposed

rule will be covered under a separate

document with an extended comment

period.

Analysis of Comments

1. Widespread Support for the Proposed

Regulations

Analysis of supporting views is

consolidated in this paragraph because

the various supporting comments

generally repeat the reasons presented

by the NPS in the published Proposed

Rule documents (54 FR 24852 and 59

FR 58804). Overall, the comments

supported the prohibition of same-dayairborne land-and-shoot hunting. The

NPS received a total of 1,405 comments

(1,312 written and ninety-three oral)

during the 1989 comment period, and

106 (ninety written and sixteen oral)

during the 1994 comment period.

Ninety-three percent (1,406 comments)

favored the proposed rule and seven

percent (105 comments) opposed the

rule.

2. Opinions of Alaska Residents Were

Seriously Considered

Several commenters who oppose the

proposed rule expressed their belief that

the NPS ignores opinions of Alaska

residents and relies on comments from

outside Alaska. While most opposition

to the proposed rule came from Alaska

residents, more than two-thirds of the

comments from Alaska support the

proposed rule. Alaska residents

submitted a total of 322 comments, with

sixty-nine percent favoring the proposed

rule and thirty-one percent opposed.

The NPS considered all public

opinions and views on the proposed

rule and did not disregard opinions of

Alaskan residents. In fact, special

attention was given to comments and

concerns received from Alaskans. The

decision to extend the comment period

for the trapping clarification portion of

the proposed rule was a direct result of

requests from Alaska residents involved

with trapping activities, local

governmental bodies, members of local

advisory groups, Native organizations,

and individual Alaska residents. Even

so, while the response from Alaska

residents was mixed, a significant

majority of commenting Alaskans,

including many uniquely

knowledgeable persons such as hunting

guides, hunters, pilots, and

representatives of local rural residents

directly affected by same-day-airborne

taking of wildlife, support the same-dayairborne rule.

3. The Proposed Rule Would Not Violate

the Special Aircraft Access Provisions of

ANILCA

Several commenters expressed

concern that the proposed rule violates

the procedure for implementing

restrictions on aircraft access under

Section 1110 of ANILCA. This section of

ANILCA, among other things, limits the

restrictions that may be placed on

aircraft access for traditional activities.

After carefully reviewing the potential

applicability of Section 1110 to the

proposed same-day-airborne rule, it was

concluded early in the rulemaking

process that the regulation does not

restrict aircraft access for hunting,

trapping, fishing or any other traditional

activity permitted by ANILCA or other

law. Furthermore, at the time ANILCA

was passed, same-day-airborne taking of

wildlife was a widely restricted hunting

method under State law, as it is today.

However, even if found to be an aircraft

access restriction as certain commenters

asserted, the NPS believes that the

administrative process used for this rule

would meet the requirements

established for adoption of such

restrictions.

4. The State of Alaska’s Authority to

Regulate the Taking of Fish and Wildlife

Is Limited by Federal Law

Many of those opposing the rule

commented that the State either has or

should have sole authority to regulate

the taking of fish and wildlife in Alaska.

The proposed rule is seen as

unauthorized and unwarranted Federal

interference with the State’s jurisdiction

over fish and wildlife. While this

argument is often raised as an objection

to Federal actions regarding fish and

wildlife management, the NPS is legally

obligated to manage the NPS areas in

Alaska in accordance with statutory

mandates and purposes. While the NPS

follows State law to the fullest extent

possible in the management of fish and

wildlife, there are situations in which

there is a conflict between State law and

Congressional mandates for Federal

areas. Federal subsistence law under

ANILCA is perhaps the most wellknown example of such a conflict in

Alaska, but there are other examples of

which the same-day-airborne method of

taking in NPS areas is one. The NPS has

been able, over the years, to manage

within the State framework for sameday-airborne taking of wildlife as

described above. However, changes in

the State approach to wildlife

management and corresponding

adjustments in the application of sameday-airborne rules threaten to violate

the separate and distinct Federal

mandates established for NPS areas.

This rulemaking recognizes that State

and Federal mandates differ in this case

and adopts a separate Federal rule for

NPS areas that complies with applicable

Federal law and policy for park areas.

The NPS remains committed to

managing fish and wildlife in a way that

avoids unnecessary interference with

State management of resident wildlife

resources.

5. The Proposed Rule Is Not Based on

a Biological Problem

Many commenters stated that there is

not a biological basis for the proposed

regulation because wildlife populations

are generally healthy and are managed

by the State to maintain continued
18534 Federal Register / Vol. 60, No. 69 / Tuesday, April 11, 1995 / Rules and Regulations

viability of populations. The NPS

acknowledges that the proposed rule is

not based on biological concerns for the

health of wildlife populations and such

reasons have not been used as a

justification for the rulemaking. The

reasons stated in the two Federal

Register publications of the proposed

rule, and above in this document, are

the basis for this rule. Existing closure

regulations under both State and

Federal law appear to be sufficient to

protect wildlife when biological data

indicates this is necessary, and this rule

should not be interpreted as suggesting

that State wildlife management is in any

way deficient in this regard.

