Supplementary Information

Background

On October 23, 2015, the National Park Service (NPS) published a final rule (Final Rule) to amend its regulations for sport hunting and trapping in national preserves in Alaska (80 FR 64325). The Final Rule codified prohibitions on certain types of harvest practices that are otherwise permitted by the State of Alaska. The practices are: Taking any black bear, including cubs and sows with cubs, with artificial light at den sites; harvesting brown 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; taking black bears over bait; and using dogs to hunt black bears. This rule is inconsistent with State of Alaska’s hunting regulations found at 5 AAC Part 85.

Since the publication of the Final Rule, the Secretary of the Interior issued two Secretarial Orders regarding how the Department of the Interior should manage recreational hunting and trapping in the lands and waters it administers, and directing greater collaboration with state, tribe, and territorial partners in doing so.

On March 2, 2017, Secretary Zinke signed Secretarial Order 3347, Conservation Stewardship and Outdoor Recreation. Part of the stated purpose of Secretarial Order 3347 is to increase outdoor recreation and improve the management of game species and their habitat. Secretarial Order 3347 directs the Department of the Interior to identify specific actions to (1) expand access significantly for recreational hunting and fishing on public lands; and (2) improve recreational hunting and fishing cooperation, consultation, and communication with state wildlife managers.

On September 15, 2017, Secretary Zinke signed Secretarial Order 3356, Hunting, Fishing, Recreational Shooting, and Wildlife Conservation Opportunities and Coordination with State, Tribes, and Territories. Part of the stated purpose of Secretarial Order 3356 is to increase outdoor recreation opportunities for all Americans in greater collaboration with state partners, including opportunities to hunt. Secretarial Order 3356 directs the NPS to (1) identify whether hunting opportunities on Department lands could be expanded; (2) work cooperatively with state wildlife agencies to enhance their access to Department lands for wildlife management actions; (3) work cooperatively with state wildlife agencies to ensure that hunting regulations for Department lands and waters complement the regulations on the surrounding lands and waters; and (4) work in close coordination and cooperation with the appropriate state wildlife agency to begin the necessary process to modify regulations in order to advance shared wildlife conservation goals/objectives that align predator management programs, seasons, and methods of take permitted on all Department-managed lands and waters with corresponding programs, seasons, and methods established by state wildlife management agencies.

The purpose of this proposed rule is to align sport hunting regulations in national preserves in Alaska with State of Alaska regulations and to enhance consistency with harvest regulations on surrounding non-federal lands and waters in furtherance of Secretarial Orders 3347 and 3356. The proposed rule would apply the State of Alaska’s hunting regulations to national preserve lands, with limited exceptions found elsewhere in NPS regulations. See, e.g., 36 CFR 13.42(d).

The 2015 Final Rule prohibits the hunting practices otherwise permitted by the State of Alaska because NPS found those practices: (1) To have intent or potential to alter or manipulate natural predator-prey dynamics, and associated natural ecological processes for the purpose of increasing harvest of ungulates by man; (2) to adversely impact public safety; or (3) to be inconsistent with federal law authorizing sport hunting in national preserves in Alaska. However, states have primary jurisdiction to manage wildlife throughout their state. In addition, NPS has broad discretion in managing wildlife on national preserves under applicable laws, policies, and regulations.

Taking into account the Secretarial Orders described above, NPS has re-considered its earlier conclusions and determined that these previously prohibited practices can be allowed consistent with the goal of aligning its rules with those of the State. Allowing these practices is consistent with NPS Management Policy 4.4.3 which provides that NPS does not allow activities to reduce the numbers of native species for the purpose of increasing the numbers of harvested species. The discussion in the 2015 rule of an action’s “intent or potential” to manipulate predator dynamics goes beyond the plain language of section 4.4.3 of Management Policies. Additionally, the State of Alaska disputes that the hunting methods and seasons (allowed by the state but prohibited by current NPS regulations) are intended to function as a predator control program. Rather, the State asserts the hunting regulations are intended to provide opportunity for harvests of wolves, coyotes, bears, and other species as requested by the public. The State also maintains that any effects to the natural abundances, diversities, distributions, densities, age-class distributions, populations, habitats, genetics, and behaviors of wildlife from implementing its regulations are likely negligible. As noted below, NPS will prepare an environmental assessment for this regulation to determine whether it will have any significant impacts on wildlife or other resources.