Immediate Effective Date

The final rule establishes a

prohibition on hunting on the same day

in which the hunter has flown on an

aircraft. The rule is based upon the

determination that activities such as

those allowed under State

authorizations for same-day-airborne

taking of wildlife conflict with NPS

management mandates and policies, and

invite enforcement problems with the

Federal Airborne Hunting Act. The rule

is intended to reduce the incidence of

aircraft harassment of wildlife and to

reduce the potential for aircraft assisted

taking of wildlife. The rationale for the

rule is more fully discussed at 59 FR

58804.

In accordance with the

Administrative Procedure Act (APA) (5

U.S.C. 553(d)(3)), the NPS has

determined that publishing this final

rule 30 days prior to the rule becoming

effective could result in public

confusion resulting from reliance on the

January 13, 1995, State of Alaska

authorization of same-day-airborne

caribou hunting in several NPS areas

that will be closed to such hunting by

this rule. Therefore, in accordance with

5 U.S.C. 553(d)(3), the NPS finds good

cause to make this rule effective on the

date published in the Federal Register.

Drafting Information

The primary authors of this regulation

are Lou Waller, John Hiscock, Steve

Shackleton and Paul Hunter of the NPS

Alaska Regional Office.

Paperwork Reduction Act

This rulemaking does not contain

information collection requirements that

require approval by the Office of

Management and Budget under 44

U.S.C. 3501 et seq.

Compliance With Other Laws

This rule was not subject to Office of

Management and Budget review under

Executive Order 12866. The Department

of the Interior has determined that this

document will not have a significant

economic effect on a substantial number

of small entities under the Regulatory

Flexibility Act (5 U.S.C. 601 et seq.).

The economic effects of this rulemaking

are local in nature and negligible in

scope.

The NPS has determined that this

proposed rulemaking will not have a

significant effect on the quality of the

human environment, health and safety

because it is not expected to:

(a) Increase public use to the extent of

compromising the nature and character

of the area or causing physical damage

to it;

(b) Introduce incompatible uses that

may compromise the nature and

characteristics of the area, or cause

physical damage to it;

(c) Conflict with adjacent ownerships

or land uses;

(d) Cause a nuisance to adjacent

owners or occupants; or

(e) Affect the State hunting

population generally.

Based on this determination, the

regulation is categorically excluded

from the procedural requirements of the

National Environmental Policy Act

(NEPA) by Departmental guidelines in

516 DM 6, (49 FR 21438). As such,

neither an Environmental Assessment

nor an Environmental Impact Statement

has been prepared.

The rule has been evaluated in

accordance with Section 810 of ANILCA

and the NPS has determined there will

be no significant restriction on

subsistence uses. It is worthy of note

that the Federal Subsistence Board has

prohibited same-day-airborne taking of

ungulates (except deer), bear, wolves,

wolverines and furbearers for

subsistence uses on all Federal public

lands in Alaska (50 CFR Part 100).

List of Subjects in 36 CFR Part 13

Alaska, National Parks, Reporting and

record keeping requirements.

In consideration of the foregoing, 36

CFR Chapter I, Part 13 is amended as

follows:

PART 13—NATIONAL PARK SYSTEM

UNITS IN ALASKA

1. The authority citation for part 13

continues to read as follows:

Authority: 16 U.S.C. 1, 3, 462(k), 3101 et

seq.; Section 13.65(b) also issued under 16

U.S.C. 1361, 1531.

2. Section 13.21 is amended by

removing and reserving paragraph (a),

and revising paragraphs (d) and (e), to

read as follows:

§ 13.21 Taking of fish and wildlife.

(a) [Reserved]

* * * * *

(d) Hunting and trapping. (1) Hunting

and trapping are allowed in national

preserves in accordance with applicable

Federal and non-conflicting State law

and regulations.

(2) Violating a provision of either

Federal or non-conflicting State law or

regulation is prohibited.

(3) Engaging in trapping activities as

the employee of another person is

prohibited.

(4) It shall be unlawful for a person

having been airborne to use a firearm or

any other weapon to take or assist in

taking any species of bear, caribou, Sitka

black-tailed deer, elk, coyote, arctic and

red fox, mountain goat, moose, Dall

sheep, lynx, bison, musk ox, wolf and

wolverine until after 3 a.m. on the day

following the day in which the flying

occurred. This prohibition does not

apply to flights on regularly scheduled

commercial airlines between regularly

maintained public airports.

(e) Closures and restrictions. The

Superintendent may prohibit or restrict

the non-subsistence taking of fish or

wildlife in accordance with the

provisions of § 13.30 of this chapter.

Except in emergency conditions, such

restrictions shall take effect only after

the Superintendent has consulted with

the appropriate State agency having

responsibility over fishing, hunting, or

trapping and representatives of affected

users.

Dated: March 12, 1995.

George T. Frampton, Jr.,

Assistant Secretary for Fish and Wildlife and

Parks.

[FR Doc. 95–8692 Filed 4–10–95; 8:45 am]

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