With respect to the practices that NPS previously determined to be inconsistent with federal law authorizing harvest for sport purposes in national preserves in Alaska, no applicable federal law or regulation defines “sport hunting.” With regard to NPS’s statement in the 2015 rule that baiting poses an increased public safety risk, the State of Alaska’s position is that baiting does not cause bears to become food-conditioned, and therefore a greater safety concern.

Proposed Rule

For the above stated reasons, the NPS proposes to remove paragraphs (f) and (g) of 36 CFR 13.42. Paragraph (f) states that State of Alaska management actions or laws or regulations that authorize taking of wildlife are not adopted in park areas if they are related to predator reduction efforts, which is defined as efforts with the intent or potential to alter or manipulate natural predator-prey dynamics and associated natural ecological processes, in order to increase harvest of ungulates by humans. Paragraph (g) sets forth a table of prohibited methods of taking wildlife for sport purposes in national preserves in Alaska. Most of these prohibited methods are also prohibited by the State of Alaska. Some of them, however, conflict with authorizations by the State of Alaska as explained above. The NPS believes that removing paragraphs (f) and (g) would implement the directive announced in Secretarial Orders 3347 and 3356 by increasing hunting opportunities in national preserves and promoting consistency between federal regulations and state wildlife harvest regulations. In addition, the proposed rule would remove the definitions of “Big game”, “Cub bear”, “Fur animal”, and “Furbearer” from section 13.1 because those terms are only used in paragraphs (f) and (g).

Compliance With Other Laws, Executive Orders and Department Policy

Regulatory Planning and Review (Executive Orders 12866 and 13563)

Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.

Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation’s regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. The NPS has developed this rule in a manner consistent with these requirements.

Reducing Regulation and Controlling Regulatory Costs (Executive Order 13771)

This rule is not an E.O. 13771 regulatory action because this rule is not significant under Executive Order 12866.

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: Proposed Revisions to Sport Hunting and Trapping Regulations in National Preserves in Alaska” which can be viewed online at http://parkplanning.nps.gov/akro.

Small Business Regulatory Enforcement Fairness Act

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. 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 (2 U.S.C. 1531 et seq.)

This rule does not impose an unfunded mandate on state, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on state, local or tribal governments or the private sector. It addresses public use of national park lands, and imposes no requirements on other agencies or governments. A statement containing the information required by the Unfunded Mandates Reform Act 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. This proposed rule only affects use of federally-administered lands and waters. It has no outside effects on other areas. A Federalism summary impact statement is not required.

Civil Justice Reform (Executive Order 12988)

This 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 (Executive Order 13175 and Department Policy)

The Department of the Interior 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. We have evaluated this rule under the criteria in Executive Order 13175 and under the Department’s tribal consultation and Alaska Native Claims Settlement Act (ANCSA) Native Corporation policies and have determined that the rule may have substantial direct effect on federally recognized Indian tribes. The NPS has invited Alaska native tribes and corporations to consult on the proposed rule and has consulted with those tribes and corporations that have requested consultation.

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

NPS will prepare an environmental assessment to determine whether this rule will have a significant impact on the quality of the human environment under the National Environmental Policy Act of 1969 (NEPA).

Effects on the Energy Supply (Executive Order 13211)

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

Clarity of This Rule

The NPS is required by Executive Orders 12866 (section 1(b)(12)) and 12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule the NPS publishes must:

(a) Be logically organized;

(b) Use the active voice to address readers directly;

(c) Use common, everyday words and clear language rather than jargon;

(d) Be divided into short sections and sentences; and

(e) Use lists and tables wherever possible.

If you feel that the NPS has not met these requirements, send the NPS comments by one of the methods listed in the ADDRESSES section. To better help the NPS revise the rule, your comments should be as specific as possible. For example, you should identify the numbers of the sections or paragraphs that you find unclear, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

Public Participation

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

Public Availability of Comments

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

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

Part 13 National Park System Units in Alaska